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Bill of Rights

SUSANNA LOBEZ: Some say the question of whether or not we have a Bill of Rights is more important than if we have a republic. Now, this week in Sydney, the Australian Rights Congress will debate the Bill of Rights question. The Congress is supported by the Law Council of Australia, the Australian Law Reform Commission, and others. It's open to the public and I'll give details later. I invited barrister and spokesperson for the Victorian Council for Civil Liberties, Alan Goldberg QC, and from Monash University, Associate Law Professor Jeff Goldsworthy, to help me thrash out some of the issues. For instance, how far would a Bill of Rights curtail Parliament's power? Is that democratic? What role should the High Court play? And would a Bill of Rights play an educative role?

ALAN GOLDBERG: ... an educative role, and that's why you need a Bill of Rights. You need a Bill of Rights as a beacon, Susanna. The problem is: Do you want the High Court to state principles from time to time as a particular case comes up, or do you want to have a charter of a Bill of Rights that can be identified? The problem with what the High Court is doing, it can only seize upon a matter as it occurs in a particular context. So you don't know where the High Court is going on particular issues. Much better you entrench a Bill of Rights in the legislative framework so people know what their rights are, and by that, by doing that, you have an educative process because then you can discuss it. You can discuss what's there, not what might be.

JEFF GOLDSWORTHY: As far as the argument about an educative role goes, that could be fulfilled quite adequately by the enactment of a Bill of Rights which the judges are not given power to enforce by invalidating Acts of Parliament. For example, New Zealand in 1990 adopted a Bill of Rights that is not judicially enforceable in that way. The judges were not given the power to invalidate Acts of Parliament. The Bill of Rights operates in other ways. Nevertheless, it could still fulfil an educative function. I think opponents of a Bill of Rights here are not necessarily opposed to a Bill of Rights as such or in any form. The strongest arguments against these proposals are arguments against giving judges the power to invalidate Acts passed by Parliament.

SUSANNA LOBEZ: Well, what do you think that the strongest argument is, Jeff, in favour of putting a Bill of Rights in?

JEFF GOLDSWORTHY: Well, I think the strongest argument is clearly that there are some laws that are enacted by our parliaments that are unjust, that do infringe on people's rights. I don't think anyone would deny that. No one is going to stand up and say that the system of parliamentary democracy we have here is a perfect one. Democracy is never perfect, it's always messy. So that clearly, that's the strongest argument, and the question is whether there are counter-arguments of greater weight.

ALAN GOLDBERG: We have a constitution that divides power between the States and the Commonwealth Government, and the problem is, law essentially is a restraint on arbitrary power, and what you've got to ensure is that bureaucrats, government, institutions, don't exceed their power, and that's what we're concerned about. Originally, the founding fathers wanted to commit the right to protect our civil liberties and our human rights to the Parliament because, traditionally, parliaments were seen as the bulwark, if you like, against the monarchy in 16th, 17th, 18th century England, and that's what led to what happened around 1900. But those days are gone now. Parliament is not the protector of rights and liberties. In recent times, Parliament has been the invader of rights and liberties, and witness, for example, every now and again, the High Court says: You can't do that. And of course the law is observed. Much better we know in advance, though.

SUSANNA LOBEZ: Well, the High Court has certainly been fairly activist in the last couple of years in finding and seeking out these implied rights in our constitution. So, even though our constitution is fairly bare bones, do we really need a Bill of Rights to sort of spell it out, Jeff?

JEFF GOLDSWORTHY: Well, I think it depends on whether you regard those recent decision of the High Court as legitimate or not, I happen to take the view that they're not.

ALAN GOLDBERG: Oh, but they have to be legitimate, Jeff, the High Court said so.

JEFF GOLDSWORTHY: The High Court can clearly be wrong if you take the view that whatever the High Court says is right, that in fact it's infallible. I don't think you can back that up with a plausible theory of law, frankly.

ALAN GOLDBERG: But you have no appeal from the High Court, do you?

JEFF GOLDSWORTHY: No, you have no appeal, but nevertheless, you can still criticise their decisions as wrong. I don't think we should get sidetracked into those recent decision. It's still unclear just how far the court will go in saying, or holding that there are implied rights in the Constitution, and I don't think that is really good grounds for saying that we should not enter a debate about whether to have an express Bill of Rights inserted by proper formal amendment through a referendum.

