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How would a Bill of Rights affect the Australian justice system?

By David Malcolm - posted Thursday, 30 November 2000

The guarantee of certain basic human rights to the individual is an important aspect of the observance of human dignity and integrity. There is, however, a broad range of approaches to human rights adopted by countries that share similar origins.

The omission of a Bill of Rights from our Constitution is one of the elements that marked it as different from the United States Constitution, from which a number of other provisions were derived. The omission was not by accident. The proposed inclusion of a Bill of Rights was defeated, somewhat ironically, on the basis that a 'due process' provision would undermine some of the discriminatory laws in place at that time, including laws enacted to the detriment of Aborigines and Asian immigrants.

A number of attempts have since been made to amend the Constitution to include a Bill of Rights. Commonwealth Parliamentary enquiries in 1929 and 1959 rejected the proposal. A referendum in 1944 was also defeated. In 1985 the Australian Government introduced legislative initiatives to enact an Australian Bill of Rights, but decided on 18 August 1986 not to proceed with the Bill. In 1988 the Constitutional Commission recommended an entrenched Bill of Rights, which was not taken up by the Government. During the same year, constitutional referendums to extend the application of existing rights provisions attracted the lowest "Yes" vote in any Commonwealth referendum to date.


The context in which the current debate over a Bill of Rights is occurring is the impending celebration of the centenary of Australia's existing Constitution in 1901. A more significant issue has been raised by the discussion of the need for fundamental reforms to the Australian system of government. In this context, a Bill of Rights has begun to loom large as one of the component parts of an overall package of recommended reforms.

Prior to considering the merits and pitfalls of a Bill of Rights it is important to understand that certain individual rights are already recognised at common law. The "common law", in its broadest sense, means judge-made law and judge-developed law. As such, I include the interpretation of statute law, that is, the law as enacted by Parliament, and the interpretation of constitutional provisions by the judiciary.

The common law has protected civil and political rights in four main ways. First, it has recognised and protected a number of rights and freedoms, which it has seen as fundamental. Second, responding to the avalanche of legislation that regulates our conduct, it has developed rules of statutory interpretation that limit the degree of legislative encroachment into our rights and freedoms. Third, the Australian High Court has in recent years begun to give new life to express guarantees in the Constitution. Fourth, some judges have suggested that limitations on legislative competence to contravene fundamental rights are to be found in the "peace, order and good government" formulae in our Constitutions, or in implications to be drawn from the structure of the Australian Commonwealth Constitution and the free and democratic nature of Australian society.

In terms of international human rights norms, Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights has brought to bear on the common law the powerful influence of the Covenant and the international standards it impacts. It may be expected that the results of individual petitions to the United Nations Committee could have a similar outcome in Australia to those that have occurred in England, given the accession of the United Kingdom to the European Convention on Human Rights. It must be acknowledged, however, that many of the rights recognised by the International Covenant on Civil and Political Rights are not currently protected by the common law.

In Australia, certain developments in the common law have been expressed to be made consistently with international norms. In Mabo v Queensland [No 2] this was a significant part of the rationale for abandoning the fiction of terra nullius, which was the basis for the "discriminatory rule" of the common law departed from in Mabo. Australia is a party to the United Nations Convention on the Rights of the Child, under which the best interests of the child are declared to be a "primary consideration" in all relevant actions concerning children.

In Minister for Immigration v Teoh it was held that the provisions of the Convention were relevant to a decision to deport the father of young children. While such provisions were not incorporated into domestic law, accession to the Convention resulted in a reasonable expectation that those making administrative decisions in relation to a parent which would affect the rights of children would take into account as a primary consideration the best interests of the children, who were themselves Australian citizens.


While the common law has developed to protect some civil rights, the question of the ability of the common law to develop so as to deal with ongoing infringements of those rights was examined by the Chief Justice of South Australia, the Hon John Doyle (then Solicitor General of South Australia) and Ms Belinda Wells in 1992. They strongly suggested that "no-one should underestimate the capacity of the common law to adapt to change in society."

It was conceded, however, that there are two "obvious limitations" on the ability of the common law to protect human rights. The first is the principle of parliamentary supremacy. The second is the basic approach of the common law to the identification of what may be properly termed a 'residual right'.

To these limitations, two further limitations might be added. The first is that, while the courts are increasingly responding to society's attitude to human rights, the capacity of the common law is limited to the extent that it is opportunistic. No general statement of relevant rights can be developed in response to the individual case. The Court is restricted to a declaration of rights as between the parties before it. The second is that the development of the common law is dependent upon the doctrine of precedent. To the extent that the courts develop an approach based upon general rights, such as the right to a fair trial or the right to freedom of speech or expression, the approach must be reasoned and principled, based on a balancing of the interests involved and with an eye to consistency with previous decisions.

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This is an edited version of a speech given to the Amnesty International Como Group on 16 July 1998 and published in the Murdoch University Electronic Journal of Law, Vol 5, No 3 (September, 1998).

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About the Author

The Hon David K Malcolm AC is Chief Justice of Western Australia.

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