On rights and duties: Australians already have them both protected

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".

Pufendorf believed that, from a moral standpoint, duties were more important than rights. That approach also characterises the attitude of most of the world's great religions, and most cultures apart from modern Western materialist ones. It is also an increasingly common theme of contemporary political discourse. As British Prime Minister Tony Blair put it in 1997: "A decent society is not based on rights; it is based on duty... Our duty to one another...To all should be given opportunity; from all, responsibility demanded." New Labor based its "mutual obligation" approach to welfare on that proposition, and Australia's Howard government subsequently adopted a welfare policy bearing the same label (although with a rather attenuated content).

However, while one may readily concede that rights and duties are correlative, it is less easy to see how this realisation can workably be incorporated into a national constitution. The countries that have tried have tended to be socialist or communist regimes, whose constitutions for ideological reasons place primary emphasis on duties and collective and economic rights, and less on individual civil and political rights. Marx (like Edmund Burke, somewhat ironically) believed natural rights were abstract and unhistorical. Like many other writers, Marx identified individualism with egoism; the tendency to think in communal or collectivist terms with altruism. Socialist society, therefore, should be altruistic, based on a philosophy of fulfilling human needs. Political and civil rights, seen as cornerstones in non-socialist states, were to be subordinated to social and economic needs and to ideological considerations.

The result, at the risk of caricature, is that socialist States tended to be conformist, authoritarian, and provide little incentive for achieving individual excellence or increasing productivity. Western capitalist nations, on the other hand, with constitutional regimes emphasising individual civil and political rights, have tended to be characterised by winners behaving like Gordon Gekko and losers competing to cloak themselves most convincingly in the garb of a victim, in the hope of striking pay-dirt with a compensation claim. This is the "rights culture" in action, and it isn’t a pretty sight.

Most Australians would find both of these extremes unattractive. We have instead developed a society that strikes a more satisfactory balance between competing rights and duties than almost any other society in the world. A range of factors has contributed to that outcome, but our constitutional and political arrangements are among the most important. Most Australians understand this, even if they can't articulate it. That is why they are sceptical of constitutional change.

Australia's Constitution protects key civil and political rights. Express guarantees and freedoms have been supplemented by other rights implied, somewhat controversially in recent years, by our High Court. The most important of these is the right to political free speech (and probably movement and association), defined broadly and applying at both Federal and State levels.

However, resolution of the inevitably competing interests of holders of rights and duties is necessarily a controversial and inherently political exercise. It is multi-factorial in nature, and involves the making of ongoing policy and value judgments. Although the courts properly have a central role in resolving bilateral disputes over rights and duties, their broader ramifications can only be balanced at a political level. For that reason, Australia’s primary reliance on legislative human rights protections is preferable to a constitutional Bill of Rights, where the focus of decision-making is decisively shifted to the judiciary. Australian laws provide comprehensive coverage of a huge range of human rights, ranging from anti-discrimination and environmental laws to public housing, pensions and basic medical care. Legislated freedom of information and independent merits review of administrative decisions affecting individuals provides an additional layer of assurance (greater than any comparable country).

The risk of Mill's 'tyranny of the majority', whereby an unpopular minority may be victimised, is minimised in Australia by a unique combination of political and legal arrangements, including those described above. The Senate is the key to those arrangements, and therefore the principal institutional guarantor of human rights. The Senate electoral system is a State-based proportional representation model with Senators serving 6 year staggered terms (except after a double dissolution election). It therefore provides a high probability of significant minority party and independent representation, so that Federal governments are unlikely to command an absolute Senate majority. This significantly inhibits governments minded to abrogate rights. Thus, the Howard government, despite its landslide 1996 election victory, had to rely on Independent Senator Brian Harradine to get its native title amendments through the Senate, and he insisted on amendments which have subsequently proven very successful in preventing State governments from abolishing key native title rights such as the "right to negotiate" on mineral claims. Similarly, the Prime Minister has so far been unable to secure Senate support for legislation to reverse a recent Federal Court decision allowing single women access to IVF programs.

The Senate and Joint Parliamentary Committee system is the other major plank in Australia's human rights protection regime. The Parliamentary Joint Standing Committee on Treaties (established in the wake of the controversial High Court decision in Teoh's case) examines international covenants before ratification, assessing what changes may be needed to Federal and State law to ensure that Australia lives up to its international obligations. Despite having a majority of Government members, the Committee’s reports have frequently been critical of Government actions in relation to treaties.

The Senate Scrutiny of Bills Committee examines all Bills presented to Federal Parliament to ensure they do not infringe human rights standards. It issues Alerts Digests on Bills introduced during the previous week, giving Ministers an opportunity to comment and respond before it makes a final report to the Senate. Ministers generally afford the Committee considerable respect (except Paul Keating, who notoriously regarded the Senate as "unrepresentative swill").

The Senate’s principal role in acting as a check on human rights excesses by the Executive has recently been considerably enhanced by the High Court’s 1998 decision in Egan v Willis. This decision breathed new life into the rather tired notion of responsible government, holding that Ministers are responsible to Parliament as a whole, and particularly to the Senate (or State upper house). Ministers can therefore effectively be held accountable by a House they do not control, and forced to answer questions and produce documents before Senate Committees.

The combined effect of these mechanisms is to give Australia a level of protection of human rights at least as secure as any country in the world. I would readily concede that Australia's human rights record is not perfect. The Commonwealth’s detention regime for refugee asylum seekers and the Northern Territory's mandatory sentencing laws are obvious contemporary blots on our record. Both initiatives, however, were substantially copied from the United States, whose Bill of Rights some would like us to emulate.

Sir Harry Gibbs recounts an amusing story that Sir Arthur Fadden used to tell of an incident when he was representing Australia at celebrations held for the inauguration of a West African nation, which had just received its independence from Britain. The US Secretary of State, who was also present, said rather patronisingly to a black man standing nearby, "You must be very proud to have been granted your freedom". To which the black man replied, "I ain’t got no freedom. I'm from Alabama".