Should Australia Have a Bill of Rights?

Ethan James Hunt
VCE Legal Studies Unit 3
Alana Burke
Catherine McAuley College

22/25 marks
90 minutes allocated time

Is it time for a Bill of Rights?

Whether or not Australia should adopt bill of rights has become a very contentious topic. While Australia is the only Western democratic state without a bill rights, this does not mean we as a nation should simply adopt such a bill purely to fall inline with the rest of our western brethren. The Constitution of the Commonwealth of Australia does protect only a limited number of rights, however the structural protections within the constitution – and the ability of the High Court to interpret the constitution and it’s meaning – provide for protections of citizens of the Commonwealth as well as flexibility and discerning in individual cases by justice’s of the High Court where appropriate. However in saying this, a Bill of Rights, such as that in the Unites States’ Constitution, does provide benefits of its own, such as giving the judiciary more power over the legislative, whom may be better distinguished to protect individual freedom’s and create precedents for such scenarios, rather than politicians.

The adopted approach of the Commonwealth of Australia involves a mix of expressly entrenched rights, as well as implied rights asserted from common law by the judiciary; as well as individual acts of parliament that may grant citizens rights on a certain area, such as the Sex Discrimination Act 1984 (Cth.), or provide citizens with a range of enumerated rights such as Human Rights bills passed by bother Victorian and Australian Capital Territory parliaments. The acquisition of property on just terms (Section 51 xxxi), the right to trial by jury in a federal court (Section 80), the freedom of movement (Section 96) and of religion (Section 116), as well as protection against discrimination on the basis of state residence (Section 117) are the five rights that are entrenched – written within – the Australian Constitution. However these rights are very limited in scope comparison to rights typically associated with a bill of rights such as rights of speech, the press, petition and assembly such as that in the first amendment if the United States’ Constitution. These five rights, however, are not the major mechanisms that protect rights in the Commonwealth Constitution.

The three structural protections of the separation of powers, and the notion of both a representative and responsible government, are the three major protections in place that protect citizens rights in Australia. With the separation of powers in place, it prevents power from being concentrated in any one body, and helps to protect individual rights by providing checks and balances on the power of the Commonwealth Parliament. In essence, the separation of powers negates the necessity to entrench rights that would bestow rights upon citizens that would prevent governments from acting tyrannically or autocratically. The notion of a responsible government protects the right of citizens to be governed by a government that has the confidence and support of the lower house, further negating the entrenching of rights that would prevent abuse of power, of which such a notion is not states in the American Constitution. The notion of a representative government allows for direct election by the people of their political representatives, giving the people the right to expect that those representatives will represent their needs in parliament as much as possible. This notion enshrines our right to vote to all Australian citizens that are inherent and inalienable to such a degree as it does not interfere with the notion of a representative government. All these structural protections allow an alternative to enumerable entrenched rights in the American Constitution, when these structural protections could be representative of multiple rights, as and such negate the need for a bill of rights.

The ability of the High Court to interpret the Constitution also allows for flexibility in the application of rights, and also allows for the creation of implications from the wording of the Constitution for the establishment of new rights. Such an example is the implied right to the freedom of political communication, as established via National Television v. the Commonwealth, and Nationwide News v. Wills, in which the High Court decided that the notion of a representative government was linked with a limited freedom of political communication as a representative government could only function appropriately if there was freedom for people to communicated about political issues. The ability of the High Court to interpret the Constitution and make implications allows for flexibility when it is deemed to be necessary and safeguards the people’s rights as the vanguard of the constitution.

One High Court case that best illustrated the protection of citizens rights in regards to the right to vote is the case of Roach v. Electoral Commissioner. In challenging the constitutional validity of the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth.), Roach challenged the ability of parliament to legislate to deny all sentenced and incarcerated persons suffrage in both this act, and the prior 2004 Act that denied it to those incarcerated for three or more year terms. The High Court held that the 2006 Act was unconstitutional and therefore invalid. The notion of a representative government required that both the House of Representatives (Section 24) and the Senate (Section 7) shall be “directly chosen by the people”, and the principle requires that the people must have an equal vote. However the 2004 Act was still ruled as valid, as the parliament could restrict a person’s right to vote if necessary to preserve a representative government, such as for serious criminal misconduct – being incarceration for three or more year-terms. The High Court acts on behalf of the people as the ultimate check on the government’s power, by guarding the rights of citizens and in this case in particular, their right to vote, and as a result, a much larger proportion of persons in Australia’s prison system were represented in parliament. With the mechanisms of the High Court acting in place of a bill of rights that would enumerate the right to vote. while however, still allowing for flexibility, in the denying of the right to vote to those whom would be deemed as ‘unrepresentative’ of the Australian population.

In contrast, the United States of America, does have a Bill of Rights entrenched within their constitution. Ten enumerated rights are listed as the first ten amendments in their constitution, such as the first amendment, proclaiming the right to the freedom of speech, religion, the press, assembly and petition; and the second amendment, proclaiming the right to keep and bear arms. Some benefits of this is that it provides a long list of protections for American citizens and that these rights cannot be easily changed. However due to the complex nature of the United States’ demographics and complex referendum mechanism, rights are virtually impossible to change, meaning that these rights are unable to adapt to modern times or to changing attitudes and values within society. The narrow interpretation of the American Bill of Rights by the Supreme Court can also lead to injustices unlike the use of Australia’s structural protections that can be interpreted much more broadly. In almost all other regards, the United States and Australia are very similar constitutionally. Both have a High or Supreme Court that can interpret the constitution, both involve the usage of entrenched rights, implied rights and structural protections (with the omission of a notion of a responsible government and addition of a Bill of Rights in the United States’ Constitution). Not to mention that rights are fully enforceable by the courts in both instances, and both provide a mechanism to alter the constitution if deemed necessary, albeit farcically more difficult in the United States. The significant difference between the two is the United States’ reliance on the Bill of Rights that can be narrowly interpreted by the Supreme Court, and Australia’s reliance on structural protections, that can be broadly interpreted by the High Court. Both of which protect rights in their own regard.

Is it time for a bill of rights? No. Australia already has and utilises many mechanisms within the Constitution and the High Court, that allow for both continuity and flexibility where deemed appropriate, especially by the ability of the High Court to broadly interpret structural protections. While a Bill of rights may formalise these rights in enumeration, it could also lead to injustices with rights being interpreted very narrowly by the courts.

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