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Eight reasons why Australia should not have a federal charter of rights.

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In the lead-up to the 2007 federal election, the Australian Labor Party committed itself, if elected, to "initiate a public inquiry about how best to recognise and protect the human rights and freedoms enjoyed by all Australians". (1) Thus, on 10 December 2008, to commemorate the 60th anniversary of the United Nations' Declaration of Human Rights, federal Attorney-General Robert McClelland announced the intention to consult the public on the introduction of a charter of rights in Australia.

He argued that a federal bill of rights could promote religious tolerance, equal opportunities for women in the workforce, and a higher standard of living for indigenous Australians. Hence, the Rudd Government has already announced a "National Consultation on Human Rights", appointing Jesuit priest Frank Brennan to lead the consultation.

I should immediately explain that I am totally in favour of any constitutional guarantees which protect our most fundamental rights--our rights to life, liberty and property in particular. However, I simply do not believe any federal charter of rights can achieve these worthy goals satisfactorily. What follows is a non-exhaustive exposition of eight basic reasons as to why Australia should not have a federal charter of rights.

1) Human rights legislation is unnecessary

The tendency of governments to acquire ever-increasing power has traditionally been curtailed in the Western world by a system of checks and balances. According to Sir Harry Gibbs, formerly Chief Justice of the High Court of Australia: (2)

The most effective way to curb political power is to divide it. A federal constitution, which brings about a division of power in actual practice, is a more secure protection for basic political freedoms than a bill of rights.

The effectiveness of human rights legislation is dependent on the socio-political context in which it operates. The impressive bills of rights passed in China, Cuba, Uganda, Rwanda, Cambodia, Russia and the Sudan proved no barrier to multiple human rights abuses committed in those countries. Gibbs writes: (3)

Anyone who has seen the film The Killing Fields will know that the fact that Khmer Republic had adopted a bill of rights did not assist the inhabitants of that unhappy country. We are all familiar with the abuses that have occurred in Uganda: that country had a bill of rights on the European model, and had judges that bravely tried to enforce it, but were unable to resist the forces of lawlessness.

Governments which eschew the rule of law with its inbuilt checks and balances are prepared to use naked power to override bills of rights. They may use legislative power (per leges) to achieve their aims, but will not allow themselves to be subject to constitutional checks (sub leges). Therefore, bills of rights can only be enforced in countries where there is already a functional constitutional framework coupled with a culture that places a high value on justice. In such countries, rights legislation is unnecessary.

In a landmark judicial decision, the then Chief Justice of the High Court Sir Anthony Mason commented that "the prevailing sentiment of the framers [of Australia's federal Constitution] was that there was no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens. That sentiment was one of the unexpressed assumptions on which the Constitution was drafted." (4) Under the system of government created by the nation's founding fathers, one proceeds on the assumption of full individual rights and liberty, and then turns to the law just to see whether there are any exceptions to the rule. After comparing this constitutional model with the American one, the late Australian constitutional lawyer, W. Anstey Wynes, commented: (5)

The performance of the Supreme Court of the United States has become embroiled in discussions of what are really and in truth political questions, from the necessity of assigning some meaning to the various "Bill of Rights" provisions. The Australian Constitution ... differs from its American counterpart in a more fundamental respect in that, as the ... Chief Justice of Australia [Sir Owen Dixon] has pointed out, Australia is a "common law" country in which the State is conceived as deriving from the law and not the law from the State.

2) A federal charter of rights may reduce individual rights

In 1776, the 13 American colonies in their Declaration of Independence broke their ties with England, stating that they were assuming "among the...

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