The win by two young members of activist organisation Get Up! that overturned the Howard government's amendments to the electoral enrolment laws is a great victory for democracy. While it is very important for those people who would have otherwise missed out on voting in the upcoming election, the case goes to a more central issue; the lack of constitutional protection of human rights.
The case launched by Shannen Rowe and Douglas Thompson is indeed a success for the constitutional recognition of a right to vote. When we delve into the details of the case, however, it really demonstrates the need for greater constitutional protection of human rights. At present we rely on judges "implying" certain rights into the constitution to compensate for the dearth of rights in our foundational document. However, we can't continue to rely on the whim of High Court judges. It's time to have greater democratic protection of human rights through a constitutional bill of rights.
We are yet to have the full reasoning of the High Court's decision but it is likely that they will rely on the precedent of an earlier court decision of Roach v Electoral Commissioner in 2007. In this case, the legislation that removed the right of all prisoners to vote was found to be unconstitutional. This was the first time the court recognised an implied right to vote in Australia's constitution.
With only eight changes to the text of the constitution since its enactment in 1901, it is little wonder that this anachronistic document is being tweaked through judicial interpretation. To make the constitution relevant to the 21st century, activist judges have sought to fill in the gaps, going, if you like, with the "vibe" of the constitution and read certain individual rights into it. In the case of Roach, the judges read in "the right to vote" from two sections of the constitution that state the Senate and House of Representatives must be "directly chosen by the people". It should, however, be noted that the implied right to vote is not an absolute right, that it is limited and that the right to vote can be taken away if there are proportionate and substantial reasons for doing so.
Since the constitution protects only less than half a dozen rights, mounting such High Court cases is the only option available to have constitutional protection of individual rights.
To most Australians this debate comes as a surprise. Ask anyone on the street which rights are protected by Australia's constitution and most people will reel off many human rights covered in international treaties or even refer to the US Bill of Rights. Yet the fact remains each new Parliament can amend laws as they wish without the constraint of a constitutional bill of rights. While it is hoped that elected governments won't infringe human rights, the Howard years demonstrates that they can and do, often in surreptitious ways.
Examples include the suspension of parts of the Racial Discrimination Act 1975 by the Howard government during the Northern Territory intervention. Another was the Howard government's defence in the High Court of its action regarding the detention of asylum seeker Ahmed Al-Kateb in 2004. In this case, the High Court ruled that the Migration Act 1958 allowed the indefinite detention of Mr Al-Kateb and that this was not unconstitutional. If there was a constitutional bill of rights then government action would be constrained in a way that is consistent with individual human rights and the situations outlined above would not be allowed to happen.
Naysayers mount a number of arguments against a bill of rights. The most well-worn runs like this: If we start making a list of rights then we limit them. This situation is somehow deemed to be better than not having any rights protection at all. Another claim argues that human rights are imbued with morality and therefore as a community we could not possibly all agree to a set of rights. Of course human rights norms do stem from sort of "natural rights", however, this is no reason not to have a referendum on the topic. Even though in our positivist legal system no law needs to be moral, laws often have some moral slant to them, so such a counter argument carries little weight.
Australia and Israel represent the only two democracies in the Western world without bills of rights. The Get Up! case demonstrates the consequences when individual human rights are infringed upon - an estimated 100,000 people would have missed out on their right to vote in this month's federal election. This case may have been rendered mute had Australia already possessed a bill of rights that protected the right to vote.
The new government needs to take up the challenge and build upon the recommendations of the National Human Rights Consultation committee and work towards better protection of human rights.
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