As a result of this power shift to the judges, the government of the day would be under an obligation to work around the entrenched bill of rights. This would enhance the lawmaking of parliament as it would give them a set of guidelines to work within, whilst providing a safeguard (the courts) to ensure these rights are upheld. Parliament would have to consider the bill of rights every time legislation was passed, which would ensure that no laws would conflict with any human rights. However, having the constraint of a bill of rights questions two of the fundamental principles of our system, that being parliamentary sovereignty and responsible government. Parliamentary sovereignty is the principle that the parliament is able to make any law it wishes and that “no person or body…[has] the right to override or set aside the legislation of parliament” (Albert Venn Dicey 1800’s) If a bill of rights was to be introduced, judges would have the power to overrule any legislation that they find conflicts with the bill of rights. This would mean that parliament would no longer be the supreme law making body and would not be able to make any legislation that they wish. The current constitution protects our rights adequately, with the notion of parliamentary sovereignty kept in tact, as parliament can make any law they wish (as long as it does not conflict with the constitution), even in relation to human rights. However, there are measures that ensure that these laws are in accordance with the feelings and standards of society. The interests and rights of society are protected though “common law and by the good sense of elected representatives, who are constrained by the doctrine of responsible government” (Williams 2000). This means that currently, the Australians elect representatives to the parliament who can make laws in regard to rights. If there was a need for such a right, and the parliament failed in their duty to provide a law regarding to this matter, they would be answerable to the people. If a bill of rights were implemented, the premise behind representatives would be demolished. The people entrust their faith when they vote “to the chosen representatives of the people” (Sir Owen Dixon 1965). If those chosen do not perform to the standards of the people, in the next election the public are able to vote, in accordance with their beliefs in regard to the current representatives. This ensures that parliament acts through the will of the people, whilst retaining the notion of parliamentary sovereignty.
An unbreakable, practically unchangeable document outlining the rights which the current society believe are important to them. Our current constitution has both rights and implied rights throughout its body. However, having these rights plus more unrecognised rights printed in a bill would entrench them, and create a message, letting the world know what type of society Australia is. Having rights recognised as important to a nation is invaluable in a global context. This ensures that the wider global community knows that we believe and stand for human rights. Australia has signed international treaties concerning human rights, and still we are yet to have a document outlining the rights that must be followed within the country. Entrenching the rights deemed to be of the highest importance seems like a flawless plan, however, these rights could become inappropriate or outdated which could have an adverse effect on future Australian society. To put this into perspective let’s view one of the rights entrenched within the USA bill of rights, that being the right for all citizens to bear arms. At the time that this “right” was established, it may have been highly appropriate, for the purposes of perhaps wild animals or intruders. Some would argue that an implication of such a right, is an incredibly violent and dangerous society. A right that may seem appropriate at the time, in the future could be highly destructive and may not suit the progressive society. A bill of rights would be entrenched within the constitution, which would make any out of date legislation extremely hard to change. Legislation can be emended or changed by parliament at any time, where as the constitution can only be changed through the long and arduous process of a referendum, which has to be approved by a “double majority”, which is the majority of states with a “yes” vote, along with also the majority of voters over the whole of Australia. Only 8 referendums have been accepted in 44 tries, which demonstrates the difficulty in changing any part of the constitution. This is assuming that a society would want to change a part of the bill of rights, in many cases once an act has been deemed a ‘right’ it will be kept as this, even if the activity may be destructive or dangerous. It would be impossible to attempt to foresee the future needs and trends of society, and as one of the founding High court justices Richard O’Connor explains, that they had to make “A constitution which is to endure, practically speaking, for all time” (1898), this would be extremely difficult to do in respect to a bill of rights. Implementing a bill of rights would no doubt create outdated yet unchangeable ‘rights’ that may create adverse circumstances for future generations.
Having rights written in a document such a as a bill of rights, would create community awareness and clarity about the rights that each citizen has. This would ensure that all Australians know what they are entitled to, and therefore would know when they are treated unduly. Having these rights all together would make them easily accessible to everyone, unlike the current situation where rights are scattered throughout the constitution. However, having these rights so succinctly written out may instead of the intended extension of rights, may actually limit them. To define and outline specific rights in such a detailed manner would be to prioritise and create inclusive and exclusive rights. Those perhaps less important rights not mentioned in the document would be extremely hard to implement or even recognise considering that they weren’t seen to be important enough to be on the bill. Not only this, but those rights that are written down are limited by the words they are written in. The words written in a constitution can only be interpreted in so many ways before a ‘right’ would become meaningless. This means that important cases may be thrust aside because they do not meet within the wording of the constitution, causing perhaps the incorrect judgment to be reached, in order to keep the bill in meaningful form. Having rights written down, could create a situation where those in print are the only ones considered, nothing more or less, this limits the rights of Australians rather than enhancing them.
At the present time the constitution and indeed current society functions in a highly effective manner. To add a bill of rights would be creating unnecessary confusion and would question the foundations that Australia was built on. The constitution is adequate, with the aid of the courts and parliament and the principles of parliamentary sovereignty and responsible government.
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Bibliography
Beazer, M., Justice and Outcomes: legal studies for units 3 & 4, Beazer Publishing Company, Paynesville, 2002.
Charlesworth, H., Writing in Rights: Australia and the Protection of Human Rights, UNSW Press, Sydney, 2002
Political Action, Freedon and Justice in Australia, Study Guide, Deakin University, Geelong, 2003.
Jaensch, D., The politics of Australia, Macmillan Education Australia, Melbourne, 1997.
Williams, G., A Bill Of Rights For Australia, UNSW Press, Sydney, 2000.
