The evidence points to the need for an Australian Bill of Rights

Sir Anthony Mason has indicated how support for a Bill of Rights would not only entrench a domestic right protection regime, but would also increase access to international jurisprudence:

Australia’s adoption of a Bill of Rights would bring Australia in from the cold, so to speak, and make directly applicable the human rights jurisprudence which has been developed internationally and elsewhere.

The traditional arguments against a Bill of Rights centred on the views expressed by AV Dicey, who argued that civil rights were best protected by the common law and representative institutions.

The alternative view was put by former Attorney-General and High Court Justice, Lionel Murphy, who stated:

The Common Law does not say we have freedom of speech; it says we may speak as we wish, so long as what we say is not unlawful. The Common Law does not say we have the right to freedom of assembly; it says that people may not be prevented from meeting together unless the law forbids that meeting.

The denial of sufficient protection to minorities has undermined the validity of the Dicey approach to rights protection, and the old justifications no longer ring true. There is wider acceptance that democracy means more that an endorsement of one political party over another every three years. As Sir Gerard Brennan has explained, it now also depends on the respect by the majority for the fundamental rights of minorities:

…a measure of the civilisation of a society is the extent to which it protects for the needs of the disabled (and of other minorities) and protects them from adverse and unjust discrimination which offends their human dignity.

I note the issue of rights and protections afforded minorities is also discussed by Tom Campbell in his book, in his chapter on Justice as Rights, examining the theories of Ronald Dworkin on minorities.

It is difficult for the courts and Parliament to ignore the internationalisation of human rights protection. Advances in other jurisdictions and in the international context give rise to legitimate expectation for similar levels of protection in the Australian context.

This was illustrated by Kirby, J in Newcrest Mining (WA) Ltd v Commonwealth, where he extended the Bangalore Principles to constitutional interpretation in holding that it was appropriate for judges to favour the construction which would conform to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights.

Australia has a history of ambivalence towards human rights. Although we were one of the first signatories to the Universal Declaration on Human Rights, many of its provisions remain outside out domestic jurisprudence. Any move to increase coverage of the existing regime should be in the context of open discussion of the principles, rights and freedoms we wish to uphold, and their transparent enactment and entrenchment in a Bill of Rights.

George Williams suggests alternative human rights protection regimes and structures to a Bill of Rights, and I endorse in particular his suggestion that the Australian Parliamentary Committee system be amended to work perhaps in conjunction with a Bill of Rights, or for the terms of references of existing Legislative Committees to be amended to include reference to personal rights and liberties.

The current political climate of distrust of political institutions demands greater clarity and transparency, not further ambivalence and opacity if Australia is ever to reach agreement on the principles, rights and values it wishes to uphold.