‘Energies Better Spent on Rights than a Republic’

Professor George Williams, The Australian (17 April 2001).

While Australia has been debating the important symbolic issues raised by a republic, other countries have achieved significant reform in the field of human rights. We are now alone among comparable nations in not having a statement of basic rights.

The United States has had a Bill of Rights for over two centuries, while New Zealand, South Africa and the United Kingdom have drafted their own over the last decade. Each of the latter nations realised that human rights had not been well protected by their legal system, and that a framework was needed to define the relationship between people and their government.

For the last three months I have been based in Canada, another nation with a Bill of Rights. Canada is otherwise like Australia in having a written Constitution and a legal system derived from the United Kingdom. It also remains a constitutional monarchy and has its share of human rights concerns, ranging from the treatment of its Indigenous peoples to the struggle for legal recognition by same-sex couples.

Canada provides a glimpse of how a Bill of Rights might affect Australia. In 1960, its Federal Parliament passed the Canadian Bill of Rights, which was not constitutionally entrenched but merely an Act that could be repealed or amended. Two decades later, Canada decided to go further in adopting a Bill of Rights as part of its Constitution and in giving a greater role to the courts.

The Canadian Charter of Rights and Freedoms was enacted in 1982. The Canadian Charter protects a range of rights including freedom of expression, the right to equality and the right to be presumed innocent until proven guilty. It also has two novel features.

First, it instructs the courts that governments may limit rights under reasonable laws that ‘can be demonstrably justified in a free and democratic society’. Second, it provides that certain rights can be directly overridden where Parliament expressly states that its law is to operate notwithstanding the particular right.

The Canadian Charter is widely regarded as a success. It has protected fundamental rights, including those of the most vulnerable, and has led to a greater awareness of such issues amongst Parliamentarians and in the community. In a survey taken in 1988, 90 per cent of English Canadians and 70 per cent of French Canadians had heard of the Charter, with a large majority agreeing that it ‘is a good thing for Canada’. A survey in 2000 found strong community support for the Canadian Supreme Court, with 77 per cent ‘somewhat or very satisfied’ with its performance. It is not surprising that the Charter has been used as a model in nations including South Africa.

Australia, like Canada, should start with an Act of Parliament and not rush into constitutional entrenchment of fundamental rights. We need incremental change with community involvement and education rather than a once-and-for-all referendum. A Bill of Rights must be embraced by the people to have real value. This takes time.

In other respects, Australia should not follow the Canadian Charter. We need to develop a model that incorporates our aspirations and values. To achieve this, Australians should be involved in the drafting process by being able to make submissions to a Parliamentary committee or, even better, a body comprising both Parliamentarians and members of the community. The final list of protected rights should, at least initially, be a short one. It should only include rights - such as the right to vote and freedom from discrimination on the basis of race, sex or disability - that are widely supported and understood.

We should also depart from the Canadian model by placing greater emphasis on Parliaments rather than courts. The Charter refers too many social questions to the judges. We could avoid this by not including vague or contested notions such as a right to equality or a right to life. Legislation should also be examined by Parliamentary committees for compliance with the Bill of Rights. This would build Parliamentarians and the public into the rights protection process.

Ultimately, an Australian Bill of Rights should follow the Canadian model in providing that the protected rights are subject to reasonable limitations by Federal and State Parliaments, and that a Parliament may expressly override a right. Use of the override is likely to be rare given the political difficulties involved in expressly stating an intention to breach a right granted to, and popularly known by, the Australian people. This model would recognise the basic rights of Australians, while also balancing the roles of Parliament and the courts, with the final say being left to our elected representatives.

Because Australia has yet to enact a Bill of Rights, we have much to gain from examining the achievements of other nations. We should draft a Bill of Rights based upon our cultural values that adopts the best of the overseas models. Australia should not wait too long to begin this process. It is a necessary step in the continuing development of our democratic system.

© 2001 George Williams

George Williams is the Anthony Mason Professor and Director of the Gilbert & Tobin Centre of Public Law at the University of New South Wales. He is the author of A Bill of Rights for Australia.

Professor Williams has kindly given his permission to allow us to publish his article.