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A charter of rights and aspirations: relevance to modern Australia: address at the University of Technology Law School Alumni Dinner.
A Charter Of Rights And Aspirations
Relevance to Modern Australia
Robert McClelland - Shadow Attorney-General
Address - University Of Technology Law School Alumni Dinner - 2 June 2000
Check Against Delivery
The Absence of a National Standard
The recent debate regarding the Western Australian and Northern Mandatory Sentencing laws has focused attention on the fragility of fundamental rights of Australian citizens. We see the situation where, for instance, any adult who commits a property offence in the Northern Territory must receive a 14 day jail term. In effect, this means that every adult citizen in Northern Territory is on a 14 day suspended sentence from the Government. That 14 day sentence will automatically be activated when any adult commits a property offence such as receiving a $2.50 can of beer as occurred in Wynbyne's case.
There is no doubt whatsoever that mandatory sentencing is contrary to the International Covenant on Civil and Political Rights which, among other rights guarantees the right against arbitrary detention. More importantly the instincts of fair minded Australians says that the concept of arbitrary detention just isn't part of our way of life.
It is interesting to see how the Howard government attempted to get around their political problem. Essentially they made a deal with Dennis Burke, the Northern Territory Chief Minister, in an endeavour to keep more sensational cases out of the headlines. But in so doing they have turned the Northern Territory police force into prosecutor, judge and jury. If we look for the worst instances of totalitarian regimes it must surely be the extent of the unfettered discretion given to their police forces.
Yet that is the outcome that our Prime Minister will get away with as a "compromise outcome" unless called to account by fair minded Australians. The deal is itself equally as offensive as the concept of arbitrary detention and, again, is unquestionably contrary to another provision of the International Covenant on Civil and Political Rights as well as, of course, the Convention on the Rights of the Child. Both of those conventions
contain clauses requiring nation states to provide the opportunity for an appeal against sentence.
As soon as international treaty or convention is mentioned some people appear to succumb to an instant anxiety attack but the logic behind those principles is unassailable. Even trained magistrates and Judges are human and accordingly they will make mistakes. It is just common sense to provide for an appeal. In other words, the fact that we do not have an Australian standard such as those which would be included in our own Bill or Charter of Rights has enabled the Howard government to make a deal which is, itself, in fundamental breach of the rights of Northern Territorians. Worse still the deal is as offensive to common sense as our concept of fairness.
I think that the fact that we do not have our own standards on these fundamental questions of human rights has resulted in an exaggerated reliance on International Treaties and Conventions. At the moment they provide the only game in town. The overwhelming majority of Australians are fair minded and balanced and if we clearly and succinctly expressed our core values in our own Charter of Rights it would avoid the preoccupation with Treaties which has inevitably crept into the human rights debate.
We are now the only western democracy that does not have a Bill of Rights. Even, Great Britain, from whom we inherited out Westminster system of government and our common law legal system has enacted a Statutory Bill of Rights.
Why don't we have a Bill of Rights?
The answer lies in the fact that our constitutional founders specifically decided against it. Indeed, their process of reasoning, as demonstrated in the debates demonstrates rather dark and what, by today's standards, can only be described as bigoted motives.
When Andrew Inglis Clark (Tasmania) and Richard O'Connor (NSW) proposed the inclusion of a Bill of Rights in the Australian Constitution in the Adelaide 1997 Convention and the Melbourne 1998 Convention their primary arguments were to ensure that Australian were not deprived of "life, liberty or property without due process of the law" . Concepts contained in the famous Magna Carta and one would have thought at the heart of our legal system. Regrettably, however, both motions were lost narrowly.
Lets look at the argument that prevailed.
The debates show that delegates were aware that the inclusion of a Bill of Rights in the Australian Constitution would challenge legislation of the existing colonial Governments which, in the words of Sir John Forrest, the Premier of Western Australia prevented "coloured persons, and Asiatic" or "African Aliens" from "Enjoying the Rights of Europeans".
