We live in an age when our most basic rights cannot be taken for granted. It is no longer clear that over time the protection of our rights will improve. In many areas, the gains made over decades and even centuries are being eroded. It would not have seemed possible a few years ago but we are even faced with allegations of systemic torture against nations such as the United States as well as a host of other abuses.
Our own government has acquiesced in the detention without trial of Australian citizens held at Guantanamo Bay. Young children are routinely held for months and years in immigration detention. New laws also provide that any Australian, suspect or not, can be detained for questioning by ASIO for intelligence-gathering purposes. Even where someone is detained for up to a week under this regime, two years must pass before any abuses involving the operational activities of ASIO can be published in the media.
Back in 1967, former Prime Minster Sir Robert Menzies believed that “the rights of individuals in Australia are as adequately protected as they are in any other country in the world”. More recently, Prime Minister John Howard has echoed this in stating that “Australia’s human rights reputation compared with the rest of the world is quite magnificent”. These statements do not ring true today.
Australia is especially vulnerable to bad laws and to the undermining of our freedoms because we, alone among Western nations, lack a national Bill of Rights. Fortunately, from this month, Australia gains its first Bill of Rights, the Human Rights Act of the Australian Capital Territory. However, this Act only applies in the ACT and does not remedy the lack of a national instrument.
Even given its limited impact, the ACT Human Rights Act has attracted sharp comment from the Prime Minister, who has consistently opposed the idea of an Australian Bill of Rights and has described the ACT Bill as “ridiculous”. However, at a subsequent press conference, he also stated that he “strongly supports” the “adoption of a new constitution in Iraq, including a Bill of Rights”. It is not clear why a Bill of Rights is appropriate for the people of Iraq but not for the people of the ACT or of Australia.
Three things are clear. First, the current lack of protection for fundamental rights in Australia presents a compelling case for reform. We ought to respond with action to ensure that community values like the right to vote and freedom of speech are woven into the fabric of the legal system. The fact that we have no Bill of Rights reflects the views of the framers of our Constitution, who believed that basic freedoms were adequately protected by the common law and by our elected representatives. More than a century later, a Bill of Rights is needed as part of a modern, democratic Australia.
Second, any attempt to introduce an Australian Bill of Rights should not be based on innovation by the courts. Instead, it should be built on the commitment and participation of the Australian people and their elected representatives. This means that, at least initially, any Bill of Rights should be in the form of an Act of Parliament. Ironically, although human rights need to be protected against parliamentary action, it must be the parliaments themselves that take the lead in any move to entrench such rights.
Third, any move to bring about a Bill of Rights should be gradual. Certain rights should be protected initially in legislation, with further rights being added over time, before any constitutional change in the longer term. This was the path followed in Canada, where a statutory Bill of Rights was introduced in 1960 and a broader constitutional version in 1982. This incremental path is a pragmatic means of improving the protection afforded to the rights of Australians. It would allow for parliamentary supervision at each step, and would give the courts a well-defined role in fostering human rights without relying on them to resolve social, moral and political problems.
The need for an Australian Bill of Rights is made more and not less urgent by the events of recent years. While we do require strong laws to protect our rights to life and personal security from terrorist attack, we also need to ensure that these laws do not undermine our long-standing democratic freedoms.
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