Bill of Rights in Australia

Australian political system is believed to be one of the most tolerant and democratic in the modern international community. The country has always been considered as one of the chief protectors and promoters of liberal values; the governments policies are now set as a model for many developing nations. The only source of controversy is the absence of a separate bill of citizens rights and privileges which should be made the topmost priority for the state.

The debate about the necessity of such charter circulates for more than twenty years. The supporters of this act argue that it is essential for the improvement of living conditions especially of those people who belong to the marginalized or low-income layers of Australian society¹. In turn, the opponents say that this charter would be practically useless because these rights are already safeguarded by the Constitution and common law and this change will entail only extra expenses and litigations rather than improvements². Several attempts have been made to introduce it but the public campaigns in support of this law were not successful. The majority of voters were rather unwilling to give their voices to this legislative act.

This is why it is vital to discuss the opposing points of views and the arguments advanced by both sides. Perhaps, this analysis will enable us to settle this dispute that lasts for so many years. Overall, we can say that one of major hindrances is the problem of definition. The interpretation of such concepts as privacy or freedom of expression is manifold; occasionally it can contradict other laws, established by Australian legislators. Besides, it is rather difficult even to enumerate all of them.

Those who do not believe in the practical value of the bill are firmly convinced that it will be only imitate already existing laws. For instance, in his article Bob Carr states “The common sense of the Australian people tells them they are free. And that a charter would increase litigation, not rights” (Carr, 2009, unpaged). His major argument is based on the assumption that the freedoms of Australians are ensured by the common law or legislation developed by judges in the course of court trials (Carr, 2009, unpaged). This is why there is no need to draft any additional documents. However, it should be borne in mind that case or common law is derived from the decisions of only one or several individuals who can be prejudiced or misinformed. This is one of the reasons why this bill should exist.

The key idea which the author tries to convey is that in a truly democratic society peoples rights will be protected even without such documents. He advocates the belief that improvements can be achieved only through political mobilization of the community. Mere existence of this charter will be of no avail unless the judicial system stands up for it and uses it as the major guideline during court trials. Furthermore, the question arises how to determine these liberties. The problem is that some of them can be omitted or overlooked by legislators and this will be a rude violation of democratic principles. In the long term, this will immensely downgrade the countrys achievements in the field of human rights protection.

On the one hand, Bob Carrs standpoint is rather convincing because the world history contains a great number of examples when liberties were only proclaimed to be the highest priority of the state but these policies were not pursued in practice; they existed only formally and had no ramifications for the citizens. Such situation could be observed in the former Soviet Union and other totalitarian states (Carr, 2009). Nonetheless, it should be pointed out that adoption of the bill can create new and more effective instructions for Australian lawyers, so they could interpret existing legislation in accordance with basic liberal values, and it is not often done nowadays as Michael Head says³.

On the whole, Bob Carr is a supporter of the countrys long-standing common law tradition, which means that he primarily relies on the integrity and prudence of the civil judges who are supposed to determine whether the legislation should or should not be changed to suit the needs of the people. He does not approve any amendments to the Australian Constitution as this will give rise bureaucracy or even pervert justice; yet this will not shield the rights of citizens from infringement of the state if there is any. Still, it seems that Bob Carr misrepresents the role of this charter. It can be only a supplement to the current legislation. Certainly, it has to be adjusted to the previous laws. Its purpose is not help judges and people, and this tool should not be taken as an attempt to limit or distort the rights of Australian citizens.

This belief is expressed by George Williams who claims that this charter will enable most disadvantaged people in the community to receive appropriate social services and support of the government (Williams, 2009, unpaged). First, George Williams says that it would be an ordinary act of Parliament. One must not regard this legislative act as something permanent or irreversible. It can be easily altered or modified if the public wants to do so.

Apart from that, this list will be compiled by those people who are elected by the nation rather than by unelected judges (Williams, 2009, unpaged). In this article he strives to dispel the myths about unelected judges: they will only be able to make recommendations rather than strike down laws. Most importantly, the scholar places emphasis on the fact that nowadays rights and liberties of average Australians are not clearly formulated and this makes easy to abuse or ignore them.

The journalist does not draw any specific examples nor names any cases, which entailed violation of human rights. But he mentions incessant discrimination against Native Australians. Naturally, this issue has long been the subject of publics scrutiny but without accurate data George Williams claims seem to be rather unsubstantiated. Furthermore, only by enumerating peoples privileges and compiling them in a charter, the government will not be able to alleviate the situation if these activities are not aided by governmental agencies and courts.

In addition to that, George Williams does not suggest any solution as to which of these rights should be made universal or if some restrictions should be imposed. It can be observed that the advocates of the bill are very reluctant to go into details and speak about the criteria according to which the basic rights will be selected and asserted in the future.

