Australia has many customs, conventions, institutions and instruments for protecting the rights of Australians. So many, in fact, that the idea behind a Bill of Rights is redundant. In the absence of other methods and devices, an Australian
Bill of Rights may have been useful. However, as things stand it does not recognise the large array of instruments that we have inherited and which have grown over two hundred years of European settlement.
What is known as the United States Bill of Rights has remained largely unchanged since it was drafted in 1789, and hence there has been little evolution or progressions of those rights in the past 200 years. What was viewed as important in the
eighteenth century, may not be seen as important now, or have a negative effect (for example the right to bear arms). What is viewed as important now may be seen as unimportant down the track.
If one contrasts this unchanged Bill of Rights with Australian law, what is immediately noticeable are the changes and developments at a common law level (such as the Mabo decision) and that of other laws passed by Parliament. In fact,
there are countless changes to our legislation, as this is the most appropriate way to ensure that the laws reflect community standards and values at the time of their passing. When society’s values evolve, our Parliaments should have the
ability to change the law to represent this.
Mechanisms of consent are at the heart of democratic practice. Consent depends on a view among a large majority at a given time and place. Accepted rules from other times and other places may not always be suitable.
Rights so set in concrete may also lead to a great deal of discussion, disagreement and division. Who are to be the recipients of rights? Individuals (including or excluding foetuses), corporations, animals or the environment? And what
particular group of rights is to be recognised: procedural or substantive, individual or collective?
In the Australian Capital Television Case the High Court held that the Constitution contained an
implied right of freedom of political communication. The main beneficiaries of such an implied right were large media corporations, not individuals.
In New Zealand, jurisprudence involving their Bill of Rights is dominated by criminal cases (that is, either criminals or alleged criminals).
Many have voiced concerns over the increase in judicial input into the law-making process. Many fear that new legislation will be reviewed by the judiciary – then unelected officials will be deciding to override, or not, the will of the
representatives of the people. This would be a significant, and undemocratic, development in our law-making.
Also, if the Parliament were to utilise such vague language as "fair", "unconscionable", "just" and "equitable" then they are practically forcing our judiciary to impose their own values. When combined
with the controversial nature of some of the rights enforced, the end result may be a politicised judiciary, as is the case in the United States, and with the separation of powers being obscured.
With these concerns in mind, New Zealand passed the Bill of Rights Act 1990, written so that the Bill would not override other inconsistent legislation and not allow the judiciary any invalidating power or veto. It was to be an ordinary
statute (just like any other Act of Parliament) aimed at strengthening parliamentary scrutiny of any proposed legislation. However, the New Zealand judiciary had other ideas, and their Court of Appeal in Baigents Case created a previously
unheard-of remedy of public civil liability. The courts held up this Act as something with more influence and force than any other Acts of Parliament.
With the amount of litigation likely to result, there could be very heavy costs to be incurred. And, as is usual with issues of this nature, lawyers and legal counsel are likely to be the main beneficiaries.
The rights of Australian citizens are already protected with a vast array of legislation, common law and other institutions and customs. In fact, our common law includes the principles of law that are still directly embedded from as far back
as 1215, (the Magna Carta) right through to the Bill of Rights of 1688, and the Act of Settlement in 1701. This allows for the entrenchment of basic human rights but it also allows for their evolution and progression, over time.
An additional concern for those Australians not from the larger states is the effect on states’ legislation of a Commonwealth Bill of Rights. State laws could be greatly intruded upon and interfered with depending on how the Bill was written
and power further centralised in Canberra.
While proponents of an Australian Bill of Rights may have noble goals in mind when they argue for such a piece of law, unfortunately they overlook both the lack of need for such a Bill, and the many unforseen detrimental effects the
introduction of such a Bill may present.
Australians enjoy a wide range of freedoms, due to many innovations and devices that make unnecessary the introduction of a Bill of Rights. As soon as someone can show a solid, positive use of such a Bill then I will be the first to support
it; but until that day, I can not.