In other words, the rejection of proposals to include fundamental rights in the Australian Constitution were not based on considered arguments that the basic rights of Australians were adequately protected by the common law but rather, by a combination of racist motives and an obsession with preserving states' rights. In describing the effect of the race power contained in section 51 (xxvi) of the Constitution, the famous constitutional lawyers and conference delegates, John Quick and Robert Garran wrote:
It enables the Parliament to deal with the people of any alien race after they have entered the Commonwealth Colonies to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came.
The argument, perhaps best summing up the prevailing psyche at the Constitutional Conventions was presented by Sir John Forrest at the 1897 -- 98 Convention when he said:
It is of no use for us to shut our eyes to the fact that there is a great feeling all over Australia against the introduction of coloured persons. It goes without saying that we do not like to talk about it, but still it is so. I do not want this clause [that is a clause to give all Australians equal protection of the laws] to pass in a shape which would undo what is about to be done in most of the colonies, and what has already been done in Western Australia, in regard to that class of persons.
He was referring to the fact that Western Australia had legislated that "no Asiatic or African alien can get a miner's right or go mining on a goldfield."
In arguing in favour of a compromise proposal, Henry Higgins (who later became a High Court Judge) and who is today, regarded as a liberal minded and progressive man said that the proposed wording of section 117 which prevents discrimination on the basis of State residence:
would allow Sir John Forrest … to have his law with regard to Asiatics not being able to obtain miners rights in Western Australia. There is no discrimination there based on residence or citizenship; it is simply based on colour and race.
Such discrimination, clearly, was regarded by learned and, indeed, quite decent and liberal men for their time, as being entirely consistent with our common law.
Indeed, in subsequent years the existence of our system of common law has become the more frequently cited reason against Australia and acting a bill of rights.
As that great champion of Liberal philosophy, Sir Robert Menzies, said:
to live in a common law country is, in itself, the very best guarantee of the rights of the individual. âï¿»ï¿»ï¿»
The Common Law Does Not Provide Adequate Protection
We have seen that discrimination on the basis of race was openly discussed and, indeed quite acceptable to our constitutional founders. Many, of whom, were lawyers of some fame and experience, certainly in the principles of common law.
As the late Lionel Murphy noted in arguing for the need for Australia to enact a Bill of Rights, the primary focus of the common law is the protection of property rights rather than, necessarily, human rights.
Lionel Murphy gave the example that it is a common law principle that a person is free to enter into contracts but this is against the right of collective bargaining which has underpinned the standard of living of ordinary working Australians. To use his words:
Last century the common law upheld the right of factory owners to contract with children to work for sixteen hours or more a day for starvation wages. âï¿»ï¿»ï¿»
When workers formed trade unions to get better conditions, the common law, aided by Parliamentary enactment, said the unions were unlawful combinations and their leaders were sent to prison. It is still the position at common law that all trade unions are unlawful as conspiracies in restraint of trade. Then Parliament stepped in, and fixed hours of work and made it unlawful to employ young children. Parliament made it lawful for trade unions to operate. We now enjoy freedom of association in trade unions, derived not from the common law but from Parliament's overruling the common law. Children have the right to education, instead of being forced into slavery in factories and mines, because Parliament gave them that right.
There are numerous other instances where the common law has proven to be an inadequate safeguard of the rights of Australians and Parliament does not always step in to address the situation. For example:
In R v Enever (1906) 3 CLR 969 the High Court held that a citizen could not claim damages for mistaken arrest. âï¿»ï¿»ï¿»
In Commonwealth v Anderson (1960) 105 CLR 303 the High Court held that the Law applies differently as between citizen and government. âï¿»ï¿»ï¿»
In R v Archdall (1928) 41 CLR 128 the High Court held that the Commonwealth can avoid constitutional guarantee of trial by jury (s80) by providing that an offence by tried summarily rather than by indictment.
