Spartacus was perhaps first to put human rights on “”the agenda”. He did it in Roman times. Since then it has dropped off and come back on without especial rhyme or reason. Joan of Arc, Lord Shaftsbury, Abraham Lincoln have tried to put human rights “”on the agenda” at different times and in different places.
On-again off-again has been the case in Australia. The leaders of the Rum Rebellion, Lalor, Caroline Chisholm are cases in point. In the meantime, of course, other have been trying to keep human rights off the agenda: Julius Caesar, the Revered Samuel Marsden and Vladimir Lenin spring to mind.
The point is that human rights cannot be dismissed as the fruits of the idleness of the chattering classes or the looney left. Nor can the calls for a Bill of Rights.
In Australia, the call for an entrenched Bill of Rights is slowly working its way back on to the agenda. A Bill of Rights would contain such things as freedom of speech, assembly, association and religion, regular elections with equal voting rights, freedom from unreasonable search and seizure and trial by jury for serious offences.
This time round the call for a Bill of Rights has a little more force than Australia’s previous experiences. The reason is twofold: the judges are on side and practical questions are being looked at.
A conference last week at the Australian National University organised by the Centre for International and Public Law is a good example.
Eight or nine years ago, many judges were not keen on a Bill of Rights, especially the then Chief Justice, Sir Harry Gibbs. This school of thought held it that the common law protected human rights well enough and that if Parliament or the Executive was determined to trammel over human rights then no Bill or Rights or anything else would save us.
The defect in the common law is that it is good at protecting individual property rights, but hopeless at community or minority rights. Further, it can be overruled by Parliament.
The latter point has an especial appeal to conservatives. A former Lord Chancellor of Britain, Lord Halisham, thought a Bill of Rights would ensure that the rights of individuals were not attacked by what he called the “”elected dictatorship” of Parliament. Surprisingly, he thought this more strongly in the Thatcher years.
Lord Halisham aside, until recently, many conservatives have thought a Bill of Rights worse than useless. It could be used to deny rights, they thought. Clearly, the abortion issue in the US has coloured a lot of this thinking. Now, however, the onslaught of legislation attacking individual liberty it rife.
For example, the inspection rights given to animal-welfare officers, fishing inspectors and the like is quite horrific and beyond what the even the police have. Conservatives are joining the fray in support of a Bill of Rights to protect us against the onslaught of bureaucratic powers. Perhaps this is more so in places like Britain and New Zealand, where the Lower House is all powerful and gets away with legislative and regulatory murder, than in Australia where various Senate committees do a first-rate job in exposing (if not overturning) the excesses of the Executive-controlled Lower House.
Despite our liberal democratic tradition, Australia does have human-rights deficiencies. And these matters are of fundamental importance.
For nearly ten years the central political agenda items have been 1. Levelling out the level playing field 2. The economy 3. Levelling out the playing field;<4. The economy 5. Levelling out the playing field and so on.
This is fine if you have a penchant for playing polo on a level field or making money, or both. However, the state of justice in a nation is of equal or greater importance than the state of its economy. And it is timely that the people at the conference at the ANU last week and elsewhere have picked up the needle from the cracked record.
Some of those people were judges. A decade ago judicial support for a Bill of Rights almost began and stopped with Michael Kirby. Now the experience of the onslaught of the legislative arm and the experience of the deprivation of minorities’ rights have cause other judges, however cautiously, to lend at least guarded support to a Bill of Rights; among them nearly all of the current High Court Bench.
Previously, the thing that troubled judges about a Bill of Rights was that they would be taking up a legislative role.
Sir Gerard Brennan, a High Court judge since 1981, highlighted the difficulty. He said that with a Bill of Rights judges would have to go further than interpreting a law and technically applying it to individual facts as they do now. They would have to weigh up individual rights against community rights. He admitted that it was a fundamentally political, social and ethical matter.
But rather than shy away from it as so many judges have in the past, Sir Gerard cautiously welcomed the task and said that the courts were up to it. Not only this but courts were better able than the Executive and legislative arms of government, which had been paralysed by difficult social matters. It needed the courts (where arguments and reasons for decisions were in the open) to cut the Gordian knot.
