Australian Journal of Human Rights
Political leadership on a Bill of Rights
The Australian Democrats support a Bill of Rights. And to prove it, we introduced into the Parliament last year, as part of our policy commitments to the electorate during the last federal election, a Private Members’ Bill that addresses this issue.
Our party takes the view that if you believe strongly enough in a particular policy position, then you should translate that policy into a Private Members’ Bill and table it. You can read this on the Democrats’ homepage at <www.democrats.org.au>.
Or, to be a little clearer, we Democrats support the notion of a Charter of Rights, as opposed to Bill of Rights, that is one which can evolve with the consent of the Parliament through parliamentary processes, rather than one which would require a constitutional referendum. Ultimately, we would like to see a Bill of Rights cemented into the Australian Constitution, but we take the view that this is unlikely in the medium term, and would fail without bipartisan support from the older parties.
The Australian Democrats’ Parliamentary Charter of Rights and Freedoms Bill 2001, has been through a process of community consultation, and has now been on the Notice Paper for almost one year. It remains a work in progress and is not set in concrete.
Quite simply, it is beyond our comprehension how anyone could reasonably oppose the concept of enshrined rights, freedoms and responsibilities. And it’s worth noting that Australia is now the only common law country without a Bill of Rights.
Our proposed Bill aims to ensure several things, namely:
• to establish a Charter of Rights and Freedoms, facilitated by the Human Rights Commission, and made accountable through reporting to Parliament;
• it would ensure entitlements to rights and freedoms without discrimination, with permissible limitations;
• it would include such matters as equal protection of the law;
• rights of minority groups;
• the right of participation in public life;
• freedom of expression;
• freedom of thought and consciousness;
• freedom of religion or belief;
• the right to peaceful assembly;
• freedom of association;
• protection from arbitrary interference;
• the right to marry and found a family;
• rights of the child;
• rights of persons in Australia;
• the right to enter and leave Australia;
• the right to life;
• liberty and security of the person;
• no slavery or forced labour;
• the right to be informed of reasons for arrest and detention and of charges;
• the right to remain silent and have access to a lawyer;
• the right to hearings, release and trial;
• the right to test lawfulness of detention;
• the presumption of innocence;
• the right to a fair hearing;
• the rights of the accused relating to trial;
• no retrospective criminal offences or penalties;
• the right of review of conviction and sentence;
• no trial or punishment for the same offence;
• rights when deprived of liberty; and
• no torture or inhumane treatment and no experimentation without consent.
Overarching this is art 1 of the Charter which ensures the entitlement to rights and freedoms without discrimination, ensuring that every person is entitled to equality before the law and to the human rights and fundamental freedoms set out in this Charter without discrimination based on age, race, colour, sex, sexuality, transgender identity, language, religion, political or other opinion, national or social origin, property, birth, mental or physical disability or other status.
This Article ensures also that men and woman have the equal right to the enjoyment of the human rights and fundamental freedoms set out in this Charter.
Article 2 of the Charter ensures that a right or freedom existing under, or recognised by, any other law shall not be taken to have diminished or derogated from by reason only that the right or freedom is not set out in this Charter.
Article 3 provides for permissible limitations, ensuring that the rights and freedoms set out in the Charter are subject only to such reasonable limitations proscribed by law as can be demonstrably justified in a free and democratic society, and that a right or freedom set out in the Charter shall not be limited by any law to any greater extent than is permitted by the International Covenant on Civil and Political Rights.
The opposition to having a Bill of Rights in Australia is underpinned by the belief that democratic processes, current legislation, conventions, constitutional guarantees and the use of international law as a source of common law development provides for the adequate protection of fundamental human rights.
The Constitution, for example, protects the rights to trial by jury for federal crimes and freedom of religion, and courts frequently uphold the basic rights of security and liberty of the person, the freedoms of assembly, association and speech, and due process. Also federal legislation such as the Sex Discrimination Act and the Racial Discrimination Act protect certain rights.
