Department of Modern History, Politics and International Relations - Staff

An Australian Bill of Rights

John Kilcullen
Macquarie University
Copyright (c) 2000, R.J. Kilcullen.

Bills of Rights

See article on the original English Bill of Rights (1689), article on US Bill of Rights (1791).  

James Madison, who wrote the US Bill of Rights, had earlier been opposed to the inclusion of any Bill of Rights in the Constitution. His reasons for not wanting it are also the reasons usually given by opponents of the inclusion of a Bill of Rights in the Australian Constitution. Read an account of his change of mind. Read his letter to Jefferson.

One of the chief arguments against a constitutional Bill of Rights is that it gives judges too much power. The courts interpret the constitution, and from the highest court there is no appeal (though the Constitution can be amended -- a difficult process). As Americans sometimes say, "The US Constitution is whatever the Supreme Court says it is". In many cases the Supreme Court has interpreted the Bill of Rights by means of wire-drawn reasoning, reflecting the judges' political and social views. For a survey of Supreme Court Cases on the Bill of Rights see M. Konvitz, Fundamental Liberties of a Free People. The Supreme Court's power to interpret the constitution has made the appointment of judges a political issue, and in 1937 President Roosevelt sought to appoint additional judges (to "pack" the Court) so as to change the court's attitude (the US Constitution does not fix the number of judges). A President is expected to nominate judges ideologically acceptable to his supporters, and the Congress scrutinises these nominations in a partisan way. See article on George W. Bush's nominations.  Since judges hold office for life, a President's nominations may make a long-term difference to the interpretation of the constitution. 

To many it seems better to keep the courts free of politics and leave rights issues to the ordinary political process, in which politicians can be held responsible by the electorate -- on this view the best safeguard of basic rights is the political culture of a democratic country. However, this does not protect very well the interests of any group or groups who are regularly in a minority (e.g. racial or religious groups). The main argument in favour of a constitutional Bill of Rights is that it will protect the rights of minorities more effectively than the democratic process will. On the other hand (and this was one of Madison's original objections), people hostile to some minority will try to restrict and narrow the definition of rights when the Bill of Rights is being drawn up -- and the more explicit the definitions the narrower they are likely to be.

An ingenious solution to these difficulties was the Canadian Bill of Rights of 1960, with what Canadians call the "notwithstanding" clause. (See article.) In section 1 this Bill of Rights simply listed, without attempt at definition, the various commonly recognised fundamental rights. Then section 2 laid down: "Every law of Canada shall, unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared" (emphasis added). This meant that individuals could invoke any of the listed rights in court cases, and (since the rights were not defined but simply listed) it would be open to them to argue from whatever conception of the right they thought credible -- they would not be tied to any particular narrow definition of the right. But on the other hand (balancing the judges' views with the views of the electorate), Parliament could declare that a law would operate "notwithstanding the Canadian Bill of Rights". Obviously Parliament would not readily do this (since it would signal to the public that some human rights might be threatened), but the power to do so meant that not the judges but the political process was finally decisive.

This approach has been continued in the current Canadian Constitution, the Canada Act of 1982, Schedule B. In the current version anything passed under the "notwithstanding" clause ceases to operate, unless it is re-enacted, after 5 years.

The Concept of Human Rights

On the shortcomings of democracy and the idea of tempering democracy with the values of liberalism, see my lecture "Democracy in Australia" and "Liberal Democracy". Every society needs sets of people who constitute "elites" in some sense of the term, i.e. minorities who take more than average trouble to inform themselves about and to think about socially important questions, including questions of morality and justice, also socially relevant questions of science, economics, etc. Ideas for social improvement begin among such minority groups  and spread. The majority of people in a modern educated society will, I believe, acknowledge that majorities are not infallible and that majority decisions may not be just, and many people welcome suggestions and criticism from those who have given special thought to the relevant questions. In countries of European tradition there are three main cultural sources from which well-thought-out views on ethical matters relevant to politics are likely to come: (1) from philosophy, the tradition going back to Plato, Aristotle and the Stoics; (2) the Christian churches and other religious organisations (see Philosophy and Religion); (3) the legal profession. These three sources have flowed into a stream of thought that has often used the language of "natural law" and "natural rights", or (more recently) "human rights". Such documents as the UN Declaration of Human Rights and the European Convention on Human Rights are useful codifications of this tradition.  Needless to say, such documents, and the whole human or natural rights tradition, including the concept of natural or human "rights", are fallible and subject to philosophical criticism. 

For history and criticism see my essays, "Medieval theories of natural law",  "Medieval theories of natural rights", "Medieval and modern concepts of rights: How do they differ?" and "Self-determination and the right to establish government". The concept of a "right" in moral and political contexts seems to have been an invention of the academic lawyers of the European middle ages. See Brian Tierney, The Idea of Natural Rights (Macquarie University Library K 445 .T54). It was connected with the idea of "natural law", i.e. a law (equivalent to morality) that does not depend for its force on any human community or human legislator, a law that determines the limits of justice to which laws made by human beings must conform. Human rights are natural rights, rights under natural law, which no law made by human beings can violate.

In some theories, natural laws and natural rights or human rights are supposed to be self-evident, like the axioms of Geometry (compareThomas Aquinas). As the American Declaration of Independence said, "We hold these truths to be self-evident, that... [men] are endowed by their Creator with certain inalienable rights". This view is akin to "intuitionism" in ethics. The main alternative to intuitionism is "utilitarianism", according to which (at least in some versions) moral rights are recognised by considering what rules or other arrangements would have the best consequences under the prevailing circumstances for all the people concerned (giving equal weight to their interests). One of the most important of the relevant circumstances is the likelihood of conflict. Hence the "human rights" most commonly recognised relate to important historical conflicts, for example over religion. See Reciprocity Arguments.

Return to The Australian Constitution: A First Reading.

Return to Politics, Philosophy and Medieval Studies