A charter of rights and aspirations: relevance to modern Australia

THE WAY AHEAD

Recent history has shown that realistically the way ahead cannot be for a constitutional bill of rights.

As George Williams has pointed out, the most recent attempt to entrench even basic rights in our Constitution was an abysmal failure.

The reality is that the issues involved in attempting to entrench a constitutional bill of rights in our Constitution would be, or would be perceived to be, so complex that, in my opinion, it would be a gross waste of public resources to even attempt a referendum to achieve it.

I am of the view, therefore, that the only way forward is to consider a statutory bill of rights.

AN INCLUSIVE PROCESS

Unless the procedure to introduce a legislative Charter of Rights is an inclusive process it will not be accepted as a document by and for the Australian people. It would be tarnished as the creature of self-interested politicians.

Indeed, I think one of the major failings of section 128 of our Constitution, which provides for Constitutional change through referenda, is that, by necessity, referendum Bills must be initiated by what the nay savers can describe as the political elite.

There is no doubt in my mind, therefore, that the approach being taken by the New South Wales State Government is the correct one. That is, involving the community in the process by receiving both written and oral submissions as to firstly, whether a bill of rights is warranted and secondly, if so, what form should it take.

POSSIBLE MODELS

Partial entrenchment

It can be argued that a statutory Bill of Rights is inadequate because it could so easily be changed. This is because each and every Parliament is supreme in its own time. Parliament cannot be bound by nor can it bind a future Parliament and hence any piece of legislation can be amended.

It is possible, however, to partially entrench a legislative Charter of Rights through, for instance, prescribing that the Charter of Rights will prevail over any other piece of legislation unless a subsequent Act specifically contained a "notwithstanding" provision. Such a mechanism, for example, exists in the Canadian Charter of Rights and Freedoms where it is possible to enact legislation that is inconsistent with the Charter, by providing that the legislation is intended to have operation "notwithstanding" the operation of the Charter.

The mere fact that a Parliament is required to specifically acknowledge that it is legislating contrary to the Charter of Rights is, in itself, a powerful disincentive and it has only occurred in exceptional circumstances.

Parliament, not the court, as the final arbiter

One of the major road blocks to previous attempts to enact a Bill of Rights is the argument that too much power would gravitate to the Courts and away from the democratically elected Parliament.

The responsibility of citizens to vote in an election is a good example where Parliament would wish to confirm an obligation that might otherwise offend against a right to participate or not participate in the political process. There is always the danger that an overly technical interpretation of any piece of legislation can subvert its purpose and intention.

To get around that situation, both the New Zealand and Great Britain Bills of Rights provide that while the courts are entitled to make declarations of inconsistency with the Bill of Rights their role is simply that, one of effectively providing an advisory opinion.

If such a declaration is made by a Court in those countries then the subject Legislation is returned to Parliament for consideration and Parliament can elect to either amend the legislation, or, notwithstanding the decision, to confirm its desire for the enactment to remain on the statute books.

Scrutiny of bills before enactment

Canada has a sophisticated system of executive scrutiny of bills before enactment. Any bill coming before the Parliament must first be considered by the Attorney General's Department, which advises the Parliament whether the Bill is in conformity with the Canadian Charter of Rights and Freedoms.

The concept of such scrutiny of bills is desirable, however, the model suggested by George Williams is far more sophisticated. Mr Williams has proposed that a parliamentary committee be established to advise Parliament on the extent to which bills comply with the Charter of rights.

In my first term in Parliament I served on the Joint Standing Committee on Treaties, which exists to examine international instruments before they are ratified. As part of its examination of treaties the Committee advertises its inquiries and invites submissions from the public. It is, I believe, a successful example of participatory democracy where members of the community have the opportunity to express their concerns or support for a particular treaty action.

It may be necessary to give such a Charter of Rights Committee a wide discretion to refer its particular responsibilities to another specialist Committee of the Parliament that might be considering a specific Bill but those matters can relatively easily be addressed to ensure that that there is no unnecessary duplication of resources.

Contents of a Charter of Rights and Aspirations

Again, it would be entirely counter-productive to thrust upon the Australian people a Bill of Rights created solely by politicians without their input. In other words, the Charter of rights should include principles desired by the overwhelming majority Australian people.

This would, I imagine, result in a Conservative document and probably one that would protect a relatively narrow span of rights. Nevertheless, the alternative of including an extensive and detailed list of rights would have several dangers.

Previous attempts to enact a Bill of Rights met with strong opposition from those who either argued for or against the inclusion of a right to life and, specifically, whether the right should be extended to unborn babies.

If the focus was on a relatively narrow span of widely accepted rights expressed with broad language there is no need to enter into the minutiae of those controversial and destructive debates.

