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1. Political Equality for Women
2. Regulatng the Influence of Money in Politics
3. Changing the Parliamentry System of Remuneration and
Entitlements
4. Changing the System of Parliamentary Representation
5. The Bill of Rights Debate - its Relevance to the Equality
of Women
6. People's Conventions - Public Participation in Democracy
5.1.1 has overriding powers to encompass rights that have been enunciated in various UN instruments such as the Convention on the Elimination of All forms of Discrimination Against against Women, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Racial Discrimination;
5.1.2 includes an equality right for women;
5.1.3 explicitly protects substantive equality rather than formal equality;
5.1.4 recognises rights in relation to sexual orientation; contains provisions for special measures to address inequality in society; operates in the private as well as the public sphere.
5.1.5 contains provision for special measures to address inequality in society;
5.1.6 operates in the private as well as the public spheres.
Rationale. There is a growing Bill of Rights movement in Australia. Powerful voices are advocating a Bill of Rights for Australia. Unless women participate vigorously in this debate, women's rights will again be overlooked.
In framing the Bill of Rights legislation, Tthe Federal Parliament should take account of the recommendations of the Women's Constitutional Convention (Canberra, 28-30 January 1999). Approximately 300 women Women attendinged the Convention, representeding 180 national women's organisations and approximately 300 women. They opted for a national constitutional Bill of Rights or, failing that, a legislated Bill of Rights, which would guaranteeed women's the rights of women and indigenous people's rights,; which would retained current gains and which fulfilled Australia's commitments under various UN conventions. (See http://www.womensconv.dynamite.com.au/outcomes.htm).
As Professor Larissa Behrendt (Law & Indigenous Studies, UTS) stated at the Women Into Politics Conference in Sydney (July 2000), the Sex Discrimination Act and the Race Relations Act are neither legally sacrosanct nor entrenched in the Constitution, and they do not have overriding powers.
The Sex Discrimination Act and the Race Relations Act are frequently under attack, and may be can be amended to the detriment of the nominated group to satisfy a vocal minority or a powerful lobby. The legislation is frequently under attack. For example, the proposed amendment to the Sex Discrimination Act to allow the States to prevent lesbians from having access to IVF procedures attacks the marital status provisions of that Act. The 10 point land rights legislation was passed in spite of the Race Relations Act and, along with the Hindmarsh case, watered down theat Act. The Act It has yet to be demonstrated whether or not itthe Act can counter the Northern NTerritory mandatory sentencing laws which target offences likely to be committed by young indigenous Australians but which exempt many "white collar" (read white) crimes (Sydney Morning Herald 29/12/01). The Federal Government is also attempteding unsuccessfully to limit the scope of the age discrimination legislation to cases of direct discrimination (Australian Financial Review - Weekend 29/12/00-1/1/01).
The timing of the Federal Government's decision to review and/or reduce Australia's UN treaty commitments and of its failure to ratify the Optional protocol to CEDAW does little to reassure women and those committed to equality of opportunity that Australia remains is still committed to equity and fairness. The government thus gives aid and encouragement to regimes opposed to democracy, and also damages Australia's reputation in international forums. Adherence to the UN conventions increases our reputation as a good world citizen. (Alice Tay, HREOC, Sydney Morning Herald 23/3/00).
Common law/Westminster style countries like Canada and New Zealand have einacted legislation for Bills (or Charters) of Rights. The UK passed a Human Rights Act in 1998 incorporating the European Convention of Human Rights (Sydney Morning Herald 11/01/01).
In light of Australia's record in rejecting referendums, a legislated Bill of Rights appears to be the only immediate option. A legislated Bill of Rights must have overriding powers if it is to achieve its objectives of ensuring that all laws are in compliance with it and that the courts take its aims and objectives into consideration in the formulation of judgements. The CEDAW Article 4 envisaged interim measures to allow disadvantaged groups to achieve de facto or substantive equality.The Canadian Charter of Rights and the UK Human Rights Act allow the courts to rule on claims that fundamental rights and freedoms have been abused, and to declare invalid any legislative or executive acts that are incompatible with those rights and freedoms. Common law/Westminster style countries like the Canada and New Zealand have adopted bills (or charters) of rights. The UK passed a Human Rights Act in 1998 incorporating the European Convention of Human Rights (Sydney Morning Herald 11/01/01). Powerful voices are advocating a Bill of Rights for Australia.
The Chief Justice of the High Court, Murray Gleeson, pointed out (Boyer Lecture, Sydney Morning Herald 20/11/00) the omissions in our Constitution, saying it "contains fewer guarantees of human rights than the American Constitution. In consequence it is left to parliaments, Federal and State, to protect rights and freedoms that in some other countries are constitutionally guaranteed". In a later lecture he remarked again (Boyer Lecture, Sydney Morning Herald 11/12/00) on our constitution's lack of guarantees "along the lines of a bill of rights" and remarked on to the fact that "the electoral process is designed to ensure that governments are responsive to the wishes of the majority, but majorities cannot always be relied on to be sensitive to interests and the legitimate concerns of minorities".
The Chief Justice of NSW, in an address to the NSW Council of Civil Liberties, spoke of the movement towards bills of rights in various common law countries and in favour of States enacting such legislation in the absence of federal law (Civil Liberty No. 182 January 2000).
Professor Larissa Behrendt (Law and Indigenous Studies UTS) developed this theme: "The rights and freedoms in our constitution are minimal and do not include the general right to vote, to free speech, to freedom of movement or freedom from racial discrimination. In the post-World War 11II era, the establishment of internationally recognised human rights has redefined our view, as individuals, of our relationship to the state." (Sydney Morning Herald 1159/1/01).
Our Constitution does not reflect the various freedoms to which Australia committed itself when it adopted various UN treaties. While we may see ourselves as a liberal democracy, many Australian citizens are concerned for their rights and liberties. There is no guarantee that liberal values will continue to underpin our political and legislative structure. A Bill of Rights should cause persons contemplating abuses of rights to hesitate and will provide for conflicting rights to be arbitrated in the courts.
The main criticisms of a Bill of Rights appears to be that such legislation provides yet another avenue for the enrichment of lawyers and for "'activist"' judges to make law (Janet Albrechtsen Sydney Morning Herald 9/4/01) and that law on rights should be left to our parliaments. Assuming that the legislation provides for conciliation and arbitration, as is the case in current discrimination legislation, the process need not be unduly expensive. The view that judges would make law, not just interpret it, is not shared by the Australian Lawyers for Human Rights who support a Bill of Rights. (Simon Rice Sydney Morning Herald 16/4/01).
As to leaving our rights to our Parliaments, rights are usually claimed by minorities or the powerless and often by proponents of unpopular causes. The opportunistic nature of politics, the deference to majorities, and the reliance on opinion polls and popularity, makes politicians unreliable and frequently unwilling champions of minorities, human rights or unpopular causes. Once Where overriding powers are in place, politicians are removed from deciding individual human rights discrimination issues, and the arbitration of rights is would be left to the courts.
A legislated Bill of Rights for Australia would demonstrate to sceptical or nervous electors that the world will not end or the UN become a world dictatorship. A legislated Bill of Rights It may well help create a climate of opinion which would allow for a constitutional Bill of Rights to be successfully put to referendum at some future date referendum.
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