The evidence points to the need for an Australian Bill of Rights

The development of human rights protection in Australia has been characterised by opacity and timidity. Advances in the recognition and protection of individual rights have often been greeted with hostility, as demonstrated by the reaction to the High Court’s so-called ‘judicial activism’ and the reluctance to incorporate international human rights instruments which Australia has signed, into domestic law. As a consequence, Australians have limited avenues for recourse in the event of abuse.

At the 1998 Constitutional Convention, some delegates were successful in ensuring the preamble was debated, but time constraints forced other issues of constitutional change, including a Bill of Rights, to a second Convention, to be held within three to five years of the establishment of a republic.

Of course, with the unfortunate defeat of the republic referendum last year, this timeline has evaporated, but with such strong advocates as George Williams, hopefully we will not have to wait long for a vote on a Bill of Rights.

In the meantime, Australians are reliant on other sources of domestic rights protection, such as international law. The international community has become increasingly concerned with the protection of fundamental human rights, and has developed instruments and institutions to achieve that aim. The Universal Declaration of Human Rights has acquired the status of customary international law, and has been referred to by the High Court, most notably in the case of Mabo v Queensland.

While the Australian Federal Parliament has demonstrated willingness to incorporate international law into domestic law through specific enactment of various provisions, particularly in the areas of anti-discrimination legislation, the tide appears to be running the other way, in light of decisions by the Prime Minister to override the decision of the Federal Court to allow single women access to IVF technology.

Professor Hilary Charlesworth addresses many of the issues of women’s rights in her feminist analysis of international law. In the aftermath of Australia’s withdrawal from UN Committees, and the failure of the Australian Government to sign the Optional Protocol to CEDAW (and its subsequent loss due to insufficient signatures), her considered analysis of the state of play in the international arena should provide additional ammunition for women in Australia and across the world seeking greater protection for their rights at both the domestic and international levels. The Beijing +5 Conference in New York this year, which I attended, but most definitely not as a member of the official delegation – the Minister having effectively barred me from the Session, showed how far most nations have to go before women are afforded sufficient, let alone equal protection and opportunities as men.

Just as further protection is required, so too must we be aware of the limits of the law, and where regulation and interference may be inappropriate. I warmly endorse the analysis by John Seymour in his book Childbirth and the Law, that legal intervention against the mother to protect the foetus is inappropriate – a principle which I hope prevails in the aftermath of the US elections, with upcoming Supreme Court appointments likely to influence the integrity of the Roe v Wade decision on access to abortion.

As in the US, when it comes to human rights protection in Australia, it is clear that the Parliament giveth, and the Parliament taketh away.

If this trend continues, it reflects the inability of Australian jurisprudence to offer certainty to those seeking redress for rights abuses. A stark example of this deficiency was the case of Kruger & Ors v The Commonwealth of Australia in which members of the Stolen Generation argued that the legislation which authorised their removal from their Aboriginal families was unconstitutional. The finding of the Court that genocide had not taken place was a consideration of whether an implied constitutional prohibition on genocide exists.

Without a comprehensive domestic charter of rights and freedoms, to prohibit such rights abuses as genocide, complainants have only the uncertain and patchy regime of common law and legislation, both subject to parliamentary discretion.

The main arguments for an entrenched Bill of Rights are that:

• Australian law offers inadequate protection to fundamental freedoms;
• It would give recognition to certain universal rights;
• It would give power of action to Australians who are otherwise powerless;
• It would bring Australia into line with the rest of the world;
• It would meet Australia’s international obligations;
• It would enhance Australian democracy by protecting the rights of minorities;
• It would put rights above politics;
• It would improve Government policy-making and administrative decision-making;
• It would serve an important educative function; and
• It would promote tolerance and understanding in the community.

Sir Anthony Mason has indicated how support for a Bill of Rights would not only entrench a domestic right protection regime, but would also increase access to international jurisprudence:

Australia’s adoption of a Bill of Rights would bring Australia in from the cold, so to speak, and make directly applicable the human rights jurisprudence which has been developed internationally and elsewhere.

The traditional arguments against a Bill of Rights centred on the views expressed by AV Dicey, who argued that civil rights were best protected by the common law and representative institutions.

The alternative view was put by former Attorney-General and High Court Justice, Lionel Murphy, who stated:

The Common Law does not say we have freedom of speech; it says we may speak as we wish, so long as what we say is not unlawful. The Common Law does not say we have the right to freedom of assembly; it says that people may not be prevented from meeting together unless the law forbids that meeting.

The denial of sufficient protection to minorities has undermined the validity of the Dicey approach to rights protection, and the old justifications no longer ring true. There is wider acceptance that democracy means more that an endorsement of one political party over another every three years. As Sir Gerard Brennan has explained, it now also depends on the respect by the majority for the fundamental rights of minorities:

…a measure of the civilisation of a society is the extent to which it protects for the needs of the disabled (and of other minorities) and protects them from adverse and unjust discrimination which offends their human dignity.

I note the issue of rights and protections afforded minorities is also discussed by Tom Campbell in his book, in his chapter on Justice as Rights, examining the theories of Ronald Dworkin on minorities.

It is difficult for the courts and Parliament to ignore the internationalisation of human rights protection. Advances in other jurisdictions and in the international context give rise to legitimate expectation for similar levels of protection in the Australian context.

This was illustrated by Kirby, J in Newcrest Mining (WA) Ltd v Commonwealth, where he extended the Bangalore Principles to constitutional interpretation in holding that it was appropriate for judges to favour the construction which would conform to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights.

Australia has a history of ambivalence towards human rights. Although we were one of the first signatories to the Universal Declaration on Human Rights, many of its provisions remain outside out domestic jurisprudence. Any move to increase coverage of the existing regime should be in the context of open discussion of the principles, rights and freedoms we wish to uphold, and their transparent enactment and entrenchment in a Bill of Rights.

George Williams suggests alternative human rights protection regimes and structures to a Bill of Rights, and I endorse in particular his suggestion that the Australian Parliamentary Committee system be amended to work perhaps in conjunction with a Bill of Rights, or for the terms of references of existing Legislative Committees to be amended to include reference to personal rights and liberties.

The current political climate of distrust of political institutions demands greater clarity and transparency, not further ambivalence and opacity if Australia is ever to reach agreement on the principles, rights and values it wishes to uphold.