Five Reasons Why Australia Should Adopt a Statutory National Bill of Rights
By Zak Vidor Staub
1. Our current system is not effective enough
Although Australia claims to have a ‘strong tradition of respect for the rights and freedoms of every individual’, significant flaws remain in the Government’s approach to protecting human rights. The Australian Human Rights Commission points to examples such as: the poorer health outcomes of Indigenous Australians, the ‘mandatory and indefinite detention’ of asylum seekers, and the inadequacy of homeless people’s living conditions.
Whilst there is a patchwork of domestic and international mechanisms that promote the maintenance of human rights within Australia, a clear and unifying codification of rights is lacking. A Bill of Rights represents one possible solution to this, as it would work within the framework of democracy to promote the rights of individual all individuals, including those in the minority.
A Bill of Rights is most effective when functioning within a robust and vibrant democracy so that it may be upheld and depended upon. Further, as a statutory Bill of Rights would ultimately be under the control of the Commonwealth Parliament, in that they would have the ability to design and reform it, it would not entail the same transfer of power to the courts as a constitutional amendment.
2. A Bill of Rights would promote the protection of human rights by clarifying the rights held by individuals in Australia
A statutory Bill of Rights would encourage Australia to become a more rights-focused society. In such a society, people would be more likely to learn about and rely upon the rights to which they are entitled, and, as a result, the Government would face more pressure to uphold them. In this way, a Bill of Rights would have educational as well as practical significance.
Rather than functioning as a legal instrument only, the Bill of Rights might also take on symbolic importance, encouraging the protection of rights through its existence. As is discussed in section five, below, some of the issues associated with the inflexibility of a Constitutional Bill of Rights would be avoided by the statutory method.
3. Having a Bill of Rights would positively impact the day-to-day lives of Australians
According to the Australian Human Rights Commission, key rights such as the right to free speech and the right to legal representation are not currently protected in Australia. Further, it points out that the human rights outcomes for many ordinary Australians, such as ‘people with mental illness… women with young children seeking to escape domestic violence…[and] people in rural and remote locations without access to adequate health care or education’, are poor. The failure of the Government to identify and eliminate these less visible human rights challenges would be highlighted by the introduction of a Bill of Rights.
The Australian Bill of Rights Bill 2017, which was not ultimately enacted, specifically included, for example, the right to adequate child care, the right to education, and the right to an adequate standard of living (including access to health care services and social security). These provisions would have benefitted the vulnerable groups identified by the Australian Human Rights Commission.
4. Keeping up with international human rights standards might improve Australia’s international standing
Australia is a signatory to multiple human rights treaties that have not been effectively implemented into domestic law. Australia recently received 290 recommendations from 104 member states on how it can improve its protection of human rights during the second Universal Periodic Review (UPR). Common themes presented themselves in the recommendations, not all of which were unique. For example, recommendations from over 35 states addressed ways Australia could better protect its Indigenous people. Although the recommendations of the UPR are not binding, they do represent a significant process of international scrutiny that shines a light on Australia’s success or failure in the maintenance of human rights. Therefore, better compliance with international human rights standards through the implementation of a federal Bill of Rights could lead to an improvement in Australia’s international standing.
5. A Statutory Bill of Rights can change over time
A statutory Bill of Rights could be changed by the Commonwealth Parliament, allowing it to more easily evolve with society and remain relevant. This would distinguish it from systems like the USA’s constitutionally entrenched rights regime, which is extremely difficult to reform due to the USA’s rigid constitutional structure. This would allow the protections that are enumerated to adapt and more consistently reflect the view of contemporary society. This is because the parliament of the day would represent the Australian political landscape at that time. By allowing such significant control of the process to remain with Parliament, parliamentary sovereignty would remain intact.
However, flexibility’s trade-off is clear: this would also mean that a statutory Bill of Rights could be changed at the whim of the parliament of the day. This retention of power could undermine the effectiveness of the rights regime and reduce the reliability of the document. However, perhaps this would be a necessary price to pay in order to avoid the stagnancy experienced by more rigid systems and to not derogate from parliamentary power.
Zak Vidor Staub is studying a Bachelor of Laws and Arts at UNSW Sydney, and was the student editor for the Australian Journal of Human Rights.
Click here to read Zak's earlier story on Human Rights Acts around Australia.