Centenary essays for the high court of australia


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In many neglected areas of fundamental rights, it is essential that the judges be provided with the power to determine difficult questions which Parliament puts into the "too hard basket". This a bill of rights would accomplish. Ours is a changing community: There is a further reason for adopting a bill of rights today. Whatever may have been the position at the beginning of the century when the Australian constitution came into force, Australia's society today is changing.

Its racial composition has altered radically in the past thirty years. The principle of multiculturalism has been adopted by the major political parties in the Federal Parliament. This means that aspects of the unity of the nation which hitherto existed in the essentially monochrome ethnic and cultural composition of its people, cannot now be assumed. Certainly it cannot be assumed that these features will exist forever. In such circumstances, it is not only desirable, but urgent, to express in constitutional form, the basic principles that represent the foundation of the unity of the nation.

These principles of civil, political and other rights should be written down and incorporated in the constitution for the protection of all Australians.

Cane, Peter, ed.: High Court essays

Limits of judicial power: Whilst it is true that judges can develop the common law, they are limited in this regard. They depend on the cases which are brought to their courts. Even when cases are brought, the judges are not always able or willing to invoke legal principles to protect basic rights. The High Court itself declared that there was no common law right to privacy. Women's rights have often been overlooked. Prisoners' rights have often been denied. Rights of Australian Aboriginals have often been rejected.

So far as homosexuals are concerned, the law until recently punished them, and still does - at least on paper - in Tasmania. Against such clear statutory or common law, the judges may have no adequate tools to protect fundamental rights.

They must do so if those laws are clear and applicable, even if fundamental human rights are breached by them. There is a need to provide the judges with means to redress derogations from fundamental human rights.


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That is what a bill of rights does. Putting rights above politics: It is necessary also to put some of the values of our society above the party political debate. That is what a bill of rights can do. It can express the enduring values of a good society. It can do so in the constitutional document which gives the cement to the social cohesion of a true Commonwealth. Without it, our constitution is mechanical. It lacks the expression of the aspiration of the people to live in a free and just society, where freedom and justice go beyond political slogans and shibboleths.

Education of citizens: There is a growing awareness of the ignorance of school children concerning the fundamental features of the Australian political and legal system. Schoolchildren may know the footballers and 'pop' stars.

But, according to polls, they are abysmally ignorant of the identity of their political leaders and even more so of their constitution. That is why it is essential to include in the constitution a statement of their basic rights and duties as citizens. This will provide a means of educating the citizens of the future in the fundamental rights of an Australian. It will provide a constitutional reference point. It will thereby contribute to the national identity of Australia. Ensuring the legitimacy of the people: If it is true that judges are introducing fundamental human rights jurisprudence by the techniques of the common law, and that legislators are enacting laws based upon international human rights principles.

But it remains valid to point out that these modes of introducing fundamental human rights, lack the legitimacy of democracy. It is preferable that a charter of human rights should be accepted and endorsed by the people. Then it rests upon the legitimacy of the people's decision. At the moment, the introduction into law of basic rights by judges in their particular decisions or by specific legislation, lacks this element of popular endorsement and legitimacy.

That element should now be provided, if it be the will of the Australian people to do so. A means of empowerment of the powerless: For some disadvantaged people in society, it is essential to provide empowering rights. There are still many in our community who are downtrodden and whose rights have been denied.

The Aboriginal Australians are the most obvious group in this class. But there are others, including women, gays, the handicapped, the mentally ill, ethnic minorities, children and others whose basic rights are sometimes overlooked or denied. A bill of rights would provide the means whereby such people could assert and uphold their rights. It would raise the consciousness of the rights of the individual in Australia. It would replace the acceptance of defeat.

It would make those with power face up to the enforceable legal entitlements of the disempowered and the disadvantaged. In the words of one observer, it could provide a delicious empowering of people who have hitherto seen the legal system not as a vehicle for freedom, but as an instrument of oppression. Australia is now virtually alone: Most countries of the world now have bills of rights.

Books by Peter Cane (Author of Administrative Law (Administrative Law)

Most of them have expressed them in their constitutions. Australia is, in this respect, now one of a small minority of nations which has rejected this idea. In Canada, the Charter of Fundamental Rights and Freedoms has been adopted as part of the constitutional law. In New Zealand, a statutory bill of rights has been enacted. The United Kingdom is a party to that Convention. Cases can be taken to the European Court of Human Rights on a complaint about the failure of the United Kingdom to bring its law into conformity with the Convention, which states fundamental rights and freedoms.

Australia has no such regional instrument and no such institution. That is why we should commence for ourselves the journey to expressing our basic rights. Of course, many of the countries with bills of rights shamefully deny such rights to their citizens. But this is unlikely to occur in Australia. It is less likely to occur if we agree upon and state our fundamental rights in a national charter.

We can draw upon the experience of two centuries our own laws and of the operation of the American bill of rights.

Centenary Essays for the High Court of Australia

We need not copy that or any other bill of rights. We should devise our own.

We should do so in full consultation with the people of Australia. In the Australian Capital Territory and in Queensland, discussion has lately been had concerning the introduction of a Territorial or State bill of rights. It is possible that this is one way to proceed. To adopt a local bill of rights by legislation in much the same way as has been done in New Zealand. From the experience which is thereby derived, a confidence may develop which will encourage us to follow the same course in the Federal sphere in Australia. No-one says that a bill of rights alone will protect the rights of the people.

But nor does majoritarian democracy in Parliament.

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The modern notion of democracy is more subtle than the primitive idea of according full power to the transient majorities of Parliament by a transient vote in a periodic election, accompanied by media jingles and superficial electoral slogans. Democracy now requires respect for minorities and protection of basic constitutional principles: such as the rule of law, the independence of the judiciary, and regard for fundamental human rights. The decision to be made upon the bill of rights debate is one for each Australian.

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