Australian Charter of Rights and Freedoms – Benefits of a Constitutionally Entrenched Charter



In the tumultuous times that we live in today, law and order has become paramount. One of the underlying pillars of democracy is that it is the people’s system. Our system operates on the foundation that it is the people who elect leaders to represent their interests in parliament.[1] However, in order to maintain democracy in an era of rapid technological change, climate change, emerging social movements challenging the status quo, and presently, the COVID-19 pandemic, there must be a system whereby the rights of the people are protected. One method of preserving and guaranteeing fundamental rights and freedoms is by enshrining them in a document, namely, a constitutionally entrenched charter.


In the modern era, Australia has no charter of rights and freedoms or a bill of rights which is constitutionally entrenched. Whilst some may suggest that Australia does not ‘need one’ and that it is doing ‘fine’ without having any such document, I will suggest some of the benefits of having such a Charter of Rights entrenched in the constitution.


I believe that a country which holds democratic principles to a high standard must have, at its heart, a system where the people’s rights are clearly and categorically defined. A classic example of where this is done is the United States.[2] It is no secret that the US and Australia share many similarities with respect to how both nations are governed. Australia has, in fact, inherited many of its systems of governance from the United States. Federalism for instance is a classic example, where power is divided between the Federal government and the individual states.[3] However, the founding fathers in Australia chose not to adopt something equivalent to the US Bill of Rights.


While it is not absolutely clear why no Charter was adopted in Australia, there have been times in the past where people have tried to bring a charter into the Australian constitution (the 1988 referendum for instance).[4] All of these attempts have been unsuccessful, which begs the question: are people satisfied with the current system? Or are they just indifferent to it?


Justice Kirby in his address to the Law Institute of Victoria summed up the charter of rights debate eloquently. He described the need for a charter not as an attempt to attain some ‘illusive perfection’ in our system but to ‘improve and enhance transparency in our government institutions’.[5]


Having a charter will not, as Kirby J says, bring us closer to some ‘illusive perfection’. I believe it will provide Courts across Australia with a consistent way of interpreting legislation and provide citizens with the protection of certain fundamental rights and freedoms. Victoria’s Charter of Human Rights and Responsibilities Act (the “Charter”) is a good first step in that direction.[6] It strives to protect certain fundamental rights such as the freedom of expression and the right to vote.


However, the Charter is an act of Parliament which means the government of the day can easily overturn it by passing a new law. Additionally, legislation enacted by Parliament does not have the same force in protecting fundamental rights and freedoms as a Constitutionally entrenched charter or bill of rights would. In Victoria, for example, Courts have to interpret legislation with regard to the Charter.[7] However, if a certain fundamental right is breached, Courts have no power to invalidate that legislation.[8]


A Constitutionally entrenched charter, on the other hand, cannot be changed without amending the Constitution. Changes to the Constitution can only be achieved by referendum, which is considerably more difficult.[9] This therefore means that Courts can invalidate legislation that violates any of the fundamental rights protected by the Constitution and the Constitution takes precedence over any act of Parliament.


The ongoing debate of whether Australia should adopt a constitutionally entrenched Charter of Rights & Freedoms is a question for the policy makers in Parliament. The benefits of a Charter would be far-reaching on Australian society, for both its citizens and for the Courts when interpreting legislation.


References:

[1]‘Australian system of government’, Parliamentary Education Office (Web Page) <https://peo.gov.au/understand-our-parliament/how-parliament-works/system-of-government/australian-system-of-government/>.

[2] ‘The Bill of Rights: What Does it Say?’, National Archives, America’s Founding Documents (Web Page) <https://www.archives.gov/founding-docs/bill-of-rights/what-does-it-say?>.

[3] Harry Evans, ‘Harry Evans, Federalism: an idea whose time has come?’, Parliament of Australia (Web Page) <https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/The_Biographical_Dictionary_of_the_Australian_Senate/Papers_by_former_Clerk_of_the_Senate_Harry_Evans/Federalism>.

[4] George Williams, ‘The Federal Parliament and the Protection of Human Rights’, Parliament of Australia (Web Page, 11 May 1999) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp9899/99rp20>.

[5] Justice Michael Kirby, The National Debate About a Charter of Rights & Responsibilities – Answering Some of the Critics (Speech, President’s Luncheon of the Law Institute of Victoria, 21 August 2008) 2.

[6] Charter of Human Rights and Responsibilities Act 2006 (Vic).

[7] Ibid s 32(1).

[8] Ibid ss 32(3), 36(5).

[9] Australian Constitution s 128.

Amogh Kadhe is a final year JD student at Monash with an interest in public and constitutional law. He is particularly interested in statutory and constitutional interpretation and how these principles are applied across various jurisdictions.


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