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Tuesday, 5 November 1985
Page: 1560

Senator TATE(8.03) —by leave-I move:

That the Senate take note of the report.

The title of the report that I tabled earlier this day is `An Exposure Report for the Consideration of Senators, dealing with the Question of a Bill of Rights for Australia'. The title itself well indicates the nature of the task which the Standing Committee on Constitutional and Legal Affairs has undertaken. It will be for the Parliament as a whole to determine whether a Bill of Rights, either constitutionally entrenched or introduced by way of ordinary statute, is to be a feature of our legal political arrangements. It will also be for the Parliament to determine whether the improvement of existing human rights protections would be sufficient without the introduction of a Bill of Rights. In fact quite early, under `Executive Enforcement', the Committee acknowledges and canvasses that possibility.

As Australians we are fortunate to live in a democratic and pluralist society which by any standards accords a high respect to the dignity of the individual and which recognises many rights and freedoms consequent on that dignity. Many submissions referred to the comment attributed to the Chief Justice, Sir Harry Gibbs:

If society is tolerant and rational, it does not need a Bill of Rights; if it is not, no Bill of Rights will preserve it.

But that neat aphorism is not in itself sufficient to deny the desirability of a Bill of Rights for our society. It may be argued, for example, that a Bill of Rights for Australia could be simply justified as a national affirmation, an assertion of firmly held and firmly prized values of the Australian community. Furthermore, some consider it desirable to take advantage of the current relatively stable position of Australian society to introduce a Bill which could aid in the defence of fundamental rights and freedoms if threatened during any future societal turmoil or crisis.

The Committee examined the existing framework of protections of fundamental rights and freedoms and found it to be uneven in the protection it affords. Some of the protections are not formally institutionalised. There are, for example, inherent cultural traditions and values, such as the general community acceptance of the natural justice principle that individuals should get a fair hearing before being adversely treated. The media also play an important role in their scrutiny of public affairs and, in particular, in bringing to the attention of the populace information about and independent critical analysis of action impinging on fundamental rights and freedoms.

But there are some distinct formal elements in our constitutional and political arrangements which relate to human rights. These include constitutionally entrenched protections, the courts and the common law, the Human Rights Commission and the parliaments. The Committee outlined the strengths and weaknesses of each of these institutions and the contribution each made to the protection of fundamental rights and freedoms. For example, the Committee examined and evaluated the few constitutionally entrenched provisions in our national Constitution. We described as dispassionately as possible the work of the Human Rights Commission. A knowledge of the way it actually works may help dispel many misgivings about that organisation.

Perhaps our most useful analysis was of the sometimes mythical eminence attached to the common law. Whilst acknowledging achievements of the common law judges in developing legal process rights, the Committee is aware of the inadequacies of the common law in the area of substantive rights. Many Australians, for example, think that the common law protects their fundamental rights. However, fundamental rights such as the right to vote, the right to practise religion freely and the right to seek employment without being discriminated against on account of race or sex are not recognised at common law. It needs to be emphasised that all common law rights and freedoms are vulnerable. They are all subject to the principle of the sovereignty of Parliament. Finally, the Committee dealt with the role of parliaments, in which, as it will become apparent, it places great faith.

The Committee considered that if a Bill of Rights adapted to Australia's circumstances is contemplated, it should be drafted in a way which vitalises parliaments by keeping them aware of fundamental rights and freedoms and sensitive to the effect of their activities on such rights and freedoms. It should also require elected parliaments to take public responsibility for their adherence to or departure from any of the provisions of such a Bill of Rights. The question arises: What criteria, checklist or guidelines concerning fundamental rights and freedoms should the parliaments use or be conscious of when engaged in law making or in calling to account those holding executive power?

In the Australian constitutional context the content of a national Bill of Rights and its constitutional status are inextricably entwined issues. There is only unfettered freedom in determining the content of a Bill of Rights if the Bill is to be made part of the constitutional structure through the amendment processes of section 128 of the Constitution. There is no prospect in the foreseeable future of any such proposal passing section 128's onerous requirements. At the very least, there should be a trial period with a statutory Bill. Even if the trial were a success, the question of constitutional entrenchment would still need to be resolved.

The danger is that to constitutionally entrench Bill of Rights provisions is to entrench judicial interpretation of Bill of Rights provisions. Entrenchment would give to the judiciary the final word on many social issues and could, according to some submissions, encourage members of the judiciary to take an active role, imposing their own values and policies on governments and society and overriding policy decisions of elected parliaments. The process of judicial interpretation could result in provisions of the Bill being given effects not foreseen or intended by the framers of the Bill. Constitutional entrenchment would transfer a great deal of power to the judiciary in areas where parliaments have not only a right but also a duty to determine major social policies. A bench of non-elected judges, politically answerable to no one, should have no conclusive dominance over the elected representatives, certainly during the trial period envisaged.

