There are mutterings around that Paul Keating will put an Australian Bill of Rights on the agenda for the next election campaign _ just as he put the republic on the agenda last time. In 1988 a pathetic attempt by Labor to put some human-rights issues to a referendum failed, but the environment has changed markedly since then. Late last year a parliamentary sub-committee recommended that the government set up an inquiry into whether Australia should have a Bill of Rights; what it should contain and whether it be statute-based or in the Constitution. Now the chair of that sub-committee, Senator Stephen Loosely has written to the Attorney-General, Michael Lavarch, suggesting the Government get on with it.
Perhaps the biggest development since last year was the result of the three referendums in the ACT and NSW in February and March. The three were all given overwhelming Yes votes. All were about matters of constitutional importance. All either cut the power of the head of government over the legislature or cut the power of the legislature over the people. In short, they were similar in form if not substance to typical Bill of Rights clauses. The results show that the people can vote Yes in referendums.
As Malcolm Mackerras has pointed out, early on in referendum campaigns opinion polls usually favour Yes and only after a well-financed No campaign does it change. Indeed, when you look at the history of referendums it seems you need two out of three conditions to apply before you get a No: a major party formally opposing; a well-organised No campaign; and something inherently dodgy about the Yes case (especially an increase in executive or central government power). A couple of other things have happened since 1988 to change the climate in favour of a Bill of Rights. First, the High Court has stepped in where the Federal Parliament has feared to tread. Its most notable step was in finding an implied freedom of political communication in the Constitution. It also found a right to legal representation at serious trials and protected common-law native title property rights against expropriating state legislatures, among other human rights advances. As significant as the findings themselves is the fact that the sky has not fallen in. There is no need to be scared of having enforceable human rights.
The world will not fall apart if citizens can comment freely on political matters in the media without fear of a politician suing for defamation. A further point on the High Court’s activity is that it might be better that the Australian people formulate and formalise those rights which are to be beyond the reach of the legislature and the executive, rather than have the High Court materialise them from the ether of the Constitution in an unpredictable and uncertain way. Secondly, the Toonen case has shown that on some occasions human rights in Australia get a more sympathetic hearing in international tribunals than in Australian courts. That case also held Australia (or at least Tasmania) up to a certain amount of ridicule.
The answer is for Australia to have its own Bill of Rights so the embarrassing international route is closed off. (Britain, the home of the sovereign Parliament, is slowly learning this lesson with respect to the European human-rights court.) Thirdly, Australian Parliaments have flexed their muscle recently over jailing individuals without trial. The Senate made noises about jailing public servants who refused to answer questions in the media ownership inquiry and the Western Australian Parliament jailed a man for a breach of privileges. Australia has a moderately good human rights record, but there are constant reminders that it is by no means perfect.
If Labor does come out with a Bill of Rights proposal, it will put the Coalition in a bind. Human rights is not a left-right issue. Tories like to protect individual freedom and property rights, but think change is risky. Socialists are happy to surrender individual rights to the greater glory of the state, but Labor has a reformist history. The way for the Liberals to ensure Keating does not get a free kick with another diversionary tactic _ like the Republic _ is to embrace it.