“Australia needs a Bill of Rights”

Bill of Rights was the first 10 amendments in the constitution of United States of America,

formulated and adopted in the year 1791. United States’ Bill of Rights is attributed to James

Madison1. The source of the idea for the Bill of Rights was the Virginia Declaration of

Rights, written by George Mason. The idea of the Bill of Rights was to put some restrictions

on the government pertaining to its power to ensure the statutory protection of individual

freedom and liberties.

The citizens of Australia have some rights against the government to ensure their liberty and

freedom. The sources of these rights are Australian constitution2, the legislative, the

executive and, the judiciary.

The rights of the citizens of Australia provided by the constitution are –

There are some rights for the Australian citizens which are specified in the constitution of

Australia.

Property rights – Section 51 (XXXI) of the constitution of Australia ensures the safety and

possession of its citizens' property. The government is liable under this provision to

compensate to the citizen whose property is so acquired.

Religious freedom – Section 116 of the constitution of Australia guarantees religious freedom

to its citizens. “

Section 92 guarantees right to move freely around Australia in lieu of ‘trade, commerce, and

intercourse.

Section 117 prohibits discrimination on the basis of residence in a particular state.

1
James Madison Jr. (March 16, 1751 – June 28, 1836) was an American statesman and Founding Father who
served as the fourth President of the United States from 1809 to 1817.
2
An act to constitute the Commonwealth of Australia 1900 chapter 12: 63 and 64 Vict.
There are some rights which are not expressly provided in the constitution but are implied

from the structure and text of the constitution. These provisions indirectly protect the rights

of individuals. Such rights are political rights, which protect the democratic process and,

independence of the judiciary, which guarantees the fairness of justice system.

Legislature protects right by enacting new laws as it deems fit to protect individual rights and

by restraining themselves from making laws which would infringe the rights of individuals.

Judiciary also protects the rights of the Australian citizens by establishing a precedent by its

exercise of common law. Rights like freedom of political communication 3 and, reasonable

restrictions on adult suffrage4 are propounded by the judiciary.

So far, the rights which are available to the citizens of Australia have been successful in

ensuring a smooth running of government and country. Australia has been able to ensure the

efficiency and commitment of its democracy and institutions to the rule of law. Australia has

a good human rights record5. Hence need for Bill of Rights seems unsupportive.

But there are many discrepancies in the Australian constitution and other institutions that

advocate for Bill of Rights. The rights guaranteed by the constitution by sec. 51, 92, 116 and

117 are more of a limit of government rather than positive rights. Further, these rights are

available against state laws. Moreover, if a country hasn't faced any democratic imbalance

pertaining to human rights, that doesn’t mean it will never. These arguments urge for Bill of

Rights.

Australia needs Bill of Rights. There are some cases which mandate the adoption of Bill of

Rights. The wrongful detention of Vivian Solon in 2001 and Cornelia Rau in 2004 casts

doubt on the efficiency of the right to freedom. There is no right of citizens to launch

3
Australian Capital Television v Commonwealth (1992) 177 CLR 106.
4
Roach v Electoral Commissioner (2007) 233 CLR 162.
5
Cheryl Saunders, The Australian Constitution and our Rights, 2010.
complaints in the local courts on the basis of the Convention on the Rights of the Child 6.

Hence it is necessary for Australia to go for Bill of Rights to ensure that no blot is put on its

history of good governance.

6
Concluding observations of the Committee on the Rights of the Child: Australia, UN Doc. CRC/C/15/Add.79,
10 October 1997.