SUSANNA LOBEZ: So a Bill of Rights, in effect, is something that circumscribes the power of Parliament to protect the individual from the power of the majority, you might say.

JEFF GOLDSWORTHY: Well, that's the argument that is often made. I think Alan is exaggerating to say that lately Parliament has been violating rights more often than in the past, if that was his suggestion.

ALAN GOLDBERG: Well, I mean, there's more particular examples, Jeff, that have got a lot of publicity.

JEFF GOLDSWORTHY: In recent years, our parliaments have been enacting all sorts of statutes which protect rights - Acts against racial discrimination, Acts against sexual discrimination. In fact, I don't think politicians or the general public, for that matter, have ever been as conscious of the need to protect rights in the past as they are today.

ALAN GOLDBERG: But then you get the political broadcast case, for example, Jeff, which highlighted the issue. The political broadcast case, I guess, was the one that says: Hey, we do have a freedom of speech here in a representative-elected democracy.

JEFF GOLDSWORTHY: Well, I think we might disagree about that. I think there are .. I mean, if you look at the legislation, the legislation was to prohibit political advertising before elections for a certain period. To replace that, broadcasters - radio and television stations - were required to offer a certain amount of free time for the broadcast of political messages. Now, the legislation was justified on various grounds. One of the grounds was that in fact so-called freedom of speech is very unequally distributed at the moment. People with a lot of money - individuals or corporations - ....

ALAN GOLDBERG: And a lot of power.

JEFF GOLDSWORTHY: ... and a lot of power - can buy time on radio and television. One of the justifications for the legislation was that in fact it was going to improve our democratic system by making access to the media more equal. A second justification was that it was going to make Members of Parliament and political parties less indebted to contributors of the massive amounts of funds that are required to advertise.

ALAN GOLDBERG: But the High Court didn't see it that way, did they, Jeff?

JEFF GOLDSWORTHY: No, the High Court didn't see it that way ....

ALAN GOLDBERG: And they found an implied freedom, didn't they?

JEFF GOLDSWORTHY: That's right. And that brings us, actually .. I think it's an excellent example which brings us to the main objection to giving judges the power to enforce a Bill of Rights.

ALAN GOLDBERG: But that's the very point, you see. You don't need to give it to them. If you establish a Bill of Rights, you won't get this incremental working out like the High Court has been doing. You need a Bill of Rights to avoid the very issue that you're concerned about.

JEFF GOLDSWORTHY: No, but you see the objection would be there, even if the High Court had struck down that legislation on the basis of an express constitutional provision guaranteeing freedom of speech. In most cases in which someone stands up and says: 'My right to freedom of speech or my right to this, that or the other is being violated', in most of these cases, there are very good arguments on the other side.

SUSANNA LOBEZ: Like: 'My right to privacy is being violated'.

JEFF GOLDSWORTHY: Or our right as voters and as citizens to have a system in which there is a reasonable amount of equality in access to the mass media. And that, as I said, was one of the main justifications for the legislation that the High Court struck down. Now, the whole purpose of having a democracy is that where there is debate about whether someone has a right, to what extent he or she has this right, to what extent it's outweighed by other considerations, the whole purpose of the democracy is that those sorts of disagreements are settled democratically, and ....

ALAN GOLDBERG: And people are allowed to express their views, and that's what the court was concerned about. There was a limitation, wasn't there?

JEFF GOLDSWORTHY: The High Court was concerned about wealthy individuals and corporations having freedom of speech.

SUSANNA LOBEZ: But, surely, Alan Goldberg, Jeff's point is that quite often, when there is an entrenched Bill of Rights, as we see, for instance, in America, you do end up with a lot of American Supreme Court judges having a very significant impact on those rights.

ALAN GOLDBERG: That's only because they have to interpret those rights, Susanna, the same as they have to interpret any legislation to see whether it exceeds power or not. The advantage of a Bill of Rights is you have an express identification and statement of freedoms. You don't then need the High Court to be going into these exercises that Jeff doesn't like, and others don't like, of finding implied freedoms, implied in the structure of the Constitution, implied in the structure of a democracy, implied in the structure of the chapter that deals with the judicial system. You don't need to have it articulated in what has become a bit of a tortuous way, case by case. You have it stated there publicly, openly and unashamedly.