The inclusion of a statement of Aspirations

I am particularly attracted to the inclusion of a statement of aspirations in a second and discreet Part of the Charter of Rights that would not be reviewable in a court of law.

I would envisage that such a statement of aspirations would nonetheless be something requiring the attention of the Joint Standing Committee on the Charter of Rights or other properly designated Committee.

A precedent for the inclusion of such aspirations is the South African Bill of Rights which, for instance, contains a reference to the separate aspirations of equitable access to natural resources, housing, health care, food, water, Social Security and education.

Should a Charter of Rights and Aspirations Bind the States and Territories?

The defence of States’ rights was a significant reason for the failure of previous attempts to introduce a Bill of Rights. The concern is that, being a Statute of the Commonwealth Parliament, a Federal Charter of Rights could be expressed to prevail over state legislation.

In the context of legislative action concerns for State and Territory rights could be addressed by specifically acknowledging the right of the States and Territories to legislate inconsistently with the Charter provided they use the mechanism of a "notwithstanding clause". This would itself provide some disincentive to departing from the terms of the Charter and, at least, would have the effect of ensuring that the impact on human rights would become part of the debate.

Given that the main thrust of the emphasis I am proposing is one of developing a consensus for a national standard I am inclined to the view that a Federal Charter of Rights should apply only to Federal rather than State or Territory executive action.

That is not to say that the Charter should not be developed as a model that could be voluntarily applied throughout Australia to all legislative and executive action. Change of this sort should move with broader community acceptance and success of an effectively working Federal model would be the best endorsement for application at a State and Territory level.

Summation and Conclusion

Based on history alone one could not be criticised for a lack of optimism in pursuit of the long-standing policy commitment to an Australian Bill of Rights. However, history has moved on and we have seen New Zealand, Canada and, most recently Great Britain, all common law countries, introducing Bills of Rights for their citizens.

With technological advances we are seeing ever-increasing powers being given to law enforcement agencies to enable them to utilise that technology against law breakers who have their own access to that technology. In the process, however, there is the capacity for the government and the executive to increasingly intrude into the private lives of Australian citizens.

Despite a deal between the Federal and Northern Territory Governments we remain with a situation in this country where juveniles can be arbitrarily detained at the will of the legislature rather than judicial sentence after a fair trial.

There has never been a greater need for an Australian Charter of Rights.

I must again confirm that these views are my own rather than the reflection of a considered debate within the Australian Labor Party. Further, on the basis of experience, a Bill or Charter of Rights will be doomed to fail unless the Australian public regard it as being a document by and for them.

I am strongly of the view that the way forward is for an inquiry, at least at joint parliamentary level, to canvass the views of the Australian people as to, firstly, whether they want an Australian Charter or Bill of Rights and, if so, what concepts do they consider should appropriately be included.

In the course of that process, it is the responsibility of political leaders to point out how other countries have overcome hurdles that have toppled previous proposals in Australia. These mechanisms include:

• By introducing a Charter of Rights by way of legislation rather than constitutional amendment;
• By enabling future Federal, State and Territory parliaments to legislate in a manner that is inconsistent with the Charter of Rights provided that they specifically acknowledge that fact through the mechanism of a "notwithstanding clause";
• By ensuring that the Courts are empowered to give only declaratory opinions as to inconsistency with power remaining in the Parliament to either amend or reaffirm its original legislative intention.

I strongly believe that it would be extremely beneficial to extend the debate beyond mere rights and to publicly discuss the concept of a Charter of Rights and Aspirations. Those aspirations could include, for instance, the aspirations of fair and equitable access to physical and mental health facilities, educational opportunities, technological and civil infrastructure, and to basic commercial and public services. These are issues that are fundamental to the standard of living of all Australians but, in particular, Australians who live in rural and regional areas.

While I would not recommend that the Courts be granted jurisdiction to review legislative and executive action in terms of those Aspirations they are nonetheless matters worthy of scrutiny before any legislation is introduced to the Parliament. Utilisation of the parliamentary committee process through, perhaps, a Joint Standing Committee on Rights and Aspirations would shift the focus from the current obsession with all things economic onto the practical effect of legislation on individual Australians, Australian families and Australian communities and provide the opportunity to re-engage Australians in the political process by affording them the opportunity of having a direct say in the legislative process by way of written or oral submissions.

Such a form of participatory democracy would go some little way to evening up the score in favour of individual Australians and Australian families over more powerful sectional interests that tend to have a disproportionate influence over the political process because of their access to decision-makers through full-time professional lobbyists.

Whatever way you look at it, Australia as a nation and Australians as individuals are the poorer for not having a document setting out our own national standards regarding fundamental rights and the aspirations of the Australian people. Experience has taught us that progress in achieving that goal must be incremental but more importantly must be fundamentally inclusive so that the ultimate document is genuinely one which is by and for the Australian people.