How would a Bill of Rights affect the Australian justice system?

In relatively recent times, the judiciary, and in particular the High Court, has been the subject of a great deal of criticism by some members of the public, some politicians and some media for seeking to make new law. The process of judges and courts developing, making and occasionally changing the common law has been going on for a very long time. The common law developed and modified by judges over the centuries is as much a part of our law as an Act of Parliament. However, within the limits of its constitutional power, Parliament can change the law that has been declared by the courts. There is no reason to change this system.

A systematic and extensive survey of popular opinion conducted in 1993 found that 54 per cent of Australians did not think human rights were well protected under the existing system. Seventy-two per cent were in favour of the adoption of a Bill of Rights and 61 percent believed that the final decision in relation to human rights matters should rest with the courts rather than the Parliament. The same survey also found that the views of most politicians were significantly different from those of the people they represent. The question whether Australia should have a Bill of Rights and, if so, in what form and with what content is essentially a political question.

Opinions differ regarding whether it is proper for a judge to express an opinion one way or another on the question. In 1988 the then Chief Justice of the High Court, Sir Anthony Mason, announced that he had changed his mind on the answer to the question and was now in favour of a Bill of Rights. He did so because Australia was going against the international trend and was falling out of step with comparable countries such as Canada.

When considering what we mean by a Bill of Rights, Lord Browne-Wilkinson has provided some useful terminology. He uses the term "the full Bill" to refer to the rights that are judicially enforceable and that cannot be overridden by Act of Parliament. An example of this is the Bill of Rights of the United States of America. What His Lordship calls a "half-way Bill" would be enforceable against the executive and, in the absence of clear statutory enactment to the contrary, it would be presumed that Parliament in passing legislation did not intend to infringe these rights. The half-way Bill is typified by New Zealand's Bill of Rights.

The arguments for and against a Bill of Rights have been well expounded in the 1987 Report of the Advisory Committee to the Constitutional Commission on Individual and Democratic Rights. The arguments in favour of a Bill of Rights include the following:

i. The inadequacy of present constitutional provisions.

ii. The inadequacy of the common law.

iii. Statutory erosion of rights upheld by the common law.

iv. Enhancement of democratic government.

v. The educative role of constitutional rights.

vi. An additional guide for judicial interpretation.

vii A means of meeting Australia's treaty agreements.