Australian Journal of Human Rights
It’s broke so fix it: arguments for a Bill of Rights
This paper looks at the reasons why a Bill of Rights may be an attractive option for rights protection for Indigenous Australians and I want to start by saying that my views are personal; I am not claiming that they are reflective of the Indigenous community. I am going to structure my paper to answer one of the claims most often used against a Bill of Rights, namely, that the current system already allows for adequate rights protection. Put colloquially, it can be called the ‘if the system ain’t broke, don’t fix it’ argument.
It is easy to say that the system ain’t broke so you don’t need to fix it if it has always worked for you. When I hear people talk about how well our legal system works I can feel a great chasm between what their experience with our laws are and what those of my own family are. I was interested in studying law because of the impact of the child removal policy on my family. My grandmother was taken from her family when she was twelve and sent out to work as a domestic. She never returned to her home. My father was, with several of his siblings, placed in a home at the age of five. He was not able to find the links to his own family until the 1980s. I grew up in a family where I witnessed the impact of that removal on the self-esteem of my family members and I saw what a difference it made to my father to find the family and cultural ties that had been taken away from his mother. I have stood on the very spot where my grandmother was taken from. It is land on our traditional country that we have no ability to claim a native title interest over. I stood on that spot and I couldn’t have faith that our legal system was fair, equitable or just.
You do not need to use the emotive description of personal experience to necessarily make the point. You can let the High Court do it for you. Nowhere is the lack of rights protection more evident than in the case of Kruger v The Commonwealth. Recent litigation by other members of the stolen generations seems to have eclipsed the earlier High Court determination. But I find the Kruger case very symbolic. There, the plaintiffs who were people who had been removed under the Northern Territory ordinance, and one mother who had her child taken, claimed damages for breaches of express and implied rights. The plaintiffs had claimed breaches of, inter alia, an implied freedom of movement, the right to the freedom of religion (contained in s 116 of the Constitution), an implied right to legal equality and an implied right to due process.1 They were unsuccessful on all counts.
The Kruger case starkly highlights the void of rights protections in our Constitution and shows that even where rights might be specifically protected, they are not easily invoked. In that way, it becomes a case that can reflect the inadequacies of rights protection within the written document of the Constitution. What we can see from Kruger is that a lot of the rights that we would think are protected are not.
But there is another thing that the Kruger case does. It shows how a particularly Indigenous experience — removal from the family motivated by assimilationist policies — can be explained in terms of rights that are not specifically Indigenous. The right to freedom of movement, legal equality, due process before the law, freedom of religion. On the flip side of that, we can see that, where there is a vulnerability of rights protection for all Australians, it disproportionately impacts on Indigenous people.
Our framers had reasons for not putting those rights in to the Constitution. One of those reasons was the belief that the matter of rights protection was one best left to the legislature. It is easy to say that there are all the rights protections that we need in our current system if it is has always protected your rights. And here again I can always feel the chasm of experience when people say that the system is working and how the system has worked for the marginalised and culturally distinct.
I once thought that legislation was enough. We had the Racial Discrimination Act 1975 (Cth) (RDA) and various other pieces of legislation that protected rights. When I had that view I never thought there would be a time in which the Australian Government — or the Australian people — would have repealed the application of the RDA and its principles. I held those views before I lived in an Australia where the Howard Government would repeal the application of the act, from native title. I am not now prepared to accept an argument that I should remain reliant upon the benevolence of the Government for the protection of my rights because — quite frankly — they often take second place to the rights of all other Australians.
When the framers left the power to make laws about rights to the legislature, they did not do so thinking that the lawmakers would act in the best interests of minorities. In fact, a non-discrimination clause was proposed in the Constitution through the Tasmanian Parliament when the instrument was being drafted. The proposed clause 110 was drafted to include the phrase:
... nor shall a State deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of its laws. (Williams 1999: 37–42)
But the clause was rejected and it was rejected for two reasons:
• it was believed that entrenched rights provisions were unnecessary; and
• it was considered desirable to ensure that the Australian States would have the power to continue to enact laws that discriminate against people on the basis of their race.
If one is aware of these attitudes held by the drafters of the Constitution then it comes as no surprise that the Constitution is a document that offers no protection against racial discrimination today. It was never intended to do so and the 1967 referendum in no way addressed or challenged those fundamental principles that remain entrenched in the document.
So, my argument so far is that the Constitution provides too few mechanisms for rights protections and that the leaving of rights protection to the legislature has not been an adequate basis for ensuring those rights are protected either. And, I have argued, the experience of Indigenous peoples and their families bears out the examples of what happens when the system isn’t working. So, the next issue I want to look at is whether a Bill of Rights is the way in which those problems can be fixed. And I become more and more convinced that it is.
