Last week former Prime Minister John Howard told the 2009 Menzies Lecture an Australian bill of rights was misguided and would not expand individual liberties. Howard reminded his audience Robert Menzies was a lawyer and would have opposed such a bill with “every bone of his common law body”. Howard said a function of common law was to protect the individual against infringement of his personal rights.
Howard said a bill of rights would have impinged upon Menzies’ “deep reverence for parliament”. The parliamentarians’ ability to enact good law on behalf of their constituents would be hampered by an “elitist” charter placing rights ahead of responsibility. So does common law provide better protection for the individual than a bill of rights and would such enshrined rights muzzle the ability of parliament to pass laws in the public interest? Are rights right or are they a tool of the left?
The history of rights begins with the guilt of Auschwitz. During the war, the Allies had very good maps of the area, knew the layout of Auschwitz I and II and knew roughly its scale and purpose. Yet while Dresden and other cities were firebombed, not a single bomb was dropped on either Auschwitz. It was unhelpful in the act of the winning the war.
While cruel, this was an essentially correct military decision. Germany’s lunacy in the later stages of the war meant valuable resources were being drained away on the unproductive factory killing of its minorities and the Allies wanted this to continue so that they could put an end to the war sooner. The military decision did not consider that society’s weakest would be the ones that would pay the highest price for this strategy.
When the cruelties of the camps became widely known, it inspired the new UN to act for the defenceless. In 1948 its General Assembly instituted a Universal Declaration of Human Rights. Prior to this, the only well known bill of rights was the first ten amendments of the US constitution where freedom of speech mixed uneasily with the Georgian need to keep a well-regulated militia. Despite misgivings all western countries have adopted some component of the UDHR charter.
All western countries bar one, that is. Although Australian foreign minister Dr Herbert Vere Evatt was crucial in the formation of the UN charter, his own government had misgivings about the brown and black people having the same dignity and rights as them. Its aboriginals were still considered fauna and Labor supported the White Australia Policy to protect the jobs of its voters. Australia ratified grudgingly but never adopted it in local laws.
Menzies was equally disinterested in formulating rights laws. In 1967 the newly retired prime minister said individual rights were adequately protected by common law and “the good sense” of elected representatives. Howard drew on these traditions when defending matters such as mandatory sentencing, and the treatment of refugees to the country. The 1901 constitution still gives the federal government powers over “the people of any race for whom it is deemed necessary to make special laws”. It was invoked in 1998 in the Hindmarsh Island case which allowed the government to discriminate against Aboriginals.
While jurists see no way past these laws, it may be dangerous to also assume that politicians will always have the sense to be sensible. There is the need to be seen doing something. No politician ever lost an election by being tough on “law and order” and many rights are further eroded in knee-jerk reactions to terrorism events or bad bikie behaviour. Once taken away, it is very hard to get those rights back. The usual response to harsher measures is if you are not doing anything wrong you will have nothing to worry about. But lack of rights doesn’t just affect deviants. They also affect the vulnerable, the unlucky and those on the border-line.
There are some protections in Australian law. There is freedom of religion, there is trial by jury, freedom of trade, and property rights. Voting is not just a right, it is a duty. Common law also has an 800 year tradition of preserving rights back to the Magna Carta. But while it recognises rights, it does not recognise freedoms. Judges see this as a role for parliament.
Many parliamentary inquiries have looked at rights bill, but few have recommended action. A Labor Human Rights Bill in 1973 was sunk by strong opposition. A second attempt in 1985 collapsed because WA was unwilling to give up gerrymandered electoral boundaries. Further efforts for constitutional change failed in 1988 and 1999 which made the rights agenda a handy wedge issue. Opponents would say Russia in the 1930s had a human rights bill that did not stop the gulags. Savvy politicians like Bob Carr preferred to hide behind cosy do-nothing statements such as “the protection of rights lies in the good sense, tolerance and fairness of the community.”
Australia has one Bill of Rights jurisdiction. In 2004, the Australian Capital Territory became the first Australian administration to enact a Human Rights Act. The Act recognises equality before the law, the rights to life, family, reputation and freedom of expression. But there is no remedy for breach of these rights and the act is silent on economic and social rights.
George Williams says in “The Case for an Australian Bill of Rights” argues a national bill would augment the common law and enhance democracy by expressing the fundamental rights of a diverse Australian people. Education will be needed to convince the community why it is needed. It should follow the model used in the ACT, New Zealand and UK legislation and begin with a small set of laws that could be expanded over time. The courts should have the ability to strike down legislation, there should be an override clause and should eventually be included in the constitution.
Williams says the real value of a Bill of Rights would be in education, shaping attitudes and offering hope and recognition to powerless people. But it would be something all new law would be measured against, and act as a moral check to any temporary madness clamping down on citizens. Perhaps this the real reason Howard and his supporters do not want a Bill of Rights. They do not want to identify what freedoms citizens really have, or should have.