Right: Members of the Australian Constitutional Convention, 1891. The debate on an Australian Bill of Rights has now entered a third century.Further implications
It is hard to determine whether the Australian Parliament will ultimately pass a federal charter of human rights. The government is proceeding cautiously and will first hold an inquiry into the proposal.Such inquiries have already been held in a number of other states, with the result that Victoria and Canberra already have a charter and developing one is under consideration in West Australia and Tasmania.
In October 2007, the Tasmania Law Reform Institute completed its report on a Charter of Rights For Tasmania. The Institute concludes in its report that Tasmania should introduce a Charter of Human Rights.
In December 2007, a Western Australian report of a rights charter for that state was released. Former Federal Minister Fred Chaney AO, a director of Reconciliation Australia, chaired the committee which produced the report. The other members were the head of the WA Council of Social Service, Lisa Baker; former Anglican Primate the Most Reverend Dr Peter Carnley; and child health researcher Associate Professor Colleen Hayward.
The committee held more than 40 public hearings and received nearly 400 submissions from the public, community organisations and Government agencies.
The committee chairman Fred Chaney said there was clear majority support for a WA Human Rights Act - both from submissions the committee received and the findings of an independently run public opinion poll commissioned in August. Of the 401 people surveyed, 89 per cent believed WA should have a law to protect human rights.
If the committee appointed to investigate a federal charter of human rights recommends that one be adopted, any legislation will require bi-partisan support to be likely to pass the Senate. The previous history of Australia's federal Parliament in passing such legislation does not suggest that this is particularly likely.
The public and political discourse on the Charter of Human Rights issue began during the Constitutional Conventions in the 1890s. The Tasmanian Attorney-General, Andrew Inglis Clark, argued in favour of entrenching some basic individual rights in the constitution. While Inglis' success in achieving greater individual rights protection in the Constitution was limited, advocacy for a Bill of Rights has continued throughout Australian political history with numerous inquiries, a number unsuccessful bills and failed referenda attempts.
In 1944 a referendum was held that, among many things, proposed the insertion of constitutional guarantees of freedom of speech and religion, as well as safeguards against the abuse of delegated legislative power. The referendum and therefore the proposal to constitutionally entrench freedom of speech and religion failed.
In 1973, Commonwealth Attorney-General Lionel Murphy introduced the Human Rights Bill 1973 to implement the International Covenant on Civil and Political Rights that Australia had just signed. The Bill lapsed when the Governor-General dismissed the Whitlam Government in November 1975.
There was an attempt by Commonwealth Attorney-General Lionel Bowen in 1985 to introduce an Australian Human Rights Bill (along with an explanatory memorandum), but the Bill was later withdrawn.
In 1985, Prime Minister Bob Hawke announced the establishment of a Constitutional Commission to review the Constitution. The Commission produced its final report in 1988 and was assisted by an Advisory Committee on Individual and Democratic Rights under the Constitution. In 1987, a Report from that Advisory Committee recommended the insertion of several new rights in the Constitution, including rights to a speedy trial and a right to vote. The 1988 Constitution Alteration (Rights and Freedoms) Bill was passed by Parliament but rejected at a referendum on 3 September 1988.
In 2000, attempts to improve rights protection in Australia continued with the Australian Democrats releasing the draft Australian Bill of Rights Bill 2000 and in the following year introducing into Parliament the Parliamentary Charter of Rights and Freedoms Bill 2001. In the same year, the Australian Bill of Rights Bill 2001 was introduced by Dr Andrew Theophanous MP, then an Independent but formally of the Australian Labor Party. These Bills sought to incorporate international instruments, including the International Covenant on Civil and Political Rights, into Australian law. None were passed into law.