Many have been recognised by courts in Australia, England and other common law countries for centuries. They form part of the history of the common law, embodying key moments in constitutional history, such as the sealing of the Magna Carta in , the settlement of parliamentary supremacy following the Glorious Revolution of and the enactment of the Bill of Rights Act In the modern period, and subject to certain limitations which, for most persons, were of not the least importance, individuals could worship as they pleased, hold whatever meetings they pleased, participate in political activities as they wished, enjoy a very extensive freedom of expression and communication, and be wholly unthreatened by the grosser forms of interference with personal liberty, such as officially sanctioned torture, or prolonged detention without trial.
They are generally enforceable. They are specifically adapted to the resolution of particular problems. Their makers seek, with some success, to make them generally coherent with each other and with the wider legal system. However, these matters are not the subject of this Inquiry. To frame this discussion, however, it is useful to consider briefly how these rights, freedoms and privileges are currently protected in law from statutory encroachment.
Broadly speaking, some protection is provided by the Australian Constitution and, less directly, by rules of statutory construction. It is also useful to consider the nature and function of common law rights. The rights expressly protected by the Constitution are:. This approach was adopted for the most part by the Australians in constitution-making. It explains in large degree the shortage as it is now perceived of explicit statements of ideals and guarantees of rights, and descriptions of essential human and national attributes.
They preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers. Their model in this respect was, not the United States Constitution, but the British Parliament, the supremacy of which was by then settled constitutional doctrine. We should not underestimate the power of the common law constitution to protect fundamental rights, and the central role it ascribes to the individual conscience in testing the moral credentials of law, or rather of what purports to be law but may, on inspection, prove to be an infringement of the rule of law.
In Australia, it has had only limited application; it has not been applied to invalidate unambiguous statutes. Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation. Fundamental rights cannot be overridden by general or ambiguous words.
This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
Instead, protections for human rights may be found in the Constitution and in legislation passed by the Commonwealth Parliament or State or Territory Parliaments. There are five explicit individual rights in the Constitution. These are the right to vote Section 41 , protection against acquisition of property on unjust terms Section 51 xxxi , the right to a trial by jury Section 80 , freedom of religion Section and prohibition of discrimination on the basis of State of residency Section The High Court has found that additional rights for individuals may be necessarily implied by the language and structure of the Constitution.
In the Court decided that Australia's form of parliamentary democracy dictated by the Constitution necessarily requires a degree of freedom for individuals to discuss and debate political issues.
However, the result shows that this is by no means easy and that any attempt to insert new rights into the Constitution should be carefully considered and prepared. A Statutory Bill of Rights. The experience of the New Zealand Bill of Rights Act demonstrates the potential effectiveness of a statutory Bill of Rights and the value, at least initially, of protecting rights using this means rather than by amendment of the Constitution. As statutory Bills of Rights, being instruments that are not constitutionally entrenched, they can be repealed or altered by parliament.
They accordingly do not amount to an irrevocable transfer of sovereign power from the legislature to the judiciary. Despite this limitation, the New Zealand instrument, in the hands of a cooperative judiciary, has made an important contribution to the protection of basic freedoms.
It is an ordinary unentrenched Act of the New Zealand Parliament. The Act recognises a number of rights, ranging from the freedoms of expression section 14 and association section 17 to the 'right not to be subjected to medical or scientific experimentation without that person's consent' section The protection afforded to such rights by the statute is limited.
Section 2 states that: 'The rights and freedoms contained in this Bill of Rights are affirmed' and section 3 that the Act applies to acts done by the legislative, executive, or judicial branches or by a person or body in the performance of a public function carried out under law. Under section 5, the listed rights 'may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'.
However, under section No court shall, in relation to any enactment whether passed or made before or after the commencement of this Bill of Rights , -. At best, the statute allows the judiciary, under section 6, to interpret an enactment of the New Zealand Parliament so as to prefer 'a meaning that is consistent with the rights and freedoms contained in this Bill of Rights'.
While the meaning of each of sections 4, 5 and 6 is clear, they produce a difficult and confusing interaction. Despite the apparently limited protection granted by section 6 to the rights listed in the New Zealand Bill of Rights Act , judicial application has meant that the Act has played a prominent, and perhaps unexpected, role in fostering civil liberties.
The effectiveness of the New Zealand Bill of Rights Act suggests that if the goal is to bring about an effective scheme of rights protection in Australia, there should not be any immediate move to insert a Bill of Rights in the Constitution. The referendum and the lack of basic knowledge of Australians about their constitutional system 90 repudiates such a course.
