Hello everyone, I’ll be talking about whether the Australian constitution needs a Bill of Rights. This issue has been constantly debated both in and out of parliament over the last century. It has sparked debate around Australia Day this year, when the Australian Labour Party suggested that Australia should have a Bill of Rights. (However, I believe that our Constitution does not need a Bill of Rights)

First I’m going to define the key terms in this issue.
Then, I’m going to talk about why the ALP proposed a Bill of Rights.
Thirdly, I’ll be discussing why we don’t need a Bill of Rights in our constitution
And Finally, I’ll explore the detrimental effects of a Bill of Rights.

(Definition)
But first, I’d like to clarify what the topic means.
A constitution, is, the ultimate written law, which sets up the political structure of the Australian government. It takes the form of a short document containing 128 sections or paragraphs. It can only be changed by a referendum, which I’ll be talking about later. (Show booklet)

A Bill of Rights, is a written document, listing the rights and freedoms, which everyone is entitled to. For example, the right to life, freedom of speech, freedom of religion, the right to have shelter, and even the right to have food and water.
In other words, a Bill of Rights is a very large piece of paper, on which all our rights and freedoms are written on it.
There are two types of Bills of Rights: statutory or entrenched. I’m going to be talking about an entrenched Bill of Rights, (which is a constitutional Bill of Rights) it means that a list of our rights and freedoms are entrenched into the constitution, so that nobody, not even the government, can change, or ignore these rights and freedoms.

Why has the Australian Labour Party proposed a Bill of Rights? Well, they argued that it would protect current rights a bit better, provide protection for new rights, and educate the public about all these rights as a motivational document for government and citizens alike.
This means that if the state government passes a law banning Catholics from going to church, then all Catholics could use the Bill of Rights to defeat this new law, because their freedom of religion was breached.
(Currently, the state government has the power to legislate any law they wish, like the one I mentioned.
They can even legislate a law, which states that, anyone over the age of 50 is to be executed via lethal injection.
Maybe that is why the ALP suggested a Bill of Rights ====è to protect our rights and restrain the power of the government.)
However, many of these fundamental rights and freedoms, are already protected by our legal (pause), and political sources. The legal sources consist of: express constitutional rights, implied constitutional rights, legislation, common law, and international law.

Express Rights
Express rights are rights which are already directly stated in the Australian constitution.
For example,
Section 116 allows the freedom religion.
Section 51 gives people the right to own property
And Section 80 gives an offender the right to trial by jury.

Another source of rights is implied rights, these rights are not directly stated in the constitution, but are created as the logical consequence of things that are in the constitution. (In other words, although these rights are not directly quoted, they are implied and are clearly understood.)
One example is the freedom of speech, implied by combining section 7&24 of the constitution, shown in the Lange vs. ABC case in the High Court, Australia’s most senior court.
Another example is the freedom of interstate trade (section 92 of the constitution).
In summary, these rights are already protected by the constitution. Therefore, having a Bill of Rights in the constitution will not protect these rights any more than they do currently.

Rights are also protected by legislation, which is the law passed by the parliament. They include, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, and Equal Opportunity Act 1981.
Such legislation gives the people powerful protection of many rights. More importantly, if the government attempted to remove them, the political backlash would ensure this government is voted out at the next election.
Because the people accept these rights as being fundamental, hence, these Acts are themselves protected by the people through democracy, which is an idea I will return to shortly.

The Common law is another source of rights. It is the law of the courts, which is created as they interpret the constitution and legislation. It protects people through the rule that people are innocent until proven guilty, for example in the case of Carol, in the high court.
Clearly, common law develops over time and, together with legislation, will protect new rights as they develop.

Finally, rights are protected by International Law.
The Commonwealth Law has a close connection with International Law, which protect human rights via
· Universal Declaration of Human Rights (1945)
· The International Covenant on Civil & Political Rights (1966)

International Law can be used to protect human rights in Australia.
Firstly, if a parliamentary law were ambiguous, it would be changed in accordance to the International Law.
Secondly, International Law can also be used to develop The Common Law to protect human rights. For example, the famous case of Mabo in the high court.

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As I have shown, we don’t need a Bill of Rights because these rights are already protected via these legal sources. (Pause)
A Bill of Rights is also redundant because we also have a political system which is a source of protection itself.

Firstly, our government is democratic, which means that the government is elected by the people, and represents the interests of the people, which means their rights are important.
However, in order to allow the best protection of rights under a democratic government, the voters must be informed of the wide range of issues concerning the government. They should also be aware of what is going on and concerned about politics. Finally, the voters should be active in voting for the government which best represents their interests and hence protects their rights. So if voters are informed, concerned and active, then a Bill of Rights is unnecessary.

