Why does Australia lack a Human Rights Act

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Why does Australia lack a Human Rights Act?

• David Erdos
• Centre for Socio-Legal Studies, University of
  Oxford

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Outline of talk

• ? Correlates of low Bill of Rights development
• ? Australia - Intra-Westminster comparison
• ? Thoughts on current debate

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Fundamental concepts

• A Bill of Rights grants
• overarching legal status to a
• broad set of
• fundamental human rights.

• Differences in terms of designed strength -
• rigidity
• legal status
• precise scope

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Bill of Rights Institutionalization (BORI) Index
RIGIDITY
Ordinary majority
Significantly gt ordinary majority lt 2/3
supermajority
Two-thirds majority plus
STATUS
Quasi judicial review (e.g. interpretation only)
Constrained judicial review (e.g. opt-out or
savings provision)
Full and active judicial review.
SCOPE
Limited (e.g. civil political only)
Broader (wide civil and political rights plus
other others)
Very wide. Civil and political rights just one
element.
BORI SCORE
LOW (e.g. Sweden)
MEDIUM (e.g. Jamaica)
HIGH (e.g. India)
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Was a Bill of Rights adopted during political
transition?
MEDIUM
LOW
HIGH
ZERO
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Does country have British legal foundation?
ZERO
LOW
MEDIUM
HIGH
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Intra-Westminster Bill of Rights outcomes
Country BORI SCORE
Canada High Medium (2.25)
UK Low (1.25)
NZ Low (1.0)
Australia None (0.0)
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Explaining the Australian puzzle
EXPLANATION ONE Weak background support
EXPLANATION TWO Blockages at elite political
level
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Weak Background Support Thesis General
Social Groups Civil libertarians social
equality seekers

• Post-war immigration growth of powerful
• multicultural constituency

2. Post-war economic development linked to growth
of significant left liberal postmaterialist
constituency
3. Growth from 1960s of concern regarding rights
of Aboriginal racial minority (cf. US)
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Specific Westminster comparisons

• ? Multicultural groups particularly
  well-developed in Australia

? Public opinion debate in Australia vis-à-vis
e.g. New Zealand
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Elite blockages Institutional Fragmentation
? Constraints associated with Australias written
constitutionalism federalism, separation of
powers etc.
? Significant division of power within the
federal system itself especially given presence
of powerful, elected Senate
? In contrast, United Kingdom and New Zealand
political systems much more streamlined
? However, Canadian political system similar to
Australias.
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Elite blockages political triggers
? Threat to political stability dynamic and
Canadian Charter
? Aversive response by Labour elites in UK NZ
context
? No such similar dynamic historically in
Australia.
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Implications for the current debate
? Long-term likelihood of Bill of Rights genesis
large and increasing
? Aversive response to Howard Government within
ALP ?
? If immediate change then can expect only
limited reform
? Little prospect of any change given current
Senate configuration