Jen Robinson: Protecting human rights is not a gift

Back in 2008, one thousand of Australia’s “best and brightest brains” met at the 2020 Summit to map out a strategy for Australia’s long-term future. They made three key recommendations for constitutional reform: Indigenous recognition, becoming a republic and the creation of a bill of rights. All three are essential for Australia to come of age as a modern and independent democracy that lives its values — respecting and protecting the rights of all its citizens.

A referendum on indigenous recognition is promised for 2017 and — thankfully — has the support of the vast majority of Australians. We don’t yet know if our new pro-republican Prime Minister Malcolm Turnbull will unshackle us from the monarchy, but the ALP has committed to it and this too seems to have majority support.

Yet, a bill of rights seems to be off the political table. It is time we put it back on.

Despite overwhelming public support, the federal government squandered this opportunity and rejected even a statutory bill of rights. Instead, we got the muted “Framework for Human Rights”: a non-binding, routinely ignored system.

Australia remains the only liberal democracy in the world without a national bill of rights. Our Constitution’s framers cut and pasted from the US Constitution, but stopped short when it came to adopting a US-style bill of rights. Why? Our founding fathers were concerned this would interfere with laws designed to discriminate against racial minorities: the Indigenous population and migrants. For good measure, they included clauses to constitutionally mandate such discrimination.

The vast majority of Australians now want to change our Constitution to remove these clauses and to provide our Indigenous population the recognition they have always deserved. This must happen. But if we really care about protecting Indigenous rights, we should go further and place their basic rights — and ours — beyond government interference.

Although Australia has signed up to international human rights treaties, such rights have not been properly implemented in domestic law. Even the limited anti-discrimination protections we have aren’t constitutionally protected, so are subject to change — and limitation — by Parliament at any time. Absent a constitutional bill of rights, parliamentary sovereignty means that there is no limitation on the power of the legislature to take away our rights.

The majority of Australia’s constitutional framers believed that representative and responsible government would suffice to protect our rights (at least, if you were white). This is a proven myth, but one perpetuated today by Australia’s answers to persistent international criticism over our failure to implement a bill of rights.

In the minority who then supported a US-style bill of rights for Australia was one of our first High Court justices, Richard O’Connor. He pointed out:

 We are making a Constitution which is to endure, practically speaking, for all time. We do not know when some wave of popular feeling may lead a majority in the parliament of a state to commit an injustice by passing a law that would deprive citizens of life, liberty, or property without due process of law.

His words were prophetic. We have seen increasing erosion of rights and protections for all Australians and the most vulnerable: from the indefinite detention of asylum seekers and the mentally ill, to counter-terrorism laws imposing disproportionate restrictions on free speech and association, to laws cancelling citizenship without due process. Data retention laws breach the privacy of each and every Australian. Successive, so-called responsible and representative governments have allowed this, and successive “Oppositions” — whether ALP or Liberal — have rolled over. These laws would be struck down if we had a constitutional bill of rights.

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Arguing for the more politically achievable option of a statutory bill of rights — such as in New Zealand and the UK — seems to have become the accepted wisdom of what comes next for Australia: a comprehensive statement of rights, but one which would preserve the power of Parliament to override our rights whenever they make that intention clear.

The ACT and Victoria have had this model in place for years — and Queensland looks likely to follow. Nationally, this would be a step up from the current, lackluster Framework. But as the UN Human Rights Committee has made clear, the statutory model does not pass muster because human rights have “no higher status than ordinary legislation”.

Perhaps something is better than nothing. But when it comes to protecting the basic rights of Australians, it is not good enough. We cannot allow what is politically possible today to define what is, in principle, the correct course of action.

We need to provide a democratically-mandated, authoritative statement of Australian rights that puts our fundamental rights beyond political party debate. The US, Canada, India, South Africa and many other democracies have constitutional bills of rights (even the UK is now debating it).

But in the end this is not about what other democracies do or don’t do. This is about us. A constitutional bill of rights would provide an enduring statement of values to reflect the independent, mature and tolerant and dignified nation we want Australia to be.

Let’s start the movement needed to make it happen.

Jennifer Robinson is an Australian lawyer and the director of legal advocacy for the Bertha Foundation in London.