Explaining and Confronting Australia's Refusal to Adopt a National Bill Of
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University of Wollongong Research Online University of Wollongong Thesis Collection 2017+ University of Wollongong Thesis Collections 2017 Explaining and Confronting Australia’s Refusal To Adopt a National Bill of Rights Brian Melbourne Walker University of Wollongong Follow this and additional works at: https://ro.uow.edu.au/theses1 University of Wollongong Copyright Warning You may print or download ONE copy of this document for the purpose of your own research or study. The University does not authorise you to copy, communicate or otherwise make available electronically to any other person any copyright material contained on this site. You are reminded of the following: This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part of this work may be reproduced by any process, nor may any other exclusive right be exercised, without the permission of the author. 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For further information contact the UOW Library: [email protected] Explaining and Confronting Australia’s Refusal To Adopt a National Bill of Rights. Brian Melbourne Walker BA LLB UNE LLM LP ANU This thesis is presented as required for the conferral of the degree of Doctor of Philosophy University of Wollongong School of Law PERSONAL STATEMENT OF THESIS AUTHENTICITY. I am the creator of all the work of this thesis and that where reference is made to the work of others, due acknowledgement is given. This work is original and has not been submitted for a higher degree to any other university or institution. This work is not a violation or infringement of any copyright, trademark, patent or other rights. Brian Melbourne Walker University of Wollongong ABSTRACT Australia’s legal arrangements for the protection of human rights have been described by rights activists as an ‘intricate patch work’. Ironically, the most noteworthy feature of this ‘patchwork’ is not what it contains, but what it lacks, a bill of rights (BOR). The failure of national governments over decades to remedy this situation is the focus of this thesis. This thesis argues that, until a bill of rights is enacted, the capacity of all Australians to enjoy their human rights will remain diminished. This thesis aims to contribute to overcoming Australia’s entrenched impasse about a BOR in two ways. First, it explains why despite periodic ‘movements’ during periods of Australian Labor Party governments since the 1970’s, no bill of rights campaign has come to fruition. The chief explanation for these rejections is that a bill of rights would threaten the sovereignty and supremacy of the Australian Parliament. Second, by comparative examination of the experience of New Zealand, which enacted a ‘Commonwealth model’ statutory bill of rights in 1990, this thesis challenges the veracity of this dominant view in Australian politics. This thesis concludes, that the enactment of a Human Rights Act that is, a statutory bill of rights, that does not diminish parliamentary supremacy, is a necessary next step in fulfillment of Australia’s obligation to respect the human rights of all Australians. ACRONYMS USED IN THIS THESIS ACOSS-Australian Council of Social Services AG- Attorney-General BOR- Bill of Rights BORA- Bill of Rights Act CAT- Convention against Torture and other Cruel, Inhuman and Degrading Treatment CEDAW- Convention on the Elimination of All Forms of Discrimination against Women CRC- Convention on the Rights of the Child CRPD- Convention on the Rights of Persons with Disabilities EU- European Union HRA- Human Rights Act ICCPR- International Covenant on Civil and Political Rights ICESCR- International Covenant on Economic Social and Cultural Rights ICERD- Convention on the Elimination of All Forms of Racial Discrimination LLM (LP) Master of Laws (Legal Practice) LNP-Liberal National Parties NGO- Non-Government Organisation OECD- Organisation for Economic Co-operation and Development UNOHCR-United Nations Office of the High Commissioner for Refugees PJCHR- Parliamentary Joint Committee on Human Rights SOC- Statement of Compatibility DEDICATION To all my fellow Australians past and present, who have suffered or are suffering today, abuse of their human rights. This thesis aims to provide informed information to help all citizens (including politicians) to appreciate the human rights improvements that a bill of rights can improve. This knowledge will overtime lead to acceptance of the view by the majority of our society, that a Bill of Rights (BOR) will assist the nation to become a more socially cohesive, and lawful society, which is respectful of the human rights of every citizen of whatever age, gender, or heritage. With thanks for the opportunity provided to me by the University of Wollongong to complete this thesis, to my Supervisor Professor Luke McNamara and for the encouragement given to me by my wife Denise and family and by my friend from youth, David Lawrence. ACKNOWLEDGEMENT For professional editorial assistance from Elaine Newby. TABLE OF CONTENTS CHAPTER 1 INTRODUCTION 1.1 Motivation………………………………………………………………………………….1 1.2 What is a Bill of Rights…………………………………………………………………10 1.3 Australia’s Urgent need for a National Bill of Rights……………………..12 1.4 Why is that important?....................................................................12 1.5.1 Evidence of Australia’s Human Rights Failings: Feedback from the United Nations……………………………………………………………………………………15 1.5.2 Australia’s Periodic Report 2015………………………………………………..20 1.6 This Thesis’s Significance……..…………………………..…………………………..22 1.7 Research Questions……………….…………..............................................23 1.8 Focus on Federal Parliament………………………………………………………….23 1.9 Methodology………….……………………………………………………………………..24 1.10 Outline of Chapters……………………………………………………………………..25 CHAPTER 2 PHILOSOPHICAL AND IDEOLOGICAL UNDERPINNINGS OF BILLS OF RIGHTS. 2.1 Introduction…………………………………………………………………………………..27 2.2 The Development of the Idea in History…………………………………………32 2.3 Modern Human Rights…………………………………………………………………..34 2.4 The International Legal Universality of Modern Human Rights………………………………………………………………………………………………….36 2.5 The Philosophical Underpinnings of Bill of Rights as Human Rights Instruments…………………………………………………………………38 2.6 A Social Democratic Approach to Human Rights–Recognising Power Relationships……………………………………………………………………………40 2.7 Australia’s Human Rights Philosophies at National Level……………….42 2.8 Conclusions.......................................................................................47 CHAPTER 3 NO BILL RIGHTS FOR AUSTRALIA: A REVIEW OF THE REASONS WHY AUSTRALIA HAS A HISTORY OF FAILED POLITICAL ATTEMPTS TO ENACT A NATIONAL BILL OF RIGHTS. 3.1 Introduction…………………………………………………………………………………49 3.2 Australia’s National Human Rights…………………….………………………….50 3.3 Federation —A Constitution and a Human Rights Bill?....................51 3.4 Federation to the Creation of the United Nations…………………………60 3.5 Events of the 1970’s……………………………………………………………………..61 3.6 Bill of Rights Attempts in the 1980’s……………………………………………..64 3.7 The 1990’s to the 21st Century………………………………………………………68 3.8 Political Parties and Policies from 2006…………………………………………69 3.9 Voting and Party Representation in the Senate……………………………..71 3.10 Conclusions…………………………………………………………………………………72 CHAPTER 4 OPPONENT’S ILLUSORY BILL OF RIGHTS ARGUMENTS: DAMAGING CHANGE TO OUR TRADITIONAL WESTMINSTER LEGISLATIVE - JUDICIAL POWER BALANCE? 4.1 Introduction…………………………………………………………………………….....75 4.2 Opponents to a National Bill of Rights …………………………………………76 4.3 Supporters for a National BOR……………………………………………………..82 4.4 Australia’s Government…………………… ………………………………………….85 4.4.1 The Commonwealth Parliament………………………………………………..85 4.4.2 The High Court’s Constitutional Powers and Jurisdiction……………86 4.4.3 Federal and State Division and Separation of Powers………………..87 4.4.4 Legislative and Judicial Power Sharing……………………………..………..87 4.4.5 Judicial Activism v Judicial Conservatism………………………..…………88 4.3.6 Legal procedures and Judicial Interpretation……………………………..89 5.1 An Australian Bill of Rights in Statutory Form (HRA)……………………..90 5.2 Australia’s High Court: Declarations of Incompatibility after Momcilovic v Queen (2001) 245 CLR .....................................................92 6.1 Other Legal Issues Impinging upon our national Human Rights………………………………………………………………………………………………….94 6.2 Substantive Law Weaknesses………………………………………………………..94 6.3 Human Rights Law and the Australian Constitution……………………….96 7.1 The Second Fear of BOR Opponents: Australian Courts and Determination at Law.............................................................................98