How is a bill of rights relevant today?
Robert McClelland
When the Twin Towers in New York collapsed on September 11 last year, the world changed - and Australia changed with it. Australia has been fortunate among nations to have only had a very limited first hand experience of terrorism. The events of last year, however, brought it very closely home to all of us that, if terrorism were to strike Australia, the consequences could be devastating. In this context, it is not surprising that in the lead up to last year's election, both the Labor Party and the Coalition promised to bolster Australia's anti-terror laws. But when the Coalition introduced its package of terrorism laws earlier this year, human rights took a low priority - prompting a number of important questions. Should we even be talking about human rights in times like these, when the world is facing new and troubling threats to security? Are human rights just a luxury when life is peaceful, and too much of a luxury when security of our society is really at stake?
It was said in Roman times that amidst the clash of arms, the laws are silent. But I hope no-one believes that now. In testing times, when people are looking for security at home and in the world, human rights are more relevant than ever. To take a small sample from the list of internationally recognised human rights, I mention:
the right to life;
the right to work;
the right to freedom from arbitrary interference with family life; and
the right to freedom from discrimination based on religion or nationality.
Each of these rights was denied to people who happened to be in two buildings in Manhattan on September 11. That included people of 80 nationalities and included Australians. This terrorist atrocity was a fundamental assault on human rights.
One of the urgent needs in responding to September 11, however, is to ensure that it does not serve as the excuse for further assaults on the human rights of ordinary men and women. Indeed, it can be argued that, if the fundamental values of freedom and democracy are diminished by terrorist attacks, then the terrorists have had a major success. In this paper I'll talk about the relevance of a Bill of Rights in the context of our society's new emphasis on security and terror. I'll also argue that any Bill of Rights should not focus purely on civil and political rights, but also include important social, economic and cultural rights. I'll conclude by looking at why Australia does not currently have a Bill of Rights and make some suggestions for the way forward.
Human rights and security
This year we have seen the introduction of a package of security legislation by the Howard government in response to security concerns raised by the September 11 terrorist attack. In early May, attempting to explain some of the more draconian elements of the Howard government's terrorist legislation, the Attorney-General said: "We believe the community is prepared to make sacrifices of individual civil liberties in order that the community generally is protected from those threats". I believe that this statement showed a fundamental misunderstanding of the relationship between rights and security.
There is no reason why laws which deal with terrorist acts cannot give full protection to the basic rights and freedoms which all Australians have fought hard for, and have come to expect, while at the same time ensuring that there are adequate powers to deal with those people who seek to threaten those basic rights and freedoms. The Attorney-General has put forward the view that Australians can either have security or they can have their freedoms. He is wrong. In a famous speech to his party's conference in Brighton in October last year, the British Prime Minister, Tony Blair, summed it up correctly: "Here in this country and in other nations round the world, laws will be changed, not to deny basic liberties but to prevent their abuse and protect the most basic liberty of all - freedom from terror." Blair was right. Human rights and security do not need to be contradictory.
We don't have to make a choice between freedom and security - something which the development of the United Nations itself demonstrates. The United Nations was formed after the Second World War with the purpose of ensuring the protection of international peace and security. The development of human rights declarations, covenants and conventions through the United Nations flowed from the UN Charter's recognition that human rights was one of the major purposes of the world organisation - and one which was intimately connected with the protection of international security. The United Nations' emphasis on human rights goes back to the Atlantic Charter, which was drafted on board a battleship and agreed between Churchill and Roosevelt - not exactly two soft-hearted or soft-headed wets - meeting in the depths of a desperate struggle for security and survival.
Any advocate of security at any price, or through tough talk alone, needs to re-read the UN Charter, and reconsider how often in the history of the last century it was a lack of respect for human rights that led to threats to peace and security. On the other hand, human rights advocates who deride talk of security also need to re-read the UN Charter, with its recognition of the right of nations to defend themselves, and its provision for the use of armed force to protect international security. The late Doc Evatt - a former Member for Barton - was Australia's Foreign Minister at the time of the negotiation of the Universal Declaration of Human Rights. He was an uncompromising advocate of the Declaration, including reference not only to civil and political rights, but also to fundamental social and economic rights.
In his book Australia and the New World Order: Evatt at San Francisco, 1945, W.J. Hudson commented:
Evatt was no pacifist. For him, as for his leaders, Curtin and Chifley, the main and immediate point of the United Nations and the world in general and Australia in particular was that it comprised a collective security system, and collective security is a military concept.