However, there is no one statute which lists the rights and freedoms of Australians, and there is no guarantee the rights we enjoy will be protected. Of particular concern is the claim that Australia’s Constitution embeds certain rights. In reality, s 41, which outlines the rights to vote, is not currently in operation, and s 80, which details the rights of trial by jury, only addresses federal crimes. The right to religious freedom similarly only guarantees federal protection.
The Constitution was never intended to protect rights and freedoms, and the belief by some that a Bill of Rights is unnecessary as they are implied in the Constitution, is misguided.
It was a conscious decision by a majority of delegates who drafted Australia’s Constitution to omit a Bill of Rights. Its proposed inclusion had been debated at the constitutional conventions, however it was omitted as its provisions were contradictory to the discriminatory practices that were already in action against indigenous Australians and migrants from Asia. A Bill of Rights would also not have been in line with the intended first Acts of Parliament, which were the beginnings of the White Australia Policy.
Australian parliaments have often neglected the protection of human rights, particularly when laws that violated these rights were perceived as being popular with voters. This has resulted in an ongoing history of ill treatment of minority groups in Australia, and exposes the inadequacies of the current system of human rights protection.
Failures of the parliamentary system and of common law to protect fundamental human rights in Australia include the ill treatment of aboriginal peoples, juveniles affected by mandatory sentencing laws, gay and lesbian citizens and same sex couples, and asylum seekers.
At a recent rally for refugees in Melbourne, Moira Rayner, one time Equal Opportunity Commissioner for Victoria and the current acting Equal Opportunity Commissioner for Western Australia, said:
We need a Human Rights Act. The only way we can have a proper debate about the rights of refugees is by giving our courts the power to test the legitimacy of our laws and actions against the universal norms of our international human rights obligations ... we need a human rights regime, such as the UK’s Human Rights Act, which will allow us to debate the real issues about individual rights and the common good. We need to open up and use the language of rights without being ashamed of it. We have to find a proper balance and interaction of rights and the common good.
I’d like to focus for a minute on the issue of sexuality discrimination, an area of particular passion and commitment. It has often been said, by opponents of a Bill of Rights, that such a Bill is not needed, as federal anti-discrimination laws protect everybody in areas like housing, employment, goods and services, and so on.
They do not.
Australia is one of the few western democracies that has no national anti-discrimination laws to protect gay and lesbian citizens from discrimination and harassment, and there is no federal recognition of same sex relationships. As a consequence, lesbian and gay Australians are discriminated against in areas such as superannuation, Commonwealth public service entitlements, the defence forces, social security, veterans affairs, industrial relations, immigration, access to the Family Court, federal police, taxation and so on. This discrimination happens frequently and with impunity. There is no protection and no recourse. This is not the case in comparable jurisdictions.
And I note from the gay press in Sydney, that the New South Wales Gay and Lesbian Rights Lobby has received a letter from the Attorney-General, in response to its request for the AG to explain what — if anything — the Howard Government would be doing about this discrimination, and the Attorney has replied: ‘Nothing’.
The failure of Parliament to protect the human rights of all Australians has resulted in the intervention of the High Court, which has played an integral role in upholding rights and liberties in Australia.
It has interpreted the Constitution in a manner that attempts to uphold traditional rights and liberties, and has attempted to protect human rights via common law decisions. It should not however be the sole responsibility of the judiciary to recognise the importance of upholding human rights in Australia. The Federal Parliament has a greater role to play. It must also be acknowledged that the emphasis on using common law to protect rights fails to recognise that the High Court does not have a mandate to overturn legislation that violates international human rights agreements to which Australia is a party.
The role of the High Court and Senate Committees in determining whether a law violates provisions within a Bill of Rights will however be instrumental. History teaches us that majorities do not always make just laws, particularly with regards to minority groups. It is therefore paramount that Australia has all encompassing statutes that can be used to critique proposed laws, and to stop the passage of unjust laws.
