The Need for a National Bill of Rights

In 1998, I published Legislating Liberty in which I opposed the introduction of a constitutional bill of rights for Australia. Conceding the shortfall for the protection of rights in our constitutional machinery, I suggested that the shortfall could be made up in the long term with:[i]

  • The passage of a statutory bill of rights similar to New Zealand
  • A constitutional amendment guaranteeing non-discrimination against persons so that we could permanently fetter the Commonwealth parliament and government from discriminating against people on the basis of race, gender or sexual orientation
  • Continued access to the First Optional Protocol of the International Covenant on Civil and Political Rights which provides for equal protection and a ban on arbitrary interference with privacy
  • A High Court open to the influence of international norms of human rights on statutory interpretation and development of the common law.

In the short term I suggested the creation of a Senate Committee for Rights and Freedoms which could complement and incorporate the existing Scrutiny of Bills Committee, the Regulations and Ordinance Committee and the Legal and Constitutional Committee by implementing a Commonwealth Charter of Espoused Rights and Freedoms as “a precursor to a statutory bill of rights”.

I conceded that “bipartisan intransigence by our federal politicians confronted with violations against unpopular, powerless minorities would remain a problem”. But I suggested, “That intransigence presents an even greater obstacle to a more entrenched proposal such as a statutory bill of rights or a constitutional bill of rights”.[ii]

I suggested that we had two distinctive Australian safeguards against majoritarianism:

  • A Senate in which the balance of power will be held by minor parties whose political niche, in part, is carved from the espousal of individual and minority rights
  • A judiciary shaping the common law and interpreting statutes while responding to international developments in human rights jurisprudence.

So what has changed in seven years? Even before we get to consider the contemporary challenge of balancing civil liberties and national security in the wake of terrorist attacks off shore and threats on shore, let's acknowledge the profound changes that have occurred to our checks and balances:

  • The government no longer takes any notice of procedures under the first optional protocol
  • The government now controls the Senate
  • The High Court has become isolated from other final courts of appeal. With the passage of the UK Human Rights Act, even the UK courts (like the courts in the US, Canada, South Africa and New Zealand) now work within the template of a bill of rights when confronting new problems, seeking the balance between civil liberties and public security.
  • The isolated High Court has found itself unable to interpret a statute so as to avoid the possibility of a stateless asylum seeker spending his life in detention without a court order or judicial supervision.

Days prior to his retirement from the High Court, Justice McHugh had cause to lament publicly the outcome in Al Kateb, the case of the stateless asylum seeker. He told law students:[iii]

Al Kateb highlights that, without a Bill of Rights, the need for the informed and impassioned to agitate the Parliament for legislative reform is heightened. While the power of the judicial arm of government to keep a check on government action that contravenes human rights is limited, the need for those with a legal education, like yourselves, to inform the political debate on issues concerning the legal protection of individual rights is paramount.

I must confess to what Mr Stanhope would regard as some short-sightedness seven years ago. I suggested there was no point in any one State jurisdiction going it alone on a bill of rights and that we were better off waiting for a uniform bill of rights at the Commonwealth level.[iv] It may yet be proved that there were good grounds for the ACT going it alone and leading the way.

The terrorist threat combined with the tight discipline of the government parties and the unwillingness of the parliamentary Opposition to invest much political capital in protection of minority rights in these uncertain times contribute added potency to the call from the community for a statutory bill of rights which can consolidate the checks and balances needed in a modern democracy.

I am honoured to participate in the ACT launch of the Centre for Policy Development Human Rights Bill, here in the legislative home of Australia's first bill of rights. It is an added pleasure to do this in the presence of a political leader who discerned the political morality of informing the people directly about the proposed content of anti-terrorism laws once it was clear that government respect for the checks and balances of the legislative process and for timely community consultation had fallen to an abysmal level. He rightly concluded that the democratic deficit could be offset only by breaching the usual confidences and protocols between the leaders of government in the federation.

