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Why does Australia lack a Human Rights Act?

Why does Australia lack a Human Rights Act?. David Erdos Centre for Socio-Legal Studies, University of Oxford. Outline of talk.  Correlates of low Bill of Rights development  Australia - Intra-Westminster comparison  Thoughts on current debate. Fundamental concepts.

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Why does Australia lack a Human Rights Act?

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  1. Why does Australia lack a Human Rights Act? David Erdos Centre for Socio-Legal Studies, University of Oxford

  2. Outline of talk  Correlates of low Bill of Rights development  Australia - Intra-Westminster comparison  Thoughts on current debate

  3. 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

  4. Bill of Rights Institutionalization (BORI) Index RIGIDITY Ordinary majority Significantly > ordinary majority < 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)

  5. Was a Bill of Rights adopted during political transition? ZERO LOW MEDIUM HIGH

  6. Does country have British legal foundation? ZERO LOW MEDIUM HIGH

  7. 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)

  8. Explaining the Australian puzzle: EXPLANATION ONE: Weak background support EXPLANATION TWO: Blockages at elite political level

  9. 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)

  10. Specific Westminster comparisons  “Multicultural” groups particularly well-developed in Australia  Public opinion & debate in Australia vis-à-vis e.g. New Zealand

  11. Elite blockages: Institutional Fragmentation  Constraints associated with Australia’s 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 Australia’s.

  12. 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.

  13. 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

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