Bill of Rights in Australia

As the implementation of a Bill of Rights becomes increasingly popular in developed, western countries, Australia remains one of a few having not adopted the charter designed to protect the most fundamental of human rights. The vacillation of the Australian government regarding a Bill of Rights has, as a result, caused much debate amongst politicians and individuals raising both supporting and opposing arguments in regards to its introduction, with three key issues in dispute. These issues, the nature of rights, judicial power and constitutional democracy, will be discussed and analysed in detail throughout the essay, using information drawn from two recent Sydney Morning Herald articles, "For the people's sake, we must reject a bill of rights", written by John Howard, and "Bill of rights looks dead in the water", written by Phillip Coorey.

Nature of Rights

The term 'human rights' refers to the universal rights that one has simply because one is human. While a majority of Western countries have an explicit bill of rights within their legal system, Australia has developed implied rights through the common law and judicial precedence. However, according to Phillip Coorey, a US-style bill of rights is not being advocated for, rather the creation of legislation protecting fundamental human rights, recognised as those rights which are owed to everyone, regardless of race, sex, religion and appearance .

This view is shared by several legal professionals , all of whom share the belief that Australia is not in need of a constitutionalized bill of rights. Bob Carr, premier of New South Wales, has stated in the article that "Australia is one of the freest countries in the world, and a whole lot freer than many countries with a charter of rights" . Australia has been rated as the fourth 'best country in the world' to reside in, measured by quality of life, even without having incorporated a charter of rights into the Constitution . The Constitution itself is a secure form of protection for basic political rights, curtailing the increasing power acquired by governments through the division of powers and a system of checks and balances . Additionally, incorporating a bill of rights may create controversy through granting special priviledges to certain ethnic or religious groups and restricting the rights of individuals.

Separation of Powers

Under the separation of powers model, the Commonwealth is divided into three branches, all of which are completely separate and individually responsible for certain areas to ensure that one branch is not more powerful than another. As John Howard notes in his article, "the three great guarantees of Australian democracy are a robust parliamentary system, an independent and incorruptible judiciary and a free and sceptical press" . It is likely that adopting a Bill of Rights will "further weaken the role of Parliament, and therefore, in a very basic way, the quality of our democracy" . This is largely due to the fact that while Parliament would still have the authority to draft legislation, the judicial enforcement of a Bill of Rights may be inconsistent with what society expects. As a result of the checks and balances instituted by the three arms of government doctrine, it is possible the judiciary could strike down legislation they deem to be in stark conflict with human rights explicitly stated in the Bill of Rights. John Howard believes that this transference of "ministerial decision-making to statutory authorities" greatly weakens the quality of Australia's democracy .

Moreover, Australia has a democratic system of government, in which all citizens are given the ability to vote a political party in or out of Parliament. It therefore does not make sense that the elected party would abuse fundamental human rights, as they would be voted out of Parliament for doing so. Even if this did not occur, the separation of powers and Australia's implied rights ensure that any acts proposed by the government are not enacted if they contain any provisions which may be viewed as immoral or in contradiction to said fundamental human rights.

Another example of the separation of powers being overstepped was the High Court implying rights into the Australian Constitution. Implied rights are those which are not apparent from the actual text, but instead are suggested and open for interpretation. These rights provide a degree of comfort and security to those in favour of a bill of rights without the