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Are human rights the past or the future for Australia?

Professor Hilary Charlesworth
Date and time: 
7 July, 2007 - 13:00

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"The possibility of including rights in our Constitution was raised before Federation. Inglis Clark’s preliminary draft of a constitution in 1890, which influenced the first official draft produced by Queensland Premier Samuel Griffith in 1891, contained a fragmentary bill of rights, drawn from the United State Bill of Rights: the right to a jury trial, to the privileges and immunities of state citizenship, to equal protection under the law and due process and to freedom of and non-establishment of religion.

The inclusion of these rights in Clark’s draft constitution met with considerable resistance, and only some references survived the constitutional convention debates in a watered-down form. The language of equal protection of the laws and due process as part of a privileges and immunities clause provoked considerable hostility. One reason for this was that such provisions could invalidate colonial mining and factory legislation, particularly that which discriminated against non-European workers.

There was little further attention to issues of rights until the 1970s in the context of attempts to adopt a national bill of rights:

There was a major national debate on this topic in the early 1970s. In 1973 the Attorney-General Lionel Murphy introduced a Human Rights Bill into the Australian parliament as a precursor to constitutional change. The draft legislation was heavily based on the ICCPR and sought to bind both federal and state governments. The Bill drew a storm of protest and it eventually lapsed.

A second legislative attempt to enact a bill of rights was made in 1983 by Attorney-General Gareth Evans: this was a much watered-down version of the Murphy law providing for judicial interpretation to favour constructions of laws that promoted human rights. Again, there was a heated attack on the proposals and in the end the draft law was not introduced into Parliament.

In 1985, Labor Attorney-General, Lionel Bowen, introduced yet another version of an Australian Bill of Rights into Parliament. The draft legislation was narrower still than the Evans Bill. It applied only to federal laws and excluded all state laws from its scope. Despite its modest form, the bill attracted such intense controversy and opposition from politicians from all political parties that it was allowed to lapse.

In 1988 a modest proposal to extend the existing rights provisions in the Constitution to the Australian states was decisively defeated at referendum."


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