These are my notes on arguments for and against a Bill of Rights from my Public Law classes in 2004. I'm pretty sure I filched them from one of Justice Kirby's speeches. They are however a good summary of the issues and may help in guiding this debate.
Arguments Against
Against Australian Tradition
The basic concept of our society is that all people enjoy full rights to do whatever they like unless such rights are lawfully taken away from them. The argument is that because parliamentary democracy usually works reasonably enough we can trust the legislators. If they act unjustly we can remove them through elections.
It would politicize the courts
A Bill of Rights could politicize the Courts because it would shift significant power from elected representatives to judges. This is an obvious concern because judges are not elected. Additionally the common law would prevail over Parliament's statutes and would need a constitutional amendment to change any rule introduced.
It would limit rights
A Bill of Rights would require pushing complicated problems into artificially limited categories. The language would expressly state, and thereby confine basic rights of the people. Furthermore the duties of people are arguably just as important as the rights of people.
Difference Among Regions
A bill of rights would endanger the variety of social regulation. Human variety is an important feature of nature and freedom.
It May Become Outdated
It is unlikely that an Australian bill of rights would be able to cover and cope with all of the issues of basic rights which may arise in the future. It is safer to leave these to Parliament to be dealt with as the need arises.
Similarly a bill of rights might entrench attitudes to rights which become out of date with changing times or new technology. For example it imposed on the United States a protection of the possession of weapons “the right to bear arms” which is completely unsuitable in today’s standards.
Judges are Sufficient
A further argument is that judges are already introducing basic rights into the common law, by the principle which has been approved in Mabo. If a statute is ambiguous, or if there is a gap in the common law, it is now accepted that a judge may have regard to the international jurisprudence of human rights.
Legislative Alternatives
A better way to protect basic rights is by the enactment of specific legislation. Such legislation can typically be expressed in far greater detail and specificity, and can be changed if required.
Erosion of the Constitution
Our society has a much higher protection of basic rights than most of the countries of the world. This is so despite the fact that virtually every other country has a constitution with bill of rights provisions. This proves that elected parliamentary democracy is a better protection for human rights.
Expensive
A Bill of Rights would be very expensive given the amount of litigation it would generate.
Arguments For
Problems of democracy
Often democracy works imperfectly. It may overlook the rights of minorities and fundamental principles such as the independence of the judiciary or the rule of law.
Law is Political Anyway
The courts are the third branch of government – they are already involved in politics, although not usually party politics. What we need is recognition of the political nature of the judicial branch of government and a method to ensure that judges protect the basic rights of the people above party politics.
Parliament’s Inactivity
Parliament often avoids difficult problems, leaving them to be solved by the courts. It has often been left to the courts to protect and advance basic rights, as in Mabo, where the High Court reversed the terra nullius mythology that had been a parasite of Australian law since “settlement”. It is important that judges are provided with the power to determine difficult questions which Parliament neglects. A bill of rights would give them this power.
Judicial Power is Limited
Judges are not always able or willing to invoke legal principles to protect basic rights. Judges must obey the laws and impose the rules established by or under Parliament. They must do so if those laws are clear and applicable, even if fundamental human rights are breached.
Education
It is important to include in the constitution a statement of basic rights and duties as citizens to provide a means of educating people. It will offer a constitutional reference point and contribute to national identity.
Ensuring the legitimacy of the people
Judges introducing human rights into common law and legislators enacting laws based upon international human rights instruments lack the legitimacy of democracy. A charter of human rights should be accepted and endorsed by the people.
Empowering the powerless
There are people in the community whose rights get denied or overlooked, such as Aboriginal people, women, gays, the disabled, ethnic minorities and children. A bill of rights would allow such people to assert and uphold their rights.
Australia is out of touch with the international community
Australia is one of a small minority of nations which has rejected having a Bill of Rights. It would bring Australia into line with the rest of the world and meet our international obligations.
