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Getting a Bill of Rights into the national conversation

By George Williams - posted Friday, 25 August 2006

Now that Victoria has enacted new protection for human rights, in the form of its Charter of Human Rights and Responsibilities, attention is shifting elsewhere. At the state level, the West Australian Attorney-General has announced an interest in the Victorian law, while Tasmania already has a process for change on foot and NSW Attorney-General Bob Debus has said that he will take the proposal to Cabinet for a community consultation.

With Labor governments around Australia and some form of Charter or Bill of Rights having been national Labor policy since 1969 it is no surprise that the Victorian Charter has given a boost to initiatives elsewhere. Along with the ACT Human Rights Act before it, the Charter provides momentum so that it is possible that a majority of the states and territories might have their own law in place within the next few years.

While we need better protection for human rights in these jurisdictions, we also need a national human rights law. No state law can deal with some of our most pressing human rights problems. These include the detention of asylum seekers, including young children, sometimes for years at a stretch, and now with the possibility of detention outside of our borders or even on a floating hulk off our coast.


State laws also cannot touch federal anti-terror initiatives that, like the new sedition law, unreasonably restrict freedom of speech. Nor can they affect recent electoral changes that, with the denial of the right to vote to all prisoners, bring about the first significant winding back of the federal franchise since 1902.

It is no surprise then that with human rights so often at the fore of federal political debate there is a strong push for national reform. This task has been taken up by a campaign run by online magazine New Matilda and led by people including Susan Ryan, a minister in the Hawke Labor Government.

Ryan has based the campaign for a federal human rights law upon her successful advocacy a quarter of a century ago that led to the Sex Discrimination Act of 1984. The first step in the New Matilda campaign was to draft their own federal human rights act, which protects the basic human rights recognised in international law. The law is not akin to the United States Bill of Rights of 1791 but is based on the United Kingdom Human Rights Act of 1998.

The act would operate in same way as the Victorian Charter in preserving parliamentary sovereignty and not transferring undue power to the courts. On the other hand, it would protect a wider range of rights in also including economic, social and cultural rights such as to food, housing, health and education.

The second step in the campaign began with the launch of the draft law last October in Sydney by former Prime Minister Malcolm Fraser and other prominent Australians. It has since been relaunched at events in other states and territories. These have brought the proposal to public attention and encouraged community feedback.

This stage culminated on August 13 this year with the re-launch of the law in Melbourne. The law has now been refined in light of community views.


The Melbourne event signalled the beginning of the third stage of the campaign in which New Matilda will seek to have the law debated as a private members bill in the federal Parliament.

As an ordinary act of Parliament, the New Matilda law does not require a referendum to change the Constitution. It only needs a successful vote of both houses of federal Parliament.

Few private members bills succeed, especially in a Parliament in which both houses are controlled by the government. Nonetheless, the private members bill earlier this year on abortion drug RU486 shows not only that some such bills can pass but how they can be a focal point for public debate.

There is no prospect that the New Matilda Bill will be passed before the next federal election. Prime Minister John Howard has spoken strongly against any charter of rights for Australia. Nonetheless, the Bill will put the issue on the national agenda. It will bring to public attention a sensible model drafted and refined with the benefit of expert and community input. It could in the future provide our national charter of rights.

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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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