A recent survey also found a 'deep partisan divide among legislators over a bill of rights' and concluded from this that 'any possibility of constitutional entrenchment by means of referendum is out of the question'. The Federal Parliament must play a central role in this process. A first step for the Federal Parliament might be to convene a joint parliamentary committee, or a special commission consisting of both parliamentary and non-parliamentary members, to publicly examine ways in which the Federal Parliament could work to enhance the level of protection afforded to fundamental freedoms in Australia.
The terms of reference of the body should be drafted to enable it to examine models such as the United Kingdom's Human Rights Act and the New Zealand Bill of Rights Act, and to determine whether a modified form of either statute would be appropriate for Australian conditions and the extent to which the parliamentary committee system could play a role under such a statute. The body should also be empowered to identify core rights and freedoms consistent with the values of contemporary Australians that are the most deserving of protection.
Reform of the Committee System. Parliamentary committees can play an important role in examining legislation for compliance with human rights principles. This Committee does not examine delegated legislation. Under Senate Standing Order 23 a separate committee, the Senate Standing Committee on Regulations and Ordinances, examines delegated legislation by applying like criteria.
Under section 3 of the Canadian Bill of Rights, section 7 of the New Zealand Bill of Rights Act and section 19 of the Human Rights Act, the Federal Minister of Justice, the Attorney-General or a Minister of the Crown, respectively, are required to report on legislation introduced into parliament, so as to highlight any inconsistencies and incompatibilities with the rights protected under the relevant instrument.
The weakness in this approach is that it entrusts the responsibility for detecting breaches of the instruments to the government that has proposed the legislation. A Canadian commentator has suggested that: 'To put real teeth into such a provision, a standing committee of the House of Commons would have to be established'.
The Australian committee system might be adapted to make a greater contribution to the protection of fundamental rights. A joint standing committee of the Federal Parliament, or standing committees of both the Senate and the House of Representatives, might be created to examine legislation and delegated instruments for compliance with a statutory Bill of Rights or, in the absence of such a Bill, with an agreed list of fundamental rights.
Alternatively, the mandates of the existing Senate Standing Committee for the Scrutiny of Bills and the Senate Standing Committee on Regulations and Ordinances might be extended by expanding the meaning of 'personal rights and liberties' to include a defined set of basic freedoms.
The creation of a committee in the Commonwealth Parliament or the expansion of the brief of existing committees would serve two primary purposes. It would allow the vetting of legislation before enactment so as to reduce the likelihood of Commonwealth legislation breaching basic freedoms.
It would also build parliamentarians into the rights protection process. This latter aspect should contribute to a greater understanding of such issues by representatives and, through media coverage of committee deliberations, submissions and reports, by the Australian people.
Constitutional Protection in the Longer Term? It is difficult to see that any proposal for a Bill of Rights in the Constitution could succeed without some process of familiarisation for both the players in the political process and the community. Over time, a statutory Bill of Rights enacted by the Federal Parliament and supervised through the committee system, perhaps supplemented or even preceded by statutory Bills of Rights enacted by State and Territory governments, 94 would contribute positively to a rights culture within Australian society.
This process should also help to establish which rights are deserving of protection and which are not. In the longer term, those rights that are generally accepted might be incorporated into the Constitution by a referendum held under section Even after certain rights have been incorporated into the Constitution, it may be appropriate to follow the example of the Canadian Charter of Rights and Freedoms and allow the Federal Parliament to override some or all of such rights by passing legislation expressly indicating an intent to change the law notwithstanding the constitutional position, or by requiring that the Parliament achieve a specified majority.
Section 33 1 of the Canadian Charter of Rights and Freedoms provides that: 'Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. It is important to note that the 'notwithstanding' clause requirement in section 33 1 does not apply to all of the rights listed in the Charter, just to the rights listed in sections 2 and 7 to This means that a legislature can abrogate rights such as 'the right not to be arbitrarily detained or imprisoned' section 9 , the rights to equality under the law and freedom from discrimination on the basis of race section 15 , and even the fundamental freedoms listed in section 2 which include 'freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication'.
On the other hand, other rights such as the right to vote in federal elections section 3 and the right to 'enter, remain in and leave Canada' section 6 1 are beyond the reach of a notwithstanding clause. Since , the override clause has only 97 been applied by the Quebec, 98 and has never been invoked by the Canadian Parliament. The political price to be paid in invoking section 33 1 has been too high.
For example, a government desiring to override the 'right not to be subjected to any cruel and unusual treatment or punishment' in section 13 of the Charter must be prepared to meet strong and organised resistance from many sections of the community. It continues to offer an escape valve should the interpretation of the Charter by the Canadian judiciary ever stand in the way of overriding public policy objectives.
