Should Australia Have a Bill of Rights? A Critical Analysis

Introduction: Australia's Missing Bill of Rights

Australia is the last remaining common law country without a Bill of Rights or Human Rights Bill. It is important to note that the Australian variant of liberalism differs from the Anglo-American model in two important ways. First, the establishment of Australia as a series of British colonies under authoritarian governors, and the absence of any political revolution, has meant a lesser stress on the idea of individual rights versus the state. There has been no one in Australian history to shout "Give me liberty or give me death," and no real pressure to incorporate a Bill of Rights into the Constitution (Rowse, 1978).

Second, these factors — combined with the problems of economic development in Australia and the generally inhospitable nature of the land, a staple theme of Australian literature — have meant an absence of any real laissez-faire tradition. "Socialism" may be abhorred in the abstract, but there is a general consensus on the need for a strong interventionist state to guarantee basic economic welfare and promote development. Liberal governments accept, albeit reluctantly in some cases (e.g., Medibank), social welfare measures, and Labor governments enthusiastically seek economic growth and even foreign investment. This explains the seeming contradiction in Henry Albinski's remark that Australians are more ambivalent toward authority than Americans: "there is more rubbishing of authority figures and on the other hand more reliance on government than here" (i.e., the U.S.A.).

The Charter of Human Rights and Responsibilities Act 2006 (Vic) ("Victorian Charter of Rights") is a milestone in Australia's constitutional and political history. Despite the fact that it is not the nation's first bill of rights — that distinction belongs to the Human Rights Act 2004 (ACT) ("ACT Human Rights Act") (Campbell, 2006) — it is the primary instrument in an Australian state. Like the Australian Capital Territory law, it represents a ground-breaking, if modest, change to the Australian system of government, taking the form of an unentrenched Act of Parliament that protects a range of civil and political rights.

The Victorian Charter of Rights represents a decisive departure, at least in Victoria, from the long-held view that the best protection for human rights lies in the good sense of the parliamentary legislature, as enforced through the doctrine of responsible government, and the common law as applied by the judiciary. This view was promoted at the conventions of the 1890s that created the Australian Constitution (Campbell, 2006), and in the writings of nineteenth-century English legal theorist A.V. Dicey (Patapan, 1997). The view has attracted supporters such as former Prime Minister Sir Robert Menzies, who considered the doctrine of responsible government to be the definitive guarantee of "justice and personal rights" in Australia (Campbell, 2006). He argued that the doctrine meant Australia had no need for the "formality and definition" of rights in an instrument like a bill of rights (Patapan, 1997). In recent years this outlook has come under challenge as people have questioned whether the conventions relating to responsible government — such as ministerial accountability — retain the same force as they once did.

The enactment of the ACT Human Rights Act and the Victorian Charter of Rights also challenges the view that Australia has a strong record of protecting human rights that requires no enhancement through improved legal protections. In 1967, Sir Robert Menzies, recently retired as Prime Minister, commented that "the human rights of individuals in Australia are as adequately protected as they are in any other country on earth" (Debeljak, 2007). Similarly, then-Prime Minister John Howard stated in 2000 that "Australia's human rights standing in comparison with the rest of the world is fairly magnificent" (Conway, 1978).

While Australia unquestionably has a better human rights record than many other nations, the view that this record could not be substantially improved is no longer as readily accepted. Both the historic and contemporary shortcomings of the Australian record have been documented, including by the federal government's own Human Rights and Equal Opportunity Commission with regard to the forced removal of Aboriginal children from their families (the "stolen generations"), and the detention of children seeking asylum and the significant development of mental health problems among them (Conway, 1978). Events following September 11, 2001 have also led people to question how well human rights are protected in Australia — particularly following the enactment of new laws on sedition; the detention of non-suspects by the Australian Security Intelligence Organisation; control orders facilitating house arrest; and anticipatory detention whereby a person can be held without charge or trial. As Brian Burdekin, a former Australian Human Rights Commissioner, stated in 1994: "It is beyond question that our present legal system is gravely inadequate in protecting many of the rights of the most vulnerable and disadvantaged groups in our community" (Debeljak, 2007).

The Victorian Charter of Rights is significant not only because it represents an important change to the body of law. It is also important because it requires a re-evaluation of conventional views about Australian politics and law as they relate to the protection of human rights. The Victorian Charter demonstrates that it is possible to re-examine some of the most fundamental assumptions underlying our system of government and, consequently, to bring about legal reform. This challenges the view that bills of rights are not politically achievable in Australia. While that view once drew support from a long history of failed reform efforts across Australia (Allan, 2008), it has now been overtaken by the achievements in the ACT and Victoria, as well as by new national initiatives such as that of New Matilda for a national bill of rights (Campbell, 2006).

References

Conway, Ronald (1978). Land of the Long Weekend. Melbourne, p. 55.

Conway, Ronald (1971). The Great Australian Stupor. Melbourne, Chapter 5.

Rowse, Tim (1978). Australian Liberalism and National Character. Melbourne, p. 239.

Patapan, Haig (1997). Competing Visions of Liberalism: Theoretical Underpinnings of the Bill of Rights Debate in Australia. Melbourne University Law Review, 21, 497.

Power, John (1967). Family and Polity: A Socio-cultural View of Australian Federalism. In Henry Mayer, Australian Politics: A Reader. Melbourne.

Hartz, Louis (1964). The Founding of New Societies. New York.