As I said earlier, I was not really as interested in the idea of a Bill of Rights until my faith in the legislature was fractured by the passing of the Native Title Amendment Act 1998 and its overriding of the Racial Discrimination Act. I studied in the United States and I worked in Canada so I got to see two jurisdictions that had a Bill of Rights and I saw the strong arguments against and for them in both of those jurisdictions. The US, with its entrenched rights that include a right to bear arms and an overzealous freedom of speech never seems much to Australia’s taste. But working in Canada, I think that there were some benefits flowing from the Bill of Rights experience there that seem attractive for the Australian context.
For me, the most persuasive arguments are the following.
• The framers got it wrong and, on reflection of 100 years experience living under our current Constitution, it can be asserted that the document does not adequately protect fundamental freedoms and a Bill of Rights can rectify that. Nowhere did the framers failure to protect rights impact more harshly than on Indigenous people.
• A Bill of Rights would identify the contemporary human rights standards that reflect our values as a society and a people. Freedom from racial discrimination, due process before the law and equality before the law would be a few of those principles. A Bill of Rights would ensure that those principles guide policy makers and decision makers. And these are rights that, although not particularly Indigenous, would have special significance for Indigenous people. If in a legislative Bill of Rights, these rights would have to be specifically overridden and this would be a trigger for public debate and scrutiny. If in the Constitution, a Bill of Rights would elevate these rights above the realm of politics and not leave them vulnerable to popularist politics or political whim. That is, whether there is a Bill of Rights in legislative or constitutional form, these rights will have more protection that they do now.
• Canada had a legislative Bill of Rights for twenty years before the constitutional entrenchment in 1982. One thing I noticed when I lived there was how Canadians as citizens seemed far more aware of themselves as rights holding entities. This can be attributed somewhat to the culture that a Bill of Rights creates. And this awareness of the self as a rights holding entity had an interesting spin off for Indigenous rights. It meant that when Indigenous people in Canada used the rhetoric of rights to assert their claims, there was not the same antagonism to the language that we see here. In Australia, it feels as though any assertion of a right by Indigenous people is viewed suspiciously as a claim to get something for nothing. That animosity about the use of the language of rights was missing from the Canadian dialogue. I was in Canada when the Native Title Amendment Act 1998 became law and I was aware of the fact that if we had a similar provision to s 5(1) of the Constitution Act 1982, native title would have been protected. I don’t think a specific constitutional protection could have been achieved in Canada without the culture of rights that had developed around the Bill of Rights and its entrenchment in the Canadian Constitution.
One of the attractions of a Bill of Rights is that it gives us an increased rights framework without making Indigenous issues necessarily predominant. And if we remember Kruger, there is the fact that the protection of any of the rights of Australians will have specific resonance for Indigenous people.
That is not to say that a Bill of Rights could not have specific recognition of Indigenous rights and it could do that in one of two ways. It could include a list of the particular Indigenous rights that should be protected. I imagine these may include things like the protection of cultural heritage and language. But there could also be a general protection that recognises that the rights contained in the Bill have special application to Indigenous people or there could be something similar to the wording of s 35(1): that ‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed’. This then allows for the content of the protection to be debated at a later date.
The measure of success for a democratic society cannot be that the comfort of the middle class is maintained. Surely, the challenge for a community and its laws and its system of government is how well it works for the least advantaged, the historically marginalised and the culturally unique. I have never understood the tendency to treat Indigenous issues as specific legal, constitutional and social problems. They are the central problems facing us as Australians and as such should be the first reference point for determining whether or not the system works or whether its protections are adequate.
What I realised when I saw a government override the provisions of the Racial Discrimination Act was that we do not live in a world that moves in a lineal progression. Things do not move slowly along towards a time when there is more tolerance, more equality and more acceptance. There are moments when rights are lost — rights to land, rights to family, rights to cultural heritage — and they will be lost irretrievably. The world works in cycles. For periods such as this where Indigenous rights are being eroded, there will be a moment again like that which saw the support for the 1967 referendum. When that time comes, we need to have some answers and some plans. That is why it is important to have the discussion about a Bill of Rights now. The question shouldn’t be ‘Why have a Bill of Rights?’; it should be: ‘Why not?’ l
* Larissa Behrendt is Professor of Law and Indigenous Studies and Director of the Jumbunna Indigenous House of Learning at the University of Technology, Sydney. This paper was presented on the lands of the Gaddigal and other Eora nations. It is perhaps fitting that such a discussion about the protection of rights took place on the land of the Indigenous nations who have born the first and perhaps greatest impact of colonization. The author would like to thank Professor George Williams.
1 For a more detailed overview of the Kruger case, see ‘Kruger v Commonwealth’ Blackshield et al 2002 pp 410 - 411.
Kruger v The Commonwealth  HCA 27; (1997) 190 CLR 1
Commonwealth of Australia Constitution Act 1900 (Cth)
Native Title Amendment Act 1998 (Cth)
Racial Discrimination Act 1975 (Cth)
Constitution Act 1982
Blackshield A, Coper M and Williams G (eds) Oxford Companion to the High Court of Australia Oxford University, Melbourne 2002
Williams G A Bill of Rights for Australia UNSW Press, Sydney 2000