This was refreshing stuff indeed.
In his cautious welcoming of the new judicial role, Sir Gerard noted some practical difficulties. Judges would have to acquire new skills to weigh up ethical, political and social issue, not that they weren’t aware of them now; but the application was different. Also, because decisions might affect the power of governments, evidence would have to range far wider than the individual facts at hand. This would greatly increase costs. Individuals would be hard pressed to run a case.
Further, commercial and well-organised special-interest groups could run cases whose outcome had little to do with human rights.
Sir Gerard’s point was well-illustrated by Professor Robert Sharpe, of Canada, who cited a case of a retail chain attacking a Sunday-closing law on grounds of religious freedom. Unless one considers the almighty (Canadian) dollar as a god, the real issue of religious freedom escapes me. None the less, the law was struck out and Sunday trading was allowed.
The important point is that when High Court judges start considering quite practical issues, such as costs and the role of the judiciary, in discussing a Bill of Rights, the topic is clearly on “”the agenda”.
The role of the judiciary is important. Professor Sharpe said that since the Charter of Rights in Canada in 1982 Supreme Court judges in Canada got far greater media scrutiny. The court itself, its judgments and the way judges were appointed were open to far greater public questioning.
Justice Murray Wilcox of the Federal Court, who spent a term last year at Harvard studying the North American Bill of Rights experience, said the problem of selecting judges did not warrant the rejection of the notion of a Bill of Rights.
The problem was not that the judges were making decisions which had a high political content; it is that too many appointments are seen to be politically inspired.
He thought that with intelligence and goodwill it would be possible to devise an acceptable procedure for appointing judges.
Justice Wilcox expressed concern over the sort of public scrutiny attracted to the appointment of Judge Clarence Thomas in the United States. If a Bill or Charter of Rights politicised the Australian High Court in such a way it would not be worth the price, but he thought that would not necessarily be the case.
Another reason for human rights being “”back on the agenda” is the growing international interest in human rights. Justice Wilcox said that with Australia’s adoption of the first optional protocol of the International Covenant on Civil and Political Rights it would be better for human rights to be determined in Australian courts under constitutionally enshrined guarantees, rather than in an international forum.
He has a sound point. Australia is under constant threat of being called a black pot. If we have an enshrined Bill of Rights, we increase our defences, aside from doing the decent thing by our citizens.
These are not frivolous issues. Just last month a case came before High Court where a prisoner was sentenced in Queensland for possessing cannabis resin for supply. It was a Federal offence against the customs law. He got 25 years with a non-parole of 14. He argued that in most other states his non-parole would have been a lot less.
So here’s a bloke who gets done for possessing dope who gets an effective sentence of about double what he would get anywhere else, just because he happened to be in Queensland. And it is a Federal offence. Surely, justice should demand equal treatment.
He lost 4-3. However, Justices Deane and Toohey, in a joint dissent, stated every existing constitutional guarantee for individual equality before the law, however miserable they are compared with those of other countries. And they concluded that the principle of equality before the law was “”an underlying principle of the Constitution as a whole”.
It was another indication that the Australian judiciary is receptive to a Bill of Rights.
The momentum for a Bill of Rights has been slow, but it is picking up.
Is it too much to hope that the political parties can put forward a simple Bill of Rights without any hidden party agendas or confused proposals giving electoral advantage to one side or the other? Is it too much to hope that on the mention of a Bill of Rights loons will not come out of the woodwork saying it means witches will have compulsory abortions and all bread sold in Australia will have compulsory fluoride added to it?
If we do get a Bill of Rights, it will bring a timely rearrangement to the balance of power among the three arms of government. To date, the Executive has stolen power from the legislature (with the rubber-stamp Parliament) and the legislature has stolen power from the judiciary (with black-letter law that seeks to define everything by statute leaving no discretion for the judiciary to apply its common-sense). It’s about time some power went back to the judiciary. At least in the courts things are done openly.
That is said with one proviso: that the judiciary starts reining in the hideous costs and delays caused by lawyers.
Perhaps cheap, timely justice should be the first item in the new Bill of Rights.