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Whelan, Jenni --- "Towards an Australian Bill of Rights, Alston P Ed" [1995] AUJlHRights 12; (1995) 2(1) Australian Journal of Human Rights 153

HR book review:

Towards an Australian Bill of Rights edited by Philip Alston
(1st ed, National Capital Printing, 1994) pp i-xv +1-383.

Jenni Whelan[*]

The concept of an Australian Bill of Rights is not new. Australia has been moving towards a Bill of Rights for over twenty years, though that progress has been slow and faltering; being variously connected, or not connected, to political agendas. Nonetheless the issue is a live one again by virtue of it being linked, at times, with the public rhetoric regarding Australia becoming a republic.

At the Australian Rights Congress held in Sydney on 16-18 February 1995 participants considered the scope of a proposed Bill of Rights in the context of reviewing the adequacy of current mechanisms for the recognition and protection of the rights of children, women, gay men and lesbians, indigenous people, people with disabilities, people with mental illness, people of non-English speaking backgrounds, prisoners, the aged and asylum seekers.

Similarly much has been written and said of late regarding whether and how Australia should guarantee select human rights.[1] It is now timely, as Professor Philip Alston argues in his introduction to the book, for debate regarding the Bill of Rights issue to shift from whether or not Australia in fact needs a Bill of Rights, to an informed analysis of more sophisticated issues.

Towards an Australian Bill of Rights contains seventeen essays and is constructed in three parts; Putting the Debate in Context, A Bill of Rights? and International Dimensions. Notably, fifteen of the seventeen essays originated in papers presented to the conference "Australia and Human Rights: Where to From Here?" which was held at the Australian National University in July 1992.

Throughout the three sections there are recognisable, recurrent themes which emerge from, and extend, the general debate about whether to modify existing mechanisms for protecting rights or radically change those mechanisms by introducing a Bill of Rights. Several articles deal in different ways with issues such as the adequacy and extent of mechanisms which currently exist in the common law and current legislation to protect human rights, the extent to which Australia is in step with the international community in its protection of rights, (both by comparative analysis of the systems of protecting rights in the USA, Canada and New Zealand, and the extent to which Australia has adopted international instruments and standards) the different types of rights discourses, the effect on the judiciary of a bill of rights in terms of workload, public perception and politicisation and the potential conflict between responsible government and a politicised judiciary.

I propose in this review, given the structure of the book, to consider briefly the essays in each part.

Professor Alston in his introductory essay, "An Australian Bill of Rights: By Design or Default?" is calling for a shift in the debate to a more informed analysis of more sophisticated issues such as the techniques which should be adopted by the Executive and Parliament to ensure that rights protected under a Bill are factored into legislative and administrative activities from the outset,[2] sets an ambitious mandate. One of the structural limitations of the book is that ideas, in the main, can be introduced but not fully or comprehensively developed.

In Part One, Putting the Debate in Context, Hilary Charlesworth in her essay "The Australia Reluctance About Rights" gives an interesting history of the moves in Australia for and against the enactment of a Bill of Rights. She considers the mechanisms which exist under the Constitution, common law and human rights legislation to guarantee human rights, the extent to which international human rights instruments have been incorporated into Australian domestic law and Australia's general complacency about protecting minority rights.

In his essay, "Australia's Political Culture and Institutional Design", Brian Galligan considers how a constitutional Bill of Rights would radically alter the traditional Australian response to human rights protection which has been to modify or add onto the traditional order. He argues that Australia's political culture and established institutional regime limit the development of human rights protection because Australia's political culture has not been based on notions of individual rights, Australians have historically viewed rights as fully protected by the government responsible to the electorate (whereas parliament is increasingly becoming "party responsible") and because the common law's capacity to redress rights issues has been reduced by the legislature.[3]

In " An Aboriginal Perspective on Australia's Future in the Human Rights Field" Bill Hollingsworth discusses how the High Court decision in Eddie Mabo and others v The State of Queensland [No.2][4] changed the history of Australia and argues that Australia should now build on the changes by treaty or constitutional change to acknowledge and protect the rights of indigenous people and the right of self-determination.

Elizabeth Evatt in her essay "Cultural Diversity and Human Rights" considers the application of human rights principles to two references to the Australian Law Reform Commission; the Recognition of Aboriginal Customary Laws,and Multiculturalism and the Law. She argues that human rights principles should be an important source of guidance for law reform especially where there are conflicting rights or there is uncertainty about the existence, or construction, of rights. She argues that the references mark an attempt to free the law from its "monocultural bias" and open it up to the perceived needs of Aboriginal people and other cultural minorities.

In "How Far Can the Common Law Go Towards Protecting Human Rights?" John Doyle and Belinda Wells identify two factors which have limited and restrained the role of Australian courts in protecting human rights, namely, the persistence of the notion of parliamentary supremacy and the fact that the common law historically has dealt mainly with residual rights. However, in analysing the way that the common law protects the right to a fair trial and to freedom of expression they argue that the role of the common law in protecting human rights has in fact already changed and will continue to change if courts preserve and promote human rights through statutory interpretation by interpreting "value-laden" expressions and presumptions against a background of rights.

