Constitutional bill of rights

Constitutionally entrenched rights

  • A bill of rights containing rights protected by a constitution and cannot easily be changed
  • These rights are supreme over all other ordinary statutes, and if they are inconsistent, the statute can be invalidated
  • The only way to change these rights is via the normal constitutional-changing process (s 128 in Aus)

“If society is tolerant and rational, it does not need a Bill of Rights. If it is not, no Bill of Rights will preserve it.”

– Harry Gibbs, former CJ of Australia

“The price of liberty is eternal vigilance”

– John Curran

For

  • Parliament has often avoided difficult issues regarding rights. A Bill would oblige the gov’t to act.
  • A Bill of Rights would establish standards for all legislation, and provide certainty for rights protection. Currently, complainants only have the uncertain Common Law and legislation both subject to parliamentary discretion.
  • These would effectively protect human rights in Australia as it would be impossible for a gov’t to act contrary to these rights without changing the Constitution. It would give recognition to certain universal rights.
  • Democratic processes do not effectively protect human rights in Australia, so something else is needed. It would give power of action to Australians who are otherwise powerless. Existing legal protections are inadequate.
  • It would improve policy-making by bringing it in line with international standards and hence fill Australia’s international obligations.
  • Australia’s adoption of a Bill of Rights would bring Australia in from the cold” – Mason CJ
  • However, “That [Australia being the only Western democracy without a bill of rights] must make us the only remaining Western country that is a true democracy – Janet Albrechtsen
  • It would promote tolerance and understanding in the community.

Against

  • Australia relies on the strength of existing democratic institutions to protect rights. These institutions are doing their job properly in comparison to the rest of the world.
  • The Common Law and other representative institutions (Parl) are best suited to protect civil rights.
  • A Bill of Rights would transfer power from the Parl to the Courts, undermining democratic principles. It takes the power to protect rights from democratic institutions to the unelected judiciary. The Bill would be interpreted with regards to the HC’s opinions, not societal values.
  • Rights may change over time, or change in importance to society. It would be difficult to reflect this in an constitutionally entrenched Bill, due to the difficulty of passing referenda. Entrenched Bills have the risk of entrenching archaic rights and being inflexible.
  • A Bill of Rights does not guarantee rights are protected (EXAMPLE NEEDED – probably Fiji re. Indian minority or USA re. terrorists)
  • Our basic rights are protected by the common law (however, can be overruled by Parl)
  • It would give unelected judges unchecked power. These judges cannot be held to account except for ‘proved misbehaviour or incompetence (s 72)‘. At least with Parliament, elections etc. can check and balance their power. There is a risk that judges may push their own personal agenda with activist decisions (contrary to the dominant values of society).
  • In addition, moral and social issues are argued to be beyond the role of judges.
  • The language of rights is vague and ambiguous, giving judges a blank check to essentially legislate from the bench
  • Conversely, a Bill of Rights may actually limit rights if defined too narrowly – to define is to limit (Wilde). This is especially seen in McGinty v. WA 1996 in which the HC held that s 41 did not yield an implied right to vote as it is explicitly defined to apply only to people enfranchised in their own State.

Other issues

Minority groups

“A measure of the civilisation of a society is the extent to which it protects for the needs of minorities, and protects them from adverse and unjust discrimination”

– Brennan CJ

  • Proponents hold that the only way to protect minority groups is via an entrenched Bill of Rights
  • They say the current system relies on the goodwill of the majority to protect minorities
  • Opponents dispute that a Bill of Rights is the only way, and that civilisation should be measured by its democratic principles, which are undermined by an entrenched Bill of Rights
  • Minority groups should not be favoured – humans rights should be universal
CASE STUDY:

Tony Blair’s Human Rights Act 1998 (UK)

  • As a progressive Labour politician, Blair passed the Humans Rights Act
  • Following 9/11, he battled with the courts to get his anti-terrorism laws legalised, which opposed them based on the 1998 Act – Blair’s laws would infringe on the rights of the alleged terrorists.
  • The prevailing view of the people in the UK at the time was to support Blair’s legislation.
Interpreting laws in relation to rights (read-down provisions)
  • Whilst some statutory Bills cannot invalidate other, there are usually provisions (UK: s 3 of the Human Rights Act 1998 and NZ) that allow judges to interpret all legislation in the light of the rights of the Bill
  • That is, if there exists an interpretation of the Bill which is consistent with the rights, then that interpretation is to be the right one.
  • However, this has lent itself to activist interpretations, often interpreting into and out of statutes words and phrases. Cf. Ghaidan v. Godwin Mendoza 2004 (UK) before the House of Lords.
Declaration of incompatibility
  • One option is to give courts the power to invalidate laws – this however undermines the principles of parliamentary sovereignty and other democratic principles
  • In other systems, a Bill of Rights is purely symbolic and has no legal power. This, of course, defeats the purpose of having a Bill to protect rights
  • In some systems (UK: s 4 and 10, and NZ) the courts can declare a law to be incompatible with rights and recommend that Parl change it, but cannot invalidate it a priori. Parl has no obligation to follow it, however, historically Parl has always changed the incompatible legislation.

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