In Attorney General for the Commonwealth (ex re. McKinley) v The âï¿»ï¿»ï¿»
Commonwealth and another (1975) 135 CLR 1 the High Court rejected the principle of one-vote one-value.
In Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 the High Court restricted the principle of freedom of the press by holding that the unauthorised publication of material of which the Government owns copyright will ordinarily be restrained unless the defendants establish. defences of fair dealing under the Copyright Act 1968 (Cth) or the common law defence of public interest.
In Lloyd v Wallach (1915) 20 CLR 299 and Little v Commonwealth (1947) 75 CLR 94, the High Court held that ministerial detention orders were unexaminable by courts.
In R v Ireland (1970) 44 ALJR 263 the High Court significantly limited the right to remain silent by holding that evidence of relevant statements of admission obtained by conduct in breach of that rule will not for that reason alone become irrelevant or inadmissible.
In Dugan v Mirror Newspapers (1978) 22 ALR 439 a prisoner serving a commuted capital sentence was denied the right to commence a civil claim. âï¿»ï¿»ï¿»
In Crowe. V Graham (1968) 121 CLR 375 at 398-9 Windeyer J held that:
"On a wider aspect I think, with respect, that their Honours were wrong in invoking considerations of 'private liberty as a basic right and need of modern man' as an aid for the interpretation of a statute of the Parliament of New South Wales dealing with obscenity".
His Honour then contrasted the scope of the First and Fourteenth Amendments of the US Constitution (freedom of speech and due process) with the operation of statutory and common law Australia.
Lest it be thought that these are problems of a bygone era we must remember that has recently as 1996, Albert Langer was imprisoned for 10 weeks for distributing leaflets encouraging voters to put the candidates of the Australian Labor Party and the Coalition equal last. He challenged this sentence in the High Court, but failed.
While, self-interest as a Labour candidate in the 1996 election caused me to have some concern about what Langer was advocating I think that any reasonable person must acknowledge that a 10 weeks term of imprisonment was quite over the top for his
political agitation. In fact, after the High Court finding, Amnesty International released a statement describing Langer as 'the first prisoner of conscience in the country for over 20 years'.
At a state level it is important to note that state governments are not required to provide compensation on just terms in respect to the acquisition of property. We can all recall the movie "The Castle" where the family won a High Court action because it was the federal government seeking to acquire their property, however, at a state level they would have failed.
It is also noteworthy that the state of Queensland has banned the satirical song "Backdoor Man" by Pauline Pants-down. The High Court declined a special leave application on the basis that no right had been offended by the banning of the song. Political satire can be one of the most effective forms of political speech but, clearly, the concept of freedom of political speech does not go as far as reasonable people would expect.
I would not like to be seen to be condemning the common law as being inherently unfair or contrary to human rights. Clearly it is not. The common law has proven to be valuable in protecting the rights of individuals in many areas, throughout the centuries. Nevertheless, there have been many areas of deficiency. Moreover, even when our fundamental rights and freedoms apparently depend on the common law, the common law, because it is subservient to statutory enactment, is often powerless to protect those rights and freedoms.
As George Williams, a constitutional expert and advocate has shown, a good example is the Communist Party Dissolution Act.
Section 7 of an act provided a term of imprisonment of five years for any person who knowingly carried or displayed anything indicating that he or she was in any way associated with the Communist Party such as a batch with the words "Communist Party conference 1948."
Section 9 provided that the Governor-General could declare a person to be a communist or member of the Communist Party. Once declared, a person could not hold office in the Commonwealth public service or in industries declared by the Governor General to be vital to the security or defence of Australia. Generously, a citizen could contest such a declaration but the legislation provided that "the burden shall be upon him to prove that he is not a person to whom this section applies."
Fortunately, the High Court of Australia in the Australian Communist Party and others v Commonwealth (1951) 83 CLR 1 held that the communist Party Dissolution Act 1950 (Cth) was outside the power of the Commonwealth and invalid. However, the reasoning behind the majority decision was more related to the fact that the Bill exceeded the Defence Power and purported to confer on the Governor General a judicial power rather
than the existence of any human right to freedom of association.
