Bill of Rights now! It’s a balancing act

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The passage of the Anti-Terrorism Bill (No. 2) 2005 poses perhaps the greatest threat yet to our fundamental rights and freedoms, including the rights to liberty, free speech, privacy, due process and legal representation.

These rights must of course be balanced against the wider interests of the community and the nation. However, in this age of increased terrorism, we run the very real risk of losing the right balance, of letting fear rule our lives, and allowing our governments to trade off our rights and freedoms in the name of 'national security'.

Now more than ever, Australia needs a Bill of Rights against which such invasive laws must be measured, to provide a basic safety net for the protection of human rights.

As the only common law country without such human rights protection, we lag unacceptably behind the rest of the developed world. Australians should be extended the same safeguards as, among others, the people of Canada, the United States, New Zealand and Europe.

The format of instruments in each Western nation differs. For example, the New Zealand Bill of Rights Act covers a range of civil and political rights. The United Kingdom's Human Rights Act 1998 incorporates the civil and political rights set out in the European Convention on Human Rights. Canada's Charter of Human Rights and Freedoms includes the right to affirmative action and cultural rights. 

The South African Bill of Rights is striking for its broad coverage of rights. Its modern construction extends it beyond the rights contained in the International Covenant on Civil and Political Rights (ICCPR) to include economic and social rights such as access to housing, health care, food, water and security; the right to a healthy environment; and, property rights.

The Democrats have long recognised the need for a Bill of Rights in Australia, and have previously proposed legislation seeking to enshrine individual rights in law.

We believe it is particularly important to provide protection for core human rights recognised in international treaties to which Australia is a signatory. These include equality before the law; freedom of speech, religion and expression; and, freedom from discrimination on the basis of gender, race, age, religion, sexuality, disability, or pregnancy.

Unfortunately, despite campaigning for a Bill of Rights since 1978, our efforts to enshrine such rights in law have so far been unsuccessful.

In November this year, I restored the Democrats' Parliamentary Charter of Rights and Freedoms Bill 2001 to the Senate Notice Paper to stimulate parliamentary and community debate on the issue.

The Charter's objects include the promotion of universal respect for, and the observance of human rights and fundamental freedoms for all persons without discrimination; and affirming Australia's commitment to the ICCPR. If passed, the Charter would enshrine protection for fundamental political, privacy and family rights and rights to life, liberty and fair criminal process.

So far, the development of human rights protection in Australia has been characterised by opacity and timidity. Advances in the recognition and protection of individual rights have often been greeted with hostility, as demonstrated by the reaction to the High Court's so-called 'judicial activism' and the reluctance to incorporate international human rights instruments which Australia has signed, into domestic law.

As a consequence, Australians have limited avenues for recourse in the event that their rights are abused. This is particularly the case for Indigenous people and other minorities.

The traditional arguments against a Bill of Rights centre on the views expressed by AV Dicey, who argued that civil rights were best protected by the common law and representative institutions.

The alternative view was put by former Attorney-General and High Court Judge, Lionel Murphy, who attempted to introduce the first Bill of Rights to Australia in 1973. This bill sought to implement the International Covenant on Civil and Political Rights into domestic law. He stated:

The Common Law does not say we have freedom of speech; it says we may speak as we wish, so long as what we say is not unlawful. The Common Law does not say we have the right to freedom of assembly; it says that people may not be prevented from meeting together unless the law forbids that meeting.

I agree with the late Lionel Murphy and with Brian Burdekin, a former Australian Human Rights Commissioner, who observed:

It is beyond question that our current legal system is seriously inadequate in protecting many of the rights of the most vulnerable and disadvantaged groups in our community.

It is also interesting to note the position of former Prime Minister Malcolm Fraser on this issue. At a lecture given in 2000 he commented:

Through much of my political life I accepted the view of noted lawyers that our system of law, derived from Britain and the development of the common law, best protected the human rights of individuals. I now believe that our own system has so patently failed to protect the 'rights' of Aborigines that we should look once again at the establishment of a "bill of rights" for Australia.

Other prominent arguments for an entrenched Bill of Rights for Australia include:

-       Australian law offers inadequate protection for fundamental freedoms;

-       It would give recognition to certain universal rights;

-       It would give power of action to Australians who are otherwise powerless;

-       It would bring Australia into line with the rest of the world;

-       It would meet Australia's international obligations;

-       It would put rights above politics;

-       It would improve Government policy-making and administrative decision-making;

-       It would serve an important educative function; and

-       It would promote respect, tolerance and understanding in the community.

Sir Anthony Mason has indicated how support for a Bill of Rights would not only entrench a domestic rights protection regime, but would also increase access to international jurisprudence:

Australia's adoption of a Bill of Rights would bring Australia in from the cold, so to speak, and make directly applicable the human rights jurisprudence which has been developed internationally and elsewhere.

It is difficult for the courts and Parliament to ignore the internationalisation of human rights protection. Advances in other jurisdictions and in the international context give rise to legitimate expectation for similar levels of protection in the Australian context.

This was illustrated by Justice Michael Kirby in Newcrest Mining (WA) Ltd v Commonwealth, where he extended the Bangalore Principles to constitutional interpretation. By doing so it was held that it was appropriate for judges, when interpreting the Constitution, to favour a construction which would conform to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights.

Australia has a history of ambivalence towards human rights. Although we were one of the first signatories to the Universal Declaration on Human Rights, many of its provisions are not part of our domestic law. Any move to increase coverage of the existing regime should be in the context of open discussion of the principles, rights and freedoms we wish to uphold, and their transparent enactment and entrenchment in a Bill of Rights.

The current climate of distrust of political institutions, fuelled by the recent passage of the Anti-Terrorism Bill (No. 2) 2005, demands greater clarity and transparency, not further ambivalence and opacity if Australia is ever to reach agreement on the principles, rights and values it wishes to uphold.

I congratulate the Centre for Policy Development on their valuable work in promoting the Bill of Rights issue and seeking to enshrine these rights in Australian law. I endorse the comprehensive and impressive Human Rights Bill 2006 that has been drafted by the Centre for Policy Development, and look forward to working with them and others to progress this important issue.

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