JEFF GOLDSWORTHY: I also would much prefer an express Bill of Rights inserted in the Constitution by formal amendment through a referendum, as the Constitution requires. I, myself, would prefer that to the High Court giving us one without asking our permission through a referendum, which I think is quite improper. Nevertheless, I would argue that even an express Bill of Rights is still open to some important objections. Now, I'm not saying that an express Bill of Rights doesn't have certain advantages. As I said earlier, there are laws that even I would agree are clearly unjust, and other things being equal, I'd like to see the court being able to strike those laws down. But I think we've got to realise that there's a price to be paid. And just to reiterate to some extent, the price is this: For every law that is clearly unjust, there are a whole lot of laws in which basically the question is one in which people can take reasonable views on both sides. And the question is whether, in those other cases, which I think are much more numerous, the question is whether in all those other cases we want our elected representatives in Parliament having the final decision which, after all, is what democracy is all about, or whether we want a very tiny group of people - seven judges - and a majority of four can have the final say ....

ALAN GOLDBERG: Oh, fair go.

JEFF GOLDSWORTHY: ... whether we want them being able to have the final say.

SUSANNA LOBEZ: So it's a fundamental question of democracy, you say, Jeff Goldsworthy. Alan Goldberg.

ALAN GOLDBERG: I see it as a fundamental principle of democracy, too, because law must conform with fundamental principles of law and fundamental principles of natural justice. I can see no problem with the High Court interpreting a Bill of Rights as compared with the High Court interpreting a migration Act, a broadcasting Act, an Act on interstate trade, or any of that nature. At the end of the day, you have to have an institution like a High Court, like the Supreme Court in the United States of America, that says: Is a government exceeding its power? Are bureaucrats exceeding their power? You have to have a restraint on the arbitrary exercise of power. And I defy Jeff or anyone else to tell me a better institution to do it than a court of competent lawyers. I don't see the High Court at all as a dangerous branch of government; others do. With respect, I think they're wrong. I know there are some decisions of the High Court that people think have gone a long way with their implied freedoms, like the political broadcasts case, like the one on defamation law. Some people are concerned about the Mabo decision, but at the end of the day, what the High Court is doing there is articulating freedoms and rights. If you have a Bill of Rights, you've sifted through the community, you've sifted through a referendum, and you know what the will of the people is.

JEFF GOLDSWORTHY: The way Alan has put it, it's as if once you've got a Bill of Rights, you've got clearly demarcated limits to the authority of parliaments, and then you get the judges to simply enforce those limits. And this looks like the judges are being asked to do what they do in other cases, but in fact, if you look at a Bill of Rights, the clauses are very, very abstract, very sweeping. None of the rights are absolute, it's always a matter of balancing against other rights, other community interests. These questions are inherently political, they are inherently controversial. It's not a matter of the court being able to come to some clear cut legal solution. These are political questions, and by enacting a Bill of Rights and asking the judges to enforce them, even if necessary by invalidating Acts of Parliament, what we're saying is we're going to transfer the right to decide those inherently controversial political questions, we're going to transfer that authority from our parliaments to our judges.

SUSANNA LOBEZ: You're with the Law report on Radio National, and we're exploring the pros and cons of a Bill of Rights with Alan Goldberg QC, and Associate Professor, Jeff Goldsworthy. So, contentious controversial questions might be transferred to judges, if they're the guardians of a Bill of Rights. But aren't judges already, in some cases, determining serious social issues?

ALAN GOLDBERG: Isn't it better to have the issue of a Bill of Rights come through the people by way of a referendum, which it would have to be, have it there rather than having a court, whether it be a High Court or any other court, decide from time to time on an increase in a liberty or a restraint on a freedom. I think it's much better putting it up there so all can see.

SUSANNA LOBEZ: I understand that there's been some concerns in New Zealand, Alan Goldberg, in relation to the High Court's interpretation of their Charter of Rights, I think it's called, and that is that when rights are bestowed on a group of claimants who bring their case to the top court, there are always costs to another group of society. And it's been suggested by some of the top judges that perhaps the courts should have before them, as would a parliamentary committee, the information, almost the financial rationalisation of how much it's going to cost society to give this group that set of rights.

