Australia's Statutory Bill of Rights


Bills of rights have been put in place in many countries and are powerful documents. Australia is one of the few countries in the world and the only western nation in the world which hasn’t put in place a Bill of Rights. Although traditionally Australia has a good record of protecting our basic human rights, lately some citizens have found their

rights to be taken away from them through legislation such as the Anti-terror laws. There is no set bill of rights for Australia to just adopt but it can either follow Britain or America’s bills of rights. Britain has a bill of rights separate to their constitution (Statutory Bill of Rights) and America has a bill of rights attached to their constitution. It is imperative for Australia’s evolution that the country set in place a statutory Bill of Rights similar to the one Britain has in place.

Australia may not have a Bill of Rights but the country’s constitution has protected some rights that we think are necessary. The Australian constitution has expressed and implied rights. The expressed rights include right to trial by jury (s116), freedom from discrimination on the basis of residence, the right to vote (s92) and the right to free exercise of religion (s116), (The Australian Constitution 2007) the only implied right so far is the right to listen to political discussion. (UNSW Handbook course 2007) These rights are not enough for the Australian society as it continues to change.

Australia may not have any other rights specifically written in the constitution but the country has written legislation that protects some other rights we have. The right to life is protected in the criminal code through legislation concerning murder. This is called statute law; it is when the government writes legislation in the interests of the nation. This is in Australia’s tradition and is called parliamentary sovereignty. Parliamentary sovereignty means that if a government writes legislation the people don’t agree with they can vote that government out of power in the next election. The government can’t take away our right to vote, as it is an expressed right in the constitution.

The government can and has written legislation, which has limited or removed our rights or as they would like to call it “balancing our rights”. This includes censorship laws and defamation laws, which limit our freedom of expression. Also the government has written Anti-Terror legislation which can and has removed our right to a presumption of innocence.

The Anti-terror legislation has recently been in the media when it was used against suspected terrorist Dr. Mohammed Haneef. Dr. Haneef was suspected to be working or affiliated with terrorist organisations and was detained for close to a month with no charges placed upon him. (Government must review counter terror laws 2007) This detainment without charges is clearly in violation of a person’s right to presumption of innocence. This is a perfect example of why Australia needs a Bill of Rights. If we had a Statutory Bill of Rights the Australian nation would be aware of the right to presumption of innocence and as a nation we wouldn’t allow the government to impinge upon that right. The right to presumption of innocence is a right in the United Nations declaration of human rights. (Haneef case shows why anti-terror laws must go – Socialist alternative 2007)

Human rights in Australia are also protected through common law, or law made by judges. When judges are presented with a case and there is no precedent, the judge has to interpret the law and often when there is no precedent the judge will look to international conventions. International conventions are treaties that Australia has signed along with other nations, such as the United Nations declaration of human rights. Most of the world has signed this treaty and it is up to that’s country’s to interpret the rights and ratify them through legislation. The problem with common law is the fact that a case needs to be presented to the judge before they can make a decision. In the case of Mabo, Australian common law was re-written to allow Australian aboriginals land rights, through native title. This case may prove that common law is protecting our rights but if Mabo never challenged the High Court then Aboriginals may not have any land rights even today.(Land & Sea Right : Native Title : The Mabo case 2003) This is why common law is not enough to protect our rights.

The styles of Bills of Rights Australia could adopt would be either the American system or the Britain system. The first option would be the American style system, where the Bill of Rights is attached to the constitution. This style of Bill of Rights has an obviously flaw, which is the fact the constitution cannot be changed unless a referendum is held and in Australia referendums are not only rare but rarely pass. The second option and most logical choice would be to follow in the footsteps of Britain and New Zealand. Their Bill of Rights is a separate piece of legislation and is known as a statutory Bill of Rights. This would mean that parliament could easily overrule it with more legislation as society grows and changes. Although due to the fact that the citizens of the nation would be aware of their rights, the government would be under heavy scrutiny if they were to change or remove a right.

The biggest problem with a Bill of Rights is that it will reflect the attitudes of the society at that time. Society is always changing and if the Bill of Rights for that country cannot change with the views of society outcomes could be hazardous. Currently this can be seen in the United States of America. Their Bill of Rights is part of their constitution which was written at the end of the American war of independence. The second amendment of their Bill of Rights states that “A well regulated militia, being necessary to the security of a free state, the right to bear arms, shall not be infringed.”(United States Bill of Rights 2007) This has lead to the out of control laws the United States has on gun ownership and has also caused many gun massacres.

A statutory Bill of Rights will eliminate the problems with Australia’s tradition of parliamentary sovereignty. The Bill or Rights will give rights to those who have no rights. It will give power to those minority groups that the government tends to abuse. For example at present day homosexuals have no right to marry in Australia and the topic is too hot for politicians in the country to touch. With a well thought out Bill of Rights homosexuals would be able to marry and our rights will be well protected.

It is clearly evident that Australia needs to implement a statutory Bill of Rights. This Bill of Rights will protect our rights as Australian citizens, it will educate the nation as to what our rights actually are and if need be the Bill of Rights can change with the attitudes of society. The Bill or Rights needs be well thought out; the writers must look into the future to where our society is going rather than where it is. This will allow for the society to evolve in a manner that is possibly freer than we are right now.

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