There is a different viewpoint on this issue, for instance, Michael Head maintains that the proposed charter of rights will bring only “cosmetic changes” (Head, 2007, unpaged). In other words, governmental institutions will easily find ways of evading or breaking the new law. The author discusses this question in connection with the so-called war on terrorism; in his opinion, modern Australian legislation gives the scope and possibility to limit human rights under such pretext as the struggle against terrorism. The journalist refers to the notorious APEC Meeting (Police Powers) Act, which was signed in law in 2007. It authorized the restrictions of individuals movements (i.e. imprisonment) under the condition that he or she could hypothetically pose a threat to life or property of the APEC members⁴.

Certainly, this act was subsequently abolished but this case eloquently illustrates Michael Heads argument: the state can find loopholes to infringe on citizens liberties if they want to do so. This is why the future charter must not leave any room for misinterpretation or deliberate distortion of human rights. It must be appropriately tailored in order to ensure that main liberties of people (such as eligibility for free trial or freedom of assembly) are not violated by the government or any related institutions.

Judging from this discussion, we can single out three perspectives:

1. the bill of rights is superfluous because it only reduplicates the principles of Australian constitution and common law;
2. this charter can serve as a helpful supplement to already existing legislation if it is ably compiled:
3. it will bring only cosmetic or minor changes without actually strengthening rights of average Australians.

To some extent, each of the aforesaid arguments has rational points. In order to decide whether this charter is necessary, we should first break some stereotypes about the common law and human rights. The thing is that very often people only take their civil rights for granted without inquiring about their exact legal status and this makes them jump to conclusions about the immunity of their freedoms.

For example, according to Mr. Justice David Malcolm, case law does not actually protect freedom of expression. Certainly, it is regarded as one of the core values but there are many limitations such as censorship laws, radio standards, contempt of parliament, sedition, hate speech and so forth⁵. These restrictions can be either reasonable or unreasonable but they significantly limit the concept of free speech. As it has been noted before, the same rule can be applied to the freedom of movement especially if we remember Police Powers Act.

These examples prove that it is critical to define basic human rights and this might be rather difficult because such notions as freedom of speech or privacy are subjective and they may have multiple meanings. As Justice Mr. Malcolm says the main of objective of such charter would to raise peoples awareness of their liberties (Malcolm, 1998, unpaged). From his perspective, many citizens do not even know that they constitutionally-protected privileges are abused.

Provided that they have such list in their possession they would be able to assess the policies of the government more objectively. This is one of the reasons why such charter should be drafted and incorporated into Australian legislation. Apart from that, approval of this resolution would definitely improve the countrys international image because at present the country is frequently criticized for the failure to develop the bill of rights.

Nevertheless, we should not forget about possible adverse consequences: it will undoubtedly increase the amount of litigation in the country. Any perceived violation of the human rights would end in the court room. The countrys life can transform into a constant legal trial. The charter will give rise to many disputes especially concerning the interpretation of basic privileges. For instance, sometimes it is rather difficult to draw a distinct line between free expression of thought and libel, or freedom of movement and intrusion. As a rule, the interpretation depends on the exact circumstances and the judge often follows his or her common senses and moral values. Thus, the role of common law will not diminish even after the introduction of the charter.

Therefore, it is quite possible for us to arrive at the conclusion that in its essence, the bill of rights can be a helpful supplement to the Australian Constitution and case law, because it can act as a guideline for judges so they could make their decision-making more effective. It will improve the countrys image on the international stage and raise peoples awareness of their basic freedoms. Yet, we should take into account the problem of definition of rights and excessive amount of litigation which this act will entail. First and foremost, legislators should determine which of these rights are currently safeguarded by the constitution and common law. Most importantly, they need to give precise explanation to each of them.

Bibliography

Articles/ Books/ Reports

Carr, Bob, ‘Bill of Rights is the wrong call’ (2009) The Australian. Web.

Head, Michael, Mann Scott, ‘Law in Perspective: Ethics, Society and Critical Thinking’ (2^nd ed. 2009), UNSW Press.

Head, Michael, ‘What role for a Bill of Rights in the ‘war on terror’?’ Paper presented at UWS Social Justice and Social Change Seminar, 2007.

The Hon Mr Justice David Malcolm AC, ‘Does Australia Need a Bill of Rights?, 1998, Murdoch University Electronic Journal of Law. Web.

Williams, George. ‘A Charter of Rights for Australia’ (3^rd ed. 2007). University of New South Wales Press.

William, George, ‘Wisdom of politicians is frail shield for our rights’ (2009). Sydney Morning Herald. Web.

Legislation

New South Wales.’ APEC Meeting (Police Powers) Act’, 2007. Web.

Office of Legislative Drafting, ‘Commonwealth of Australia Constitution Act’, 2003. Web.

Footnotes

1. See William, George, ‘Wisdom of politicians is frail shield for our rights’ (2009).
2. See Carr, Bob, ‘Bill of Rights is the wrong call’ (2009) The Australian.
3. See Head, Michael, ‘What role for a Bill of Rights in the ‘war on terror’?’.
4. Please refer to New South Wales.’ APEC Meeting (Police Powers) Act’.
5. See The Hon Mr Justice David Malcolm AC, ‘Does Australia Need a Bill of Rights?, 1998.