The question of whether we should have a Bill of Rights has been a recurring one in Australian political debate. Occasional academic and judicial enthusiasm has contrasted with a complete lack of interest by the Australian public. Every referendum question concerning a Bill of Rights has been decisively rejected. The most recent example was
in 1988, when a modest proposal to extend to the States the existing guarantees and freedoms in the Commonwealth Constitution was given short shrift. This essay suggests that the public's instinctive scepticism is well justified.
Since Britain fully implemented its Human Rights Act late last year, Australia has been the only nation with a Westminster tradition not to have a Bill of Rights in one form or another. Some commentators have suggested that this is a powerful reason for Australia to follow suit. On the other hand, retired High Court Chief Justice Sir
Harry Gibbs, a noteworthy bill of rights sceptic, has compared the explosive spread of bills of rights (only half jokingly, one suspects) with the HIV/AIDS epidemic.
I should make clear at the outset that I fully endorse the need for human rights to be protected. John Stuart Mill explained persuasively why some such protection is needed in his great essay On Liberty:
"The 'people' who exercise the power, are not always the same people with those over whom it is exercised, and the 'self-government' spoken of, is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means, the will of the most numerous or the most active part of the people;
the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; … and in political speculations 'the tyranny of the majority' is now generally included among the evils against which society requires to be on its guard."
The issue is not whether human rights should be protected, but whether additional constitutional entrenchment of rights is necessary or desirable, or whether there may be more appropriate methods of addressing these issues given Australia's constitutional and political culture and history.
Several academic commentators, notably ANU academic Dr George Williams, have recently advocated a Bill of Rights enacted by ordinary legislation (as opposed to constitutional amendment). Federal Labor Shadow Attorney-General Robert McClelland has
advocated a similar course of action, for similarly pragmatic reasons: any referendum proposal in the foreseeable future would certainly fail. However, Williams at least views a legislated Bill of Rights as only an interim solution, to allow Australians to accustom themselves to a "rights culture". Some form of constitutional
entrenchment is seen as the ultimate goal. I have no quarrel with a legislated Bill of Rights (although I regard it as unnecessary). However, any constitutional recognition of additional human rights is not only unnecessary but positively undesirable on principle. I also have no problem with extending existing federal constitutional guarantees
and freedoms (e.g. prohibition of acquisition of property other than on just terms; freedom of religious worship) to the States. Indeed, that is desirable for reasons of consistency (although the 1988 referendum, proposing exactly such an extension, sank without trace).
With that qualification, however, I am opposed to constitutionalising human rights. This essay concentrates on two specific problematic attributes of rights, both of which make them arguably inappropriate subjects for constitutional entrenchment.
The first problematic attribute of human rights is that they frequently conflict with each other. Rights to freedom of speech will often collide with rights to privacy and protection of reputation. Australia's High Court grappled with this reality in a series of defamation law decisions during the 1990s, culminating in an uneasy and somewhat
unsatisfactory compromise in Lange v Australian Broadcasting Corporation. A broadly expressed right to freedom of speech may also conflict with children's right to a secure and nurturing environment, as constitutionally-thwarted US attempts to restrict Internet pornography starkly demonstrate (leaving aside the question of the extent to
which such measures make sense on technological grounds).
Former High Court Chief Justice Sir Gerard Brennan highlighted (although in a somewhat different context) some of the difficulties:
"The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered."
Conferring jurisdiction on a court to adjudicate competing constitutionally protected human rights claims, necessarily based on aspirations expressed in vague and abstract terms, produces problems of a like nature. Courts are called upon to choose among courses of action on which reasonable minds might differ; but in addition the choices
they make are thereafter incapable of legislative amendment. The balance struck by the court between competing rights necessarily reflects the interests of the immediate litigants, but may not adequately take into account other unrepresented rights and interests. This is an inherent limitation of adversarial litigation. There are several
possible constitutional options that could give some capacity for legislative override (see
Robert McClelland), but it is not apparent that any of them offer more effective protection of rights than Australia's existing constitutional and political structures (as to which see below). Once the possibility of legislative override is
conceded, J.S. Mill's point about the 'tyranny of the majority' loses much of its force.
The second problematic attribute is a rather neglected aspect of the rights discourse. Rights, as a matter of logic, are inseparably linked with duties. Every right that I possess necessarily implies a duty on your part to respect my right. If I have a right to own a DVD player, you have a duty not to steal it, and the State has a duty to
punish breaches of that duty. The correlative nature of rights and duties has been recognised from ancient times, and finds its fullest exposition in the "deontological" theories of philosophers like Grotius, Pufendorf and, somewhat later, Kant's "categorical imperative". At its base, however, it is a self-evident (if not
especially helpful) notion. A rather neglected aspect of duties, however, is the proposition that (unless one believes in a somewhat naive natural law theory) the continuing existence of a right implies a corresponding duty to exercise it in a responsible manner. Any right is ultimately grounded in a communal consensus that it should be
respected. In that sense, no right is "inalienable".