Dragged kicking and screaming: towards an Australian bill of rights

With the national parliament and press largely pre-occupied with the local response to the global economic crisis and global climate change, it’s perhaps been easy to forget that far away in the Australian political wilderness, in a seldom visited place somewhere between the Australian republic and Aboriginal reconciliation, another less dramatic policy issue with nonetheless wide ranging policy implications has been simmering away, patiently awaiting it’s 15 minutes in the political spotlight.

The issue I’m speaking of is the question of whether Australia should adopt a legislative charter of rights and responsibilities. To this end the Attorney-General’s Department has been running a National Human Rights Consultation, chaired by Father Frank Brennan, to consult with the Australian people concerning what rights they feel should be protected, whether rights are currently sufficiently protected in Australia, and how we can better protect rights in the future. The consultation closes next week, and the final report from the Consultation Committee is expected by the end of August.

For those who hoped that the election of the Rudd Government meant a temporary hiatus, or perhaps even an end to the divisive culture wars that marked the Howard years, “debate” concerning the charter of rights has, and will continue to prove otherwise.

What is clear is that, since last December News Limited, and The Australian in particular, have picked up their culture war cudgels, and spearheaded the unofficial campaign against the charter on behalf of the Opposition. The Liberal Party, with the exception of George Brandis and Bronwyn Bishop, has been noticeably silent on the issue. Clearly, within the Liberal Party human rights remain a potentially divisive wedge issue between neo-liberals and small “l” liberals. A wedge that may have ramifications for Malcolm Turnbull’s tenuous leadership of the Party should Labor move towards adopting a charter of rights and responsibilities.

The Australian has editorialised vociferously that the inevitable result of a federal charter of rights will be the transfer of power from elected politicians to unelected judges. The “inescapable flaw” with this take on the charter of rights is that it seems to be focused on a constitutionally entrenched charter transferring power to the judiciary, when the terms of reference of the consultation process clearly state that: “The options identified should preserve the sovereignty of the Parliament and not include a constitutionally entrenched bill of rights.”

Now this confusion could simply arise from the editors not being overly familiar with the finer details of constitutional law, or the intricacies of the various alternative models that are being advocated through the consultation process. Then again maybe it’s the unavoidable result of the carte blanche adoption of the views of conservative think tanks and bloggers from the United States, where they have a constitutional entrenched bill of rights.

Whatever the case it seems much more convenient to whip up a scare campaign drawing reference to perceived permanent changes in comparison to a “legislative dialogue” model that can be repealed by a simple majority of parliament. The political reality is that Australian politicians are unlikely to ever introduce legislation that limits their own legislative power. Given the models that are able to be considered by the consultation committee, and those that are being suggested by charter advocates, it is highly unlikely that any model proposed by the committee would result in any tangible increase in judicial power.

The somewhat creative method used to bridge this reality gap has been to argue that constitutional and legislative bills of rights are somehow one and the same thing. That a legislative bill of rights that preserves the sovereignty of parliament will be a “Trojan horse” or “super statute” that will have the same eventual consequences as a constitutional bill of rights. Adopting this line of argument Janet Albrechtsen had this to say about “crusading elitists” like Geoffrey Robertson QC:

Rather than propose a constitutionally valid power for judges to correct explicitly the human rights failings of politicians, they now seek an indirect way of reaching that same result by subterfuge.

How introducing a charter of rights where parliament retains sovereignty will lead to the clandestine or eventual implementation of the equivalent to a constitutionally entrenched bill of rights is not made clear. It has all the hallmarks of arguments that smoking cigarettes leads to heroin addiction. Suggesting that the courts will have the power to invalidate inconsistent legislation is simply speculating about the shape and form of the model that will be arrived at by the consultation committee, assuming it recommends a Federal charter of rights at all.

Again, it is highly unlikely that any preferred model will contain features that give it the effective form of a constitutional bill of rights. So the scare campaign is well and truly underway, and don’t let the facts get in the way of a good old fashioned beat-up.

Paradoxically, commentators such as Helen Irving and Bob Carr have argued that a charter will result in increased powers for judges, while also claiming that judicial statements of incompatibility would be unconstitutional.

So will judges be all powerful under a legislative charter, or powerless? Clearly they can’t have it both ways.

What they are assuming is that a legislative charter model will include a function for judges of the High or Federal Court to make statements of inconsistency or incompatibility where legislation is incompatible with charter rights along the lines of similar provisions in the Victorian and ACT charters. While this may or may not be constitutional according to whichever expert you talk to, it is a red herring because the existence of a charter does not hinge upon the question of who may issue statements of inconsistency. From a constitutional perspective the issue of Federal courts perhaps being unable to issue statements of inconsistency could be easily side stepped if this authority were invested in the Australian Human Rights Commission, strengthening its existing role of promoting and protecting human rights in Australia. Such an arrangement would do nothing to increase judicial power, and would also respect the supremacy of parliament.

