The HRA does not intend to override other laws, in fact it only affects the way in which Territory laws are interpreted and applied. The courts and tribunal must express the intention of legislation to limit rights. However, the decision of the legislation is the embracing of human rightsand the Supreme Court can always diminish it. Under section 32 of the HRA this is called a ‘Declaration of Incompatibility’.
Furthermore, HRA is also preserving parliamentary sovereignty. It works under the ‘dialogue model’ which aims to encourage ‘dialogue’ between three branches of government. Those are: the courts, the legislation and the government that administers laws. If there is tension between the Territory law and the HRA, then the law sides with human rights as much as it can. If HRA is really functioning as a model of the Bill of Rights, then it should be operating in a similar way.
2. Problems relating to the Bill of Rights:
Some people think that the Bill of Rights is problematic. Firstly, it would limit rights. By trying to comprehensively define what constitutes “rights” one would necessarily be confining rights to the definition or wording of the drafter. Moreover, with reference to States in which a Bill of Rights exist, some argue that it would have the propensity to concentrate on the rights concerning criminal processes and rights on property. Nevertheless, there are many other vital rights which cannot be easily conveyed and enforced by the courts. This means that it is unworkable to compress difficult problems into the synthetically limited categories expressed in a Bill of Rights. Generally, human rights can be very restricted by using very precise decisive factors. Therefore, it is better to have an intrinsic set of beliefs rather than laws.
Secondly, some people argue a Bill of Rights would destroy our parliamentary sovereignty. It would show that we have no confidence in our legislation or our people. It seems that the Bill of Rights gives power to the unelected judges to make legislative decisions; it empowers the judge to eliminate some laws made by the elected legislators. This in turn would ‘undermine parliamentary supremacy, one of the central tenets of the Westminster system of government’. In the Westminster system, the legislative members are representatives who are selected by the people. They have a responsibility to protect our rights by setting up laws. If they fail to do so, they fail to be re-elected. In addition, those decisions made by the judges on legislative matters, unlike those made by politicians in the parliament, cannot be reviewed.
Thirdly, past experience shows that the Bill of Rights cannot guarantee that human rights are protected. Consider the prohibition of Communism in United States in the 1950s. At that time, the United States already had the Bill of Rights to protect the rights of the citizens in making political decisions. However, the United States still prohibited the practice of Communism, regardless of the existence of the Bill of Rights. In contrast, Australia did not have a Bill of Rights, and relied only on constitutional law. By means of judicial review, the Supreme Court invalidated the Communist Party Dissolution Act. This act had been legislated, partly to protect the civil liberties entrenched in the Constitution. Obviously, this case shows that the Bill of Rights alone cannot secure the basic human rights of our citizens.
Finally, it seems that constitutional law is capable of protecting the rights of Australian citizens. For instance, we can always have judicial review to confirm certain rights implied by the constitution. Even if a Bill of Rights were introduced, it would still have to rely on the courts to interpret the bills. There seems to be no difference in reviewing a law and interpreting the Bill of Rights. Hence, it seems that it is not necessary to introduce the Bill of Rights.
3. Response to the problems:
The above concerns are superfluous if a person has thought deeply about the issues. The first concern about the limitation of human rights by the introduction of Bills of Rights can be put to rest if one realizes that the Bill of Rights can help the courts in judging difficult cases. Most of the times governments are trying to avoid difficult problems such as ‘racial discrimination, electoral inequality, abortion law and the protection of the unborn and the right to individual privacy’. Perhaps, to entrench the Bill of Rights may risk the limiting of the rights of citizens. Even so, the introduction of the Bill of Rights may help to solve the above controversial issues. Furthermore, it is always possible to change the Bill by referendum, just like what is done to change constitutional laws.
Likewise, the second problem in which parliamentary sovereignty may be threatened can also be dismissed because it helps to promote democracy prima facie. Democratic processes can sometimes practically result in one party rule. Hence, the rights of those who did not have their representatives in parliament will be ignored. A Bill of Rights on the other hand can secure the rights of those people. Moreover, as mentioned in the first section, the Bill of Rights works under the ‘dialogue model’. In this model, any law eliminated on the grounds that it has violated what is imprinted in the bill will be sent back to parliament and has to be redrafted so that proposed law will not infringe human rights. In this way, it helps to promote democracy by making sure that the primary rights of those minorities will be protected.
