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Bill of Rights
This guide contains links to Internet resources and documents relating
to a Bill of Rights or Charter of Rights at the Commonwealth, State and
Territory level. Some comparative material on overseas law is also included.
See also the Parliamentary Library's Internet guide to Civil
and Human Rights law.
Commonwealth (federal)
There is no federal Bill of Rights legislation. Documents listed below
outline the attempts to introduce a Bill of Rights. See also information
on implied rights in the Constitution in the Library's Constitutional
Law Internet Resources page.
The Australian Labor Party, elected in 2007, has in its 2007
National Platform a commitment to establish an inquiry and consultation
process to gauge the need and support for statutory protection of rights.
In November 2008, the Government established
a National Human Rights Consultation Committee (chaired by Father Frank
Brennan) to undertake the consultation and report
by 30 September 2009. The Committee recommended that Australia adopt a
federal Human Rights Act. In April 2010, the Government responded to the
NHRCC report by issuing its Australia's
Human Rights Framework document and related press releases, which
includes proposals to establish by legislation a Parliamentary Joint Committee
on Human Rights which would scrutinise legislation compliance with human
rights treaties and a requirement that all new legislation introduced
or tabled in Parliament be accompanied by a compatibility statement on
human rights. A federal Human Rights Act is not intended at this stage.
Related legislation
- Human Rights (Parliamentary Scrutiny) Act 2011
Establishes the Parliamentary Joint Committee on Human Rights to examine
bills, legislative instruments and acts for compliance with international
human rights instruments and requires new bills and legislative instruments
to be accompanied by a human rights statement of compatibility
Attempts at a federal Bill of Rights
- 2001 Parliamentary
Charter of Rights and Freedoms Bill 2001
Originally the Australian Bill of Rights Bill 2000 (see below)
and introduced into the Senate by Australian Democrats leader, Meg Lees.
The Bill did not progress beyond its second reading on 27th September
2001. Reintroduced
by Senator Stott-Despoja in 2005 and 2008. The Bill lapsed with the
retirement of Senator Stott-Despoja on 30 June 2008
- 2001 Australian Bill of Rights Bill 2001. A Private Member's
Bill introduced by Dr Andrew Theophanous MP in the House of Representatives
on the 2nd April 2001. The Bill did not proceed to a second reading
- 2000 Australian
Bill of Rights Bill 2000
Draft bill by Australian Democrats Senator Andrew Murray. Introduced
as the Parliamentary Charter of Rights and Freedoms Bill 2001
(see above). Provides text of bill, a summary and the Democrats press
release. [May not be available outside the Parliamentary computer network]
- 1988 Constitution Alteration (Rights and Freedoms) Bill. Passed
by Parliament but rejected at referendum on 3 September 1988.
- 1985 Australian Bill of Rights Bill. Not passed. Passed by
the House of Representatives, withdrawn by the government in the Senate.
- 1984 Draft Australian Bill of Rights Bill. This draft was given limited
distribution by Attorney-General Gareth Evans and later released under
the Freedom of Information Act. An amended version was introduced by
Attorney-General Lionel Bowen in 1985
- 1982 Human Rights Bill. Introduced by Senator Janine Haines
(Australian Democrats) as a Private Senator’s Bill. It was modelled
on the 1973 Murphy bill, with revisions relating to family, and religious
freedom and an additional section relating to sexual preference. Not
passed
- 1973 Human Rights Bill. Not passed; lapsed with the double
dissolution of April 1974
- 1944 Alteration
(Post-War Reconstruction and Democratic Rights) Bill. A proposal
to amend the Constitution to insert constitutional guarantees of freedom
of speech and religion and safeguards against the abuse of delegated
legislative power. Passed by both Houses but rejected by popular vote
at referendum
- 19th century. The
Dead hand of the founders?: original intent and the constitutional protection
of rights and freedoms in Australia (H. Patapan) - The attempt to
include a Bill of Rights in the drafts of the Constitution by Andrew
Inglis Clark
Sites
Arguments for and against a Bill of Rights
- 2006 A
Human Rights Act for Australia? (The Law Report, ABC Radio National,
22/8/06)
Pros and cons for human rights legislation
- 2000 Professor George Williams summarised the arguments for and against