These kinds of concerns led the Committee to the view that if there is to be a Bill of Rights it should, at least for the trial period, be contained in an ordinary Commonwealth statute. Politicians should remain electorally responsible for the shape of Australian society; that is, vis-a-vis the judiciary. Later I will describe how that underlying principle of the Committee's exposure report might work in a federal system.

I turn immediately to the content of any Bill of Rights. The Committee is of the view that if a Bill of Rights is to have maximum impact, it should be simple and clear. An available head of power, which will enable the enactment of a broad statement of fundamental rights and freedoms, is the external affairs power found in section 51 (xxix) of the Constitution. Of course the mere fact that constitutional power is available does not mean that it should be used. Using the external affairs power to implement international treaty obligations is politically a highly sensitive and controversial matter. It must be emphasised, however, that Australian support for the International Covenant on Civil and Political Rights over the years has been largely bipartisan. Australia became involved in the drafting process in the late 1940s under an Australian Labor Party Government. Under a Liberal-Country Party Government Australia voted in 1966 that the ICCPR be adopted by the United Nations and opened for signature. It was signed in December 1972 by an ALP Government and ratified in August 1980 by an LCP Government. Some of the declarations and reservations lodged at the time of ratification were removed late in 1984. The ICCPR already has some operations in Australia as part of the charters guiding the activities of the Human Rights Commission and the Law Reform Commission. Indeed, the Committee concluded that the rights and freedoms declared in the international covenant are such that any liberal democracy would wish to see most of them incorporated in its social arrangements. These considerations support the view that should the idea of a national Bill of Rights commend itself to the national Parliament, it should be based on and operate as an implementation of the rights and freedoms declared in the International Covenant on Civil and Political Rights. It is important that any Bill of Rights, whether based on the ICCPR or not, should make it plain that it is a minimum statement and that it does not intend to reduce any existing common law, Commonwealth or State legislative recognition or protection of rights. Any Bill should make clear that courts and State parliaments are free to supplement the Bill of Rights by giving recognition to rights and freedoms not recognised in the Bill and by protecting rights and freedoms to an extent or in ways not included in the Bill. It is not in any sense exhaustive of the rights and freedoms that we might enjoy. I note the presence of Senator Elstob in the chamber and I am sure he will be interested in that comment, given his submission to the Committee.

I turn next to the matter of federalism and to the inherent tensions of federalism. On the one hand, the pressure for fundamental rights and freedoms to be enjoyed across the nation is intense; on the other hand, the pressure for State autonomy and diversity must be acknowledged. Two other federal democracies, the United States of America and Canada, have wrestled with these problems and have developed quite different responses. The Canadian response has been developed recently in a country with a legal tradition similar to that of Australia. The Committee considers that many elements of the Canadian response could be adapted to Australia's circumstances as a possible way of reconciling for Australia the tensions and pressures mentioned above.

The Committee envisages a possible application of a Bill of Rights to the various parts of the federation in the following way and I shall deal with the Commonwealth itself first. If there is to be a Bill of Rights it should provide that all Commonwealth laws existing at the time of proclamation of the Bill which are inconsistent with the rights and freedoms of the Bill are, to the extent of the inconsistency, to cease to operate. Of course, there are many Commonwealth laws already on the books and some period should be allowed so that such legislation can be reviewed. A sunrise clause should be incorporated so that the Bill would not cause inconsistent pre-existing Commonwealth laws to cease to operate until the expiration of a prescribed period after the date of proclamation of the Bill. Three years would seem to be a more than appropriate period of grace.

Concerning future Commonwealth laws, it would be desirable that future parliaments observe the Bill of Rights when undertaking legislative activity and it should be the case that, without more, future Commonwealth Acts be taken to accept the governing character of the Bill of Rights. As an ordinary statute of the Commonwealth Parliament, a Bill of Rights itself would be subject to being displaced by future Commonwealth Acts. It would be desirable if future Commonwealth parliaments could only displace Bill of Rights provisions by express declarations in legislation of intention so to do.

As far as the Commonwealth Executive is concerned, powers and discretions created by statute should be bound by the Bill of Rights to the same extent that the parent statute is bound, as should inherent Executive capacity and the exercise of prerogative powers, which should also be subject to the Bill. As far as Cabinet decisions themselves are concerned, the Canadian court made Cabinet decisions subject to judicial review under the charter in Canada. This Committee doubts that it would be appropriate for Cabinet decisions as such to be subject to judicial review for compliance with a Bill of Rights.

