The Rudd Government’s Rejection of an Australian Bill of Rights: A Stunted Case of Aversive Constitutionalism?

21 Pages Posted: 24 Feb 2011

See all articles by David Erdos

David Erdos

University of Cambridge - Faculty of Law; Trinity Hall

Date Written: February 1, 2011

Abstract

In April 2010 the Labor Government rejected the suggestion of the Brennan Committee - which it itself had set up in 2008 - that Australia adopt a statutory bill of rights. This outcome resulted from the limitations of the catalyzing political trigger coupled with the potent barrier of Australia’s fragmented institutional structure. Although the Brennan process was prompted by an ‘aversive’ reaction against the policy outlook of the Howard era, this was much weaker than that which prompted bill of rights reform in either New Zealand (1990) or the United Kingdom (1998). Additionally, reform efforts faced the potential opposition of the powerful Senate and even possible separation of powers challenges under the Australian Constitution. These negative factors are consistent with Australia’s failed initiatives of the 1970s and 1980s. Despite this, factors favouring bill of rights genesis remain. Given appropriate circumstances, the possibility of Australia acquiring a bill of rights in the longer-term should not be discounted.

Keywords: Bill of Rights, Human Rights, Political Triggers, Federalism, Institutional Fragmentation, Westminster Constitutionalism, Aversive Constitutionalism

Suggested Citation

Erdos, David, The Rudd Government’s Rejection of an Australian Bill of Rights: A Stunted Case of Aversive Constitutionalism? (February 1, 2011). Oxford Legal Studies Research Paper No. 17/2011. Available at SSRN: https://ssrn.com/abstract=1766566 or http://dx.doi.org/10.2139/ssrn.1766566

David Erdos (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

HOME PAGE: http://www.law.cam.ac.uk/people/academic/d-o-erdos/5972

Trinity Hall ( email )

University of Cambridge
Trinity Lane
Cambridge, CB2 1TJ
United Kingdom

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