The fact of the matter is that the existence of a democratically elected government does not guarantee the rights and freedoms of its citizens. History is littered with instances of oppressive and draconian conduct by democratically elected governments towards minorities. Those minorities are, by definition usually, without financial or political strength. The fundamental rights and freedoms belonging to all human beings cannot be guaranteed by mere noisy rhetoric claiming the mandate of the majority.
If, unrestrained or, at least, unguided, the will of the majority can be just as harsh and oppressive has any totalitarian regime. A truly free and equitable society can only exist where the fundamental rights of all citizens, including minorities are protected.
Neither the common law, nor Parliament alone, can be relied upon to achieve that.
Fundamental Rights and Living Standards
The enhancement and protection of human rights is not simply a matter, as some say, for "do gooders" and "bleeding hearts". As the Human Rights and Equal Opportunity Commission has shown, through its Bush Talks program, human rights can also be about the equitable distribution of resources and opportunities. This is particularly the case in regional and rural Australia where recent degradation of services has dramatically reduced individual and community living standards.
The wellbeing of regional Australia is not merely an electoral issue recently discovered by the Howard Governnment. It is a matter of fundamental human rights. It is worth considering some of the more significant breaches identified in the Bush Talks Report.
Article 12 of the international covenant on economic social and cultural rights provides that:
it is the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. âï¿»ï¿»ï¿»
The Australian Institute of Health and Welfare has found that the rate of avoidable deaths in country areas is 40% higher then in capital cities.
The rate of expenditure on the public and private hospitals is between 20 and 50% less in regional Australia than in cities.
The HREOC Report revealed that in regional areas there was seldom a psychiatric registrar at the local hospital and there is rarely any facility to meet the needs of an after hours phsychological crisis.
The situation for indigenous Australians is particularly acute:
Life expectancy is 20 years less.
Aboriginal boys born today have only a 45% chance of living to the age 65 (85% for non aboriginal boys).
Aboriginal girls have a 54% chance of living to age 65 (89% for non aboriginal girls).
Infant mortality is three times the national average.
Adult mortality among indigenous Australians has actually increased over the last forty years.
Article 26 of the universal declaration of human rights provides that everyone has the right to education.
The HREOC report found that children in rural and remote Australia are far less likely to complete their education than in urban centres.
Fewer rural children are entering tertiary education. In 1989 it was 25%. It is now only 16%.
As the HREOC Report found, inability to access higher education not only affects employment opportunities, it also affects self esteem and the ability of young people to contribute fully to society.
The following tables show a marked difference between marginal regional electorates and more affluent Coalition electorates in terms of school leaving age and enrolment in higher education.
Electorate Age left school 14-16(%)
Electorate Attending Uni or Tert. Edu (%)
Other essential needs
Article 22 of the universal declaration of human rights provides that:
everyone, as a member of society is entitled to realisation of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Often towns will be dominated by a single industry or company and when the company goes under - all other citizens and the town itself and are at risk.
People are forced to leave their homes and their broader support networks and move to the cities. If they didn't, the unemployment rate in the country would be even higher. The climate in which citizens are compelled to sell their properties in those circumstances inevitably results in a substantial loss.
The situation for young people in the bush can be one of hopelessness and despair. As the HREOC Report noted, it is no wonder that for an increasing number of young people that face unemployment in regional Australia that illegal activity of various kinds is increasingly being seen as simply part and parcel of economic survival.
The reduction in services and the reduction in community support are factors which are leading to a high rate of suicide in country areas.
In 1986 there were 24 suicides per 100,000 males in the 15 to 24 age group in rural areas. That has now risen by 50% to approximately 34 per 100,000.
The indigenous youth suicide rate is in fact 1.4 times higher than that.
Economic and business services:
The survival of businesses means the survival of country Towns and the economic well being of citizens.
