The introduction of Terry Connolly’s ACT Bill of Rights Bill last week made me reflect upon Sir Joh Bjelke-Petersen’s performance at the Fitzgerald Royal Commission. The television re-enactment of that performance showed ex-Premier Joh Bjelke-Petersen flustering over the separation of powers. It is a theoretical concept, but an important one. Bjelke-Petersen, being cross-examined was asked, “”What do you understand by the separation of powers?” The blustering conversation went something like this: “”You, you, you . . . . well you tell me what it is and I’ll tell you if you are right.” Counsel: “”No; in this Royal Commission, I ask the questions and you answer them.
Do you understand the concept of separation of powers.” Bjelke-Petersen had to admit he did not. Of course, the cross-examining lawyer, in insisting that Bjelke-Petersen was answerable to the commission, had at once demonstrated that the Executive was answerable to the Legislature which had set up the commission. The importance of the separation of powers is that power is spread, diluted and counter-balancing. In the Westminster and American system of Government it means the elected representatives pass laws of a general nature; that the judiciary apply them is specific cases and that the Executive administers the laws, but is answerable to the laws at the hand of the judiciary. In short, no-one is all-powerful. No one person can pass a law, administer a law and execute that law in specific circumstances. Some people have power but no-one has absolute power. It was instructive that Bjelke-Petersen did not understand the idea that some people _ Members of Parliament _ pass the laws; that Minister administer them, but are themselves subject to them; and that the judiciary determines how the law applies in specific circumstances. He did not understand the idea of the separation of power because he thought that he had all the power and could do what he liked. He controlled Parliament and appointed the judges, so he was all powerful. He could do as he liked. So could his Ministers. They were the law. As Louis XIV said, “L’etat, c’est moi.” The state; I am the state. And so it was that several Queensland Ministers fiddled their expense accounts; ignored planning laws to build what they liked, where they liked for personal advantage; and took bribes and in return did favours to business mates. Further, they prohibited people from demonstrating. They prevented as far as possible people from joining unions.
I mention these events in Queensland of a decade or more ago to illustrate that Australia is not somehow immune from abuse of power by government. Indeed, events in Queensland in the 1970s and 1980s showed a nascent fascism. If Queensland had not been part of the Australian federation and subject to the influences of federal law, it would be fair to surmise that it could easily have gone the way of a totalitarian state _ a where the rule of law was replaced with the rule force. Many have said that a mere law or a mere Bill of Rights will not stop a dictator. Former Chief Justice Sir Harry Gibbs, for example, predicated his opposition to a Bill of Rights on the belief that only a cultural tradition of liberty would stop tyranny and that laws and Constitutions were useless against it.
He argued, for example, that the Soviet Constitution was laced with rights and liberties that were never put in practice. This may be so. Opponents of Bills of Rights, however, have us pit the powerless declarations of rights on paper against established totalitarian regimes. And, of course, waving a piece of paper in front a Hitler, Stalin or Pol Pot is futile, if not dangerous. A Bill of Rights and other higher law should not be seen in this absolutist light. Rather it should be seen as a tool to prevent, at the very earliest stages, the slide into totalitarianism. It should be seen also as worthwhile protection against isolated breaches of rights by otherwise liberal democratic regimes that would never be in danger of sliding into totalitarianism _ such as Tasmania’s law against homosexual Acts and the Federal prohibition on political advertising (since declared invalid).
This is why a Bill of Rights is important in a place like the ACT, where it might seem that human rights are fairly well catered for and that governments, the bureaucracy and the courts would not dream of breaching them. One of the main arguments against a Bill of Rights in Australia has been that rights are well looked after, so there is no need for it. If that is the case then no-one need fear a Bill of Right because it would be a mere ornament. But if governments do start breaching rights, the ornament can be brought down from the wall and be used in a practical way _ either to prevent isolated rights breaches or to more general nip the slide into totalitarianism in the bud. Another more valid argument against a Bill of Rights is that one can never be sure how it will be used or how it may be interpreted by the courts.
As the Americans have found to their cost recently, the right to bear arms in their Bill of Rights has had the most perverse result. Mr Connolly’s ACT Bill of Rights has an advantage here. He proposes that it be passed to work initially as advisory legislation only. Initially it would not be entrenched by referendum and could be amended any time by the Assembly. Further, the Bill would not give anyone the right to claim damages, injunction or other specific relief. Rather people would be able to get a declaration of their rights.
It may seem a wet squib, but it would give the community a feel for how the Bill would work before being asked to entrench it _ an advantage not bestowed upon the early Americans with respect to guns. This could be very important in the case of the ACT because Connolly made some noises about adding environmental rights to the Bill, presumably to get support of the Greens. Indeed, in the early Americas the guns clause was added to the original Bill of Rights to get wider support for it than might otherwise have been available. Important as the environment is, it invariably involves a balancing of many rights which is better suited to the political process than the judicial one. If environmental rights are to be fitted into a Bill of Rights, it would be much better if there were a fairly extensive test drive first.
The Bill tabled last week contains a list of fairly well-known rights with long histories in other jurisdictions whose outcomes would be fairly predictable. These are freedom of speech, religion, assembly and association; freedom from unreasonable search and seizure, arbitrary arrest and cruel and unusual punishment; the right to fair trial on stated charges and by jury in serious cases; and the right to an equal vote. These seem obvious rights, but governments in Australia have regularly attempted to abuse at least some of them. However, Connolly’s Bill also contains some rights not well litigated in other common-law countries. Like environmental rights, these, too, could do with a thorough test drive before being committed to entrenchment by referendum. These are the right to education; freedom from discrimination on grounds of race, religion, sex, age, impairment and marital status; rights of indigenous people to cultural and religious expression; privacy; and rights of children. Significantly, the Bill imposes some restrictions on the Executive and the Parliament vis a vis the people.
As the Bill will initially merely be a law of the Assembly, it cannot bind future Assembly decisions _ unlike a law entrenched by referendum. However, if a future law proposed by the Executive conflicts with the Bill of Rights, the Attorney-General must report the nature of the conflict to the Assembly. Further, the Bill provides that in interpreting present and future laws the courts should where possible favour an interpretation consistent with the Bill rather than contrary to it. In short, the Bill is a trial run for an entrenched constitutional style Bill of Rights. This is in direct contrast to the untried, ad-hoc list of rights thrown to the people by federal Labor in 1988. If the trial Bill (with appropriate amendments based upon experience) works well as a merely declaratory mechanism, the people can give it a set of dentures at a subsequent referendum. If it is shown to have weaknesses the idea can be dropped. It should be given a trial run.