The Federal Government was silly enough to introduce the ban on political ads on the telly, and now the High Court has over-turned it.
Bob Menzies’ Government was silly enough to introduce the ban on the Communist Party, and, in 1950, the High Court over-turned it.
Both were flagrantly anti-liberty laws, but there was a difference. Bob Menzies at least had the courage of his misguided conviction to say the High Court was wrong and the people should decide the issue at referendum. This Government would not be silly enough to do that.
It is perhaps a slightly different thing to appeal to anti-communist hysteria in Australia in the paranoid 1950s than it would be to convince people in the 1990s to pass a referendum allowing the Government to ban political advertising. A few footy freaks would vote Yes and perhaps Bob Hogg and a few Labor machinemen who have convinced themselves that the huge cost of TV campaigns will drive Federal politicians into corruption.
Can you imagine the referendum question: “”Do you support giving the Commonwealth Parliament power to make laws regulating and prohibiting free speech.” The answer would be No.
The same answer was given to Menzies’ referendum, despite the hysteria and the best efforts of the Catholic Church, proving that Australians have a fairly pro-liberty stand and do not like their governments to oppress them.
None the less, the same people voted Menzies back into office a short time later, proving the point that Australians do not surrender to Governments the right to do what they like.
This argument was put by Justice John Toohey at a constitutional conference in Darwin this week. It was part of a more general argument suggesting that the Constitution, unbeknown to all of us these 91 years, contains an implied bill of rights.
So all these constitutional chat-fests planned for the next eight years as the centenary of Federation looms are a waste of breath. So, too, were the several half-baked attempts in the past 91 years to put words into the Constitution to prevent Governments (or more correctly the Parliament) from taking away individual rights. Those failed because they were not simply worded or because they were put into a take-it-or-leave-it package, parts of which were obnoxious or seen to be party political.
The argument put by Toohey was that when the people approved the Constitution they were a liberty-loving people. They assumed that no Parliament would pass laws obnoxious to basic common-law rights and liberties. Therefore, the grant of powers to the Commonwealth over express subject matters in the Constitution must have been made subject to those common-law liberties. There was no need to spell them out; they were implied. As the states were part of the deal, they, too, surrendered their right to take away common-law rights.
Toohey did not expressly approve the argument, but his approval could be implied. Whether he can get three of his fellow judges to support the view in a suitable case is another question. A case on the right to legal representation which has been heard and judgment reserved might be the one.
This implied bill of rights is a far, far wider proposition than the implied freedom of communication we saw in the judgments brought down last week. That freedom of communication was implied only because other parts of the Constitution laid down representative government in Australia. This meant voters and candidates are allowed to communicate with each other on political and public matters, and through ads on the box if they want. (Though how anyone can construe some of the drivel that goes into political advertising as communication is beyond me.)
So the implication is limited to communication about public affairs, and even then the judges said it was a limited freedom. It seemed to me so limited as a statement of human freedom in Australia that it was dangerous, and it would be better if the judges had permitted the ban so Australians would be garnered into a more active expression of their rights.
The new argument, however, implies the whole gamut of common-law liberties into the Constitution: freedom of speech, assembly and religion, no search and seizure without warrant based on evidence of a crime stating exactly what is to be searched and seized, no cruel and unusual punishment, trial by jury for serious offences, due process of law, perhaps a right to legal representation and a right to vote in regular, fair elections at state and federal level.
There are some very appealing elements to this implied bill of rights.
One argument (generally put by conservatives) against a formal bill of rights is that it is not necessary. We have wonderful liberty in Australia. The common-law and our legal traditions have done a splendid job let’s not tinker with the Constitution. We have Nick Bolkus ÿ(subs; plse check spelling)@ and the Labor machinemen to thank for putting paid to that argument. Their repressive anti-free-speech political-ad ban proved that the common-law was not enough.
The implied bill of rights takes on board the conservative argument. It says, yes, your common law and the liberties it espouses are wonderful, so wonderful, indeed, that they should be implied into the Constitution.
It also meets the radical or left-wing argument against a Bill of Rights which says unelected judges should not strike out what the elected legislature does. If the unelected judges interpret the implied Bill of Rights too widely and strike down a law passed by the majority of the elected Parliament, that same parliamentary majority can order a referendum to see what the people really want.
Can you imagine the series of referendums? Do you agree that the Commonwealth Parliament should have power to order cruel and unusual punishment; to prohibit peaceful assembly on public land; to outlaw religions it deems to be dangerous; to permit police to arrest whomever they want without cause, etc etc.
These questions would have to be put quite independently from the elections of candidates to Parliament, and would no doubt prove that what the majority of parliamentarians want on some occasions is a very different thing from what the people want.
This reverse referendum process that would be forced by an implied bill of rights is very telling. There have been no surveys and there is no way of knowing for sure, but I think a huge majority of Australians hold those common-law rights very dear. Until the political-ads ban and perhaps the odious Australian Card, we did not imagine we would need a bill of rights to protect them. Clearly, we do.
But you can bet the very politicians who attempted to over-ride these basic rights will never put to the people a referendum a clear and simple bill of rights without indulging in some suspicious hokey-pokey, as they have nearly always done in the past, giving ammunition to the far-right for their arguments that a bill of rights would make allow pedophilia to flourish and make pornography compulsory.
If the argument put by Toohey is taken up by the High Court, there will be no need for the formal bill of rights. More importantly, there will be no opportunity for the politicians to mess up the process by attempting to slide in some obviously contentious clauses that would cause its defeat at referendum.
Perhaps the formal bill of rights could be put on the back-burner until the next High Court judgment in a rights case. If it takes up the Toohey argument, it could stay there. Such a judgment would put the frighteners on any zealous state or federal parliament that wanted to mess around with basic freedoms. However, it would be a brave court to do so. It would mean over-ruling the reasoning in perhaps half a dozen past cases which said there was no right to vote, to trial by jury in serious cases and to freedom of religion. It would also mean applying these individual freedoms in the state as well as the federal sphere, which would be new ground indeed.
Liberty-loving Australians must be eternally grateful to the cash-strapped Labor Party for trying to gain the political advantage by stifling free speech in such a way as to needle High Court judges into thinking so broadly about freedom.