in his publication A Bill of Rights for Australia, University
of NSW Press, Sydney, 2000, p. 35:
| FOR
|
| Australian law does not protect fundamental
freedoms |
| A Bill of Rights would give power of
action to Australians who are otherwise powerless |
| A Bill of Rights would bring Australia
into line with the rest of the world |
| A Bill of Rights would enhance Australian
democracy by protecting the rights of minorities |
| A Bill of Rights would put rights above
politics and arbitrary governmental action |
| A Bill of Rights would improve government
policy making and administrative decision making |
| A Bill of Rights would serve an important
educative function |
| A Bill of Rights would promote tolerance
and understanding in the community |
|
| AGAINST |
| Rights are already well protected in
Australia |
| The High Court is already protecting
rights through its interpretation of the Constitution and the common
law |
| Rights listed in the Constitution or
Acts actually make little or no difference in protecting rights
|
| The political system itself is the best
protection of rights in Australia |
| A Bill of Rights would actually restrict
rights, that is, to define a right is to limit it |
| A Bill of Rights would be undemocratic
by giving unelected judges the power to override the judgment of
Parliament |
| A Bill of Rights would politicise the
judiciary |
| A Bill of Rights would be very expensive
given the amount of litigation it would generate |
| A Bill of Rights would be alien to our
tradition of Parliamentary sovereignty |
| A Bill of Rights would protect rights
(e.g. the right to bear arms) which might not be so important to
future generations |
Arguments For a Bill of Rights
- 2009 Human Rights Law Resource Centre NHRCC
Submission
- 2009 Law Council of Australia NHRCC
Submission
- 2009 Would
an Australian Charter of Rights be good for business? (Francine
Johnson & Edward Santow, UNSW))
- 2009 A
Human Rights Act, the courts and the Constitution (Former High Court
judge Michael McHugh, argues that some proposals are constitutionally
unworkable and calls for the legislative implementation of the ICCPR)
- 2009 Law
Council of Australia policy documents supporting a Bill of Rights
- 2008 The
National debate about a Charter of Rights & Responsibilities: answering
some of the critics (High Court judge Michael Kirby)
- 2008 Bill
of rights is essential to best serve human rights (John Von Doussa,
Former President of the Australian Human Rights Commission & Federal
Court judge)
- 2008 Towards
an Australian Bill of Rights: For (Professor & former Attorney-General
Michael Lavarch)
- 2008 Bill
of rights will help the hoi polloi, not just the haughty torty (Assoc
Professor Andrew Lynch, UNSW)
- 2008 OPINE:
The case for a Bill of Rights (Susan Ryan, former ALP Senator &
Minister)
- 2008 Anti-terror
laws mean we need bill of rights (Ron Dyer, former NSW Minister)
- 2008 Charter
of rights will make pollies more accountable (Anna Katzman, Barrister)
- 2007 A Charter of Rights for Australia. Sydney: University of NSW
Press. 96 pages. (Professor George Williams). Not available electronically
- 2007 The
WA Human Rights Bill: for: although Kentucky Fried Chicken would not
be guaranteed (Hannes Schoombee, Barrister)
- 2007 The
need for agitators: the risk of stagnation (Michael McHugh, former
High Court judge)
- 2007 Why
we need an Australian Bill of Rights now (Sev Ozdowski, Human Rights
Commissioner)
- 2006 A
human rights act for Australia (David Malcolm, former judge)
- 2001 Senator
Brian Greig, Australian Democrats, says there is nothing to fear from
a Bill of Rights (Canberra Times, 23/8/01, p. 13)
- 2000 A
charter of rights and aspirations: relevance to modern Australia: address
at the University of Technology Law School Alumni Dinner (R. McClelland,
Shadow Attorney-General)
- 2000 Former Prime Minister Malcolm Fraser calls for a Bill of Rights
Interview
(The National Interest 27/8/2000) ---
Response from the Shadow Attorney-General, R. McClelland
- 2000 Legislating
for a Bill of Rights now (G. Williams, ANU) [Senate Papers on
Parliament; no. 36, pp. 23-38]
- 1999
Are anti-discrimination statutes a model for a Bill of Rights? (Justice
R. Atkinson)
- 1992 Keeping
government at bay: the case for a Bill of Rights (F. Devine)
- 1973 An
Australian Bill of Rights? (Gareth Evans, Attorney-General)
Arguments Against a Bill of Rights
- 2009 Don't leave us with the bill: the case against an Australian
Bill of Rights. Barton, A.C.T. : Menzies Research Centre, 2009. 330
pages. Collection of 29 essays, including contributions from George
Brandis, John Howard & Bronwyn Bishop. Not available electronically.