The Howard government's reduction in government services to rural Australia has seriously affected the competitiveness and ultimately the survival of regional businesses.
HREOC found that repeatedly people expressed their concerns about telephone and postal services.
As the Human Rights Commission relevently said:
if people who live in rural Australia are to be able to compete on a mythical level playing field they must be given equal access to communication services as metropolitan based business people enjoy.
That will not happen if the full sale of Telstra proceeds.
The Howard Government has done nothing to halt the rate of Bank closures. Indeed its industrial relations policies have positively encouraged it.
Downsizing by banks and financial institutions in the last five years and has resulted in over 400 bank branch closures. They have primarily been from regional Australia.
HREOC found that when a bank closes it costs the local community an estimated $350 per person per month as people transfer their shopping to their banking town.
The following table compares the discrepancy in High income earners between the sample regional and more affluent City electorates.
Electorate Income $1,500 or more (persons)
North Sydney 9856
Application to Policy Development:
The HREOC Report made it clear that you cannot take away one service in a small rural community without it having an effect on the most basic human rights of the residents of that community.
Earlier this year, while visiting Nyngan, John Howard promised, magnanimously, that his government will not take away any more services from a regional Australia. But it is too late. The policies of his government have already decimated many areas and significantly damaged others.
If these policies were analysed in the context of fundamental rights rather than political and economic expediency we would have the opportunity to develop structural solutions to this situation of chronic disadvantage.
Current Australian Legislation
In answering the question whether current Australian legislation is sufficient to protect and develop Australians' human rights we must bear in mind that when we are talking about human rights, we are not just talking about facilitating action by individuals.
As Justice Marcus Einfeld AO QC has said:
Taken together, human rights principles form a code of behaviour for individuals, communities and State, designed to promote harmonious, just and peaceful conditions essential to the peace and welfare of modern life.
It must be acknowledged that we do have legislation in the human rights area including legislation that has established the Human Rights and Equal Opportunity Commission, various State and Federal Ombudsmen and laws which outlaw discrimination on the basis of race, sex and disability.
However, I think it is fair to say that the remedies which are provided in the current legislative framework are remedies which are all too frequently portrayed as the sorts of remedies which are pursued by whingers and social outcasts. Certainly not one of John Howard's "Mainstream Australians". That is not to say that we should not have these important rights prescribed in legislation. The point is that more needs to be done if we want to have a framework of rights that permeates to such an extent that it becomes a code of behaviour throughout our community.
Essentially we need to create a culture where our Governments become facilitative rather than increasingly intrusive into all aspects of the daily the lives of ordinary Australians.
That can only be achieved, I believe, with a formal Bill or Charter of Rights. Such a Charter should include a statement of aspirations of the Australian people to set a benchmark for legislative and executive action.
The Way Ahead
Recent history has shown that realistically the way ahead cannot be for a constitutional bill of rights.
As George Williams has pointed out the most recent attempt to entrench even basic rights in our Constitution was an abysmal failure.
You may recall the 1988 referendum where of four questions submitted to the Australian people. The second question was as innocuous as guaranteeing "one vote, one value", by requiring that the population count in each electorate not deviate by a figure of more than 20 percent from any other.
The fourth proposal of the referendum was also conservative and sought to extend to the States the right to trial by jury, to extend freedom of religion, and to ensure fair terms
for persons whose property was acquired by government.
The result was a "yes" vote on the second proposal of only 37.10 percent and in respect to the fourth proposal a yes vote of only 30.33 percent.
The reality is that the issues involved in attempting to entrench a constitutional bill of rights in our Constitution would be, or would be perceived to be, so complex that, in my opinion, it would be a gross waste of public resources to even attempt a referendum to achieve it.
I am of the view, therefore, that the only way forward is to consider a statutory bill of rights.
An Inclusive Process
Unless the procedure to introduce a legislative Charter of Rights is an inclusive process it will not be accepted as a document by and for the Australian people. It would be tarnished as the creature of self-interested politicians.
