May 23 marked the 60th anniversary of the coming into effect of the constitution of the Federal Republic of Germany, the so-called Grundgesetz (“basic law”). The groundwork for the new constitution had been prepared about a year earlier by a group of experts meeting at a resplendent 19th century castle on an island in Lake Chiem in south-eastern Bavaria. Seemingly inspired by the breathtaking scenery of the Bavarian Alps, it took the experts only two weeks to produce a draft constitution which remains the foundation of German democracy to this day.
A key objective of the drafters of the Grundgesetz was to create safeguards against the emergence of either an overly fragmented, multiparty democracy, similar to the Weimar Republic (1918-33), or authoritarian institutions characteristic of the Nazi dictatorship of the Third Reich (1933-45). One of those safeguards was considered to be the inclusion of a constitutionally entrenched catalogue of basic rights.
This catalogue contains an unequivocal commitment to the inviolability and inalienability of human rights and draws notably on the ten amendments of the US Constitution and the principles of the French Declaration on the Rights of Man. It opens with a proclamation that the dignity of man is inviolable and that its protection is the duty of all state authority. Articles 2 through 19 delineate basic rights that apply to all citizens including equality before the law; freedom of speech, assembly, the news media, and worship; freedom from discrimination based on race, gender, religion, or political beliefs; and the right to conscientious objection to compulsory military service.
The Grundgesetz specifically provides that the basic rights are binding on the legislature, executive, and judiciary as directly enforceable law. This means that the German parliament, the Bundestag, is obliged to consider the compatibility of proposed laws with the basic rights catalogue before legislation is enacted and, further, that the government is required to implement and enforce the laws consistent with basic rights standards. It also means that individuals can lodge constitutional complaints at the Federal Constitutional Court (Bundesverfassungsgericht). Such complaints may be filed by any person alleging that one of his or her basic rights has been infringed by public authority.
For 60 years, the basic rights catalogue has determined the development and the success of the German polity. In its area of application, it has bestowed on the citizens a life in liberty, democratic self-determination and personal responsibility, protected by law and justice. It has proved a stable foundation for the thriving democracy in (West) Germany that emerged from the ruins of World War II and saw reunification with East Germany in 1990. Most importantly, perhaps, the catalogue has provided a functional framework for effective responses in times of crisis. As such it has been instrumental in avoiding excessive emergency responses to left-wing terrorism in the 1970s and 1980s as well as to the threats associated with contemporary international terrorism.
What lessons can be drawn from the German experience? In particular, does the success of the Grundgesetz’s basic rights catalogue have implications for the current National Consultation on Human Rights in Australia? The answer is yes. There is no question that important differences exist between the German and Australian legal systems. Moreover, the Rudd Government has made it clear that the options identified through the National Consultation process should preserve the sovereignty of Parliament and not include a constitutionally entrenched bill of rights. Nonetheless, three key lessons can be identified:
First, since 1949, the Grundgesetz’s basic rights catalogue has strengthened the law-making process in parliament. Due care is taken by the members of Bundestag that new legislation complies with basic rights requirements. In Australia, a federal charter of rights would have a similar effect. It would create a helpful reference point against which to examine proposed laws in the House of Representatives and in the Senate. Legislation would be debated not only according to how it meets international standards, but on the basis of the Australian sense of human rights.
Second, the basic rights catalogue of the Grundgesetz has increased the accountability of the members of the Bundestag to the German people. In Australia, too, a federal charter of rights would enhance the accountability of elected representatives and the transparency of the democratic processes. A charter of rights would, for example, have the benefit of requiring Parliament to reconsider laws that do not respect human rights. Moreover, courts would need to interpret laws consistently with charter standards where and whenever possible.
Third, the German experience suggests that most of the concerns that commentators have voiced in relation to an Australian charter of rights lack foundation. Critics here have argued that such a federal charter would effectively enable courts to make laws by interpreting legislation in a way that is contrary to the intentions of Parliament. Some have gone so far as to warn against the spectre of a “galloping imperialist judiciary” legislating their agenda from the bench. In Germany, the Bundesverfassungsgericht has always taken the utmost care to stay out of politics and deliver judgments limited to an apolitical analysis of the law, even if the issues at hand, such as abortion rights or counter-terrorism powers, were highly political.
The 60th anniversary of the German constitution and its catalogue of basic rights provides an opportune moment to reflect about the intrinsic value of a federal charter of rights in Australia. Australia is a country in which human rights matter. It is a country that has always valued mateship and a “fair go for all”. It is now the time to give these long-held traditions and ideals formal recognition and protection.
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