I turn to the States. The Commonwealth, as the national government has a right, indeed a responsibility, to protect the rights and freedoms of all Australians. The provisions of the International Covenant on Civil and Political Rights expressly apply to all parts of federal states without any limitations or exceptions. Furthermore, as Mr Herlihy and Mr Lance argued in their joint submission before the Committee in Brisbane:

The level of protection of fundamental rights in Australia should not be determined on a State to State basis. All Australian citizens, regardless of which State they reside in are equally entitled to the same measure of protection.

The Committee did not consider it practicable to suggest that a national Bill of Rights override all inconsistent State laws as a brute exercise of paramount power without prospect of redress by the State legislature concerned. Nor did the Committee believe that the Commonwealth should simply retreat from the field and not put the States under any, even initial, obligation to comply with a Bill of Rights. The Committee believes that the presumption should be legislatively expressed that the rights and freedoms of the Bill apply to State legislation and executive activity. But in recognition of the federal system, that presumption should be subject to being displaced by sufficiently clear State legislation. The Committee thereby suggests a model for the application of the Bill which, whilst initially making its provisions available to all Australians, does permit State parliaments to take political responsibility for suspending the operation of certain provisions of this Bill. We saw no reason why the Commonwealth should assume this on behalf of the States, thus letting them off the political hook.

I turn to the effect of the Bill of Rights on pre-existing State laws. As at the Commonwealth level, State laws existing at the time of proclamation of a Bill of Rights should be subject to the Bill and would to the extent of any inconsistency be overidden by the Bill pursuant to section 109 of the Constitution. A sunrise clause similar to that applying at the Commonwealth level should delay the commencement of the overriding effect of the Bill of Rights.

As to future State laws, if there is to be a Bill of Rights it should apply to future State laws. Pursuant to section 109 future State laws would be overridden to the extent that they were inconsistent with the Bill. With the crucial exception of electoral rights, which are discussed below, a State legislature should be able to displace certain operations of a Bill of Rights by express declaration in an Act of Parliament that a provision or provisions of a Bill of Rights not apply to a particular State Act. In essence this framework would leave to State parliaments primary responsibility for decisions affecting their communities and would allow them even to override Bill of Rights rights and freedoms so long as they were willing to do so openly and to take political responsibility for their actions. But-and this is crucial-the displacement framework is an acknowledgment of the necessities of federalism and of the democratic legitimacy of State parliaments seeking to pursue policies which are supported by the communities which they represent.

The Committee is of the view that a State government or parliament can only legitimately claim to be entitled to suspend the operation of Bill of Rights provisions protecting the fundamental rights and freedoms of Australians if the government is truly representative of the Australians who live in the State. State governments which rely on or are assisted by gerrymanders or the exclusion of an arbitrarily designated group of residents-for example, women or racial groups, as has happened in Australia at various times in our history-cannot claim legitimately to represent the Australians who live in their States.

The electoral rights provisions of the Bill of Rights should be beyond reach of the displacement framework. It is to be noted that the Canadian Charter of Rights and Freedom does not allow displacement of democratic rights provisions. The aspect of the International Covenant on Civil and Political Rights concerned with electoral rights is article 25 (b) which provides:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

. . .

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

. . .

The Committee regards this article as so fundamental that it should not be subject to displacement by any State parliament.

I move to the effect of a Bill of Rights on State executive power. The application of a Bill of Rights to exercises of State executive power should parallel the application of the Bill to exercises of Commonwealth executive power. The Committee has put forward quite a novel model for the consideration and interest of honourable senators to enhance the debate to take place in this chamber. The model suggested by the Committee does permit a partial implementation of the International Covenant. Under the displacement framework either the Commonwealth or a State parliament could cause particular aspects of the Bill to cease operating and could to that extent reduce the Bill's implementation of the International Covenant. The constitutional issues associated with the displacement framework are novel and difficult. The Committee is divided in its view as to whether the displacement framework would be constitutionally valid. But it puts forward the framework and the preceding discussion of the constitutional issues as a contribution to the consideration of what are for Australia not only difficult but also extremely important issues.

The Committee considered, if there were a Bill of Rights, how compliance with it might be pursued through a combination of judicial and Executive remedies. The Committee sees a crucial role for a body in the nature of the Human Rights Commission in any framework. Australia has an international obligation to ensure that those whose rights and freedoms guaranteed by the International Covenant are violated have an effective remedy. Article 2 (3) of the Covenant provides:

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.

