A charter of rights and aspirations: relevance to modern Australia

The mere fact that a Parliament is required to specifically acknowledge that it is legislating contrary to the Charter of Rights is, in itself, a powerful disincentive and it has only occurred in exceptional circumstances.

Parliament, not the court, as the final arbiter

One of the major road blocks to previous attempts to enact a Bill of Rights is the argument that too much power would gravitate to the Courts and away from the democratically elected Parliament.

The responsibility of citizens to vote in an election is a good example where Parliament would wish to confirm an obligation that might otherwise offend against a right to participate or not participate in the political process. There is always the danger that an overly technical interpretation of any piece of legislation can subvert its purpose and intention.

To get around that situation, both the New Zealand and Great Britain Bills of Rights provide that while the courts are entitled to make declarations of inconsistency with the Bill of Rights their role is simply that, one of effectively providing an advisory opinion.

If such a declaration is made by a Court in those countries then the subject Legislation is returned to Parliament for consideration and Parliament can elect to either amend the legislation, or, notwithstanding the decision, to confirm its desire for the enactment to remain on the statute books.

Scrutiny of bills before enactment

Canada has a sophisticated system of executive scrutiny of bills before enactment. Any bill coming before the Parliament must first be considered by the Attorney General's Department, which advises the Parliament whether the Bill is in conformity with the Canadian Charter of Rights and Freedoms.

The concept of such scrutiny of bills is desirable, however, the model suggested by George Williams is far more sophisticated. Mr Williams has proposed that a parliamentary committee be established to advise Parliament on the extent to which bills comply with the Charter of rights.

In my first term in Parliament I served on the Joint Standing Committee on Treaties, which exists to examine international instruments before they are ratified. As part of its examination of treaties the Committee advertises its inquiries and invites submissions from the public. It is, I believe, a successful example of participatory democracy where members of the community have the opportunity to express their concerns or support for a particular treaty action.

It may be necessary to give such a Charter of Rights Committee a wide discretion to refer its particular responsibilities to another specialist Committee of the Parliament that might be considering a specific Bill but those matters can relatively easily be addressed to ensure that that there is no unnecessary duplication of resources.

Contents of a Charter of Rights and Aspirations