After the Republic a Bill of Rights

The Republic and the Preamble - those are the big constitutional issues for 1999. Undoubtedly they are important symbolic issues, but what will be the effect of these constitutional changes for Australians? Very little.

One issue that could make a very big difference is the introduction of a Bill of Rights.

Presently the Australian Constitution provides few express guarantees of individual rights. They are limited to:

• s.51(xxxi) which provides that the acquisition of property must be on just terms
• s.80 which provides that any trial on indictment must be heard by a jury
• s.92 which provides for free trade among the States
• s.116 which provides for freedom of religion
• s.117 which provides for the non-discrimination of people due to the residency of a particular State.

True, there are many implicit guarantees that have been found by the High Court but this presents its own complications.

We need a Bill of Rights not because we lack basic civil and political rights but because our present system is inadequate to protect those rights.

Australia – A Democracy

Those against a constitutionally enshrined Bill of Rights point to Australia’s history as a well renowned democracy. This is true, but what about liberty? There is a fundamental and important difference between democracy and liberty.

Democracy operates on the basis that a democratically elected majority has the power to govern as they see fit. Liberty on the other hand operates on the basis that even the power of a democratic majority must be limited to ensure individual rights are protected.

We have seen decisions by democratically elected governments of all political persuasions denying fundamental rights.

Take for example the democratically elected Bjelke-Petersen Government legislating to stop people from marching in the streets. Or the democratically elected Keating Government legislating to prohibit the broadcasting of political advertisements on TV or radio during election campaigns?

In both instances these governments completely disregarded the concept of freedom of speech.

Do we want to live in a society where our fundamental rights as human beings can be discarded or changed by a simple Act of Parliament?

Ordinary Legislation And Parliamentrary Sovereignty

It is often suggested there is no need for a Bill of Rights because the parliament can legislate to protect rights. This notion is based on the false and flawed premise that governments will do just that. However good their intentions may be, governments by their nature, tend to avoid making decisions that are controversial or politically difficult and this is more likely when it comes to social issues.

An excellent example of this legislative inaction was outlined by Justice Michael Kirby in an address to the Queensland Chapter of the Young Presidents Association in 1997. He said, "One hundred and fifty years after representative government was introduced in Australia, it was left to seven unelected judges to remove the patently false assertion that Australia was an empty continent at the time of settlement."

There is a second leg to this which is the question of whether the parliament should be in the position to determine what are basic civil and political rights. Is the parliament sovereign on such fundamental issues, or are the people?

Judicial Activism

It has also been suggested that there is no need for a Bill of Rights because the common law has sufficiently resolved and in many cases protected basic civil and political rights. Indeed it has been suggested that over a period of time the High Court will create a judicial Bill of Rights.

There are two problems with this notion.

Firstly, why should the court, an unelected and unaccountable body, determine the rights of individuals? Secondly, the common law is extremely limited.

It is limited by the fact that it is opportunistic - change can only occur when a case presents itself.

It is limited by precedent. The determination of a High Court decision may not be binding upon that court in a proceeding case but normally it is extremely persuasive. Lower courts are bound by such decisions.

Finally it is limited in that a decision of the court cannot provide general principles because it is based on individual cases with unique facts.

A Bill Of Rights Limits Rights

Sometimes it is suggested that a written list of rights limits or denies the existence of other rights. Many countries throughout the world dealt with this notion by inserting a simple provision within their Bill of Rights.

In Canada article 26 of the Charter of Rights and Freedoms states:

"The guarantee in this charter of certain rights and freedoms shall not be construed as denying the existence of any other rights and freedoms that exist in Canada."

What a Bill of Rights does is states that the rights contained within it are so fundamental that governments cannot legislate in contradiction of them. Only the people, by way of referendum, have the power to do so.

What Type Of Rights?

I suspect a Bill of Rights has never been successfully introduced because the instigators have tried to reach too far and include too many rights.

A Bill of Rights needs only to address fundamental civil and political rights, including but not necessarily limited to:

• Freedom of the person - this should include rights for criminal proceedings including the right to consult with a lawyer, the presumption of innocence, the right to be free from retrospective laws and the outlawing of discrimination based upon colour, creed or political persuasion.
• Freedom of ideas - this would include freedom of speech, freedom of the press, freedom to petition and freedom of assembly.
• Freedom of Association - this would include the right not to join a union or alternatively the right to do so.
• Guarantee of Voting Rights - this would reduce the risk of gerrymanders.

Conclusion

Our Constitution already outlines a framework for Government within which it can legislate so where is the problem with including fundamental civil and political rights?

Too often we take our rights for granted - yet governments can chop and change them as they see fit.

A Bill of Rights may not be the comprehensive answer to protecting basic rights but it goes a long way to rectifying such injustices.

It is time we applied a handbrake to the exercise of power by Governments and bureaucracies.