Indeed, Evatt, upon his return to Australia, stated that "there is a direct obligation on all member states to place forces at the disposal of the security council". In his passionate advocacy for the specific recognition of fundamental human rights, Evatt, along with other Australian delegates to the United Nations, saw the fundamental correlation between rights and security. Speaking before the General Assembly on the occasion of the adoption of the Universal Declaration of Human Rights, the Australian delegate, Alan Watt spoke of this interconnectedness in the following terms: I should have liked to express satisfaction with the inclusion of economic and social rights and also the unanimous agreement that such rights should be included. Modern economic and industrial arrangements have bought with them terrible social risks. I mention only mass unemployment and other loss of livelihood, whether through old age or other causes. My government has continually urged, in international conferences, that full employment, or in the language of the declaration 'the right to work' and social security must be guaranteed for world prosperity and world peace. We know what economic insecurity can breed. The civil and legal rights of the Weimar Republic were destroyed in the collapse of the German economy and the rise of Nazism. In speaking of the economic and social rights I do not underestimate the longer established rights. If we needed any conviction, the events of Nazism and the war have illuminated that traditional human liberties must be cherished. We know that economic rights are realised through the exercise of political liberties and that the surrender of these liberties can bring helplessness and insecurity.
It is the task of social democracy to maintain and develop to the full the simultaneous enjoyment of political and civil liberties and economic rights. The comprehensive nature of the declaration makes it a historic document in the progress of social democracy.
Immediately after the carnage of the Second World War, when the world clearly saw the aggressors as dictators who systematically violated basic political rights to life and liberty on a huge scale, there was understandably a primary focus on those civil and political rights. However, there was also a recognition that those rights could not be developed in isolation from economic and social rights. Today, a recognition of the importance of human rights is fundamental to good relationships between nations and between the peoples of the world.
The government's terrorism legislation was, unfortunately, based on the incorrect premise that rights and security are contradictory. The Bills before parliament would allow members of the Australian Security Intelligence Organisation to detain children for 48 hours - or even longer - without legal representation, or without even any obligation to inform the parents as to the whereabouts of the children. They would also allow the Attorney-General to proscribe any organisation he regards to be involved in terrorist activities without any effective rights of appeal, with serious consequences for members of such a group. Both proposals would involve substantial infringement upon rights and liberties which Australians enjoy and which they ought to continue to enjoy.
While on this occasion I am confident that debate in the parliament will ensure that measures such as these will not pass into law, in my view it cannot be assumed that parliamentary processes will always ensure that measures which unacceptably infringe upon hard-earned freedoms will be rejected. This is particularly the case when the government introduces legislation in haste in response to a situation which, rightly or wrongly, is perceived as urgent, which assists its political agenda, or which evokes strong emotions. We are naive not to appreciate that parliament is a partisan institution motivated fundamentally by political aspirations and the imperative that each party represented in the parliament faces to win elections. Political parties are usually sensitive to the recognition and protection of basic human rights, but what happens when that is not the case?
An example of such a Bill was the first Border Protection Bill last year - drafted hastily one afternoon in response to the arrival of the MV Tampa with its human cargo of asylum seekers. It was introduced by the government into the House of Representatives at 6.40 pm on Wednesday 29 August 2001, in such haste that it was not even possible for the government to table an explanatory memorandum. By restricting the information that was available to the media, the government was very effectively able to manufacture a state of crisis. As a result, enormous public pressure was brought to bear upon the Labor Party to pass the Border Protection Bill.
But the Bill contained a virtual catalogue of human rights breaches. Because it applied to any "floating vessel", the Bill would have allowed government officials to take ordinary Australians holidaying on the Whitsunday Islands from their hotels, placed back onboard their chartered vessels and towed out to sea, without any legal recourse. It contained unprecedented immunity provisions; wider even than those applying to federal police in the line of duty and members of our defence forces responding in terrorist emergency situations. There was no requirement in the Bill that powers could only be used against boats that had entered Australian waters unlawfully or which carried unauthorised people. The Bill was expressed to apply "in spite of any other law", setting aside the usual protections offered by Australia's criminal and civil laws. Worst of all, the Bill would not have prevented people from being returned to sinking boats.
I am proud of the way in which Labor responded to the Border Protection Bill. However, our decision not to pass the Bill came at tremendous political cost. Many members of the public were unable to understand why the Labor Party had voted against a Bill which the government simply said would help us to protect our borders. We paid a heavy price for this at the subsequent federal election. While Labor acted in the national interest in failing to pass the Border Protection Bill, a weaker and less principled Opposition might have ignored the Bill's obvious flaws - and its attack on basic human rights - and passed the Bill without proper scrutiny.
That is why I believe that parliamentary processes alone are not always adequate to ensure that human rights are properly protected. A Bill or Charter of Rights, prepared after informed debate and discussion by the Australian people about the sort of rights and freedoms that we believe are so fundamental that they are deserving of protection, would be an effective bulwark against decisions taken by parliament in haste or for reasons of political expediency.
