Does Australia Need a Bill of Rights?
Individual Rights and Freedoms, and the Constitution.
For over 100 years now, Australia has operated under its rather prized constitution that is in hindsight evidently lacklustre in respect to individual rights and freedoms. The Australian constitution was thought to be sufficient in regards to rights and freedoms despite the lack of an entrenched bill of rights. However, when one dissects the constitution, it becomes increasingly evident that constitutional implications are not an effective way of protecting individual rights and freedoms, and the only way to achieve this is through a bill of rights.
This is not to say that our constitution bears completely no recognition of rights , as there are some provisions that do in fact recognize certain rights and freedoms for individuals. This includes s116, s80 and s41 .
The Australian constitution amongst its express rights also contains implied rights, and the adequacy of these implied rights is rather debatable, as it becomes increasingly apparent that the extraction of our individual rights and freedoms from constitutional implications is an inconsistent and primitive way of dealing with rights, as the essence is lost somewhere down the track, and we find our freedoms being questioned and removed at the hands of the judicial system.
Express rights in the constitution
Under s116 , “the commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion” . This section is very direct and assertive, and could easily lead one to believe that the commonwealth, under no circumstance, will prohibit the free exercise of any religion. However, even this clear-cut statement in the constitution has not held up in court, as it is overridden in Krygger v Williams , where one man is forced to undergo military training, despite its contradiction to his religious beliefs, allowing conscription laws to overpower an express right
For over 100 years now, Australia has operated under its rather prized constitution that is in hindsight evidently lacklustre in respect to individual rights and freedoms. The Australian constitution was thought to be sufficient in regards to rights and freedoms despite the lack of an entrenched bill of rights. However, when one dissects the constitution, it becomes increasingly evident that constitutional implications are not an effective way of protecting individual rights and freedoms, and the only way to achieve this is through a bill of rights.
This is not to say that our constitution bears completely no recognition of rights , as there are some provisions that do in fact recognize certain rights and freedoms for individuals. This includes s116, s80 and s41 .
The Australian constitution amongst its express rights also contains implied rights, and the adequacy of these implied rights is rather debatable, as it becomes increasingly apparent that the extraction of our individual rights and freedoms from constitutional implications is an inconsistent and primitive way of dealing with rights, as the essence is lost somewhere down the track, and we find our freedoms being questioned and removed at the hands of the judicial system.
Express rights in the constitution
Under s116 , “the commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion” . This section is very direct and assertive, and could easily lead one to believe that the commonwealth, under no circumstance, will prohibit the free exercise of any religion. However, even this clear-cut statement in the constitution has not held up in court, as it is overridden in Krygger v Williams , where one man is forced to undergo military training, despite its contradiction to his religious beliefs, allowing conscription laws to overpower an express right
Bibliography: Coper, M. Encounters with the Australian Constitution, Sydney, CCH Australia Limited (1988). Detmold, M. ‘The New Constitutional Law’ (1994) Sydney Law Review, 16 (2) Lacey, W Malcolm, Hon Mr Justice David. “Does Australia Need a Bill of Rights” (1998) Murdoch University Electronic Journal of Law 5(3) McClelland, R. “How is a Bill of Rights relevant today?” (2003) Australian Journal of Human Rights 9(1) < http://www.austlii.edu.au/au/journals/AJHR/2003/2.html> at 1 September 2008. Case Law Australian Capital Television Pty Ltd v Commonwealth (No2) (1992) 177 CLR 106. Al Kateb v Godwin(2004) 219 CLR 562. Commonwealth v Bank of NSW (1949) 79 CLR 497. Dietrich v The Queen(1992) 177 CLR 292. Kruger v Commonwealth; Bray v Commonwealth of Australia (1997) 190 CLR 1 (‘Stolen Generation Case’). Leeth v Commonwealth (1992) 107 ALR 672. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Krygger v Williams (1912) 15 CLR 366. Theophanous v The Herald and Weekly Times (1994) 182 CLR 104. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 Legislation