The United States Supreme Court makes it difficult sometimes for those who argue for a Bill of Rights. This week the court ruled that the national Child Pornography Prevention Act of 1996 was invalid because it offended the First Amendment. The First Amendment says that Congress shall make no laws that abridge freedom of speech. It was agreed to shortly after the US came into being in 1776 is one of 10 amendments that form the US Bill of Rights.
Congress’s law prohibited virtual porn – that is images of children engaged in sexual acts created from artwork and other computer generated work that did not involve the use of live children. The Supreme Court ruled the law did not fit the usually acceptable exception to freedom of speech that protected the interests of children, because no children need be used and exploited in the production of virtual imagery. The court said that Congress could prohibit obscene material, but this law went beyond banning just the obscene; it also prohibited non-obscene expressions – for example, a film with redeeming social values that discussed the idea of child pornography. In short, Congress’s law was too sweeping.
The law can be easily repaired to prohibit exploitative, obscene child pornography, but that is little help for those who argue the free-speech cause because the bald headline that the US Bill of Rights has allowed child porn has done the damage. All the court did was to prevent Congress passing a sweeping law that would pick up artistic and intellectual discussion in addition to prurient pornography.
It will make the task of those who want an ACT Bill of Rights that much harder. Earlier this month, Chief Minister Jon Stanhope announced a committee to test community support for a Bill of Rights. He said no jurisdiction in Australia had a clear, simple statement of the rights the community took for granted. We thought those rights were protected, but they were not.
Stanhope has a point. We have seen the increase of Executive power in the past decade. And now legislatures are falling for the security hysteria post-September 11. In Australia, the Labor Party federally seems too timid to resist proposals to permit people to be held without trail and without legal representation in the name of fighting terrorism.
The answer seems to be to make it harder for the legislature and executive to do this by having a higher law – a Bill of Rights that states a legislature, like the Parliament or the US Congress, cannot make laws that infringe freedom of speech, fair trial, freedom of religion or allow for unreasonable search and seizure and so on.
This argument is made harder, though, when one looks at the US experience. Aside from the most recent case, evidence against people charged with serious crimes has been thrown out because it was improperly obtained – whatever the strength of its probative value in showing guilt. And the US Bill of Rights contains the right to bear arms – which has resulted in a murderous society.
But the ACT need not copy the Americans.
The US Bill of Rights was passed at a time when the erstwhile American colonists had just come from a colonial experience in which they had been aggravated by Parliament (in London) and the Executive (King George III) who taxed them without representation and used repressive measures against those critical of the government. That has not been the experience of Australians, at least until recently. So the American Bill of Rights was a sweeping one – largely countering the very sweeping powers of the British Parliament.
Moreover, the US Supreme Court has been able to hear challenges by busy-bodies. The case this week was a challenge by the Free Speech Coalition, for example. This has not been permitted in Australia. This week, for example, the High Court ruled that it would not hear a case brought by a busy-body (the Catholic bishops) on a constitutional question on whether a Victorian law would prevent a single woman getting IVF treatment. The operation of any Australian or ACT Bill of Rights would restricted to interpretations arising from real disputes affecting rights and liabilities of parties – not hypotheticals.
The ACT is in a unique position in Australia to experiment with a Bill of Rights. It does not have to begin with a fully fledged Bill that can only be overturned by a referendum. The Self-Government Act permits Acts of the Assembly to be passed by a special majority which can be repealed only by a special majority. We could have a Bill of Rights requiring, say, just a two-thirds majority of the Assembly to amend or exclude a law from. Otherwise all prospective laws would have to be consistent with the Bill of Rights’s aims of free speech, fair trial, just compensation for acquisition of property and so on.
A Bill of Rights does not have to mean a gun-totting society permissive of virtual child porn. There is a sensible middle ground that would protect rights that are under increasing threat.