A charter of rights and aspirations: relevance to modern Australia

Again, it would be entirely counter-productive to thrust upon the Australian people a Bill of Rights created solely by politicians without their input. In other words, the Charter of rights should include principles desired by the overwhelming majority Australian people.

This would, I imagine, result in a Conservative document and probably one that would protect a relatively narrow span of rights. Nevertheless, the alternative of including an extensive and detailed list of rights would have several dangers.

Previous attempts to enact a Bill of Rights met with strong opposition from those who either argued for or against the inclusion of a right to life and, specifically, whether the right should be extended to unborn babies.

If the focus was on a relatively narrow span of widely accepted rights expressed with broad language there is no need to enter into the minutiae of those controversial and destructive debates.

The inclusion of a statement of Aspirations

I am particularly attracted to the inclusion of a statement of aspirations in a second and discreet Part of the Charter of Rights that would not be reviewable in a court of law.

I would envisage that such a statement of aspirations would nonetheless be something requiring the attention of the Joint Standing Committee on the Charter of Rights or other properly designated Committee.

A precedent for the inclusion of such aspirations is the South African Bill of Rights which, for instance, contains a reference to the separate aspirations of equitable access to natural resources, housing, health care, food, water, Social Security and education.

Should a Charter of Rights and Aspirations Bind the States and Territories?

The defence of States’ rights was a significant reason for the failure of previous attempts to introduce a Bill of Rights. The concern is that, being a Statute of the Commonwealth Parliament, a Federal Charter of Rights could be expressed to prevail over state legislation.

In the context of legislative action concerns for State and Territory rights could be addressed by specifically acknowledging the right of the States and Territories to legislate inconsistently with the Charter provided they use the mechanism of a "notwithstanding clause". This would itself provide some disincentive to departing from the terms of the Charter and, at least, would have the effect of ensuring that the impact on human rights would become part of the debate.

Given that the main thrust of the emphasis I am proposing is one of developing a consensus for a national standard I am inclined to the view that a Federal Charter of Rights should apply only to Federal rather than State or Territory executive action.

That is not to say that the Charter should not be developed as a model that could be voluntarily applied throughout Australia to all legislative and executive action. Change of this sort should move with broader community acceptance and success of an effectively working Federal model would be the best endorsement for application at a State and Territory level.

Summation and Conclusion

Based on history alone one could not be criticised for a lack of optimism in pursuit of the long-standing policy commitment to an Australian Bill of Rights. However, history has moved on and we have seen New Zealand, Canada and, most recently Great Britain, all common law countries, introducing Bills of Rights for their citizens.