Indeed, I think one of the major failings of section 128 of our Constitution, which provides for Constitutional change through referenda, is that, by necessity, referendum Bills must be initiated by what the nay savers can describe as the political elite.
There is no doubt in my mind, therefore, that the approach being taken by the New South Wales State Government is the correct one. That is, involving the community in the process by receiving both written and oral submissions as to firstly, whether a bill of rights is warranted and secondly, if so, what form should it take.
It can be argued that a statutory Bill of Rights is inadequate because it could so easily be changed. This is because each and every Parliament is supreme in its own time. Parliament cannot be bound by nor can it bind a future Parliament and hence any piece of legislation can be amended.
It possible, however, to partially entrench a legislative Charter of Rights through, for instance, prescribing that the Charter of Rights will prevail over any other piece of legislation unless a subsequent Act specifically contained a "notwithstanding" provision. Such a mechanism, for example, exists in the Canadian Charter of Rights and Freedoms where it is possible to enact legislation which is inconsistent with the Charter", by providing that the legislation is intended to have operation "notwithstanding" the operation of the Charter.
The mere fact that a Parliament is required to specifically acknowledge that it is legislating contrary to the Charter of Rights is, in itself, a powerful disincentive and it has only occurred in exceptional circumstances.
Parliament not the court as the final arbiter:
One of the major road blocks to previous attempts to enact a Bill of Rights is the argument that too much power would gravitate to the Courts and away from the democratically elected Parliament.
There may be, for instance, policy reasons for implementing reverse discrimination, such as prescribing set parking spots for disabled drivers or setting aside particular rooms for mothers to change young infants. The responsibility of citizens to vote in an election is another good example where Parliament would wish to confirm an obligation which might otherwise offend against a right to participate or not participate in the political process. There is always the danger that an overly technical interpretation of any piece of legislation can subvert its purpose and intention.
To get around that situation both the New Zealand and Great Britain Bills of Right provide that while the courts are entitled to make declarations of inconsistency with the Bill of Rights their role is simply that, one of effectively providing an advisory opinion.
If such a declaration is made by a Court in those countries then the subject Legislation is returned to Parliament for consideration and Parliament can elect to either amend the legislation, or, notwithstanding the decision, to confirm its desire for the enactment to remain on the statute books.
Scrutiny of bills before enactment:
Canada has a sophisticated system of executive scrutiny of bills before enactment. Any bill coming before the Parliament must first be considered by the Attorney General's Department which advises the Parliament whether the Bill is in conformity with the Canadian Charter of Rights and Freedoms.
The concept of such scrutiny of bills is, I believe, desirable however, it is my view that a model suggested by George Williams is far more sophisticated. Mr Williams has proposed that a parliamentary committee be established to advise Parliament on the extent to which bills comply with the Charter of rights.
In my first term in Parliament I served on the joint standing committee on Treaties, which was a broadly based committee made up of both members of the House of Representatives and Senators with representatives from all parties.
The role of the Treaties Committee is to examine international instruments before they are ratified. The Committee has a target of 15 sitting days within which it aims to report
to Parliament on the desirability of Australia ratifying any particular treaty. There are, on occasions, circumstances in which, a longer period is requested.
As part of its examination of treaties the Committee advertises its inquiries and invites submissions from the public. It is, I believe, a successful example of participatory democracy where members of the community have the opportunity to express their concerns or support for a particular treaty action.
Indeed, there are examples of many other successful Committees which have provided the opportunity for Australians to have their say with respect to the effect of legislation before it is introduced.
As George Williams argues such a committee structure would serve two purposes.
It would allow the vetting of legislation before enactment so as to reduce the likelihood of Commonwealth legislation breaching basic freedoms. It will also build parliamentarians and members of the public into the rights protection process, the later through their right to make submissions to the committee. This should contribute to a greater understanding of such issues by parliamentarians and the Australian people through media coverage of committee deliberations, submissions and reports.
