Australia is unique, unfortunately

Toward a Bill of Rights
George Williams

Tonight, I will I take a step back from the array of laws that have been enacted in Australia after September 11 and in the industrial arena. I will examine: some necessary context; some lessons; and some strategies.

Context

Australia is now the only democratic nation without a national Bill of Rights. Indeed, some form of protection for and exception about basic rights is seen as an essential component of democratic governance around the world. I am not aware of any nation that has gained a new Constitution in the last two decades that has not included some form of bill of rights, nor am I aware of any democratic nation that has ever done away with its Bill of rights once it has been enacted.

Indeed, we now find ourselves in the strange position of supporting such instruments overseas but not in Australia. In 2004, Prime Minister John Howard stated that he 'strongly supports' the 'adoption of a new constitution in Iraq, including a Bill of Rights.' It is not clear why a Bill of Rights is appropriate for the people of Iraq but not for the people of the Australia. This is despite our recent history on matters ranging from the stolen generations through to the mandatory detention of asylum seekers to the banning of speech in the name of the wear of terror.

Why then not Australia? Australia had its Constitution drafted in the 1890s (and those of the States often as far back as the 1850s), in a very different era and has thus far missed this shift. Indeed, changes to governance arrangements in Australia are, with the notable exception of the recent changes in Victoria to its Constitution, rare. This is despite the fact that many of these arrangements are clearly at odds with modern governance around the world or are based upon assumption and choices that no longer work as they were intended, such as our federal system in which the States are financially dependent upon the Commonwealth.

The fact that we have no Australian system of rights protection cannot be blamed on a lack of trying. Many attempts have been made to bring about this reform. Part of the reason for failure has been a fixation on change that looks like the US Bill of Rights (constitutional, fixed in content, final say to the judges).

Indeed, the contemporary Australian debate has been invigorated the fact that an alternative model has emerged, that of a Bill of Rights in the form of an ordinary Act of Parliament (less protection but can be changed over time, less attention on the courts and more on improving the parliamentary process and policy-making within government).

This latter model was enacted in NZ in 1990, the UK in 1998 and even the ACT in 2004 and has now been proposed for Victoria.

Lessons from the war on terror

First, at least up to 1 July 2005 - the time that the Howard government gained control of the Senate, in addition to its control of the lower house - Australian political institutions played an important role in achieving the right balance between national security and human rights. Despite the stringent nature of some of the laws as enacted, the original Bills were far worse. The content of those original Bills was not enacted because they sparked a well-organised campaign led by a range of community and legal groups and individuals.

The concerns of these groups and individuals fed into the robust scrutiny provided by the two parliamentary committees that examined the Bills and produced bipartisan reports recommending substantial changes. In many, but not all, respects those recommendations were implemented in the legislation. The bottom line is that, without this parliamentary process, the balance struck between the protection of national security and the protection of civil liberties would have been disproportionately tipped even further toward the former, to the great detriment of the latter. Indeed, even Prime Minister John Howard was moved to say in his National Press Club Address on the first anniversary of the September 11 attack that 'through the great parliamentary processes that this country has, I believe that we have got the balance right'.

The second lesson is found in the recognition of the limited and arguably insufficient capacity of our political institutions to protect human rights in times of community fear of terrorist attacks. Even after a long and difficult parliamentary process that produced significant amendments and compromises, there are many aspects of the new laws (let alone the proposals for further change) that go far beyond what can be justified. These include the imposition of a five year jail term for speaking about or reporting on the detention of a person by ASIO, including where that person has been mistreated. Another example is that non-suspect Australians can be detained at the behest of ASIO for one week, whereas actual suspects could (at least at that time) only be held by police for 24 hours before being charged. Indeed, it even seems possible that the current three year sunset clause on these ASIO powers will be removed and these exceptional powers made a permanent part of the law.

One reason for these outcomes is that, even though our political system has many strengths, it also has a key weakness. Parliament often proceeds without an understanding of human rights principles, in part because human rights can lack legitimacy in political debate. The ineffectiveness of such principles may be attributed in part to the fact that they have little legal force in Australia.

Unlike every other democratic nation, Australia must search for answers to fundamental questions about civil liberties and national security without the benefit of a Bill of Rights. As other nations have shown, a Bill of Rights does not form an impenetrable barrier to bad laws. However, it can be especially important when, as after September 11, new laws are made and old laws amended with great haste in response to community fear. At such a time, legal systems, and the basic principles that underlie them, such as the rule of law and the liberty of the individual, can come under considerable strain.

