The Discussion Of Bill Of Rights For Australia
The implementation of a Bill of Rights within Australia has been a long source of contention within the Australian political landscape. This debate over the need for explicit constitutional protection in order to protect a broader range of human rights has been ongoing since the 1970s. Australia as the only Western democracy that does not have a Bill of Rights, should introduce a Bill of Rights in order to best protect the citizens and limit the power of the state, however there are also many arguments against introducing a bill of rights.
A Bill of Rights is a list of the fundamental rights of citizens that sets out specifically what individuals can expect from their governments (Dahlstrom, n.d.). A Bill of Rights exists to protect individuals from each as well as limiting the power of the state.
One of the main arguments of contention is if introduced should the Bill of Rights be entrenched within the Australian constitution, meaning that it can only be amended through a referendum (Dahlstrom, n.d.) or un-entrenched where it is instead legislation that parliament can amended (Dahlstrom, n.d.). If the Bill of Rights was entrenched within the constitution, it would become very hard to change, as society is an ever evolving and changing landscape a Bill of Rights can become quickly outdated, with America serving as a current example, in terms of gun control, as the right to bear arms is within their constitution making it very difficult to legislate gun control (Dahlstrom, n.d.). However if a Bill of Rights was introduced through legislation, it would account for the changing and evolving landscape, making it easier to amend while also allowing for flexibility and interpretation of human rights.
Those against a Bill of Rights would argue that by incorporating a Bill of Rights it would restrain the powers of parliament while giving an unfavourable amount of power to the courts.(Dahlstrom, n.d.) This is because a Bill of Rights would enable judges the ability to veto laws made by parliament that would be inconsistent with a Bill of Rights which would thus undermine democracy. A Bill of Rights would also veto implied rights which could restrict rights as once defined rights are limited by the words in which they are expressed, leaving limited room for interpretation and flexibility. Other arguments include that because the Bill of Rights would largely benefit minorities and criminals the courts would become clogged and slow making the courts largely inefficient.(Dahlstrom, n.d.)
It has been heavily debated that Australia’s constitution only offers a weak protection of rights. The constitution does not contain a Bill of Rights but does have limited human rights protections such as the right to vote (Section 41), right to trial by jury (Section 80) and freedom of religion (Section 116) for example (Dahlstrom, n.d.). These criticisms of Australia’s constitution stem from the stagnation and lack of constitutional change, thus making it difficult to incorporate updated human rights mechanisms. In contrast with these criticisms many have argued that through the judiciary, parliament, statutes and common law human rights are adequately protected (Dahlstrom, n.d.), however these claims are heavily disputed in reference to the numerous human right breaches against indigenous Australians, such as the forced removal of children and the assimilation and erasure of their cultural identity (Dahlstrom, n.d.). Australia’s treatment of asylum seekers is a more recent example of Australia breaching human rights. Thus effectively demonstrating that human rights in Australia is not adequately protected. Implied rights (civil and political rights that can be inferred from the constitution, rather then being expressly stated (NEDIM, 2015) that is interpreted by the high court is also too limited, by having our rights explicitly stated in a Bill of Rights it allows for better and more effective protection of human rights, while also making our current laws more cohesive and accessible.
It is also a common belief that the government cannot be trusted to protect citizens human rights but this can be remedied by having a Bill of Rights as it would strengthen and consolidate human rights protections while ensuring that legislation that is then passed would conform to human rights principles (Dahlstrom, n.d.). A Bill of Rights would also provide a means of protection for minorities suffering from human rights violations thus bringing about social inclusion (Dahlstrom, n.d.). Other arguments for a Bill of Rights is that by implementing a Bill of Rights Australia’s international reputation would improve as it would allow for current and past human rights violation to be addressed. As Australia becomes more internationalised we need more awareness regarding international laws, and through having a Bill of Rights it would bring us in line with other democratic nations, and allow Australia to meet international obligations more effectively.
In conclusion a Bill of Rights is a high source of contention in whether it would effectively protect the rights of citizens and limit the power of the state, with many arguing for and against its implementation. However a Bill of Rights would overall be beneficial un-entrenched within the constitution as it would allow and account for the ever changing and dynamic landscape of society, bring more protection to minorities, bring Australia in line with other nations and allow Australia to meet international obligations more effectively.
