Dragged kicking and screaming: towards an Australian bill of rights

So will judges be all powerful under a legislative charter, or powerless? Clearly they can’t have it both ways.

What they are assuming is that a legislative charter model will include a function for judges of the High or Federal Court to make statements of inconsistency or incompatibility where legislation is incompatible with charter rights along the lines of similar provisions in the Victorian and ACT charters. While this may or may not be constitutional according to whichever expert you talk to, it is a red herring because the existence of a charter does not hinge upon the question of who may issue statements of inconsistency. From a constitutional perspective the issue of Federal courts perhaps being unable to issue statements of inconsistency could be easily side stepped if this authority were invested in the Australian Human Rights Commission, strengthening its existing role of promoting and protecting human rights in Australia. Such an arrangement would do nothing to increase judicial power, and would also respect the supremacy of parliament.

Recently, Paul Kelly wrote on some of the key messages to come out of the book Don’t Leave us with the Bill, a selection of essays from all the usual suspects critical of a bill of rights commissioned by the Menzies Research Centre. In an invaluable contribution to public debate, this book will not be available to the general public until after the National Consultation process is closed.

Kelly’s general theme is that a bill of rights may benefit a few individuals and sectional interest groups, but will diminish society as a whole. He even goes as far as to ask what it will mean for “society” if women, asylum seekers, gays, national security suspects, law breakers, and Aborigines are granted minimum human rights protections. Kelly claims that if Rudd were to proceed with a proposal for a charter of rights he would find himself “engulfed in a culture war over, power, rights and values, with unusual dividing lines”. Similarly to Bob Carr, he raises the issue of how conflicting rights will be accommodated by a charter of rights.

How does one balance the right to life with the right to self-defence? How does one balance the right to avoid detention without conviction with the view of every Australian government that on rare occasions detention without conviction is essential for public security?

These are difficult, competing policy issues that are resolved each and every day in the nations’ courts and parliament. Is Kelly seriously suggesting that judges and legislators will be unable to reach decisions in cases where different rights are set off against one another? While this would arguably be more of a concern with a constitutionally entrenched bill of rights, the experience with the Victorian and other statutory charters is that having a clearly elaborated rights framework assists in the recognition and resolution of these conflicts on a first principles basis.

Furthermore, the issue of competing rights and policy goals was well appreciated by the drafters of the Universal Declaration of Human Rights, who more than 50 years ago recognised that, in the exercise of their rights and freedoms, persons “shall be subject only to such limitations as are determined by law solely for the purpose of securing the due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”. If individual rights are to be curtailed by competing policy imperatives that is perfectly acceptable so long as there are compelling reasons to do so. In such circumstances the existence of a human rights framework will focus attention and debate on such issues, and increase the likelihood of attaining a fully considered and just compromise.

Citing Ian Callinan, Paul de Jersey and Justice Kenneth Handley, Kelly argues that non-elected judges should not be asked to resolve cases concerning social and economic rights. But don’t judges make decisions concerning resource allocation every day? Should we therefore remove the rights of courts to award damages in tort cases or other civil cases? The South African constitution has contained a bill of rights that incorporates economic, social and cultural rights since 1996. The only requirement of the state in relation to these rights is that it must “act reasonably to provide access to socio-economic rights”. (See Andrew Byrnes, Hilary Charlesworth, Gabrielle McKinnon, Bills of Rights in Australia: History, Politics and Law, 2009.) In the unlikely event that the Australian charter would include economic, social and cultural rights the government would be bound only by the requirements of reasonable provision, and the court would not consider whether more desirable or favourable measures where open to government.

Kelly raises the example of the Victorian Abortion Reform Bill compelling doctors with a conscientious objection to abortion to refer patients to doctors who would perform the procedure. He cites Father Frank Brennan’s objections to the Victorian charter of rights failing to uphold a doctor’s freedom of conscience when it conflicts with a “soft-left sectarian agenda”. To adopt an analysis of competing rights, which is more important here: a doctor’s conscience, or the bodily health and psychological well being of a rape victim seeking an abortion? This is just breathtakingly cruel and sanctimonious thinking. A law that compelled doctors to perform abortions in all but the most exceptional circumstances imaginable we would rightfully condemn as barbaric. However, a situation where a patient seeking an abortion could be lawfully refused referral would be simply inhumane, and the consequences frightening. This is precisely the type of indignity that a rights dialogue should seek to address. It also gets to the heart of Kelly’s and The Australian’s take on human rights: powerful people in positions of great influence over the general community should have free reign to dictate what they think is in other peoples’ best interests, constrained only by the limitations of their own conscience and the loose threads of our western liberal democratic traditions.

In whatever form an Australian charter of rights and responsibilities may take, it will mark an important step towards the greater realisation of human rights in Australia. It will also represent the long overdue recognition of the important historical struggles fought in the name of human dignity against tyranny and oppression. Experience in Victoria and the ACT has already proved the scatter-gun like criticisms of the postmodern right to be contradictory, illusory and lacking in merit. The charter represents a profound opportunity for Kevin Rudd to reveal his social democratic stripes, and prove that he has moved beyond being just another “economic conservative”. We will soon find out whether he has the ticker to take on The Australian and their neo-liberal mates, or whether Father Brennan’s report, in the words of Paul Kelly, provides a convenient “exit strategy”.