- 2009 Professor Helen Irving (University of Sydney) NHRCC
Submission
- 2009 Michael Tate (Former Senator & Minister for Justice advocates
an enhanced role for Parliamentary scrutiny of legislation over a BOR)
NHRC
Submission
- 2009 [Queensland]
Chief justice [Paul de Jersey] opposed to bill of rights
- 2008 Justice Patrick Keane (Queensland Supreme Court): In
celebration of the Constitution
- 2008 Cardinal George Pell: Four
fictions: an argument against a charter of rights
- 2008 James (Jim) Spigelman (Chief Justice of New South Wales):
McPherson Lecture series (University of Queensland, 10-12 March
2008)
- 2008 Senator George Brandis (Shadow Attorney-General): The
debate we didn't have to have: the proposal for an Australian bill of
rights ; Bill
of rights could just mean a big bill ; Submission
to the HRCCC
- 2008 Professor James Allan (University of Queensland): Giving
lawyers more power will cut our liberties (2008) -- Bill
of rights benefits judges, lawyers most (2006)
- 2008 John Hatzistergos (NSW Attorney-General): Charter
of rights or a charter of wrongs? Speech to the Sydney Institute
(2008) -- Busting
myths about the need for our own charter of rights (2008) -- Attorney-
General rejects charter of rights for NSW (2007)
- 2007 Philip Ruddock (Attorney-General) Bills
of Rights do not protect freedoms -- A
Bill of whose rights?
- 2007 (Professor Greg Craven, Curtin University) The
WA Human Rights Bill: against: if it walks like a Bill of Rights and
talks like a Bill of Rights... -- Beware
hidden agendas (Australian Financial Review, 12/5/2008)
- 2006 Proceedings
of the 18th Conference of the Samuel Griffith Society
3 papers against a bill of rights by Prof James Allan, Ben Davies and
Janet Albrechtsen
- 2006 The
wrongs of pushing a bill of rights (Alan Anderson, Lawyer)
- 2003 The Prime Minister, John Howard, opposes a Bill of Rights during
a
speech to mark the centenary of the High Court. See alsoaddress
to the National Press Club in 2006, Legends of Talk lunch, Sydney,
30 July 2007 (reported in the Sydney
Morning Herald, 31/7/07, p. 7); University
of Melbourne speech, August 2009
- 2001 A.C.T.
Liberal Attorney-General, Bill Stefaniak backs Bob Carr's opposition
to a Bill of Rights (Canberra Times, 24/8/01)
- 2001 NSW
Premier Bob Carr argues against a Bill of Rights (Canberra Times,
20/8/01) -- Submission
to the Standing Committee on Law and Justice Inquiry into a NSW bill
of rights (2001) -- The
rights trap: how a Bill of Rights could undermine freedom (Policy,
Winter 2001) -- Lawyers
are already drunk with power (Australian, 24/4/2008)
- 2001 Attorney-General,
Daryl Williams, argues against a Bill of Rights (Address to National
Law Week, May 2001: news release)
- 1999 A
Bill of Rights: the ultimate in participation, or an immature stage
in our development? (G. Johns)
- 1995 Does
Australia need a Bill of Rights? (Sir Harry Gibbs)
- 1995
Righting the Constitution without a Bill of Rights (P. Bailey)
- 1974 Menzies on human rights [Sir Robert Menzies attacks the 1973
Human Rights Bill]. Part
1; Part
2; Part
3
General material
For further items, search the Parlinfo
database and select Library for journal articles, books and
library publications, and Media for newspaper articles and media
releases. Although full text searchable, for copyright reasons some material
on Parlinfo may be available only to those using the Parliament House
computer network.
