Bills of Rights in Australia:
History, Politics and Law

Andrew Byrnes, Hilary Charlesworth + Gabrielle McKinnon

University of New South Wales Press 2009
A book review by Danny Yee © 2009
Bills of Rights in Australia covers history and politics at both state and federal level, but its focus is on the law, and in particular the human rights bills that have been enacted in the ACT and Victoria. The authors take a positive view of these bills and clearly support a national bill of rights, but their approach is descriptive and not at all tendentious.

A general introduction to human rights focuses on the UN Declaration of Human Rights and the two covenants that build on that, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. This is followed by a short history of bills of rights in Australia.

A brief survey of bills of rights in countries with similar traditions — notably New Zealand, the United Kingdom, Canada, South Africa and Hong Kong — gives a perspective on the different possible models for Australia and attendant controversies and concerns.

"The role of the courts under a statutory bill of rights is to interpret legislation in conformity with designated human rights so far as reasonably possible and, where it is not, to make a reasoned finding that the statute is incompatible with human rights. This finding is then brought to the attention of the legislature, which must consider whether it wishes to amend the law in accordance with the views of the court or to adhere to its previous view that there is no impermissible restriction on the enjoyment of a particular right. In this way proponents of statutory bills of rights argue that the sovereignty of the legislature is maintained, the courts do not have a monopoly of interpretation of bills of rights, and the result is a constructive dialogue on rights protection between the various arms of government."

The core chapters describe the Australian Capital Territory's Human Rights Act 2004, the first bill of rights in Australia, and Victoria's Charter of Human Rights and Responsibilities 2006. These have many similarities and indeed drew on each other. They require courts to interpret laws as compatible with human rights and give them powers to make statements of compatibility, create requirements for human rights evaluations of legislation, and place some direct obligations on public authorities. A survey of the effects so far finds they have brought no revolutionary changes, but have improved awareness of human rights issues across all three branches of government.

The final chapter touches on developments in other states, notably Tasmania and Western Australia, and outlines the current debate over a national bill of rights.

Bills of Rights in Australia is not hard to read, but it is fairly dry. It is pitched at a level of generality where most cases are only named in the endnotes and few are discussed in any detail. And it has no biographical stories, descriptions of scenes in court or on the floor of parliaments, or accounts of polemical debates. That kind of material would have made for a different book entirely.

Much of Bills of Rights in Australia describes recent laws — significant modifications to the Victorian Charter commenced operation only in January 2008 — and this material will rapidly date as new case law develops. The current debate over a national bill of rights will also progress. For the moment, however, Bills of Rights in Australia is timely and topical, and the best source for anyone who wants to understand the current state of human rights charters in Australia and the debates over their future.

April 2009

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%T Bills of Rights in Australia
%S History, Politics and Law
%A Byrnes, Andrew
%A Charlesworth, Hilary
%A McKinnon, Gabrielle
%I University of New South Wales Press
%D 2009
%O paperback, bibliography, index
%G ISBN-13 9781921410178
%P 230pp