At such a time a Bill of Rights can remind governments and communities of a society's basic values and of the principles that might otherwise be compromised at a time of grief and fear. After new laws have been made, a Bill of Rights can also allow courts to assess the changes against an established framework of human rights principles. This provides a final check on laws that, with the benefit of hindsight, may be inappropriate.

In Australia, there may occasionally be a role for judges in assessing new terrorism laws, but this will usually be at the margins of the debate, such as where constitutional provisions are relevant to human rights enforcement or in the interpretation of legislation. However, parliament can depart from fundamental rights by passing a law that operates within constitutional limits and is clear in its intent, and judges have no recourse to other principles that might militate against gross incursions upon civil liberties. For example, the High Court held in 2004 in the case of Al-Kateb v Godwin that it was possible to pass a law for the indefinite detention of asylum-seekers.

The lack of a legal check means that political and legal debate in the 'war on terror' is largely unconstrained by fundamental human rights principles. Instead, as was demonstrated by the legislation introduced into the federal parliament after September 11, the contours of debate may match the majoritarian pressures of Australian political life, rather than the principles and values upon which the democratic system depends. Any check upon the power of parliament or governments to abrogate human rights derives from political debate itself and the goodwill of political leaders. This is not a check that is regarded as acceptable or sufficient in other nations.

Strategies

At the outset, we should recognise just how much the legal and political landscape has changed. We need to be realistic about where governments and the community now stand on issues such as national security and fair comment. What was the accepted wisdom just a few years ago may not hold sway today, and we need to account for this in our thinking.

The Australian experience demonstrates how even the most basic rights of Australians are vulnerable. Moreover, in light of the new sedition laws recently enacted by the federal government, which represent an affront to basic principles of the freedom of speech, the chances of securing protection for what are seen as subsidiary civil liberties, such as workers rights, are low indeed. Recent history also shows how rights can be picked off one by one. It is easier, it seems, to make such accommodations in a step by step fashion.

In this light we must employ two different approaches for the protection of civil liberties in general, and initial rights in particular. The first is to accept the political and legal terrain as we find it and seek to bring about changes, almost always at the margins, to specific proposals for new laws. This necessarily reactive approach is the dominant strategy now adopted. It has met with some success in having laws amended and in some cases has blunted the worst aspects of these laws, such as, in the terrorism context, the changes made to the proposed legislative regime regarding the detention of non-suspect citizens for the purpose of intelligence gathering. However, this reactive approach accepts that the law will be changed to cut back basic rights and values, with the strategy being mainly to contain the damage. It is simply not feasible to deflect entirely the push for change to the law, the political and other imperatives usually being too strong to resist, especially in the aftermath of any attack. And as the IR context shows, sometime there may be little room for change at all.

The second approach is to seek to change the political and legal terrain such that, over the longer term, we might be better able to ensure the protection of fundamental rights. Such reform could consist of an Australian Bill of Rights. This longer term approach should form part of any strategy to protect our rights in Australia. The long term survival of some rights is dependent on the outcomes of larger debates about law-making processes in Australia and the absence of a sound human rights framework. Without such a framework, our capacity to fight for the protection of specific freedoms is severely limited.

My view then is that one of the ways forward in the fight to protect our freedoms is to argue for change to the political and legal system. Our rights cannot be separated from this larger debate. Lest this be seen as an impossibility, new human rights frameworks have been achieved, to varying degrees of success, in other comparable nations over the last quarter century, including Canada, New Zealand and the United Kingdom. Indeed, of all the democratic nations in the world, Australia is now unique in not having a solid legal a basis for the protection of basic rights like freedom of expression, a vital foundation for the long term future of ideals like civil liberties.

It might be said that the community and civil society lack the political or other power to have their way. However, they do have another major advantage. They are often the custodians of ideas, like the concept of universal human rights, which have the potential to be ascendant over the longer term. We need to remember the long term potential of ideas and our responsibility to promote them. Indeed, our promotion of such ideas and their realisation in the law is a necessary condition for ensuring the long term survival of some of our most fundamental human rights.


George Williams is the Anthony Mason Professor and Director of the Gilbert+Tobin Centre of Public Law at the Faculty of Law, University of New South Wales. These are the notes for his presentation to the Evatt Foundation's sunset seminar to on the current attack on industrial and civil liberties, convened at the Sydney Mechanics' School of Arts on 14 March 2006.


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