BILL OF RIGHTS

By Julian Burnside QC

So, there is to be a national consultation about the need for a federal Bill of Rights. I support one. A number of people have come out strongly against one.

To make the debate intelligible, people on both sides of the debate need to identify what they are talking about. Opponents are mysteriously silent on this point.

No one is arguing for a US-style Bill of Rights. The rights protected by a modern bill of rights are ‘ broadly speaking ‘ the sort of rights addressed in the Universal Declaration of Human Rights which Australia adopted in December 1948.

It would be difficult to find any serious disagreement about the nature of those rights: freedom from arbitrary detention, freedom from torture, freedom of thought and belief, equality before the law etc. What is odd is that some people do not want to see those rights protected by law.

Broadly speaking, a modern Bill of Rights can be an ordinary statute or constitutionally entrenched; and it can be a weak model or a strong one.

A Constitutional Bill of Rights binds the Parliament: it can only be changed or repealed by referendum. A statutory Charter can be changed or avoided by another Act of Parliament.

A strong-model Bill of Rights creates rights of action: if a person’s rights are breached, they may be able to sue for damages. A strong-model may also forbid Parliament to do certain things and thereby seek to limit the power of the Parliament.

A weak-model simply requires Parliament to take protected rights into account when passing legislation. If they wish to disregard those rights, they must say so plainly, and that means that the Parliament may pay a political price if it decides to disregard rights which it has recognised as basic to a dignified existence.

In addition, a Bill of Rights instructs Judges to interpret legislation, where possible, so as to preserve human rights rather than defeat them.

The ACT and Victoria both have statutory, weak models. Personally I am in favour of a statutory, weak Bill of Rights for Australia. It will not be anti-democratic; it will not transfer power from Parliament to judges. It will provide a basic level of legal protection for rights we all value. It will protect the human rights of all of us. Importantly, it will tell bureaucrats that, in dealing with the public, they must act in a way consistent with human rights: it will prevent the sort of rigid, heartless behaviour sometimes seen in bureaucracies.

Australia is the only modern democracy without a Bill of Rights. We should not miss this chance to tell our Parliamentarians that it is time to get one.