Recently, Paul Kelly wrote on some of the key messages to come out of the book Don’t Leave us with the Bill, a selection of essays from all the usual suspects critical of a bill of rights commissioned by the Menzies Research Centre. In an invaluable contribution to public debate, this book will not be available to the general public until after the National Consultation process is closed.

Kelly’s general theme is that a bill of rights may benefit a few individuals and sectional interest groups, but will diminish society as a whole. He even goes as far as to ask what it will mean for “society” if women, asylum seekers, gays, national security suspects, law breakers, and Aborigines are granted minimum human rights protections. Kelly claims that if Rudd were to proceed with a proposal for a charter of rights he would find himself “engulfed in a culture war over, power, rights and values, with unusual dividing lines”. Similarly to Bob Carr, he raises the issue of how conflicting rights will be accommodated by a charter of rights.

How does one balance the right to life with the right to self-defence? How does one balance the right to avoid detention without conviction with the view of every Australian government that on rare occasions detention without conviction is essential for public security?

These are difficult, competing policy issues that are resolved each and every day in the nations’ courts and parliament. Is Kelly seriously suggesting that judges and legislators will be unable to reach decisions in cases where different rights are set off against one another? While this would arguably be more of a concern with a constitutionally entrenched bill of rights, the experience with the Victorian and other statutory charters is that having a clearly elaborated rights framework assists in the recognition and resolution of these conflicts on a first principles basis.

Furthermore, the issue of competing rights and policy goals was well appreciated by the drafters of the Universal Declaration of Human Rights, who more than 50 years ago recognised that, in the exercise of their rights and freedoms, persons “shall be subject only to such limitations as are determined by law solely for the purpose of securing the due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”. If individual rights are to be curtailed by competing policy imperatives that is perfectly acceptable so long as there are compelling reasons to do so. In such circumstances the existence of a human rights framework will focus attention and debate on such issues, and increase the likelihood of attaining a fully considered and just compromise.

Citing Ian Callinan, Paul de Jersey and Justice Kenneth Handley, Kelly argues that non-elected judges should not be asked to resolve cases concerning social and economic rights. But don’t judges make decisions concerning resource allocation every day? Should we therefore remove the rights of courts to award damages in tort cases or other civil cases? The South African constitution has contained a bill of rights that incorporates economic, social and cultural rights since 1996. The only requirement of the state in relation to these rights is that it must “act reasonably to provide access to socio-economic rights”. (See Andrew Byrnes, Hilary Charlesworth, Gabrielle McKinnon, Bills of Rights in Australia: History, Politics and Law, 2009.) In the unlikely event that the Australian charter would include economic, social and cultural rights the government would be bound only by the requirements of reasonable provision, and the court would not consider whether more desirable or favourable measures where open to government.

Kelly raises the example of the Victorian Abortion Reform Bill compelling doctors with a conscientious objection to abortion to refer patients to doctors who would perform the procedure. He cites Father Frank Brennan’s objections to the Victorian charter of rights failing to uphold a doctor’s freedom of conscience when it conflicts with a “soft-left sectarian agenda”. To adopt an analysis of competing rights, which is more important here: a doctor’s conscience, or the bodily health and psychological well being of a rape victim seeking an abortion? This is just breathtakingly cruel and sanctimonious thinking. A law that compelled doctors to perform abortions in all but the most exceptional circumstances imaginable we would rightfully condemn as barbaric. However, a situation where a patient seeking an abortion could be lawfully refused referral would be simply inhumane, and the consequences frightening. This is precisely the type of indignity that a rights dialogue should seek to address. It also gets to the heart of Kelly’s and The Australian’s take on human rights: powerful people in positions of great influence over the general community should have free reign to dictate what they think is in other peoples’ best interests, constrained only by the limitations of their own conscience and the loose threads of our western liberal democratic traditions.

In whatever form an Australian charter of rights and responsibilities may take, it will mark an important step towards the greater realisation of human rights in Australia. It will also represent the long overdue recognition of the important historical struggles fought in the name of human dignity against tyranny and oppression. Experience in Victoria and the ACT has already proved the scatter-gun like criticisms of the postmodern right to be contradictory, illusory and lacking in merit. The charter represents a profound opportunity for Kevin Rudd to reveal his social democratic stripes, and prove that he has moved beyond being just another “economic conservative”. We will soon find out whether he has the ticker to take on The Australian and their neo-liberal mates, or whether Father Brennan’s report, in the words of Paul Kelly, provides a convenient “exit strategy”.