In the final essay in the first section, "Equality Rights: A Feminist Perspective" Jenny Morgan argues that persons need to be cautious about embracing equality rights uncritically because they are by their nature indeterminate and incoherent, abstract and decontextualised, alienating and can be set off against each other. With the added caution that a Bill of Rights would turn political questions into legal questions and thereby increase the power of the judicial branch, after analysing a selection of Australian decisions involving rights, she concludes that it is worth debating about the significance of a gendered equality right only if that right is specifically framed in such a way as to address the power inequality between men and women and to recognise the historical and continuing subordination of women. Little would be achieved, she argues after analysing the approach of Australian Courts and Tribunals to date, if such a right were couched in the language of mere formal equality.

Part Two contains five essays. The first by Brian Burdekin "The Impact of a Bill of Rights on Those who Need it Most" argues that a Bill of Rights is an essential addition to the protection currently afforded by parliamentary democracy and the common law to society's most vulnerable groups.

Colin Hughes in his essay "An Australian Bill of Rights: Some Key Issues"explores, in the context of Queensland's now lapsed proposal for the enactment of a Bill of Rights, how the Report of the Electoral and Administrative Review Commission revealed how some rights such as freedom of movement, electoral rights and the right to bear arms may in fact prove controversial.

Sir Gerard Brennan in his article "The Impact of a Bill of Rights on the Role of the Judiciary" addresses the issue of the desirability of an Australian Bill of Rights by considering the impact which that would have on the role and function of the Australian judiciary. Because of the separation of powers between the legislative, executive and judicial arms of the Australian governmental structure, in the absence of an entrenched Bill of Rights, there is historically a perceived bifurcation between the political branch of government, consisting of the legislative and executive arms, and the politically independent judiciary. Sir Gerard argues that two factors in particular expose the protection of human rights by the political branch of government to danger; firstly, the number of minority groups whose interests are likely to be over-reached by the exercise of legislative or executive power because of the control of the political process by poll- driven policies and secondly, the dominance of the executive government over Parliament.

He argues that if a Bill of Rights were introduced which exposed the exercise of legislative and executive power to review, that would create a new role for the judiciary, would shift the debate about rights from the political to the legal arena and would judicialise questions of politics and morality. He postulates that the implications of such a new role which need to be considered are the need for different procedures for adducing evidence, the requirement for advocacy across a range of disciplines, increased cost and demands on court lists and that the judiciary would be the translator of political, social and ethical values into legal principles thereby attaining some supervisory power over the traditionally political branches of government.

The next two essays in the second part of the book offer a comparative analysis of the US Bill of Rights and the Canadian Charter of Freedoms

( Justice Murray Wilcox; "The North American Experience: A Personal Reflection) and the New Zealand Bill of Rights (Jerome Elkind; "New Zealand's Experience with a non- entrenched Bill of Rights").

Justice Murray Wilcox concludes that the lessons to be learned from the US Bill of Rights are that the selection and description of listed rights is critical; that the application and effect of the Bill of Rights will change over time as judges respond to changing community needs and values, although there may be a lag in the response time; that constitutional guarantees do not necessarily ensure the maintenance of civil liberties; that it is unhelpful to cast rights in absolute language since guaranteed rights may conflict; and that a Bill of Rights should contain a discrimination clause.

Jerome Elkind argues that even though the New Zealand Bill of Rights Act 1990 is not entrenched legislation, and nor does it override inconsistent provisions in other legislation, it has nonetheless been regarded by the judiciary as a fundamental constitutional document which must be given "purposive interpretation", and has been involved in over one hundred cases, resulting in considerable impact on New Zealand law.

Part Three is a collection of various dubiously connected papers under the heading "International Dimensions". Gareth Evans' essay "Human Rights in Australian Foreign Policy: Where to from Here?" is an interesting inclusion in the book. The article is interesting, not so much for its content, which is not new, but as an example of the chasm which can exist between persons participating in the rights debate. Gareth Evans' mention of Australia's "unswerving commitment to human rights" does not sit easily with other articles in the book, especially those of Bill Hollingsworth and Brian Burdekin. The article exemplifies in part Jenny Morgan's thesis about how rights rhetoric can be utilised without there being any fundamental shift in the real protection or guarantee of those rights. Of course the language used by Gareth Evans is the traditional discourse of government. The danger, and criticism, always is that such discourse and rhetoric replaces, or hides the need for, substantial and structural change to situations of inequality.

Justice Michael Kirby in his essay "Implications of the Internationalisation of Human Rights Law" argues that as a matter of political reality, Australians are unlikely to adopt the Constitutional change required to implement a Bill of Rights which he defines (for the first time in the book at page 267!) as:

"a national, justiciable, entrenched, constitutional statement of fundamental rights".

