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

2. 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”’

3. 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)

4. Referendum, s128
44 proposals to change the Constitution since Federation – 8 successful

5. 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?

6. 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

7. 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 ?