Regarding the third problem, the Bill of Rights perhaps cannot function properly in some circumstances. However, it does not follow that it fails in every circumstance. During the 1950s, although Communism had been banned, some of the political parties’ rights were preserved by the Bill of Rights. For instance, there are still many political parties with socialist principles, even though the Communist party was banned.
For the last objection, even though judges can carry out judicial review and infer rights from the constitution, judges have limited power. Judges have to rely on the cases that have been brought to them. Further, judges are not always ‘able or willing to invoke legal principles to protect basic rights’. Hence, the Bill of Rights is needed as a guide for the judges to protect fundamental human rights.
Conclusion:
In conclusion, the Bill of Rights should be introduced in Australia because constitutional law fails to secure most of the primary human rights. The establishment of the Human Rights Act can serve as a model for the future national Bill of Rights. There may still be some concerns about possible difficulties encountered if the Bill of Rights is entrenched. It might be claimed that the Bill of Rights ruins the sovereignty of the parliament; however, a thoughtful examination of the issue shows that these worries are indeed redundant.
Bibliography:
Books:
AIP107 Political Action, Freedom and Justice in Australia, Study Guide, Australia, Deakin University, 2004, p.7.
George Williams, The Constitution role of the Courts: A perspective from a Nation Without a Bill of Rights, Commonwealth of Australia, Copyright Regulations 1969, p.36.
Journal:
Thomas Poole, ‘Oxford University Commonwealth Law Journal’ 2004 Bill of Rights in Australia 197.
Internet:
Justice Kirby’s Papers-A Bill of Rights for Australia- But do we need it? <htt://www.lawfoundation.net.au/resources/Kirby/papers/199712;res =AGISPT>[cited 04 May 06]
Publication (Legal Date):
Simon Bronnitt, Prita Jobling, Democratic and human rights under the Commonwealth Constitution, the Faculty of Law, Australian National University, Warringal Publications, Volume 17, number 3, July 2005.
Other sources:
Hot topics 54 > Bill of Rights, Australia’s Approach, p.4.
Terence Higgins, Hot Topics 54 > ACT Bill of Rights, p.14.
Hot topics 54 > Bill of Rights, Australia’s Approach,p.4.
AIP107 Political Action, Freedom and Justice in Australia, Study Guide, Australia, Deakin University, 2004, p.7.
Thomas Poole, ‘Oxford University Commonwealth Law Journal’ (2004) Bill of Rights in Australia 197.
Terence Higgins, HOT TOPIC 54 > ACT Bill of Rights, p.14.
Justice Kirby’s Papers-A Bill of Rights for Australia- But do we need it? <htt://www.lawfoundation.net.au/resources/Kirby/papers/199712;res =AGISPT>[cited 04 May 06] p.5.
Simon Bronnitt, Prita Jobling, Democratic and human rights under the Commonwealth Constitution, the Faculty of Law, Australian National University, Warringal Publications, volume 17, number 3, July 2005.
AIP107,Study Guide, 2004, p.9.
Justice Kirby’s Papers-A Bill of Rights for Australia- But do we need it? <htt://www.lawfoundation.net.au/resources/Kirby/papers/199712;res =AGISPT>[cited 04 May 06] p.6.
George Williams, The Constitution role of the Courts: A perspective from a Nation Without a Bill of Rights, Commonwealth of Australia, Copyright Regulations 1969, p.36.
Justice Kirby’s Papers-A Bill of Rights for Australia- But do we need it? <htt://www.lawfoundation.net.au/resources/Kirby/papers/199712;res =AGISPT>[cited 04 May 06] p.8.
Terence Higgins, HOT TOPIC 54 > ACT Bill of Rights, p.14.
Justice Kirby’s Papers-A Bill of Rights for Australia- But do we need it? <htt://www.lawfoundation.net.au/resources/Kirby/papers/199712;res =AGISPT>[cited 04 May 06] p.8.