Human Rights and the Second Century of the Australian Constitution

In many countries with a written constitution, constitutional development in the second half of the 20th century was dominated by concepts of human rights. For example, Canada and South Africa gained Bills of Rights* 1 while the United States saw an existing Bill of Rights expanded through judicial interpretation. In other nations, international norms and the proliferation of treaties and conventions acted as a catalyst for the examination of domestic human rights concerns. In countries without a written constitution, such as New Zealand and the United Kingdom (‘UK’), international human rights standards were incorporated into domestic law through statutory Bills of Rights.2 Australia stands apart from these developments. As a result, according to Spigelman CJ of the Supreme Court of New South Wales, within a decade, British and Canadian court decisions in many areas of the law may become ‘incomprehensible to Australian lawyers’. He has warned that the ‘Australian common law tradition is threatened with a degree of intellectual isolation that many would find disturbing’.3 While federal and State Parliaments have enacted important human rights legislation, particularly in the form of anti-discrimination statutes,4 they have not brought about a constitutional or statutory Bill of Rights. Australia is alone among comparable nations in not having a domestic Bill of Rights in some form. This is surprising given that international human rights law has had a significant political and legal impact in Australia. Politically, international law has been widely invoked in debates on issues such as euthanasia, mandatory sentencing and the rights of children. Legally,