Should Australia have a Bill of Rights?

Ron Dyer

The question of whether Australia, and for that matter the Australian states, should have a Bill of Rights enacted is coming under increasing examination. This especially is the case against a background of increasingly draconian security or 'anti-terrorism' laws. The traditional response to those who have argued for a Bill of Rights in the past has been that Australians can rely on our traditional and proud background of respect for civil liberties and the democratic freedoms of the individual citizen or resident of Australia. It has often been asserted that the protection of our rights can be safely left to our parliamentary representatives and that to legislate for a Bill of Rights would distort our system of government by giving unelected judges too much influence over how our democracy develops.

However, this traditional response has been questioned by those who point out that Australia now is in an arguably anomalous position, when we compare ourselves to other democratic countries. Great Britain, New Zealand, Canada, the United States of America and South Africa all have Bills of Rights in some form or another, while Australia does not. In November 1999 the then New South Wales Attorney-General the Hon Jeff Shaw QC referred to the Standing Committee on Law and Justice of the NSW Legislative Council, then chaired by me, the question whether it would be appropriate and in the public interest to enact a statutory, as distinct from a constitutionally entrenched Bill of Rights in NSW. The committee reported in October 2001, after an exhaustive inquiry which included public hearings and a review of models of Bills of Rights in the countries mentioned above.

The Committee found against a Bill of Rights for NSW, substantially on the basis that such a Bill would undermine the roles of both Parliament and the Courts. The rationale for this decision was that a Bill of Rights would derogate from parliamentary supremacy and also lead to a politicisation of the judiciary. It was felt that parliamentary representatives are directly elected by and accountable to the people, in a way that unelected judges cannot be, though they do give detailed reasons in writing for their decisions. The Standing Committee also found that uncertainty is unavoidable in a Bill of Rights which traditionally, and perhaps inevitably, specify rights in brief, general terms, such as a right to freedom of speech, without taking account of detailed countervailing factors, which in this example would include defamation or racial vilification. Thus, it was felt that the judiciary is then left in the position of 'filling in the gaps' and in effect legislating by finding what is the appropriate decision and remedy in a given fact situation arising under a Bill of Rights.

It must be conceded that the committee inquiry I chaired occurred against a background of strong opposition to the concept of a Bill of Rights expressed publicly by the then NSW Premier, the Hon Bob Carr, who also forwarded a detailed submission to the Standing Committee. Nevertheless, the Committee was sincere in the views it expressed. It recommended, as an alternative to Bill of Rights, a NSW Scrutiny of Legislation Committee, which was intended, among other matters, to raise parliamentarians' awareness of their responsibility to protect human rights. Such a Scrutiny of Legislation Committee was in fact set up following the Standing Committee's report.

In the years that have followed the above inquiry in which I participated, I have had cause to revise my views very substantially. I had always held the opinion that parliaments in Australia could be trusted to preserve individual freedoms and not diminish them by enacting draconian legislation. My confidence in this regard has been eroded, if not destroyed, by recent State and Federal legislation in Australia characterised as 'anti-Terrorism laws.' It seems to me that these laws go well beyond the proper limits that should apply in a liberal democracy. They certainly call into question my hitherto long-held belief that Australian parliaments could always be relied upon to be a bulwark against encroachment upon our democratic freedoms.

To illustrate my concern, I refer to the Anti-Terrorism Bill (No. 2) 2005 (Commonwealth). This legislation, together with complementary legislation enacted by the Australian States and Territories, contains quite extraordinary preventive detention and policing powers. We are told by those in authority, including the Prime Minister, the Commonwealth Attorney-General and State Premiers, that these newly-enacted powers are necessary to meet a perceived terrorist threat. Yet the terrorist threat assessment remains to the present time at 'medium', which was the level set on 12 September 2001 following the terrorist attacks in the USA. If there is no increased threat, why is legislation containing greatly increased powers necessary? Why also has the Parliament enacted additional measures to deal with terrorism when reviews of already enacted legislation following 9/11 have not been completed and assessed? There seems to be an irrational rush to vest ever-increasing powers in various policing authorities, with little or no public justification by governments.

As my confidence in the ability and willingness of most parliamentarians to stand against the removal of democratic freedoms has been eroded, I believe that one's thoughts must turn to the role that an independent judiciary can play in the preservation of these freedoms. In my view, there needs to be a basic law of some sort against which legislation threatening civil liberties can be measured.

From my perspective, constitutionally entrenched Bills of Rights such as the US Bill of Rights and the Canadian Charter of Rights and Freedoms are excessively rigid. There are quite notorious examples of this in the US Bill of Rights, such as the constitutional right to bear arms and the apparent inability of the Congress to effectively deal with the law and order problems thrown up by the widespread availability and use of firearms. In Canada corporations, as well as individuals, are able to take advantage of the rights enacted by the Charter. It has been argued that this has made the task of corporate regulation in Canadian jurisdictions problematic.

The model I consider most attractive for use in the Australian context is the UK Human Rights Act, 1998. Like Australia, Britain had an historical attachment to the protection of human rights through the common law. However, Britain's engagement with the European Court of Human Rights and the European Union, especially since the UK accepted the compulsory jurisdiction of the European Court in 1966, has changed Britain's outlook radically. A series of decisions by the European Court had overruled English courts on the basis that there were breaches of the European Convention of Human Rights.

The UK Human Rights Act is often referred to as a 'dialogue' model in that a higher court is able to make a declaration that legislation is incompatible with European Convention rights. This initiates a dialogue between the judiciary, Parliament and the Executive government. The declaration of incompatibility allows a Minster to seek parliamentary approval for a remedial order to amend legislation to make it compatible. It is true that the declaration of incompatibility can be ignored by the Executive government. In this case the legislation remains valid. However, to do this will often invite political embarrassment for a government.

Perhaps the most useful aspect of the UK Human Rights Act is that a Minister must, before the Second Reading of a Bill in either House, either (a) make a statement of compatibility with European Convention rights or (b) make a statement to the effect that, although he or she is unable to make a statement of compatibility, the government nevertheless wishes the House to proceed with the Bill. The practical effect of this provision is to require government departments and agencies to undertake a formal review in relation to Convention rights when preparing legislation or regulations. Ministers may introduce legislation incompatible with Convention rights, but the Human Rights Act obliges the Minister to explain to Parliament why the rights have been ignored.

Clearly, if the UK model were to be adopted in Australia, there would have to be a yardstick - as there is with the European Convention on Human Rights - against which the proposed legislation could be measured. That is, there would have to be an Australian Human Rights Act, called by this or some other similar title.

The Evatt Foundation believes that the question of a Bill of Rights for Australia is one which warrants public attention and debate. If you have any relevant views, please feel free to express your opinion.

Ron Dyer is a Vice President of the Evatt Foundation. He was a member of the NSW Legislative Council between 1979 and 2003 and served as a Minister in the Carr Labor Government from 1995 to 1999.

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