Does Australia need a bill of rights? If we continue to do without one, are there still things we need to do to protect individual rights? Would a bill of rights which transfers some power from the politicians to the judges provide us with a better way of setting limits on government interference in people's lives? Would a bill of rights give us some clearer guideposts in public debate about controversial issues as we try to set the limits beyond which the law should not stray?
Law can enhance or restrict liberty and can build or destroy moral consensus. Law-making about individual rights is a sensitive community- building enterprise. Lawmakers, whether they be elected politicians or unelected judges, must enjoy the confidence of the state's ultimate sovereign — the people. Proposals for a redistribution of power between politicians and judges and for a new statement of rights and responsibilities need to be understood and endorsed by the people if any new legal regime for ordered liberty is to guarantee both order and liberty.
This book is an attempt to explain the first tentative step towards a bill of rights for Australia. I will argue against a constitutional bill of rights, which always leaves the final word to the judges, and argue for a statutory bill of rights which sets up a delicate power balance between politicians and judges. Judges can make decisions but the parliament remains free to override them. In the Australian tradition of parliamentary sovereignty, where there is widespread public ignorance of the Constitution and misunderstandings about the role of courts, I will argue for an interim step at the federal level before the adoption of a statutory bill of rights.
It is time for the Commonwealth parliament to lead by example urging State and Territory parliaments to follow. I will propose constitutional safeguards against discrimination on the grounds of race, gender or sexual orientation, thereby limiting even the Commonwealth parliament in its power to discriminate against citizens on those grounds. I think it is too early for a statutory bill of rights, but in time politicians on both sides of parliament will appreciate the need for it. I will propose a Senate Charter of Espoused Rights and Freedoms which will be a benchmark for all future Commonwealth legislation. Once our politicians adapt to the language of rights and freedoms, the time will then be ripe to legislate a bill of rights — a bill which will not be a United States import but a home grown bill drawing on overseas experience and delivering what is right for Australia. Given that Australia cannot walk away from the International Covenant on Civil and Political Rights to which it is a party, I will propose a means for integrating this covenant into the Australian political machinery, ensuring closer scrutiny of any proposed legislation which would interfere with the rights spelt out in the covenant.
While justifying my opposition to a constitutional bill of rights, I will make the case for a distinctively Australian approach to the protection of rights which maintains an appropriate balance of power between parliaments and courts, ideally making our parliaments more accountable whenever an interference with individual rights is proposed and enhancing the public's understanding of the role of courts in defending unpopular minorities from the excesses of politicians seeking re-election. The time has come to recognise the central place of indigenous Australians in the life of the nation and to set in constitutional stone the guarantee for all citzens that they will not be discriminated against on the grounds of race, gender or sexual orientation. It is also time to ensure that our politicians are imbued with a bipartisan commitment to protect individual rights and to limit those rights only in the public interest (which should not be confused with popular demand)…….