The question arises: What consequenses should flow from legislation or Executive activity being found to be inconsistent with a Bill of Rights? As to judicial remedies, any person or entity with sufficient standing should be able to obtain the traditional judicial remedies available when legislation is found to be invalid or when Executive activity is found to be unauthorised or invalid. Injunctions and declarations are amongst such remedies. Traditional judicial remedies also include the full range of tort remedies which can give rise to damages. Thus, for example, the seizure of magazines by a government official purporting to enforce censorship laws found to be inconsistent with a Bill of Rights guarantee of freedom of speech could result in the owner of the magazine succeeding in a trespass to goods, conversion or detinue action. Where a person is arrested under a law or in a manner that is inconsistent with a Bill of Rights provision release can be obtained through habeas corpus and, if appropriate, damages obtained in a suit for false imprisonment.

A special question which arises if there is to be a Bill of Rights is whether courts need specific direction in relation to the admissibility of evidence obtained in breach of Bill of Rights provisions. Such a Bill should provide that evidence obtained in a way that infringes rights and freedoms guaranteed by the Bill is excluded unless the exclusion would bring the administration of justice into disrepute. The onus of demonstrating that exclusion would produce this result should lie on the party seeking to have the evidence admitted. This rule would allow evidence to be admitted where the breach of the Bill of Rights was clearly trivial-for example, a failure to meet by a matter of minutes the deadline for performing some step in criminal procedure.

The role of the Human Rights Commission and Executive remedies is also canvassed in the report. If there is to be a judicially enforceable Bill of Rights, and hence the Human Rights Commission is no longer to be the primary Commonwealth means of securing human rights in Australia, the issue arises of the role of the Commission, or any successor to the Commission, under a Bill of Rights. The Committee considers that a body like the Human Rights Commission could have a significant role in the total arrangement for the operation of any Bill of Rights for Australia. But even if the Parliament were to decide against a judicially enforceable Bill of Rights the Committee sees merit in more closely confining a Human Rights Commission-type body to a conciliating role rather than a role more nearly akin to the judicial. However, the breadth of that remaining jurisdiction should more clearly extend to all components of the Federation.

As to the educational functions of the Commission, the Committee regards it as appropriate that a commission have educational functions which should include all matters relating to the Bill. The Committee regards the inquiry and reporting functions of the present Human Rights Commission as deserving of expansion if there is to be a body like the Commission under a wider Bill of Rights framework. In particular, inquiry and reporting could extend to laws, proposed laws, practices and actions of State, Northern Territory and local governments which are subject to the Bill of Rights. Consideration could also be given to allowing relevant State and Territory Ministers, in addition to the Federal Minister, to initiate inquiries.

Many people who made submissions were concerned with what is widely perceived to be litigiousness and confrontationism associated with the United States Bill of Rights. Conciliation performed in a manner similar to that performed by the current Human Rights Commission could be used to prevent a judicially enforceable Bill of Rights from contributing to the emergence or exacerbation of any such characteristics in Australian society. There has been much criticism of the present Human Rights Commission having a quasi-judicial determining role in addition to its educational and conciliatory roles. The Committee is of the view that if there is to be a commission as part of a wider Bill of Rights framework, the commission could be more effective in its educational and conciliatory roles and could contribute most to the overall arragements under a Bill of Rights if it had no determinative role.

Finally, the Committee looked at the question of international adjudication, but thought that that was more proper for discussion under a foreign affairs term of reference rather than in relation to changes in our municipal law. The Committee is of the view that the incorporation of international covenant rights and freedoms in a national Bill of Rights would have important international effects and would send a clear message to other nations of Australia's regard for such values and of Australia's regard for its international treaty obligations.

The Committee has, as directed by the Senate, scrupulously avoided consideration of any proposed Bill or Bills which have been mooted or actually introduced into the Parliament. This has had the advantage of freeing the senators who were members of the Committee from many of the constraints which come from party positions adopted in relation to specific pieces of proposed legislation. I believe the Committee has produced an exposure report which will help the Senate, not only in its careful description of the existing state of affairs but also in its imaginative proposals as to a possible model for parliamentary consideration. Insofar as it emphasises the dominance of elected representatives over the judiciary on the one hand, and a politically responsible relationship between the national and State parliaments on the other, I believe our federal democracy will be advantaged by the considerable effort put in by my honourable colleagues, as aided by members of the secretariat who are very properly acknowledged in the report. I emphasise once again the title `An Exposure Report for the Consideration of Senators', and it is in that spirit that I commend the report to the chamber.