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

The arguments against a Bill of Rights in Australia have principally relied upon the protection afforded by the common law. Some of the arguments are based on the contention that a Bill of Rights would confer too much power on the courts and, in particular, the High Court. Others contend that existing constitutional protections are sufficient Another argument against a written Bill of Rights is that many rights may be left out and, over the course of time, those that are left out may be perceived to be of lesser value and consequently more readily susceptible to extinction.

Another perceived problem with a Bill of Rights is that rights and freedoms tend to be stated in very general terms. The United States allows influences such as the political philosophy or values of the person called upon to interpret such legislation to result in widely differing interpretations. This has often been used as an example of the danger inherent in broad statements of principle and seems to be the most fundamental argument against constitutional entrenchment of a Bill of Rights.

Australia, without a Bill of Rights, is now outside the mainstream of legal development in English-speaking countries, particularly those most comparable in their political and legal systems, including the United Kingdom, New Zealand and Canada. It is disappointing to note that to date in Australia there has been very little sustained thought or research devoted to the fundamental issues of the detailed nature and content of a Bill of Rights. In the various debates regarding the Australian Constitution in the lead up to the Centenary of Federation in 2001 the main focus has been on whether Australia should become a republic and, and in that event how should the Head of State be selected, elected or appointed. The question of a Bill of Rights does not seem high on the national agenda, despite the opinion polls, because of the level of controversy regarding the extent of the judicial power.

There are also critical views expressed in the states regarding the external affairs power of the Commonwealth. This criticism has been directed to accession to the United Nations Convention on the Rights of the Child and other treaties, without adequate consultation with or participation by the states. Issues of human rights tend to be debated in a context where the real questions are sometimes obscured by economic, racial and other issues that lead to those promoting the cause of fundamental rights being referred to as "bleeding hearts" and "do-gooders".

I hope that during the next few years, whilst contemplating the significance of this new millenium we will see a rational and detailed national debate on the desirability, scope and content of a Bill of Rights. While much has been achieved through the development of the common law, the courts have had to pay a price for this in regard to criticisms that they have taken too much power to themselves.

The guidance provided by a Bill of Rights would be one way of assisting the courts as well as re-asserting the supremacy of Parliament. At the same time, it will need to be acknowledged by Parliament that the courts will become more involved in the weighing of competing considerations, including those of a policy nature in the interpretation and application of a Bill of Rights, whether entrenched or unentrenched.