He argues that an alternative, and more likely, approach could be to ratify more international treaties, encourage a greater acceptance of the authority of international agencies to investigate complaints about human rights abuses by Australia and to increase the jurisdiction of the Human Rights & Equal Opportunity Commission to investigate local disharmonies with international human rights law, and educate Australians about them. He argues that Australian domestic law can and should be changed by reference to developing international standards of human rights. In analysing how specific international human rights principles can be applied to domestic law he considers various examples, two of which are the effect of OECD guidelines on the development of the Privacy Act 1988 (Cth) and WHO standards in relation to Australian federal laws and policies about public health and AIDS.

While acknowledging the inevitable controversy of the position, Justice Michael Kirby expands on comments made by Elizabeth Evatt in her article, in advocating a wider use by the Australian judiciary of the Bangalore principles; namely that judges should become aware of international norms on human rights and when appropriate occasions arise, such as the construction of ambiguous statutes, or the declaration or extension of the common law, judges should ensure that their statement of the law conforms to basic principles of human rights collected in international law.

Michael Duffy in "The Internationalisation of Human Rights" traces the development of human rights legislation and initiatives in Australia and provides an informative summary of Australia's response to adopting International Human Rights instruments up to 1992.

In the penultimate essay in the book "Ascertaining International Human Rights Rules and Standards in Domestic Courts: War Crimes and Other Examples" Henry Burmester examines some problems encountered in Australian courts when confronted by argument requiring them to determine the content of international law in the context of the application of international human rights rules and standards in the High Court constitutional challenge to the War Crimes Act in 1991.[5] He concludes that the case illustrates the difficulties of translating international rules into domestic law especially in relation to criminal law. His concluding comments are somewhat prophetic in light of the High Court decision in Teoh's case.

Finally, Peter Thompson's article on "Human Rights Reporting from a State Party's Perspective" provides a practical and informative analysis of what is involved with, and the difficulties with, the coordination and preparation of Australia's reporting responsibilities under the major human rights treaties.

In my view there are two principal limitations to the book, neither of which presents an insurmountable obstacle to the reader. Firstly, the book is compiled from papers presented in July 1992. Some portions of some articles are now outdated, inaccurate or incomplete to the extent that they have not been amended to accommodate legislative and common law changes. For example, in the penultimate paragraph in the section of Justice Kirby's article titled "No Bill of Rights; No Treaty" Justice Kirby could now note that the proposed Bills of Rights for Queensland and Victoria did not eventuate but that the ACT is currently considering a Bill of Rights Bill.

The Disability Discrimination Act 1992 (Cth) ("DDA") also came into effect after these papers were presented but prior to the book being published. Fortunately, Hilary Charlesworth's comments about the weaknesses of the Sex Discrimination Act 1984 (Cth) ("SDA") and the Racial Discrimination Act 1975 (Cth) ("RDA") are equally applicable to the DDA. Similarly Michael Duffy's summary of domestic human rights initiatives could now be updated by mention of the DDA and the Human Rights Legislation Amendment Act 1995 (Cth) ("the Amendment Act"). Finally, Hilary Charlesworth's comments about the problems of enforceability of determinations of the HREOC are still accurate by virtue of the passage of the Amendment Act which, enacted as a result of the decision of the High Court in Brandy v. HREOC and Others[6] ("Brandy's case"), has provided essentially for a reversion to the situation which existed before 1992.

In a similar vein, some of the papers regarding changes to the common law and the increased willingness of the High Court to recognise accepted international Human Rights would now benefit by inclusion of the High Court's decision in Teoh's case .[7]

Secondly by virtue of the fact that the book is compiled from a selection of papers presented at a conference it is necessarily a collection of disparate papers. As the book progresses the articles seem to be increasingly tenuously united by the general theme of human rights and even less focused on the issue of an Australian Bill of Rights.

The book is informative and canvasses a wide range of issues well. Readers will not be disappointed provided that they are aware that the book brings alive relevant issues in the debate but that it cannot, given its structure, hope to address them fully.


[*] Legal Officer, Human Rights and Equal Opportunity Commission. The views contained in this paper are the views of the author and do not necessarily reflect the views of the Commission.

[1] See articles such as Kirby P "Arguments for and Against a Bill of Rights" (Dec 94) 29(11) Australian Lawyer pp? and books such as Wilcox M An Australian Charter of Rights? (Law Book Company, 1993)

[2]A timely question given the moves by some members of the Commonwealth Parliament to introduce legislation to curtail the decision of Teoh v. Minister of Immigration and Ethnic Affairs [1995] HCA 20; (1995) 128 ALR 353 ("Teoh's case").

[3]Note the High Court's decision in Teoh's case and the response of some sections of Parliament almost immediately thereafter calling for legislation to limit the effect of the decision.

[4] (1992) 175 CLR 1

[5] Polyukhovich v. Commonwealth [1991] HCA 32; (1991) 172 CLR 501.

[6][1995] HCA 10; (1995) 69 ALJR 191.

[7]See the article of Susan Roberts in this edition.

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