- 2010 Australia's
Human Rights Framework (Attorney-General's Department)
- 2009 National Human Rights Consultation Committee report
- 2009 [Constitutional
aspects of various BOR proposals] Submission to the NHRCC (Anne
Twomey, University of Sydney Law School)
- 2009 Australian
Human Rights Commission Roundtable statement on the 'Constitutional
validity of an Australian Human Rights Act'
- 2007 Do
it yourself charter to right future wrongs (Sydney Morning Herald,
1/12/07)
New Labor Attorney-General, Robert McClelland, outlines his plans for
a bill of rights
- 2007 Protecting
Human Rights Conference
Includes paper by James Stellios on the constitutional problems of implementing
a federal bill of rights
- 2006 A
NSW Charter of Rights?: the continuing debate (Gareth Griffith,
NSW Parliamentary Library Briefing Paper No 5/06)
- 2006 Tasmania,
WA join push for bill of rights. Australian Financial Review 13/1/
2006. Overview of State attitudes to a Bill of Rights
- 2005 Bill
of Rights (Hot topics: legal issues in plain language; 54). Legal
Information Access Centre. Good overview of the issues
- 2005 New
Matilda Draft Human Rights Bill 2006 - text
- 2003 Special
issue of the Australian Journal of Human Rights (v. 9, no. 1) on a BOR
- 2000 The
Protection of Human Rights: A Review of Selected Jurisdictions (Gareth
Griffith, NSW Parliamentary Library Briefing Paper No 3/2000)
Examines which countries have bills of rights
- 1999 The
Federal Parliament and the protection of human rights (G. Williams,
ANU)
- (1998) Agreeing
on a document: creating Bills of Rights (Council for Aboriginal
Reconciliation)
- 1997 An
Australian Bill of Rights (B. Keon-Cohen, Barrister)
Indgenous rights and arguments for and against a bill of rights
- 1997 An
Australian Bill of Rights (S. Pritchard, Univ of NSW)
Whether indigenous rights should be part of the move to a Bill of Rights
- 1997 The
Need for a new Preamble to the Australian Constitution and/or a Bill
of Rights (M. McMcKenna, Parliamentary Library)
Issues to consider if rights are to be contained in the Constitution
- 1989 No
Bill of Rights for Australia (B. Galligan, ANU)
An examination of the Labor Party's move to support a Bill of Rights
over the decades and a brief examination of issues for the future
- 1985 Senate Standing Committee on Constitutional and Legal Affairs,
A Bill of Rights for Australia? An Exposure Report for the Consideration
of Senators, AGPS (Parliamentary Paper no. 496 of 1985) (Chair: Sen
Michael Tate). Recommended a national Bill of Rights, incorporating
ICCPR rights and freedoms. Available on the Senate
Tabled Papers database
Australian Capital Territory - the first jurisdiction
to implement a statutory charter of rights
- Human Rights Commission
Administers the Human Rights Act and provides details of case law under
the Act
- Bill of
Rights Consultative Committee
A non-Parliamentary Committee was established in 2002, chaired by Professor
Hilary Charlesworth, and in 2003 recommended that a statutory Bill of
Rights (Human Rights Act) be introduced
- Text of the Human
Rights Act 2004 which implemented a Bill of Rights in the A.C.T.
- Forum:
Australia's First Bill of Rights
Papers from a conference on the ACT Bill of Rights held in 2004
- The Canberra
Law Review (vol 8) provided an overview on the first year of
operation of the Human Rights Act (available to Parliamentary staff
only)
- ACT Human Rights Act Research
Project
A joint project of the ANU and the ACT Government. The project will
document the impact of the ACT Human Rights Act 2004 over its first
five years and will test the predictions of supporters and critics of
bills of rights against the ACT experience. The results of the research
will assist in the five year review of the ACT Human Rights Act.
New South Wales
Northern Territory
- In 1995 the Legislative Assembly Sessional Committee on Constitutional
Development issued Discussion Paper no 8, 'A
Northern Territory Bill of Rights?'. In its report,
the Committee did not recommend that a Bill of Rights be included in
the draft constitution, but left the way open for a non entrenched statutory
charter at a later stage (Appendix 9: Options for dealing with rights)
- Since 2006 the NT Statehood
Steering Committee has been seeking views on a Bill of Rights
Queensland
- Queensland. Parliament. Legal, Constitutional and Administrative Review
Committee
Established in 1997, the Committee reported in 1998 and recommended
against a Bill of Rights for Queensland
South Australia
- Human
Rights Bill 2004 Private Members Bill introduced by Sandra Kanck
(Democrats) in the Legislative Council. The Bill was not passed and
Ms Kanck retired from the Council in 2008
Tasmania
- In 2006 the Tasmanian Attorney-General engaged the Law
Reform Institute to investigate suitable options for human rights
protections. The Institute reported in October 2007 recommending a Bill
of Rights, although a Government spokesman was reported as saying in
December 2008 that State legislation would proceed only if the Commonwealth
failed to introduce national legislation
Victoria - the second jurisdiction to implement
a statutory charter of rights
Western Australia
- In 2007 the report
of the Committee for a proposed Human Rights Act recommended that
a Bill of Rights be introduced along the lines of a draft Human Rights
Act released in May 2007.When releasing the report the WA Attorney General
Jim McGinty stated that he preferred a national rather than a State
law. In September 2008 the Government changed
Public opinion polls
Overseas legislation includes:
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