ACT Labor leader Jon Stanhope has put a Bill of Rights on his party’s platform for the October election.
The policy document says, “Nowhere in any the Australian jurisdiction is there a simple, clear statement of a person’s rights, or a charter against which legislation can be judged as to whether it enhances or detracts from a person’s fundamental or inherent rights.
“Labor subscribes, however, to the view that certain rights – – human-rights – – are inherent: that is, they are the inalienable birthright of all human beings . . . They cannot be taken away.”
The policy laments that fundamental rights like religion, expression, assembly and association are not guaranteed by the Australian Constitution and can be overridden at any time.
Labor is proposing to begin with legislation setting out a charter of rights by which future legislation will be judged. This follows the Canadian approach and an approach supported by most people in favour of a Bill of Rights – – that only after some experience with such a charter at the legislative level, where it can easily be amended, would it be cemented into a Constitution by referendum.
ACT Labor’s approach runs directly counter to arguments put by NSW Labor leader Bob Carr who last week came out strongly against a Bill of Rights. Carr has been running a law-and-order campaign for half a decade. He obviously thinks that there are votes in it. And there probably are. The vast mass of Australian voters probably see themselves as law-abiding citizens who have no need of a Bill of Rights. They do not see themselves in the role of destitute refugee or in a police cell charged with something that they didn’t do or found with drugs on them put there by someone at a nightclub during a raid.
Carr argues that a Bill of Rights will only benefit lawyers and will cause a rash of litigation. He picked up a few extreme examples from New Zealand and Canada and said, “When it the courts are swamped with thousands of Bill of Rights cases, where will the ordinary person go for justice?” He thought that rights were best protected by the elected legislature.
If Carr were right up about it the inherent decency of the legislatures in Australia and their desire to respect rights, elected politicians would have little to fear from a Bill of Rights because their legislation would not trespass on the rights that such a bill protects.
However, we see all too frequently that legislatures quite happily make laws that infringe the sorts of rights that Stanhope was talking about. Mandatory sentencing, mandatory detention of refugees, and discriminatory prohibition from access to fertility treatments are obvious current examples.
The difference between NSW and ACT Labor on a Bill of Rights comes about because the former is in government and the latter is in opposition. Elected governments detest fetters on their power, especially overriding constitutional limitations that put individual rights ahead of majority exercise of power. A good example was the Federal Labor Government’s reaction to the High Court rulings in 1994 that there was an implied constitutional right to freedom of political communication. One ruling knocked out a piece of Labor legislation that would have banned television advertisements for political parties and the other was in favour of outspoken comments by the RSL’s Bruce Ruxton against Federal Labor MP and committee chair Andrew Theophanous. Labor ministers were so outraged that they threatened to ensure that future appointments to the High Court were more literalist and black-letter lawyer appointments. Similarly, Carr would resist an overriding constitutional guarantee of rights that would prevent him from beating his law-and-order drum. Carr finds himself in at the same camp as the ACT Liberal Attorney-General Bill Stefaniak on this. Stefaniak, a noted law-and-order man, ran the argument that Australia’s strong democratic tradition, our laws, conventions and Constitution gave all the protection Australians needed. He said he would continue to ensure criminals were brought to justice and that law-enforcement agencies had the tools to do so. It is precisely that attitude among politicians that makes a Bill of Rights more necessary.
The only way for reform in systems of governance to get up, however, is if they happen early in a new Government’s term. Things like freedom of information, openness, accountability, a stronger role for the auditor-general, fixed-term parliaments and bills of rights tend to limit the powers of government. They look good from the Opposition benches. But once a government has been in power for a moderate period it has things to hide and begins to enjoy power more and more.
Herein lies a difficulty with Stanhope’s proposal. It avoids the trap that Federal Labor fell into in 1988 when it very hurriedly and without much consultation put several rights proposals to referendum. Rather, Stanhope says, he will establish a broadly representative committee, to be chaired by the ANU’s professor Hilary Charlesworth, to consult widely before making recommendations. That is good way to deal with fundamental questions that should transcend party politics. However, it will cause delay and in the intervening period a Labor government will build up some skeletons in the closet and might get cold feet.
Executive Government aside, Stanhope is likely to have trouble even at of the backbench level. Labor backbenchers in the ACT seemed terrified of any prospect of changing defamation law, for example, in a way that might make the public more informed about what MPs and others in position of power get up to. It would not be surprising if Stanhope’s proposal fails at the first hurdle which will be freedom of speech.
But it would be nice to hope that the high-minded, aspirational words of ACT Labor’s policy for a charter of rights translates into something worthwhile and sets a course for other jurisdictions.