Australia is now the only common law country that does not have a statement of its rights and freedoms, and there is clearly not enough protection for basic rights within the current system. Canada instilled its Bill of Rights in 1982, New Zealand in 1990 and the UK in 1998. These counties have recognised the inherent failures of democracy and the common law system to protect and promote human rights. It is time for Australia to follow suit by legislating a statutory Bill of Rights. This will enable Parliament to refine and develop the statute, thereby creating a working balance between Parliament and the role of the judiciary. This would not be a radical change as Parliament continually sets standards for government, and the courts ensure compliance of these standards. In the long term constitutional change may occur, but only once experience has been gained.
It is often conveniently forgotten by government that a liberal democracy exists to protect the rights of citizens, and that citizens have the right to limit the power of government. This is the role of a Bill of Rights. Australians have made it very clear that government needs to have its power restrained. There can be no greater illustration of this than recent debate surrounding anti-terrorism legislation and the powers of ASIO.
Another example is the fact that the voters returned the Menzies Government to power after its failed attempt to ban the Communist Party. People therefore supported the Government but were unwilling to allow it to have broad sweeping powers to remove civil and political liberties. Another example is the emergence of the Senate as a house of review. Australians are increasingly wary of allowing governments to have a majority in the Upper House, with this only occurring once since 1961. Australians have therefore attempted to protect themselves from any unfettered power of government, while still giving it a mandate to govern.
Almost 20 per cent of voters have no political representation of their primary vote in the House of Representatives, whereas only 5 per cent of voters are not represented in the Senate through their primary vote.
A Bill of Rights would also help us to address Australia’s failure to uphold its international human rights obligations, which require that legislation be passed to recognise provisions within the treaties it has signed. Australia’s failure to implement human rights into domestic law has resulted in international condemnation. The UN Human Rights Committee concluded that human rights violations are occurring in Australia in many areas, including the mandatory sentencing of juveniles, indigenous self-determination, native title and heritage protection, the stolen generation, the deportation of people risking summary execution and the mandatory detention of unauthorised arrivals.
But there also needs to be an effective remedy for human rights violations in Australia, as there are limits on Human Rights and Equal Opportunities Commission’s current complaints powers, and bodies in charge of protecting human rights have been subject to funding cuts. If this occurred, Australia could more effectively monitor and remedy human rights violations and begin to rebuild our somewhat tarnished international reputation. It would also empower groups and individuals who have suffered, or are aggrieved, as they would have an effective avenue to challenge these violations and seek redress.
Educating Australians about their rights is also an important function of a Bill of Rights. Australians would be better able to critically evaluate the actions of government. It is also critical as most Australians enjoy their rights and freedoms, as they exist, and there is therefore a lot of complacency and things are taken for granted.
The majority in our community must also understand that the weak and vulnerable do not have the opportunity to enjoy their basic rights and freedoms and to participate fully in society. For them to do so, Australian national values of ‘a fair go for all’ must be legislated.
The adverse effects of globalisation, which should more correctly be called corporatisation, have increased the necessity of protecting human rights. Of particular concern is the response of governments worldwide to increased terrorist activity: that is, to introduce laws which infringe upon people’s civil and political rights. A balance must be struck between rights and freedoms when aiming to protect national security. However, mooted legislation that would enable ASIO to detain people without legal representation or to hold the right to remain silent, does not achieve this balance.
Australia has been at the forefront of global economic reform and has focused on competition and efficiency, however it has failed to adequately safeguard those who are vulnerable to the adverse effects of this reform.
Unacceptable levels of unemployment and underemployment, as well as a decreased spending in social public areas, has resulted in the erosion of the economic and social rights of many Australians. The increase in Australians suffering from socio-economic disadvantage has been accompanied by a decrease in the Government’s role in upholding social justice.
The present system in Australia affords no guarantee that governments will protect and promote human rights. Australian parliaments have not consistently protected basic human rights.
And the Commonwealth should also be an example to other nations by legislating the human rights provisions within the international human rights conventions it has ratified.
At present, the rights of all people in Australian society are not inalienable, and it is the responsibility of the Parliament to address this. l
* Senator Brian Greig is the Australian Democrats Law and Justice Spokesperson.