Will ostriches back a Bill of Rights?

A 30-something in a pink suit with executive glasses was amazed. She and her friend had not realised that Australia had no Bill of Rights, although Britain, Canada, New Zealand and other western nations already have. She had taken for granted that in Australia people had their human rights protected.

She added that as a PhD student, she deliberately turned off the evening news and current affairs because her day was stressful enough. “I’m an ostrich, I put my head in the sand,” she volunteered. Indeed, she and thousands of others. And that is an important point.

Susan Ryan, former education minister and ACT senator and now executive director of the Association of Superannuation Funds of Australia, was in town to promote a Human Rights Act for Australia, backed by NewMatilda.com, a fellow e-journal. After consultations with individuals and organisations around the states and territories, it is hoped to present a Private Member’s Bill, incorporating the final draft, for tabling and debate in Federal Parliament before Christmas.

Susan Ryan is campaign committee chairperson and John Menadue, former departmental head of Prime Minister and Cabinet, is chairman.

The draft Bill seeks to honour Australia’s obligations under a range of international human rights instruments because, they say, “We are now the only democracy that does not have one and our human rights record has been disappointing. This campaign developed out of despair about the degrading treatment of asylum seekers and alarm about the unprecedented powers included in (recently proposed) anti-terrorism legislation.” The anti-terrorism legislation went through just before last Christmas.

Susan Ryan points out that if Australia had had a Bill of Rights, those anti-terrorism laws would not have made it through Parliament and the treatment dealt to Cornelia Rau and Vivienne Solon would not have happened.

The Bill draft refers to “All people in Australia” deliberately to include citizens, asylum seekers, people on a working holiday and tourists. It requires Australia to “better conform” with its international obligations, and in particular, in areas where the new anti-terrorism legislation violates those obligations. Examples include where a suspect can be detained for 14 days without charge, without legal representation or without being told what he or she is being charged with.

Susan Ryan said under the anti-terrorism legislation, freedom of speech was severely contained and in effect, could make it an offence to speak out against the government, “which we do every time we open our mouths”. She was very disappointed that Labor voted for the anti-terrorism legislation. “They criticised it, but they’ve got tongues in their heads, they could have made a position clear.”

The draft Bill of Rights also includes provisions concerning the right to marry and stipulates that no marriage shall be entered into without the free and full consent of the intending spouses. Susan Ryan said this was taken from United Nations instruments and she believed that under this Act any force would be illegal. It might be that in some minority groups a person could be forced to marry, but under such an Act a young girl, a minor, should be able to get protection (to choose). The draft Bill calls for spouses in a marriage to have equal rights and responsibilities “upon marriage, during the marriage and at its dissolution”, and is concerned for children’s best interests and protection.

With such rights spelt out, she felt the Bill of Rights would provide a charter of Australian values which must be respected. A charter of values codified under the Bill, it would provide an opportunity for potential migrants to understand what was acceptable in Australia.

Quite separately, a news item recently described a confronting film that the Dutch government has made to help potential immigrants meet the demands of a new entrance test. It was reported that Dutch officials had denied the film was intended to discourage Muslim immigration but insisted they wanted all applicants to wonder whether or not they would fit into one of the world's most permissive societies. (Sydney Morning Herald, March 17, 2006).

Anyone who heard, Dr Mohamad Abdalla, imam and research fellow and director of Griffith Islamic Research Unit (GIRU), Griffith University, at the Human Rights Forum describe how Muslims had been insulted by calls of “bag head”, “terrorist”, “rapist” and “human cargo”, spat on, punched and children bullied, could well understand his passion and support for a Bill of Rights. His telling comment was, however, “to combat terrorism is a futile endeavour if important human rights are sacrificed”.

Australia’s proposed Bill of Rights would not affect the validity, operation or enforcement of any Commonwealth law, but it does embody judicial remedies. For instance, if a court were satisfied that a provision of primary legislation was incompatible with a right or freedom set down in the Act, it could make a Declaration of Incompatibility that would be presented to the federal attorney-general. The attorney-general would be required to present a copy to the House of Representatives within 15 sitting days of receiving it and prepare a written response to the House within six months. Similarly, a court could order a public authority to pay compensation damages.

The draft encompasses expected areas, such as freedom of thought, conscience, religion and belief; peaceful assembly; and freedom of association and freedom of expression. It also has broader concerns including the rights of Indigenous peoples, rights to education, rights to work and well-being and health.

The organisers hope all states and territories will develop their own complementing Bill of Rights. The ACT has already passed one and Victoria is working on its own. This is important because state governments have responsibility for areas not covered by federal government authority. For instance, police services are state-run but could be involved in operations influenced by federal anti-terrorism legislation.

Dean of Queensland University of Technology law school and former federal attorney-general Michael Lavarch believes the Bill is needed to guard “against arbitrary and poor decisions by government. We need clear statements of rights so legislation can be compared against (human rights) principles … to make sure institutions and government are operating effectively,” he said.

Associate Professor Spencer Zifcak, of Griffith University, who led the drafting process, said three years ago he could not have entertained the idea that a government and high court would have abrogated responsibility to the extent of holding someone in detention indefinitely. Now it was enough to suspect someone of being dangerous. The Bill, which he said went no further than United Nations Human Rights treatises, would act as a set of navigation lights to gauge how much can be sacrificed in national security interests.

So back to our ostriches with their heads in the sand. The promoters of this draft Bill of Rights, whose principles could well appeal to parliamentary members irrespective of party, has at least two substantial hurdles to overcome: one is a federal government that controls both houses, and the other, the inertia of people who stick their heads in the sand. That’s what the German people did in the 1930s.