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Why Australia Needs a National Bill of Rights

What is a Bill of Rights?

A bill of rights is a set of fundamental rights and freedoms that are legally protected.[1]  Many common law countries including the United States, United Kingdom, Canada, and New Zealand have a bill of rights that protect people presiding in those countries.[2]  However, at present, Australia does not have a national Bill of Rights.  There is not one enshrined in our Constitution, nor has one been enacted into Federal Legislation.[3]  Meaning that members of the Australian community do not have these important rights and freedoms safeguarded. 

A bill of rights may contain some or all the following:[4]

  • the right to life
  • the right to human dignity
  • equality before the law
  • freedom of speech
  • freedom of assembly
  • freedom of religion
  • right to privacy
  • freedom from torture, ill treatment, and arbitrary detention

 

Australia’s Limited Rights and Freedoms

A bill of rights is often found in a country’s constitution, for instance, the United States Bill of Rights is found in the first ten amendments of their constitution. The Australian Constitution does provide a limited number of rights including the right to vote, the right to trial by jury, right to freedom of religion and the right not to be discriminated against based on State residency.[5]   However, these are nowhere near as comprehensive as what is provided by the bills in other western democratic countries.  For instance, in Australia, there is no constitutionally guaranteed right to life, right to human dignity, freedom of assembly, freedom of speech or freedom from torture.

 

Freedom of Speech?

Australians do not have a constitutionally guaranteed freedom of speech.  Although we do have freedom of political communication.  This is because the High Court’s interpretation of the Australian Constitution has found that this right is implied in our Constitution.  The right was found in the case of Nationwide News Pty Ltd v. Wills and Australian Capital Television Pty Ltd v. Commonwealth [1992].[6]  Sections 7 and 24 of the Constitution outlines that our government is to be made up of elected representatives.  The right to political communication is required because we have a democratic government in which politicians are elected by the people.  For Australians to make informed votes for members of government they must have full and uninhibited access to political news and be able to freely discuss politics.  In this way, the right to political communication is implied in our Constitution due to the nature of our democratic system of government set up by the Constitution.   Laws will be invalid if they prevent access to and discussion of politics and government.  Laws are only exempt from this if they are necessary to uphold the system of representative government.[7]

Unfortunately, the implied freedom of political communication is not as far reaching as freedom of speech found in other countries’ bill of rights.  The freedom only relates to discussion connected to politics, policy and government and it does not operate as a general guarantee to freedom of speech.[8]  It is not a personal right to express your own opinions about any topic, for example in art or on social media.[9]

 

State Legislation

The Australian Constitution granted individual states with the power to make their own state laws, meaning states can implement legislation not created by the Commonwealth.   As a result, some states have created their own bill of rights.  In 2004, The Australian Capital Territory introduced the Human Rights Act 2004 (ACT), this was followed by Victoria’s implementation of the Charter of Human Rights & Responsibilities Act 2006 (VIC).  And most recently, Queensland enacting its own Bill of Rights in 2018.[10]

Unfortunately, the legislation only applies to people presiding in those states, meaning New South Wales, Northern Territory, Tasmania, South Australia, and Western Australia are not afforded these protections or guarantees.  Another issue is that state legislation can also be undermined by section 109 of the Australian Constitution.  Which states:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Practically speaking this means that if one of the State or Territory human rights bills conflicts with legislation passed by the Commonwealth government, that section of the State legislation may no longer be enforceable.   Meaning if the Commonwealth government passes a law that takes away a right found in one of the state human rights bills, the Commonwealth law will apply, and the state legislation may be ruled invalid.[11]

 

What about international treaties that Australia has signed?

Bills of rights often contain rights and freedoms that are also found in international treaties.  Australia is signatory to various human rights treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[12]   However, international treaties will not apply to Australians unless they are implemented into domestic law.  For example, the Victorian Charter of Human Rights is modelled off the International Covenant on Civil and Political Rights.  Meaning the provisions of that treaty are effectively operating in Australia but only in Victoria.

To summarise, constitutionally enshrined rights are limited and nowhere near as comprehensive as what is contained in other countries’ bills of rights, nor what is recommended by human rights treaties.  As discussed, there is still no right to life, right to human dignity, freedom of assembly, freedom of speech or freedom from torture in Australia.

Australia’s freedom of speech is limited to a freedom of political communication.  And while the Australian Capital Territory, Victoria and Queensland have created their own versions of a Bill of Rights, the legislation is always at risk of being invalidated if it conflicts with Federal legislation.

 

A National Bill of Rights

Action needs to be taken at a Federal level by creating a Bill of Rights that applies to all the Australian community.  The government’s action of signing United Nations Human Rights Treaties perhaps reflects a willingness to consider a Bill of Rights for Australia.  The Australian Constitution empowers the Commonwealth government to create laws with respect to external affairs.  Which means the treaties we have signed can be developed into national pieces of legislation which could take the form of a National Bill of Rights.[13]  If the Australian Government implemented a National Bill of Rights everyone in the Australian community would have these important rights and freedoms protected.

 

If you wish to seek legal advice from human rights conscious lawyers, please contact Rep-Revive Criminal & Employment Lawyers ® on (02) 9198 1996 for a free initial consultation. 



[1] Commonwealth, Second Reading Speech, Senate, 21 November 1973, 1971 (Lionel Murphy, Attorney General).

[2] Benedict Coyne, ‘The Time is Ripe for a Bill of Rights’ (2015) 129 (May/June) Precedent 9, 10.

[3]Ibid 9.

[4] International Covenant on Civil and Political Rights UN GA Res 2200A (XXI), UN GAOR (16 December 1966).

[5] Australian Constitution ss 41, 51 (xxxi), 80, 116, 117.

[6] HCA 46.

[7] Kate Burns, ‘Freedom of Political Communication: The Importance of Freedom of Political Communication’ (2014) 26(2) Legaldate 6, 6; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

[8] George Williams, ‘Protecting Freedom of Speech in Australia’ (2014) 39(4) Alternative Law Journal 217, 218-9.

[9] ‘Article 10 protects your right to hold your own opinions’ Equality and Human Rights Commission (Web Page 12 June 2020) <https://www.equalityhumanrights.com/en/human-rights-act/article-10-freedom-expression>.

[10] Human Rights Bill 2018 (Qld). 

[11] George Williams and Daniel Reynolds, ‘The Racial Discrimination Act and Inconsistency Under the Australian Constitution’ (2015) 36(1) Adelaide Law Review 241, 242.

[12] ‘International Human Rights System’, Australian Government Attorney-General’s Department (Web Page) <https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/international-human-rights-system>.

[13] George Williams, ‘Legislating for a Bill of Rights Now’ (Speech, Department of the Senate Occasional Lecture Series, 17 March 2000) 12.

 

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