An override clause may thus enable basic rights to be defined and understood as part of a dialogue between Parliament and the Judiciary, without giving sole responsibility for their protection to either arm of government. Which Rights? In protecting rights by statutory means or by constitutional entrenchment difficult decisions must be made about which rights should be protected.
Again, this would best be determined over time, step by step. Before seeking to protect a wide range of rights, the Parliament might move to protect a few core rights that are obviously regarded as basic and fundamental to Australian democracy.
This should not include rights such as 'due process of law' in the Fifth and Fourteenth Amendments to the United States Constitution, which has a highly developed meaning in the United States context but no resonance in Australia. The success of legislation such as the Racial Discrimination Act may mean that it will soon be possible to gain popular and political support for inserting a guarantee of freedom from discrimination on the basis of race in the Australian Constitution.
Otherwise, a good place to start would be to examine the rights protected under the International Covenant on Civil and Political Rights , or those favoured by the Constitutional Commission in its report or by the Queensland Electoral and Administrative Review Commission in its report. Difficult issues arise as to whether the Constitution should ultimately guarantee rights as between citizens rather than merely as between citizen and government.
Traditionally, constitutional rights in Australia have conferred protection from government action, rather than as between private actors, such as landlord and tenant or employer and employee.
Where there has been a desire to protect rights between citizens, this has been proposed not by constitutional means, but by statute, such as the Sex Discrimination Act. This delineation needs to be reassessed. Today, the exercise of private rather than public power may pose the greater threat to the basic rights of Australians. The increasing privatisation of government and the corresponding exercise of what had been considered to be public power by large corporations means that it may be appropriate to constitutionally guarantee rights as against non-governmental action.
For example, the right to privacy is arguably in greater danger of abrogation by secret surveillance undertaken by large corporations than by the actions of government. Given also many Australian prisoners are held in private rather than public prisons and that there are now more private than public police in Australia, it may no longer be appropriate to limit the protection conferred by the Constitution to protection from governmental action. An incremental approach to protecting rights by statutory means before constitutional means and of protecting certain rights before others is a pragmatic and potentially achievable means of bolstering rights protection in Australia.
Importantly, it is also a process that would allow the oversight of the Federal Parliament at every step in continuing to build a culture of rights protection. This would maximise the chances of achieving a workable balance between, enabling the judiciary to foster the rights of Australians and not vesting misplaced faith in the courts, to solve Australia's pressing social, moral and political concerns. See G. Coper and G. Federation Press, , p.
Amendment of the Australian Constitution is provided for by section of the instrument, which allows for a referendum of electors initiated by the Federal Parliament. This is the only way that the text of the Constitution can be altered, section providing that 'This Constitution shall not be altered except' in the manner set out in that section. The Constitution makes no discrimination between the sexes.
It may be that an implication should be drawn from its terms that the Parliament's legislative powers do not extend to authorising arbitrary discrimination between the sexes. Hogg, Constitutional Law of Canada Carswell, 4th ed. See P. O'Neill and R. For example, under the Human Rights Legislation Amendment Bill , the Commission's inquiry and determination functions would be repealed and replaced with a scheme whereby complaints not resolved through conciliation could be continued in the Federal Court in order to obtain an enforceable determination.
See generally A. Blackshield and G. November Australian Capital Territory, , pp. Hanks, 'Constitutional Guarantees' in H. Lee and G. Winterton, eds. Voting in a referendum is compulsory under section 45 of the Referendum Machinery Provisions Act Cwlth. For the results of each referendum, see A. The 'Yes' vote is sometimes cited as being However, this figure excludes the fact that 1. See B.
Attwood and A. Section 41 of the Constitution states: 'No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth'.
Stretton and C. Commonwealth Parliamentary Debates , vol 58, Senate, 21 November , p. Human Rights Bill Cwlth , section 5 3. As to the effectiveness of such a clause, see G. Williams, eds. See ibid. Hanks, 'Constitutional Guarantees' in G. Winterton and H. Lee, eds, Australian Constitutional Perspectives, , pp.
See, on the Convention, G. Report of the Constitutional Convention , vol. This list includes arguments from P. Legislative Assembly of Queensland, Issues Paper no. Zander, A Bill of Rights? Bryce, The American Commonwealth, Macmillan, 1st ed. See also E. See J. See A. Mason, 'A Bill of Rights for Australia? Compare H. Burdekin, 'Foreword' in P. Alston, ed. Galligan and J. See K. Krinks, 'Creating the Active Citizen? Galligan and I. Galligan and C.
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