Our form of politics is also concerned with the way in which the power of the government is divided. This ensures that our rights cannot be easily abolished or eroded.
These divisions are, firstly, The Separation of Power, which divides the power of the government into the Legislative, the Executive, and the Judiciary.
Secondly, we have Federalism, where the Commonwealth and the State government have shared responsibilities and powers.
Thirdly, we have a Bicameral Parliament, where the Parliament is divided into the upper house and the lower house.
Fundamentally, rights are protected by law, law is protected by democracy, democracy is protected by the constitution.
And The Constitution is protected by the people.

Further, an entrenched Bill of Rights is unnecessary because of the lengthy and difficult process involved.
Now, the only way to have a Bill of Rights in our Constitution is to vote it in through a referendum.
· First, the proposal for a constitutional Bill of Rights must be passed as an Act of Parliament.
· Second, the proposal must then be submitted to a referendum, where a majority of voters and a majority of states must be in favour, that is, four out of six states.

Since the establishment of the Australian Constitution in 1901, there have only been 44 attempts to change our constitution, and out of these 44 attempts, only 8 out of 44 changes have been successful. The constitution has not been modified since 1977.
There are two reasons for this lack of success:
First, Australians are quite reluctant to change something as important as the Australian constitution, this is especially correct when the change is as risky as a Bill of Rights.
The other reason is that successful amendments require bi-partisan support (that is, both major parties must support it). However this is very unlikely in the instance of a Bill of Rights, especially when the current legal and political sources of protection I have already presented are sufficient. (Pause)

When making a Bill of Rights, there would be a lot of conflict of interests. For example, some politicians would argue that the right to have abortion should be in the Bill of Rights, others argue might argue that abortion should not be in the Bill of Rights because it conflicts with the Right to Life.
How could we ever get agreement on what rights should actually be protected in a Bill of Rights? Therefore, a Bill of Rights is unlikely ever to be enacted.

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(PART II OF SPEECH)
Argument 1: Political ramifications
The last part of my speech is concerned with the detrimental effects of an entrenched Bill of Rights, politically, legally, and economically.
The political ramifications are judicial imperialism: which means that a Bill of Rights puts more power into the judiciary thus destroying or corrupting the separation of powers. This is the idea that the judiciary, that is, the judges, should be balanced against the legislative, which is the elected parliament, and the executive, which is the Governor General and ministers.
A Bill of Rights will turn the high court into a political court, particularly because Judges are appointed, that is, unelected and unrepresentative.
As a consequence, there would be a significant decrease in respect for the independence and importance of the courts and the legal system.
Further, a Bill of Rights is extremely difficult to change once entrenched because such changes require a referendum, which I talked about earlier. For this means that the changing values of society may not be reflected in a Bill of Rights. E.g., in Australia women weren’t protected in the 1950s, same as homosexuals, migrants and refugees, whereas today we may wish to protect these groups.
(Take America for example, they have a Bill of Rights in their constitution since 1799. When it was made, they included the right to bear arms, in order to protect themselves during the civil war at that time. After the war is over, the government could not ban the use of guns, since it’s entrenched in the constitution, and that’s a reason why crime rates in America is so high – because everyone owns a gun. And this is a consequence of an entrenched Bill of Rights. This also proves the point that the Bill of Rights does not consider the fact that our society’s values are constantly changing.)

As well as legal difficulties in changing an entrenched Bill of Rights, socially, once it is established, people will show apathy towards protecting rights and will make distinctions between the Rights in Bill of Rights and those outside the Bill of Rights. This means rights which are not included in the Bill of Rights may be disrespected. Thus secondary rights are not protected. This is worse than the current situation. (I’m not conceding that the current situation is bad, but I am saying that a Bill of Rights is bad).

The Legal ramifications are that a Bill of Rights is a fundamental change to all existing laws (since all laws need to be rewritten based upon an entrenched Bill of Rights). This means there will be many more High Court cases, as people take legal action on the basis of the Bill of Rights. This was the experience of Canada and New Zealand when they introduced their Bill of Rights in the 1990s.

Finally, introducing a Bill of Rights would be too costly. Implementing the Bill of Rights alone would cost over 100 million dollars. Furthermore, there is the cost, which is the natural consequence of changing all existing laws, repassing legislation, as well as the costs of the increased court cases.

(Conclusion)
Today, I hope I have demonstrated that a Constitutional Bill of Rights is superfluous (pause) as the Australian government is adequate in protecting our fundamental rights already, through legal and political sources. Moreover, a Bill of rights is detrimental politically, legally and economically.
The writers of the Australian Constitution deliberately excluded a Bill of Rights when the constitution was established in 1901. They were right then and now.
Let me conclude by citing a famous quote by the former Australian Chief Justice Sir Harry Gibbs: “If a society is tolerant and rational, it does not need a Bill of Rights. On the other hand, if the society is not tolerant and rational, then no Bill of Rights will preserve it.”

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