It may be necessary to give such a Charter of Rights Committee a wide discretion to refer its particular responsibilities to another specialist Committee of the Parliament that might be considering a specific Bill but those matters can relatively easily be addressed to ensure that that there is no unnecessary duplication of resources.
Contents of a Charter of Rights and Aspirations:
Again, it would be entirely counter-productive to thrust upon the Australian people a Bill of Rights created solely by politicians without their input. In other words, the Charter of rights should, include principles desired by the overwhelming majority Australian people.
This would, I imagine, result in a Conservative document and probably one which would protect a relatively narrow or span of rights.
Nevertheless, the alternative of including an extensive and detailed list of rights would have several dangers. The most significant, as history demonstrates, is evoking opposition on substantially tangential issues.
Previous attempts to enact a Bill of Rights met with strong opposition from those to either argued for or against the inclusion of a right to life and, specifically, whether the right should be extended to unborn babies.
There is also a danger that expression of specific and detailed rights could have
unforeseen consequences. For example in New Zealand and Canada, inclusion of the specific right to legal counsel before detention resulted in hundreds of random breath tests being set aside.
If the focus was on a relatively narrow span of widely accepted rights expressed with broad language there is no need to enter into the minutia of those controversial and destructive debates.
The inclusion of a statement of Aspirations:
I am particularly attracted to the inclusion of a statement of aspirations in a second and discreet Part of the Charter of Rights which would not be reviewable in a court of law.
I would envisage that such a statement of aspirations would nonetheless be something requiring the attention of the Joint Standing Committee on the Charter of Rights or other properly designated Committee. In other words, the Committee would be entrusted to specifically advise Parliament of the impact of a particular Bill on the rights of Australians, either individually, or collectively.
A precedent for the inclusion of such aspirations is of the South African bill of Rights which, for instance, contains a reference to the separate aspirations of equitable access to natural resources, housing, health care, food, water, Social Security and education.
In respect to some of those aspirations, the S.A. Bill of Rights states:
The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. âï¿»ï¿»ï¿»
Should a Charter of Rights and Aspirations Bind the States and Territories:
The defence of States rights was a significant reason for the failure of previous attempts to introduce a Bill of Rights.
The concern is that being a Statute of the Commonwealth Parliament, a Federal Charter of Rights could be expressed to prevail over state legislation by virtue of the operation of section 109 of the Constitution.
In the context of legislative action concerns for State and Territory rights could be addressed by specifically acknowledging the right of the States and Territories to legislate inconsistently with the Charter provided they use the mechanism of a "notwithstanding clause". This would itself provide some disincentive from departing from the terms of the Charter and, at least, would have the effect of ensuring that the impact on human rights would become part of the debate.
Given that the main thrust of the emphasis I am proposing is one of developing a consensus for a national standard I am inclined to the view that a Federal Charter of Rights should apply only to Federal rather than State or Territory executive action.
That is not to say that the Charter should not be developed as a model which could be voluntarily applied throughout Australia to all legislative and executive action. Change of this sort should move with broader community acceptance and success of an effectively working Federal model would be the best endorsement for application at a State and Territory level.
Summation and Conclusion
The Australian Labor Party has been the only political party that has advocated a Bill of Rights for Australia. At the 1942 Constitutional Convention the then Attorney-General H.V. Evatt, proposed a draft bill to guarantee religious freedom and freedom of expression. The proposal, like subsequent proposals was unsuccessful.
In 1969 the late Lionel Murphy QC moved an amendment to the platform of the Australian Labor Party to call for both constitutional amendment to safeguard civil rights and liberties and for complimentary Federal and State legislation. The aspiration for a Bill of Rights has remained in the party platform since that time.
On winning office in 1972, the Whitlam government signed the International Covenant on Civil and Political Rights and then introduced a Federal Bill of Rights in late 1973. The Bill of Rights 1973 lapsed when Parliament was prorogued on 14 February 1974 and it was not subsequently re introduced.