ALAN GOLDBERG: Susanna, there are certain fundamental rights and freedoms that you can't talk about in terms of cost or economic rationalism or money at all. There are certain fundamental rights. The right to live; the right to be free from oppression; the right to freedom of speech with certain limits, such as sedition and matters of that, and certain types of libel. There are certain fundamental rights that an be easily articulated, and it would be a sorry day for Australia for you, Jeff, and me, and all our listeners, if we had to weigh up every piece of fundamental legislation like that in terms of cost, how much. How much the right to trial? Oh, it's too expensive, so if the police arrests someone, put them in gaol, the police wouldn't have arrested them if they hadn't done something ....

SUSANNA LOBEZ: It would be very cheap.

ALAN GOLDBERG: Of course, it would be cheap. Now, you can't tell me we're going to come at that.

SUSANNA LOBEZ: What about the right to bear arms, though? On that argument, you know, that fundamental rights that everybody agrees are fundamental, the right to life. But in America, they've entrenched the right to bear arms, and it's caused hugh controversy.

JEFF GOLDSWORTHY: Look, no right is absolute, not even the right to life. We allow people to kill other people in self defence. There is no right which is absolute. You can put it in terms of trading it off against costs and burdens if you like, but that's the reality of it. Every right is subject to exceptions, to limitations. Take the case of censorship, of pornography. Now, 20 years ago, there was a great sort of libertarian wave through the Western world and everyone decided that censorship was a terrible thing. Today, interestingly, a lot of feminists are joining the sort of conservatives who previously advocated censorship, and feminists today, or a certain influential branch of feminists, are advocating censorship in the interests of women.

SUSANNA LOBEZ: Now, if there was a free speech element to a Bill of Rights, those feminists wouldn't have a leg to stand on. Is that what you're saying?

JEFF GOLDSWORTHY: No, I'm not saying they wouldn't have a leg to stand on, but I'm saying, instead of the issue being settled democratically and instead of those feminists persuading their fellow citizens that we need to regulate this kind of pornography more heavily, instead of that, the whole issue is transferred into a court. And instead of citizens arguing about it and having the power to decide it themselves or through their representatives, it's handed over to a bunch of judges, and those judges then decide whether they think it's a good idea or not.

SUSANNA LOBEZ: So then we come back to there's the judges weighing this dilemma; we've got freedom of speech on the one hand which, let's say hypothetically is entrenched in a Bill of Rights; and then we've got a bunch of people saying: Our sexual privacy is being invaded, we're being offended ....

JEFF GOLDSWORTHY: Our right to be treated as equals in society.

SUSANNA LOBEZ: ... our right to be treated as equal, respected ....

ALAN GOLDBERG: You've got to balance them, I accept that. The Americans have a doctrine of clear and present danger that they've interpreted into their constitution. Every right has a correlative duty. If I have a right to a freedom, I have a duty to allow and accord that freedom to someone else. Of course, it's balancing, Susanna, because legislation .. the written word is such that you can't anticipate everything that might occur in the future. But at the end of the day, you must have a charter by which people can identify their rights and their duties - and I emphasise 'and their duties' - and regulate their behaviour and the behaviour of government.

SUSANNA LOBEZ: And you think judges are better at doing that balancing exercise than parliamentarians?

ALAN GOLDBERG: No, I'm saying you need a combination. You need a combination of an entrenched Bill of Rights with obviously a need for interpretation. At the moment, what you've got, you haven't even got a Bill of Rights. Jeff would say what we've got today is infinitely worse because the High Court is finding these rights incrementally by implication. I'm saying: Bring it out in the open. What you said - let me just finish on this note - the High Court has filled a gap. Parliament has failed. Parliament has failed. That we need to educate the politicians on all sides of the Chamber to realise you've got to do something about it. Don't complain about the High Court, I say to the politicians, assume the burden yourself. Assume the burden yourself, and then you won't have the need for this complaint to the same extent.

SUSANNA LOBEZ: Well, quite often, the parliamentarians actually shy away from some of those very hard, contentious, philosophical, debatable ....

ALAN GOLDBERG: And that is a cop out by them. That's their job on behalf of the community.

JEFF GOLDSWORTHY: Can I ask Alan, is this argument that the politicians have copped out by not putting forward a Bill of Rights?