As we have seen recently in the United Kingdom, a statutory bill of rights provides no automatic right answer in striking the appropriate balance between security and liberty. But it does provide a template for public discussion which must precede any novel legislation interfering with long cherished rights and freedoms. The Centre for Policy Development draft bill provides some practical checks and balances which ought to have appeal to any political party wanting to ensure that Osama Bin Ladan does not make further incremental gains, by default or by proxy, stripping away the freedoms we cherish. The Centre for Policy Development draft proposes:

  • The Attorney General will provide the House of Representatives with a compatibility statement assessing proposed legislation against the checklist of human rights in the Human Rights Bill
  • A Parliamentary Joint Standing Committee on Human Rights which will receive submissions, hold hearings and scrutinise the Attorney-General's compatibility statements
  • Power vested in the courts to read down subordinate legislation so that it is applied in a manner consistent with the Human Rights Act
  • Power vested in the courts even to strike down some subordinate legislation which cannot be interpreted and applied in a manner compatible with the Human Rights Act[v]
  • Power vested in the courts to declare primary legislation incompatible with the Human Rights Act. Such legislation would still be valid and applicable but the Attorney General would be required to report to the House of Representatives once he considered the court's reasons
  • Public authorities, including courts and tribunals, are required to act consistently with Human Rights Act.

These are modest and sensible proposals. They are not anti-Howard, anti-Ruddock, or anti-Liberal Party. Our national fuel tank of checks and balances is running low. It needs to be topped up. In this realm, popularity cannot be equated with infallibility. Governors as well as the governed should welcome responsible checks and balances. In the legislative rush of recent weeks, we the public have become dependent on closed door assurances within the party room that the legislative outcomes strike the right balance, even when they cannot withstand scrutiny before a parliamentary committee dominated by the government's own members. Then we are told that new sedition laws, which admittedly are not perfect, can be submitted for later review by the law reform commission.

Such shoddy lawmaking would be precluded by a Human Rights Act that required the Attorney General first to submit a compatibility statement of the Schedule 7 sedition laws before passage of the legislation. The Human Righs Act would ensure that Parliament specifically address the prospect of life-long detention for stateless persons. In these practical instances, one can credibly and dispassionately part company with the Prime Minister who says, “ I regard a free press as more important to the maintenance of liberty in Australia than a bill of rights. I don't believe a bill of rights works ”.[vi] A free press with a bill of rights is a better protection than a free press without a bill of rights for us who cherish liberty as well as security.

Prior to the present threat of terrorism, we Australians could not accept any government's plea “Trust us” in setting the balance right between liberty and security. Confronting terrorism, we need to enhance the checks and balances so that government, police and security services will remain trustworthy. Government alone, unchecked and unfettered, sometimes makes mistakes, especially in the wake of populist sentiment and when the focus falls on an unpopular minority of outsiders.

Don't forget that our present Attorney General never tired of telling us how necessary it was to lock up children in detention post-Tampa. Recall the words from the courageous backbencher Bruce Baird who told Parliament in June:[vii]

I am sure that all members from both sides of this chamber would absolutely endorse this as fundamental. Let us never again see children in detention in this country. They should not be behind barbed wire or razor wire. It is an indictment that we have let it happen. Both sides of the House have been involved in that but we are changing this process through the bill. I really stress the importance of these changes.

Don't forget it took 15 years of community agitation to reverse the bipartisan approach of the major parties and then have government reverse the policy and law of mandatory detention for all asylum seekers who came to Australia without a visa. With a bill of rights, we could shorten the time needed to put right any unchecked abuses on members of minorities unnecessarily held in detention or under control orders should there be even just a few untrustworthy operatives zealous for our security at all costs.

To any government pleading “Trust us”, we the people reply, “Maintain that trust with appropriate checks and balances. Provide us with a bill of rights as well as a free press.”

[i] F. Brennan, Legislating Liberty, University of Queensland Press, 1998, p. 178

[ii] Ibid. 185

[iii] M. McHugh, "The Need for Agitators – the Risk of Stagnation" Sydney University Law Society Public Forum, Sydney, 12 October 2005

[iv] F. Brennan, Legislating Liberty, University of Queensland Press, 1998, p. 44

[v] This can be done only when the primary legislation does not prevent the removal of the incompatibility. (See cl. 52(3))

[vi] ABC Insiders, 4 December 2005

[vii] (2005) CPD 91(HofR), 21 June 2005

This is an edited version of Fr Frank Brennan SJ AO's speech at the ACT Launch of the Centre for Policy Development's Human Rights Act on 5 December 2005 at the ACT Legislative Assembly.

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