It’s undemocratic. It is unnecessary. It allows foreign treaties to rule our lives. It will open the floodgates to litigation. It will allow criminals to roam the streets. It will allow the unelected judiciary to rule our lives. It will legalise abortion on demand and euthanasia. It will allow people to desecrate the flag. It will allow people to defame reputable people. It will cost too much.
These are some of the arguments of people who oppose Bills of Rights including the new ACT Bill of Rights which became law this week — the first Bill of Rights in Australia.
The new ACT Bill is based, by and large, on the International Covenant on Civil and Political Rights.
Prime Minister John Howard has written to Chief Minister Jon Stanhope expressing his disapproval. He and others in the Liberal Party are worried that it will undermine the democratically elected legislature and that it is unnecessary because all our rights are protected anyway.
This week, especially, that argument smacks of hypocrisy. For example, the details of the US free trade deal which were at last made public, reveal some forcing to the legislature’s hand. One clause commits Australia to legislating to change the Pharmaceutical Benefits Scheme so US drug companies can get more loot. Another clause allows Australia to run a 55 per cent local content rule on free-to-air television, but if that percentage is ever lowered it cannot be increased later. It is called ratcheting down. It binds future legislative action. If, for example, the Coalition cuts the percentage, Labor cannot restore it later without unravelling the whole free trade agreement.
In short, the free trade agreement hamstrings the Australian legislature as surely as a Bill of Rights.
Former Federal Attorney-General and now Communications Minister Daryl Williams said he would be “hard pressed to think of anything you would want to protect in the Bill of Rights that isn’t already protected under our legal system”.
Try free speech for a start. Williams’s ministerial colleague, Citizenship and Multicultural Affairs Minister Gary Hardgrave, this week withdrew Stanhope’s invitation to conduct citizenship rights unless he signs a code of conduct about what he can say in the ceremonies. Stanhope dared mentioned Iraq. It might have been fine if all ceremony officiates had been required to sign a code before conducting any ceremonies. But to single Stanhope out after he dared speak smacks of censorship.
The more important point is a Bill of Rights creates an awareness of rights and sensitivity to them. That would create an environment where free speech is encouraged and respected and the Hardgrave action might not have happened. The United States has had a Bill of Rights for more than two centuries and it is much more a free-speech society that Australia. And that element of its society makes it better.
In Australia, Williams should not be “hard pressed” to think of the rights of asylum seekers — jailed children. He should not be “hard pressed” to think of the rights of the mentally ill who are routinely jailed in the ACT because there is no secure hospital to put them in. He should not be “hard pressed” to think of the Queensland man who has served his 14-year sentence but is being kept in jail because a Queensland Minister deems him a danger to the public. And he should not be “hard pressed” to think of indigenous Australians taken from their parents, or witnesses who can be detained with access to family or lawyers under terrorism legislation.
You see, if all the rights one needs are “already protected under our legal system” then why fear a Bill of Rights? No-one would need call upon it because the executive and legislature would always protect fundamental rights. And in an ideal world this is how it should be: a Bill of Rights sitting there unused in a society that respects rights.
But it is not an ideal world. As ACT Chief Justice Terence Higgins pointed out at the National Press Club this week, legislatures and Governments in Australia do not deliberately set out to breach human rights. But they can do it by oversight, or inadvertently, while pursuing some other legitimate aim.
A Bill of Rights will be effective and be respected in Australia precisely because Australia generally supports human rights. It is a finishing touch and an insurance that nothing inadvertently falls through the cracks. Australia’s general respect for rights will ensure and Bill of Rights will work and it will not become like Bills of Rights in some Third World hell-holes which are honoured only in their breach.
It is illogical to say that because some hell holes have Bills of Rights, if you have a Bill of Rights you become a hell hole.
It is also illogical scaremongering to say that the expression of one right in a Bill of Rights necessarily cancels other unexpressed rights. For example, granting a right to life from birth in a Bill of Rights does cancel out any pre-existing right (in statute or common law) to life before birth. A stated right to grow tomatoes does not affect a pre-existing unstated right to grow lettuce. Granting one right does not cancel out other compatible rights.
However, granting one right might affect other INCOMPATIBLE rights. A right to free speech might affect a right to reputation. But it is not open slather. It is a balancing act. And judges have balanced these rights for centuries. If, for example, the Assembly passed a law making it a criminal act with a jail penalty to criticise a Member of the Assembly, a Bill of Rights granting freedom of speech would (quite rightly) be applied against such a law.
It is not a big deal for judges to do this, particularly in federations with written constitutions, like Australia.
For example, the High Court ruled in 1951 that legislation making it a criminal offence to belong the Communist Party was invalid. True, it was a case about the extent of the defence power and not a freedom of association case, but the principle is the same.
Our present Constitution contains some limited rights. Unelected judges have decided cases about them for a century without any great social upheaval. They could easily be extended.
And that, perhaps, is one flaw with the new ACT Bill of Rights: it does not go far enough. The courts can only issue a declaration that an Act is contrary to the Bill of Rights in the Human Rights Act and then it is up to the Legislative Assembly to change the offending Act and perhaps give a remedy to any individuals who are adversely affected. But it does not have to. Under our new limited Bill of Rights, the courts cannot hold legislation invalid (and of no effect) because it contrary to the Bill of Rights. That would be a better system, provided the Bill of Rights had been first agreed to in a referendum.
And will the new ACT Bill of Rights law, or any extension of it, result in floodgates of litigation? No. As Higgins pointed out, Bills of Rights in other jurisdictions are used mostly as supplementary arguments in litigation which would occur anyway. Bills of Rights rarely form the basis of discrete (SUBS: discrete) actions which would not otherwise go ahead.
They add some extra to legal argument no doubt with some extra monetary cost. But rights are worth paying for.