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A charter of rights and aspirations: relevance to modern Australia

By Robert McClelland - posted Wednesday, 15 November 2000


Recent history has shown that realistically the way ahead cannot be for a constitutional bill of rights.

As George Williams has pointed out, the most recent attempt to entrench even basic rights in our Constitution was an abysmal failure.


The reality is that the issues involved in attempting to entrench a constitutional bill of rights in our Constitution would be, or would be perceived to be, so complex that, in my opinion, it would be a gross waste of public resources to even attempt a referendum to achieve it.

I am of the view, therefore, that the only way forward is to consider a statutory bill of rights.


Unless the procedure to introduce a legislative Charter of Rights is an inclusive process it will not be accepted as a document by and for the Australian people. It would be tarnished as the creature of self-interested politicians.

Indeed, I think one of the major failings of section 128 of our Constitution, which provides for Constitutional change through referenda, is that, by necessity, referendum Bills must be initiated by what the nay savers can describe as the political elite.

There is no doubt in my mind, therefore, that the approach being taken by the New South Wales State Government is the correct one. That is, involving the community in the process by receiving both written and oral submissions as to firstly, whether a bill of rights is warranted and secondly, if so, what form should it take.



Partial entrenchment

It can be argued that a statutory Bill of Rights is inadequate because it could so easily be changed. This is because each and every Parliament is supreme in its own time. Parliament cannot be bound by nor can it bind a future Parliament and hence any piece of legislation can be amended.

It is possible, however, to partially entrench a legislative Charter of Rights through, for instance, prescribing that the Charter of Rights will prevail over any other piece of legislation unless a subsequent Act specifically contained a "notwithstanding" provision. Such a mechanism, for example, exists in the Canadian Charter of Rights and Freedoms where it is possible to enact legislation that is inconsistent with the Charter, by providing that the legislation is intended to have operation "notwithstanding" the operation of the Charter.

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This is an edited extract from a speech given to the University of Technology Law School Alumni Dinner at the Sydney Casino on 2nd June 2000.

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About the Author

Robert McClelland MP is Shadow Minister for Defence and Federal Member for Barton (NSW). Previous ministerial positions include Shadow Attorney-General, Shadow Minister for Justice and Community Security and Shadow Minister for Homeland Security.

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