Would Australia benefit from a Bill of Rights? Why or why not?

Australia is the only Western nation in the world, without a Bill of Rights (BoR) or constitution which protects the basic rights of its citizens. In this essay I will outline three ways that Australia would benefit from having a BoR or similar. Firstly the manner by which all Australians and especially those most disadvantaged will have a domestic piece of legislature to point towards when their rights are violated. Secondly the protection it will afford the people from future, potentially tyrannical governments and finally the inspiring nature of a BoR on the people and the manner by which is instils a culture of rights protection.

Whilst it is true that for the majority of Australians, we live within a society which respects our rights as persons and citizens, this is not true for all Australians. Whilst the majority of middle class Australia enjoy freedoms ratified by the Universal Declaration of Human rights (UDHR) that people from other nations do not enjoy, they are not freedoms which are protected by a powerful law, and instead merely upheld by the goodwill of our elected officials. And even with that point acknowledged, we still face the facts that at the bottom of our socio-economic hierarchy, those most disadvantaged, minorities do not enjoy the freedoms afforded to them by the UDHR, which Australia has ratified, but never actualised.

The case studied outlined by George Williams (2004:09) of the 1997 Northern Territory’s mandatory sentencing law clearly shows an example where Australians most disadvantaged can have laws enacted, which do not meet Australia’s obligation to uphold the UDHR which it signed.           Currently, Australia’s constitution has what is called The Commonwealth’s Races Power (Section 51[xxvi]). This is a provision put in place by the 1901 constitution. It is an outdated and outrageously powerful law which cannot be changed without extreme difficulty. The power was in place by Sir Edmund Barton because he believed it was necessary to (George Williams 2004:21)”regulate the affairs of the people of coloured or inferior races who are in the Commonwealth”.

This provision literally, without embellishment, allows the government to make legislation which discriminates on the basis of race, regardless of whether this law will have a detrimental or positive effect upon the race in question.

This is a provision within our own constitution which is in direct conflict with the UDHR and Australia’s duty to uphold it as a nation which has signed the declaration. This means that one of Australia’s most embarrassing moments in its history as a nation, the Stolen Generations catastrophe is something which could legally and legitimately be reinstated, should the government so wish. What this shows us is that since 1901, even after having signed the UDHR, little to no progress has been made at a legislative level for Australians as far as human rights are concerned.

The benefit of having a BoR with relation to this is that Australians will be able to challenge laws which are attempt to be passed at a domestic level. Currently if Australians feel that a new law is being passed which violates their rights, they do not have an easily found piece of legislature to challenge such a right. They must instead trust in the good will of their elected officials and judicial system to respect their needs.

Having a BoR would mean that should something like the stolen generations be attempted to pass into law, Australians could challenge the law as being unconstitutional, or in conflict with a greater law which takes precedent.

This was exactly the case in 2012 when  Laurence H. Tribe a Harvard professor of constitutional law said “Rather, its very existence would dramatically chill protected speech by undermining the openness and free exchange of information at the heart of the Internet” (2012:04) of the defeated Stop Internet Piracy Act (SOPA). Professor Tribe’s open letter on the internet about his concerns for the SOPA act and what it would mean for freedom of speech is something which is was possible only because of America’s constitution.

Indeed the bill was challenged and eventually fell in the congress due to lack of favour from senators. The strong public outcry was fuelled by their anger of rights being violated, however it was the fact that they had the First Amendment to point to, that this act was never passed. Because the people of America are keenly aware of their rights, and are attuned to the attempted violation of their rights.

Currently in Australia however, one of the common challenges to the notion that Australia needs a bill of rights is that we as a nation have a good (in relative terms) human rights record, and that we should trust in the good will and judgment of our elected officials. After all democracy is based on the people electing their leader, why restrict their powers if we want them to work well and largely inhibited, after all we have voted them in of course?

The very simple, very obvious, and often ignored point against this is simple. What of future governments? Whilst it is conceivable to some extent, that we do currently have leaders who have the best interests of the nation and its people in mind. It is not inconceivable that someday in the far future we may not have a leader who has the best interests of the nation or its people in mind.

History is littered with leaders who were once popular amongst their people, liberators and rebel fighters against an oppressive regime, only to later become tyrannical dictators of their nation.  One need only look to Robert Mugabe, who was elected into power in 1980 after having defeated the white minority rule of Zimbabwe’s political leaders went on to later become president, and through signing power deals with his opponent has retained power in the nation.

What Mugabe represents is a leader who takes office as a hero of the people, only to then later, slowly change role to that of a dictator, who acts without the backing of his people, and perhaps even in political self interest.

Whilst for many it is inconceivable that such a thing would happen in a relatively stable political country like Australia, it is not impossible that such a leader could in fact come to be. A BoR would limit such a person’s power at a legislative level. It would empower the people against such a leader by giving them an easily accessible and commonly referenced bill which outlines when such a ruler has broken the rules.

The truth of the matter is, that we cannot merely trust in the goodwill of the people we elect to lead. These people may indeed change over time to become something other than what the people want. Furthermore, we cannot trust in those who do not yet exist either. It is an unfair demand on the people that we leave the avenues for coercion and oppression open to our leaders because we “should trust in the goodwill of our elected officials” when the leaders of the next generation of Australians have not yet been born, and thus judgements cannot be passed on them.

Playing the numbers games, in the long many centuries Australia will likely exist from this point onward, there will be leader who seek to pass legislation which would be a direct violation of our rights as citizens. It makes no sense when time is accounted to leave the people defenceless on a domestic level of their rights from future governments.

Finally, the role of BoR transcends that of legislature, it can become a defining part of a nation’s values and culture. As was outlined in George William’s comments on the 2003 study of the effects of the Americans with Disabilities Act 1990 (2004:90) “The study demonstrated how the legal protection of rights enhanced the culture of rights protection at the individual and community levels, with a very positive effect on the day-to-day lives of people with disabilities.”

The effect of BoR’s goes further than the legal setting. The inclusion of rights as something protected by law means that individuals are given a sense of dignity and self worth which is legitimised by legal power. This means that Australians who are most disadvantaged, be it because of socio economic circumstances, race or disability are recognised as being equal in some measure to those who are better off. It is a constant reminder that by the virtue of personhood there is value in existing, and this fosters an environment of rights awareness and respect.

Whilst a BoR is unlikely to be passed in Australian politics any time soon, the case for why Australia should have a BoR is very strong. The three topics covered here, that the manner by which Australians will have a domestic piece of legislature to reference in regards to rights violation, the protection it will afford the people from future governments the effects other than legal of a BoR on the community are all big parts of the question but not all of it, many other arguments exist as well.

Bibliography

George Williams, The Case for an Australian Bill of Rights: Freedom in the War on Terror, (Sydney: University of New South Wales Press, 2004), excerpts

http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html

HYPERLINK “http://www.scribd.com/doc/75153093/Tribe-Legis-Memo-on-SOPA-12-6-11-1″

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About Saúl A. Zavarce

Venezuelan-Australian journalist and international relations academic.

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