Will ostriches back a Bill of Rights?

Australia’s proposed Bill of Rights would not affect the validity, operation or enforcement of any Commonwealth law, but it does embody judicial remedies. For instance, if a court were satisfied that a provision of primary legislation was incompatible with a right or freedom set down in the Act, it could make a Declaration of Incompatibility that would be presented to the federal attorney-general. The attorney-general would be required to present a copy to the House of Representatives within 15 sitting days of receiving it and prepare a written response to the House within six months. Similarly, a court could order a public authority to pay compensation damages.

The draft encompasses expected areas, such as freedom of thought, conscience, religion and belief; peaceful assembly; and freedom of association and freedom of expression. It also has broader concerns including the rights of Indigenous peoples, rights to education, rights to work and well-being and health.

The organisers hope all states and territories will develop their own complementing Bill of Rights. The ACT has already passed one and Victoria is working on its own. This is important because state governments have responsibility for areas not covered by federal government authority. For instance, police services are state-run but could be involved in operations influenced by federal anti-terrorism legislation.

Dean of Queensland University of Technology law school and former federal attorney-general Michael Lavarch believes the Bill is needed to guard “against arbitrary and poor decisions by government. We need clear statements of rights so legislation can be compared against (human rights) principles … to make sure institutions and government are operating effectively,” he said.

Associate Professor Spencer Zifcak, of Griffith University, who led the drafting process, said three years ago he could not have entertained the idea that a government and high court would have abrogated responsibility to the extent of holding someone in detention indefinitely. Now it was enough to suspect someone of being dangerous. The Bill, which he said went no further than United Nations Human Rights treatises, would act as a set of navigation lights to gauge how much can be sacrificed in national security interests.

So back to our ostriches with their heads in the sand. The promoters of this draft Bill of Rights, whose principles could well appeal to parliamentary members irrespective of party, has at least two substantial hurdles to overcome: one is a federal government that controls both houses, and the other, the inertia of people who stick their heads in the sand. That’s what the German people did in the 1930s.