In 1983 - 84 the Hawke Labor Government reaffirmed its commitment to the introduction of a Bill of Rights and while a draft bill received cabinet approval it was not introduced into Parliament prior to the December 1984 Federal election. After the election the Attorney General, Lionel Bowen, introduced the Australian Human Rights Bill 1985 which was passed by the House of Representatives but failed to gain majority support in the Senate and was finally withdrawn in November 1986.
Having been discouraged by previous attempts, in 1988 the Labour Government attempted to introduce limited rights by way of constitutional amendment in a referendum put to the Australian people on 3rd September 1988. As previously indicated the result was a disappointing failure.
Based on history alone one could not be criticised for lack of optimism in pursuit of the long-standing policy commitment to an Australian Bill of Rights. However, history has moved on and we have seen New Zealand, Canada and, most recently Great Britain, all common law countries, introducing Bills of Right for their citizens.
With technological advances we are seeing ever increasing powers being given to law
enforcement agencies to enable them to utilise that technology against law breakers who have their own access to that technology. In the process, however, there is the capacity for the government and the executive to increasingly intrude into the private lives of Australian citizens.
We have also recently seen the Australian Electoral Commission providing personal details regarding Australian citizens including age and occupation to the Government for the purposes of a targeted political mail out. We have also seen the Australian Taxation Office selling information regarding private citizens and businesses, provided under compulsion, in the course of making an application for an Australian Business Number.
Despite a deal between the Federal and Northern Territory Governments we remain with a situation in this country where juveniles can be arbitrarily detained at the will of the legislature rather than judicial sentence after a fair trial.
There has never been a greater need for an Australian Charter of Rights.
I must again confirm that the views expressed in this speech are my own rather than the reflection of a considered debate within the Australian Labor Party. Further, on the basis of experience, a Bill or 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, at least at joint parliamentary level, to canvass the views of the Australian people as to firstly whether they want an Australian Charter or Bill of Rights and, if so, what concepts do they consider 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 by way of legislation rather than constitutional amendment; âï¿»ï¿»ï¿»
By enabling future Federal, State and Territory parliaments to legislate in a manner which is inconsistent with the Charter of Rights provided that they specifically acknowledge that fact through the mechanism of a "notwithstanding clause";
By ensuring that the Courts are empowered to give only declaratory opinions as to inconsistency with power remaining in the Parliament to either amend or reaffirm its original legislative intention.
I strongly believe that it would be extremely beneficial to extend the debate beyond mere rights and to publicly discuss the concept of a Charter of Rights and Aspirations. 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 which are fundamental to the standard of living of all Australians but, in particular, Australians who live in rural and regional areas.
While I would not recommend that the Courts be granted jurisdiction to review legislative and executive action in terms of those Aspirations they are nonetheless matters worthy of scrutiny before any legislation is introduced to the Parliament. Utilisation of the parliamentary committee process through, perhaps, a Joint Standing Committee on Rights and Aspirations would shift the focus from the current obsession with all things economic onto the practical effect of legislation on individual Australians, Australian families and Australian communities. Such a committee process would also provide the opportunity to re engage Australians in the political process by affording them the opportunity of having a direct say in the legislative process by way of written or oral submissions.
Such a form of participatory democracy would go some little way to evening up the score in favour of individual Australians and Australian families over more powerful sectional interests which tend to have a disproportionate influence over the political process because of their access to decision-makers through full-time professional lobbyists.
Whatever way you look at it, Australia as a nation and Australians as individuals are the poorer for not having a document setting out our own national standards regarding fundamental rights and the aspirations of the Australian people. Experience has taught us that progress in achieving that goal must be incremental but more importantly must be fundamentally inclusive so that the ultimate document is genuinely one which is by and for the Australian people.
Authorised by Geoff Walsh, 19 National Circuit, Barton ACT 2600.