A Bill of Rights
Australia remains the only Western democracy without some form of national Human Rights Act or bill of rights equivalent.
However, the Australian Constitution does protect a limited range of rights & freedoms such as universal suffrage, the right to trial by jury, freedom of political communication, a basic protection of religious freedom, & a prohibition on discrimination based on State residency.
The Australian Constitution does not offer the protection of many rights we assume are protected, such as the right to free speech, peaceful assembly, a lawyer at trial, privacy, & freedom of movement.
To mitigate the potential problems the above may cause, Australia has enacted two safeguards for human rights protection:
The Human Rights (Parliamentary Scrutiny) Act: This legislation requires a Statement of Compatibility that delineates Australia’s various international human rights obligations to accompany all proposed federal laws. This is subject to review by a Parliamentary Joint Committee on Human Rights.
The Australian Human Rights Commission (AHRC): a statutory body designed to keep the government accountable to national & international human rights standards.
Moreover, Australia has ratified seven of the eight major international treaties that deal with the protection of human rights. Although the treaties are not legally binding, some elements have been enacted into Australia’s domestic legislation.
However, a push to enact stronger rights protection has been a focal point this year as a slew of high profile events demonstrated that our existing protections may not be enough. These events include:
Revelations from the Northern Territory about some of the darkest incidents in the history of juvenile justice.
Recent laws that would allow terror suspects as young as ten to be detained, for up to a fortnight, without charge.
The UN’s stark condemnation of Australia’s handling of offshore detention centres.
If a Bill of Rights were to be enacted, there are two main forms it could take:
A Constitutional Bill of Rights: the strongest form of protection available, where rights are entrenched into the Constitution. Any subsequent changes could only be made via a national referendum to amend the Constitution.
A State Bill of Rights: a bill of rights enacted through an ordinary act of Parliament e.g. in the form of a Human Rights Act. This can be done at both a State/Territory & Federal level. Both the ACT & Victoria have passed such legislation. If Australia were to enact a Bill of Rights, this is the form most legal academics prefer.
Does Australia need a federal bill
of rights to prevent the erosion of
The Sydney Morning Herald, ‘Does Australia need a Bill of Rights?’
Stephen Blanks opinion in: Sydney Criminal Lawyers, ‘It’s time for an Australian Bill of Rights’
Above, reference 3.
The Conversation, ‘How a charter of rights could protect Australians’ fundamental freedoms’
Gillian Triggs opinion in: The Guardian, ‘Gillian Triggs: Australian law has fallen prey to ‘isolation & exceptionalism’’
Huffington Post, ‘Data Retention Laws Are Now In Effect & Here's What You Need To Know’
The Conversation, ‘Roxon got it right: we don’t need a bill of rights because we’ve already got one’
The Australian, ‘Bill of rights unwelcome outcome of politicising judges’
The Australian, ‘Bill of rights is the wrong call’
Above, reference 3; The Australian, ‘Bill of rights: picnic for lawyers disastrous for democracy’