Recognition of economic, social and cultural rights
When we talk of the Bill of Rights, it has traditionally been assumed that we are only referring to one which recognises and protects civil and political rights. For instance, the well known and respected Australian political scientist, Dr Elaine Thompson, has said that the primary purpose of a Bill of Rights is as a means of "checking executive powers" and of "limiting the powers of bureaucracy as well as challenging the excesses of particular government", and that it would give "clear signals that Australia believes in a free liberal society" which would be explicitly protected in a limited range of civil and political rights.
The identification of the fundamental rights and freedoms of Australian citizens, as against the government, is essential if we are to create a culture in which both the government and the people see the role of government as being a facilitator, rather than a controller or even as an oppressor. However, the scope of a Bill of Rights could and should be considerably broader than a narrow focus on civil and political rights. Recognition of economic, social and cultural rights is an area where I have a particular personal interest. It is striking that the International Covenant on Economic, Social and Cultural Rights is not included within the jurisdiction of Australia's Human Rights and Equal Opportunity Commission, although the other half of the International Bill of Rights, the Covenant on Civil and Political Rights, is.
The two Covenants of course were adopted together by the General Assembly in 1966, and were signed by Australia together in 1972 as one of the first acts of the Whitlam Labor government. After that, though, Australian experience with the two Covenants parted company, despite the many statements during the drafting and in subsequent human rights discussion that human rights are indivisible, and that one category of rights ought not to be preferred to the exclusion of another.
The Civil and Political Covenant was not ratified until 1981, after nine years of negotiations to deal with all manner of objections from state governments, and even then ratification was initially subject to an embarrassingly long list of reservations (most of which the Hawke Labor government removed on coming to power). The process that was followed was not, I think, a model to be repeated, but it did at least show that the Covenant was being taken seriously as imposing real obligations. Ratification was accompanied by the establishment of the first Human Rights Commission, with the Civil and Political Rights Covenant included in its educational and promotional role and its role of investigating and reporting on complaints.
By contrast, the Covenant on Economic Social and Cultural Rights was ratified after a wait of only three years, in 1975. In the light of later experience, it is hard to resist the conclusion that this more rapid ratification was only possible because this Covenant was not regarded as, and resisted as, imposing real obligations in the same way as the other Covenant. No specific domestic monitoring or promotional mechanism was established for the Covenant on Economic Social and Cultural Rights. Australia's reports under this Covenant to the appropriate United Nations committee have generally been of a considerably lower standard than reports under the other Covenant or the discrimination conventions.
Yet many of the human rights issues of greatest relevance to the security and living standards of millions of Australian men and women and their families are found in this Covenant:
The right to work and to have just and favourable conditions of work;
The right to the highest attainable standard of health;
The right to education;
The right of workers to collectively organise;
The right to social security;
The right to the widest possible protection and assistance for the family, including special protections for pregnant women, young mothers and children;
The right to an adequate standard of living including housing and food;
The right to free and compulsory primary education and to equally accessible higher education;
The right to take part in cultural life and equally enjoy the benefits of scientific progress;
The right not to suffer discrimination of any kind in respect to these rights.
One of the things which I think we need to be better at in Australia is making clear how human rights are for the benefit of all of us, and not only for the benefit of particular groups within society. Indeed, some of the primary criticisms of the concept of a Bill of Rights relate to those - such as the United States Bill of Rights - that focus only on civil and political rights, rather than those that are fundamental to living standards.
Why doesn't Australia have a Bill of Rights?
As the only Western nation without a Bill of Rights we are entitled to ask how that came about. As Professor George Williams and others have shown in their analysis of the Constitutional convention debates, the essential reason we do not have a Bill of Rights, or even a clause recognising the entitlement of all Australians to equality before the law in our Constitution, is because of a concern, even a paranoia, among our constitutional founders that they would be opening Australia to an assault from "inferior races".
In arguing against Andrew Clark's submission for the inclusion of an equal protection clause, Henry Higgins, who is today revered as quite a liberal statesman, said that it would "protect Chinamen too, I suppose as well as Negros". Indeed, our Constitution was specifically drafted to allow the basic rights of minority groups to be overidden, rather than to achieve any basic concept of equality. This is evidenced most dramatically in the inclusion of the "races" power. According to Edmund Barton, our first prime minister, the inclusion of the "races power" would enable the Commonwealth parliament to "regulate the affairs of the people of coloured and inferior races who are in the Commonwealth".
