A charter of rights and aspirations: relevance to modern Australia

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.