Approaches to rights – Statute, Charter, Bill of Rights 2019 WESTERN AUSTRALIAN SCHOOLS CONSTITUTIONAL CONVENTION 3 & 4 September 2019 Dr Tamara Tulich, UWA Law School

Australia: no bill of rights Dr Alexander Cockburn, former Premier of South Australia, Melbourne 1898 ‘Why should these words be inserted? They would be a reflection on our civilisation. Have any of the colonies of Australia ever attempted to deprive any person of life, liberty or property without due process of law? I repeat that the insertion of these words would be a reflection on our civilisation. People would say – “Pretty things these States of Australia; they have to be prevented by a provision in the Constitution from doing the grossest injustice”’

Bill of Rights, Charter of Rights Legal form of protection Constitutionally entrenched Bill of Rights – e.g. USA, South Africa, India Statutory Bill of Rights, Charter of Rights, or a Human Rights Act – e.g. NZ, UK Australia? Other forms of protection Legislative protections e.g. Age Discrimination Act 2004 (Cth) Disability Discrimination Act 1992 (Cth) Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Australian Human Rights Commission Act 1986 (Cth) Parliamentary model of rights protection Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)

Referendum, s128 44 proposals to change the Constitution since Federation – 8 successful http://www.peo.gov.au/uploads/image_gallery/the-law/PEO_0704_changing-constitution.pdf

For a constitutionally entrenched BOR Against a constitutionally entrenched BOR Fills necessary gap in current protections Educative value Unnecessary Judges get the last say Undemocratic to have unelected judges overriding decision of parliament Parliament can’t remove rights – without referendum Inflexible Difficulty achieving constitutional change Implements International obligations Protects existing rights without addressing inequality – blunt tool Puts rights above politics Which rights?

Statutory bill of rights: the ‘dialogue model’ Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005) 68

Statutory bill of rights For a Human Rights Act Against a Human Rights Act Educative Unnecessary – current protections adequate ‘Navigation lights’ for the judiciary and parliament BUT Parliament retains the ‘last say’ Empowers the courts Human rights considered in public decision making A ‘Lawyers’ picnic’? Promotes a culture of respect for human rights Which rights? Implements international obligations Constitutionality at the Federal level Complaints mechanism and enforceable remedies ?