While the High Court grappled with the races power during the Hindmarsh Island case, regrettably it did not conclusively resolve the issue as to whether the power could only be used to make laws for the benefit of Aboriginal people, rather than to pass laws which affect them adversely. There is no question that the obsession with restricting the rights of non-whites, such as preventing "Asiatics" from being able to obtain miners rights, effectively blocked a rational consideration as to whether our Constitution needed to recognise even such a basic right as equality of all citizens before the law.
In recent times, more rational concerns have been expressed about a Bill of Rights by commentators, including the New South Wales Premier, Bob Carr. I must say, if one was to take the view that the only possibility for a Bill of Rights was the United States model, then I would have great sympathy with the views of the premier. There is considerable force in concerns that entrenching a Bill of Rights may result in "freezing" forever modern values that may significantly change over time. The right of Americans to bear arms is a frequently cited example of a right which now causes untold human tragedy. Equally, entrenchment of rights such as the freedom of contract could result in a situation of exploitation of those without equal bargaining strength. This certainly occurred as a result of decisions of the United States Supreme Court at the turn of the last century. Critics of Bills of Rights frequently cite the example of hundreds of drunk driving charges in Canada and New Zealand being set aside for procedural reasons, and because the accused had not been afforded the opportunity of retaining legal representation before being breath tested.
But the limitation of these arguments is that they focus on a Bill of Rights being about only civil and political rights and not economic and social rights. They also wrongly assume that a Bill of Rights necessarily shifts the focus of power from the elected legislature to an unelected "activist" judiciary. By writing a Bill of Rights to confirm that power ultimately rests in the hand of the people's elected representatives in parliament - as the British have done - these fears can be addressed.
The way forward The Australian Labor Party has consistently advocated a Bill of Rights for Australia, a commitment which is reflected in our national platform. However, we must question whether a Bill of Rights that does not enjoy general support in the Australian community would be of any worth. It is my view that a Bill or a Charter of Rights will be doomed to fail unless the Australian public regard it as being a document by and for them. In short, if we are to achieve a Bill or Charter of Rights then the role of politicians must be facilitative rather than prescriptive.
I am strongly of the view that the way forward is for an inquiry - preferably involving broad community input - to canvass the views of the Australian people as to whether they want an Australian Bill or Charter of Rights and, if so, what rights should appropriately be included. In the course of that process, it is the responsibility of political leaders to point out how other countries have overcome hurdles that have toppled previous proposals in Australia. These mechanisms include:
By introducing a Charter of Rights as a process of legal rather than Constitutional reform; that is, by way of legislation rather than constitutional amendment;
By enabling future parliaments to legislate in a manner which is inconsistent with the Charter of Rights, perhaps using the Canadian mechanism requiring parliament to specifically acknowledge that it is so doing through a mechanism of a "notwithstanding clause";
By ensuring, as is the case in the United Kingdom, that the courts are in a position to give only declarations as to inconsistency, with ultimate power remaining in the parliament to either amend or reaffirm its original legislative intent.
I also believe that it would be extremely beneficial to extend the debate beyond mere rights, and to publicly discuss the inclusion of a statement of aspirations in a Bill or Charter of Rights. Those aspirations could include, for instance, the aspirations of fair and equitable access to physical and mental health facilities, educational opportunities, technological and civil infrastructure, and to basic commercial and public services. These are issues that are fundamental to the standard of living for all Australians, particularly those who live in rural and regional Australia. While it may not be appropriate for those aspirations to be justiciable, they might nonetheless prescribe standards against which legislation could be scrutinised before it is introduced into parliament. Extending the existing scrutiny of bills process to consider recognised and universally accepted basic human rights would provide a mechanism of re-engaging the Australian community with the legislative process. It would in itself contribute to greater confidence in our system of government.
Unless we are prepared to explore mechanisms to re-engage the community in the legislative process and, in particular, to ensure that the legislative process focuses upon the impact of proposed legislation on the fundamental rights of Australians, we are on the edge of an extremely unstable electoral political environment. And unless we are able to re-engage ordinary Australians in the legislative process, we will never overcome the general perception that politics is a futile and destructive enterprise, rather than a collective and constructive responsibility that directly impacts on the standard of living of all Australians.
Robert McClelland is the Australian Labor Party's Shadow Attorney-General and the Member for Barton. This paper was delivered to the 2002 Bill of Rights Conference, organised by the Gilbert & Tobin Centre of Public Law and the Australian Human Rights Centre at the Faculty of Law, University of New South Wales, and held at NSW Parliament House on 21 June 2002.
Suggested citation
McClelland, Robert, 'Australia's elusive bill of rights', Evatt Journal, Vol. 2, No. 5 July 2002.<https://evatt.org.au/post/australias-elusive-bill-rights>
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