A federal or state-based Bill of Rights for Australia?

The case for an Australian Bill of Rights is compelling, although as an Act of parliament and not as a change to our Constitution. Rather than follow the United States, we should look to the models operating in New Zealand and, more recently, the United Kingdom.

The republic debate exposed the underbelly of Australian democracy. It revealed deep, entrenched, problems in our system of government, and the need for significant structural reform. Action must be taken to rebuild the connection between Australians and their government.

Over the longer term, constitutional renewal is necessary. Our Constitution was not written as a people's document. It does not embody our rights or aspirations, nor any spirit of reconciliation with Indigenous peoples. It also fails to explain how the current system works. The text does not mention the Prime Minister, and suggests that all power is vested in the Queen, and her representative the Governor-General. The Constitution also has negative aspects. In particular, the races power was drafted to enable the Federal Parliament to pass laws that discriminate against people on account of their race.

In the shorter term, we should focus on pragmatic options to re-engage the community with the political system. In A Bill of Rights for Australia (UNSW Press, 2000), I argue for the drafting of a Bill of Rights as an Act of parliament at the Federal or State level. There is strong community support for a Bill of Rights, with one survey showing 72% for, 7% against and 21% undecided.

Australians like to think that their rights are well protected. Of course, in the main this is correct. We are fortunate that the rule of law is firmly entrenched in our political culture, and that we have an independent High Court where such issues can be aired. However, without specific protection of basic freedoms under a Bill of Rights, this will only take us so far.

Our freedoms are often solely dependent on the wisdom and good sense of our representatives. This can be too easily taken for granted, as was shown by the long-standing government policy of forcibly removing Indigenous children from their families.

Without legal protection, many of our rights can be taken away. The Stolen Generation is one example among many. Such examples are too easily forgotten, particularly when the victims are outside the mainstream of the Australian community, like Indigenous peoples, or people who are easy to fear or hate, such as communists at the height of the Cold War.

Even today, political agitators are jailed. In 1996, Albert Langer was imprisoned for 10 weeks for distributing leaflets encouraging voters to put the Australian Labor Party and the Coalition equal last. Amnesty described Langer as "the first prisoner of conscience in the country for over 20 years".

The current lack of protection for human rights in Australia, combined with the lack of knowledge of the few rights that we do possess, presents a strong case for reform. Now is the time to address these issues. The republic debate is an important one, but it should not permanently obscure the need for change in other areas. In any event, until more is done to reconnect Australians with government, through, for example, recognition of their basic rights, they may be reluctant to support the shift to a republic.

A Bill of Rights should be built upon the commitment and participation of the Australian people and their elected representatives. This means that, at least initially, a Bill of Rights should be in the form of an Act of Parliament. Ironically, although human rights need to be protected against parliamentary action, it must be the parliaments themselves that take the lead in any move to entrench such rights.

This would engage the community in reform without the need for a referendum. It would produce a document that set out the place of Australians within the political system, without transferring ultimate power from parliaments to the courts. Rather than merely establishing legal rules, the aim would be to foster a culture of liberty, including a tolerance and respect of difference.

The process for creating a Bill of Rights might focus upon a draft prepared and put to a parliamentary committee, which would take submissions from the community and hold hearings around the country. The end result would be a statute recognising and protecting the core rights of the Australian people, while being subject to repeal or amendment (and hence refinement) by parliament.

The Bill should be drafted so that a parliament could override any of the rights as applied by a court, but only where the parliament expressly states an intention to do so. This would raise the override as a political issue, and would require strong public justification. Through the media, this would produce an ongoing dialogue between parliament, the courts and the people.