Reconciling popular support and political opposition
In Australia, over the last century or so, there have been numerous attempts to commit fundamental rights and freedoms to paper. While some attempts have been successful, most have failed. Australia still does not have a comprehensive statement of fundamental rights like those found in the Bills of Rights and Charters of Rights and Freedoms in most other countries.
There have been many reasons put forward for this failure, but ultimately the root cause is one of political, rather than popular, opposition to a Bill of Rights. This presents a significant challenge for the advocates of this draft Human Rights Act.
Existing constitutional rights
Australia’s Constitution offers only limited protection of rights. Section 80 guarantees trial by jury, but this only applies to trials for federal crimes and the federal Parliament can pick-and-choose which types of crimes will be heard by juries.
Section 116 prohibits legislation that forbids the free exercise of religion, but this prohibition only applies to the federal Parliament. The States are free to pass any restrictive laws they like.
Section 41 appears to enshrine the right to vote. However, the High Court has ruled that section 41 is an historical anachronism and is no longer operative.
Economic rights are more definitively protected: interstate trade and commerce ‘shall be absolutely free’ (section 92); and there is a guarantee of acquisition of property on just terms (section 51(xxxi)).
Some rights can be implied from the Constitution: freedom of political communication (a cut-down version of freedom of speech); a limited right to a fair trial, legal representation in serious criminal matters and equality before the courts; and Bills of Attainder (where Parliament passes a law sending an individual to prison) are forbidden.
The defeat of ‘Clause 110’ by White Australia
At the 1898 Constitutional Convention in Melbourne, delegates rejected ‘Clause 110’. Clause 110, with proposed amendments, would have guaranteed that no State could deny a person ‘equal protection of the law’ or ‘deprive any person of life, liberty or property without due process of law’.
There is a very important historical reason why Clause 110 failed. In the rather candid words of one Convention delegate: ‘It is of no use to shut our eyes to the fact that there is a great feeling all over Australia against the introduction of coloured persons. It goes without saying that we do not like to talk about it, but still it is so’.
A non-discrimination clause protecting racial minorities was unthinkable in colonial Australia. With a constitutional guarantee of equality, it would have been impossible for the Constitution to support the creation of a White Australia, as the Framers of our Constitution intended it should.
Attempts to amend the Constitution
There have been several attempts since Federation to protect some rights and freedoms in the Constitution. All have failed.
In 1944 Australians were asked to amend the Constitution to extend freedom of religion to the States, and to guarantee freedom of speech and expression. The referendum failed: only South Australia and Western Australia voted ‘Yes’.
In 1988 all the Australian States rejected a referendum question to guarantee the right to vote. They also rejected a question to extend to the States the guarantees of trial by jury, religious freedom and acquisition on just terms to the States.
All of these referendums were sponsored by the Australian Labor Party. The failure of these referendums is often attributed to a lack of bipartisan political support and, to a lesser extent, the tendency of Australians to vote ‘No’ when they don’t feel fully informed about a referendum question.
There have also been attempts to legislate a Bill of Rights. The most significant and comprehensive of these was the Human Rights Bill, introduced into the Senate in 1973 by Attorney-General Lionel Murphy. The Bill sought to adopt into Australian law all the rights found in the International Covenant on Civil and Political Rights. It was binding on both the federal and state parliaments. It allowed someone whose rights had been breached, either by a government or another private citizen, to take their case to court. After one of the longest debates in Australian parliamentary history, the Bill failed to pass the Senate.
Since then there have been other failed attempts to introduce Human Rights Acts into federal Parliament: in 1985 Lionel Bowen tried; the Australian Democrats tried in 2000; and at least one independent member has introduced a Private Members Bill to enact a Bill of Rights.
There is, of course, some limited protection of some rights in federal legislation. For example, the Sex Discrimination Act 1984, Racial Discrimination Act 1975, Human Rights (Sexual Conduct) Act 1994, and the Privacy Act 1988.
In 2004, the ACT became the first (and still the only) place in Australia to enact a Human Rights Act. In 2005, Victoria began community consultations to determine whether it should enact a Charter of Rights. This follows the New South Wales government’s rejection of a Bill of Rights in 2001. Western Australia has recently signalled that it could be the next State to investigate the need for a Human Rights Act.
Popular support and political opposition
With the bi-partisan dismantling of the White Australia Policy and the rise of a more pluralistic and less insular culture, popular support for a Bill of Rights has soared.
Seminal research conducted in the early 1990s found that most of the Australians surveyed by the researchers: did not think their rights were well protected (54%); thought courts should have the final say in issues of rights (59%); were ‘for’ the idea of a Bill of Rights (72%); and wanted a referendum to decide if Australia should have a Bill of Rights (88%).
The researchers concluded that there is a vast well of untapped popular support for a Bill of Rights. At first blush, this would appear to be at odds with the history of failed referendum attempts.
However, a unique feature of this research is that it also surveyed federal politicians. They were asked the same questions, but with very different results. 79% of politicians surveyed thought that their rights were well protected and 76% thought that parliament should have the final say in issues of rights.
On the issue of a Bill of Rights, politicians divided along party lines: 89% of ALP politicians for; 75% of Coalition politicians against. This reflects the lack of bipartisan support for the constitutional (and legislative) protection of rights. And herein lies the challenge for advocates of a Human Rights Act.
The greatest challenge for advocates of this draft Human Rights Act is not convincing the already-convinced public that Australia needs a Bill of Rights, but of convincing our politicians – and building bipartisan support for writing rights.
In the short-term, politicians need to be assured that a statutory Human Rights Act will not impinge on their power to make laws. Politicians also need to be informed that there is broad community support for the protection of our rights.
Politicians should also be asked to reflect on these words of Thomas Jefferson, a Republican US president:
‘…a bill of rights is what the people are entitled to against every government on earth, general and particular; and what no just government should refuse, or rest on inference.’