It may surprise some Australians to know that we do not have a Bill of Rights, and that the Constitution provides very few individual rights and protections to Australians.
This means that most rights are granted by the government through provisions in other legislation. The problem is that although a person’s rights can be granted with relative ease, the same rights can be removed with similar ease and with little opportunity for opposition.
Australia’s Constitution came into effect in 1901 and it is the law which governs other Australian laws. If the Constitution says that the federal parliament has power over a particular area of the law, then state laws that are inconsistent with federal laws in the area will be invalid to the extent of the inconsistency.
For example, the laws governing marriage have been expressly granted to the federal parliament by the Constitution and they ‘cover the field’ of marriages, which is why same sex marriage laws cannot be enforced by state parliaments. If such laws are passed, they will be deemed invalid upon challenge.
This regime results in states having different laws from those of the Commonwealth, and actions which are lawful in one state might not be lawful in another.
What rights does the Constitution protect?
There are very few individual rights given by our Constitution.
The only express rights are:
- The right to vote (Section 41),
- Protection against acquisition of property on unjust terms (Section 51 (xxxi)),
- The right to a trial by jury for criminal cases in the higher courts (Section 80),
- Freedom of religion (Section 116), and
- Prohibition of discrimination on the basis of State of residency (Section 117).
What are implied rights?
It has been held in the High Court that the combined effects of section 7 and section 24 of the Constitution give an implied freedom of political communication.
This is often mixed up with a right to ‘free speech’. Australians do not have an express right to free speech. There is an implied right to be able to freely express our opinions about politics/government. However, an implied right can be allowed or denied.
Section 7 and 24 also give an implied right to vote, because how better to express a political opinion than through the act of voting? However, there are laws which prohibit some incarcerated persons from voting.
This is another example of how the Constitution does not give or protect what some might consider as a basic right in a democratic society. Could a society even be considered democratic if a person is denied the ability to vote?
Would we become like the USA?
The USA is famous for its Bill of Rights, which is found within the Constitution. The Americans amended their Constitution to ensure the rights of the people would remain firmly in place within their legal processes and governance. Changes to these amendments are almost impossible, as demonstrated by the most recent debate around the right to bear arms.
A referendum would have to be held to make any changes to our Constitution. However, it would seem that our process would be similar to the New Zealand model, where the Bill of Rights sits outside the Constitution, thereby potentially giving ability for any changes or amendments completely into the hands of the federal parliament.
However, New Zealand does have the ability to bring an action of law against its government if a law does breach the Bill of Rights. This might help to keep governments honest.
Would a Bill of Rights benefit Australians?
Australia is one of the few countries without a Bill of Rights, which prompts the question of why we don’t have one. Are we giving our governments more power and ourselves less power by not having one?
One example of where a Bill of Rights would have been useful is in Queensland’s controversial bikie laws. When a member of the Brisbane Chapter of The Hells Angels tried to challenge the validity of these laws within the High Court, the court ruled that as he was not coming to the court with a conviction under the VLAD laws, he was unable to challenge the law. If Australia had a Bill of Rights, a conviction may not have been necessary to bring about a challenge.
The Bill of Rights ideology is to give the same rights to every individual and to lessen the power of governments to impose their bias, prejudices and even morals within our laws. It would create better accountability to ensure fairness for all individuals.
A Bill of Rights has been discussed in our federal parliament, however it has never proceeded past the second reading. The last time it was discussed was in 2008 when Senator Natasha Stott-Despoja reintroduced the draft of the Bill of Rights 2001.
Some argue that Australia already has strong protections for individual rights within other legislation, but many who have had their rights removed without the right to appeal would perhaps disagree.
A Bill of Rights gives people the ability to fight unjust laws, to appeal against legislation which removes rights, and arguably provides less opportunity for corruption and dishonesty to occur within governments. Some argue that it is naïve and dangerous to keep giving our governments such trust in determining our rights and freedoms.
Australians hope that legislation will protect our rights and freedoms, but as has been seen by many in recent years, this is not everyone’s experience of the law.