Australia has been blessed with a strong democratic tradition; respect for the rule of law and respect by the courts, legislatures and the executive of people’s rights. At least until recently.
With politicians thumping law-and-order campaigns; populist moves to cap damages or remove rights to sue for injury and moves by the Federal government to introduce laws that would enable people to be detained incommunicado for up to 48 hours all in the name of security, it is time to consider whether there should be some higher constitutional law endorsed by the people and amendable only by the people to prevent the erosion of what have been hitherto been considered basic rights.
The sorts of rights include things like, right to trial by jury for serious offences; freedom of speech and assembly (which would perforce include freedom of religion); no search or seizure without warrant; freedom from arbitrary arrest; no compulsory acquisition of property without just compensation and so on.
Some of these rights are already touched upon in the Constitution or in state and federal statute, but nowhere in Australia is there a comprehensive expression of the rights and the wherewithal to enforce them.
On Wednesday, however, ACT Chief Minister Jon Stanhope announced the composition and terms of reference for a committee to consult Canberrans on whether the ACT should have a Bill of Rights and if so what form should it take.
The shadow attorney-general, Bill Stefaniak, immediately dismissed the idea. He quoted the old saying, “”if it ain’t broke, don’t fix it.” The trouble is, that there are signs that it is broken. There are signs that rights are being taken for granted and abridged by increasingly arrogant executives. He was wrong to dismiss the idea out of hand.
Mr Stefaniak cited NSW Labor Premier Bob Carr with approval. Mr Carr thought a Bill of Rights benefitted lawyers and criminals and was an admission of the failure of parliaments, governments and the people to behave reasonably.
Well, perhaps parliaments and governments are starting to behave unreasonable.
Rather that outright rejection, there is merit in looking at the question. There may be concerns about an immediate, entrenched Bill of Rights, but there is a good case for a step-by-step process in which a piece of ordinary repealable legislation forms the basis of a Bill of Rights. If it becomes the source of a valuable protection of rights it can be entrenched with whatever modifications experience shows are worthwhile. If it becomes a source of a lawyers’ trough and a loophole for criminals, it can be abandoned. But let’s not be so arrogant as to assume basic rights are protected now.