ALAN GOLDBERG: Yes. Absolutely.

JEFF GOLDSWORTHY: But what if they take the view that I'm putting forward that maybe a Bill of Rights isn't such a good idea? Are you ....

ALAN GOLDBERG: In that case, they can't complain about what the High Court is doing. You then put up or shut up.

JEFF GOLDSWORTHY: So you're suggesting that the High Court has some power that it's not given anywhere in our constitution to change our constitution if they think it's a good idea ....

ALAN GOLDBERG: No, they're not doing that at all, but they are criticised by you and other commentators for exceeding their function, by legislating when they've got not the right to legislate. I'm saying, where there's an abrogation, a function by Parliament, the High Court will strain to ensure that the law conforms the fundamental principles of natural justice, and that's all they're doing.

SUSANNA LOBEZ: And you think a parliamentary committee could perform pretty much the same function, Jeff?

JEFF GOLDSWORTHY: Well, I'm not saying it could perform the same function. Look, democracy is not perfect, and it will always be messy, it will always make mistakes, and the question is whether we prefer to work through that imperfect system or whether we prefer to take a step that many regard as very regressive. Now, if you go back 200 or 300 years ago, where ordinary people were still struggling to gain a right to participate on equal terms in the decision-making at the highest levels of government, to get a right to vote, to elect Members to Parliament, a lot of people in those days said: Look, ordinary people shouldn't be able to have this right to participate in political decision-making, it should be ....

SUSANNA LOBEZ: It should be only the rich and the educated.

JEFF GOLDSWORTHY: It should be a small group of educated people. Now, are we going back to a situation where we think that seven judges, because they're highly educated, because they're lawyers, because they have a kind of upper middle-class morality that we approve of, that they should have this right to veto decisions that ordinary politicians, okay, with all their imperfections, representing ordinary people with all their imperfections, the decisions that they have made.

ALAN GOLDBERG: Susanna, the point is simply this: Parliament legislates and the judges should interpret the law. It's not for the judges to make the law. The complaint is that the judges are making the law. The judges are finding the law, and I agree, in some of the cases it seems that there might be straining propositions, yes. Nit-picking you may say, but the fact is, Parliament is the legislator, Parliament is supreme because it represents the will of the people. At the end of the day, words are an inadequate instrument to express ideas. So the courts have to interpret, and if the courts find that Parliament has gone too far because of either an express provision in the Constitution or an implication in a Constitution, the court then says: Thus far, and no further.

SUSANNA LOBEZ: The ordinary person out there in the community who is just starting to think about whether or not we should have a Bill of Rights, just as they're starting to get their head around whether or not we should have a republic, what would you want them to be asking themselves?

JEFF GOLDSWORTHY: I think, personally, that this issue is potentially more important than the republican issue, especially if what we're talking about is some sort of minimal republicanism. But what I would like to be recognised is that there are in fact some good arguments against a Bill of Rights. You know, it sometimes seems to people that if you're against a judicial enforceable Bill of Rights, then somehow you're against rights, and how could that possibly be? You must be a very unreasonable person.

SUSANNA LOBEZ: Alan, what would you want people to be thinking?

ALAN GOLDBERG: I want people, Susanna, to start looking at a publication that was launched two weeks ago by Sir Zelman Cowen, a publication put out by the Victorian Council for Civil Liberties and the Legal Aid Commission called Talking Rights, a Bill of Rights for Australians, and it asks the question. It's a booklet that puts the arguments on both sides. Council for Civil Liberties wants to inform the community and make them more aware. We want to inform everyone, all your listeners, and all the people who make up our community, as well as the politicians, and they should read that booklet and listen to the debate and discuss it amongst their friends and with their colleagues. You need to raise the level of the debate, as Jeff says. People need to be informed to have a clear understanding. Hopefully, by a better understanding, they'll have a much better understanding of the institutions of government, the institutions of the court, and a protection of their rights. That's what I would say.

SUSANNA LOBEZ: And it sounds like you both agree that the politicians should start off by reading that as well.

ALAN GOLDBERG: Indeed, so. And it's available for anyone who wants it from the Council for Civil Liberties.

SUSANNA LOBEZ: Alan Goldberg, QC, thanks indeed for joining us for this discussion. Jeff Goldsworthy from Monash University, thanks indeed for coming in.