Ever since the Hawke government proposal for a modest charter of rights and freedoms was defeated in a referendum in 1988, the opponents of Australians enjoying a bill of rights have pointed to the fact that such a legislative measure was unnecessary because the common law already guaranteed our rights. Last week, the new British Prime Minister, Gordon Brown, debunked that myth, and in doing so undermined any rational objection to Australia adopting its own enforceable bill or charter of rights.
Mr Brown announced last Thursday that his government was beginning consultation on a statutory Bill of Rights and Duties. It was time, he said, to entrench liberty in the constitution. Brown’s speech, given to the University of Westminster, should be compulsory reading for Labor Leader Kevin Rudd and those Liberals who, unlike their leader John Howard, have an open mind on an Australian bill of rights.
For what Mr Brown does is to put the notion of a statutory bill of rights as something that naturally evolves from the common law tradition - the thread that runs through British and, by extension because of our history and practice, Australian society. Of course, unlike Australia, Britain does not have a written constitution, but this does not alter the fundamental need to root in our most sacred civic document, our rights and freedoms.
In his 2006 Australia Day Address, Mr Howard firmly squashed calls for an Australian Bill of Rights. Mr Howard argued, "A Bill of Rights would not materially increase the freedoms of Australian citizens. It will not make us more united, indeed I believe it would lessen our ability to manage and to resolve conflict in a free society. It would also take us further away from the type of civic culture we need to meet the challenges of today and tomorrow".
And three years earlier Mr Howard’s then Attorney-General, Daryl Williams, argued that the problem with a bill of rights is that unlike the common law which, because is constantly evolving to meet the challenges and expectations of the relevant times, a bill of rights would "freeze the values it represents - this is not the way to protect human rights".
Both of these arguments are debunked by Mr Brown’s speech last week.
Firstly, Mr Brown argues that in the 21st century, which has opened as a century of the information age, globalisation and terrorism, there is a danger that the concept of liberty can be sidelined. But to do so is to abdicate the responsibility for each generation to strengthen freedom and liberty. This is the story of Britain since the Magna Carta, argues Mr Brown. And, he says, "To each generation falls the task of expanding the idea of British liberty and to each generation also the task of rediscovering liberty's central importance as a founding value of our country and its animating force".
Secondly, it is nonsense to assert that a bill of rights in some way would, to use Daryl Williams’ phrase, "freeze the values it represents". That is because the values that a bill of rights, which preserves and enhances genuine liberty, would reflect are immutable, and therefore timeless. As Mr Brown said in his speech last week, "down the centuries the British people have come to demonstrate a shared belief that respect for the dignity and value of every human being demands that all be given the freedom and space to live their lives by their own choices, free from the control and unjustified interference of others".
Finally, those who oppose a bill of rights for Australians argue that we already know what our freedoms and rights are, and there is danger in codifying them. But as Mr Brown observes, such a view of the world is breathtakingly naïve. Given the plethora of legislative activity on a daily basis in democracies such as Britain and Australia it is difficult to establish with certainty what fundamental rights and freedoms each of us is entitled to believe are guaranteed. And there is a clear need for government itself to have a standard to test its own legislative proposals against – Mr Brown’s own proposals for “anti-vilification” laws will need to run the gauntlet of a rigorous standard on free speech, for example.
A bill of rights provides a solution to this dangerous dilemma, Mr Brown argues. "I share the concerns about the need for additional protections for the liberties and rights of the citizen. And I believe that one of the strongest guarantees is a clear understanding of what these rights are and that is more difficult with the very existence of hundreds of laws", he says.
Gordon Brown has provided a perfect blueprint for those Australian political leaders who genuinely believe that they have a responsibility to enhance our rights. Why doesn’t Australia take note of what is happening in the nation which shaped our legal and political system and follow suit?