There is an ever increasing need for enactment of a bill of rights in Australia. The recent judicial activism by the high court in favourably applying international human rights treaties against both common and statute law, to the anger of the cth government demonstrates a need to expressly state what rights the law is willing to bestow upon Australians.
Kirby argues that the Dietrich v R, Mabo (No 2) and ACT v Cth all show an intention of the high court to create a judicial bill of rights (p324, r8.2).
Any decision on a BOR should be made by assessing the history and adequacy of protections afforded by the constitution (p327, r8.2)
Arguments for a Bill of Rights
1) society has changed since the creation of our constitution. The existence of a multicultural society mandates the need to protect the minorities within our community (p316, r8.1)
2) Kirby J believes the handing down (in the 90's) of decisions by the high court which determine fundamental human rights, should not be determined by judges but by a bill of rights enshrined in the constitution (p316).
3) A bill of rights would empower the powerless and disadvantaged to assert their rights and seek redress of any breach of those rights (p327, r8.2).
4) The original rejection of the inclusion of a bill of rights in the constitution by its framers, was due to a supreme faith in parliamentary democracy and a fear that a bill of rights which provides for due process would undermine discriminatory laws of the time which disadvantaged ATSI's and chinese migrants (p 321).
5) A constitutional bill of rights is needed where the states have not enacted their laws in compliance with international HR standards (p322).
6) Democracy/legislation is not perfect, and as such can overlook the...