Don Chipp Foundation Defending Democracy Public Forum “What a Bill of Rights could deliver for Australia”

Dr Sev Ozdowski OAM Human Rights Commissioner NSW Parliament 19 October 2005


I would like to acknowledge the traditional owners of the land on which we stand, and pay my respects to their elders both past and present.

I make this statement at any function where I speak in order to:

  • pay my respects to the oldest continuous culture in the world;
  • stress that Australia is a diverse society and that the First Australians are an important part of this diversity; and
  • to demonstrate that we aspire to a just and fair Australia for all.

Distinguished Guests, Ladies and Gentleman:

2. Most Recent Calls for a Bill of Rights.

Many of you here would have read Tony Stephen’s SMH article ‘Stand up for your rights stuff’ of Saturday 8 October, where he gave an account of the launch by New Matilda of a campaign to install a Bill of Rights in Australia. Unfortunately a prior commitment prevented me from accepting an invitation to attend the launch, however I did provide the organisers Susan Ryan and John Menadue the following message of support, to read to the rally if time allowed: “As many of you here would know, over the last 5 years I have been a strong public advocate for the need for a national, legislated bill of rights.   It will therefore come as no surprise to you that I do not feel the traditional democratic bulwarks any longer provide an adequate shield for Australia’s residents when their civil liberties are under pressure. They are currently under pressure and I expect them to remain so for a considerable period of time. The only realistic solution is an Australian Bill of Rights”.

At a Sydney University law function on Wednesday 13 October, retiring High Court judge Michael Mc Hugh, speaking to law students urged the adoption of a Bill of Rights, saying that its absence was the main reason our judges were not as empowered as those in the United States Supreme Court to defend fundamental human rights. He added: ‘As a result judges are being called on to reach legal conclusions which have tragic consequences’.

Very powerful stuff!!

3. My personal odyssey to deciding we need a BoR.

On assuming my role with the Commission I was relatively neutral about the need for an Australian Bill of Rights. Due to the pervasiveness of American culture, I was familiar with the arguments for and against their Bill of Rights, in terms of its impact on their way of life and legal system. With Australia, my attitude was initially coloured by the fact that compared to many other countries, here was a healthy robust democracy at work, with a most effective ‘civil society’ which provided its inhabitants with all the protections they needed.

However, early in my term at HREOC, I came to fundamentally re-evaluate my stance in regards to a Bill of Rights. Using mandatory immigration detention followed by the anti-terror legislation post 9/11 as my yardstick, I came to appreciate just how vulnerable Australian residents were, if and when the State overreached itself. I now believe a legislated Bill of Rights is necessary to reduce that level of vulnerability. The success of the British Human Rights Act is also instructive in this regard.

4. Australia’s Constitution not good with ‘Rights’

Most of you present would be aware that Australia’s Constitution does not offer much protection for individual rights. For the record those that are protected consist of:

  • the right to vote (Section 41) - although still to be confirmed by the High Court as explicitly thus;
  • the right to a trial by jury in the State where the alleged federal offence took place (Section 80);
  • the denial of federal legislative power with respect to religion (Section 116); and
  • the prohibition against discrimination on the basis of State of residency (Section 117).

There are also two “economic rights”:

s.92 guaranteeing freedom of interstate trade; and

s.51 mandating payment on just terms for property acquired by the Commonwealth.

The High Court has also found that a number of rights, while not expressly stated in the Australian Constitution, can be implied. These include:

  • The Commonwealth Parliament cannot pass laws that adjudge a person to be guilty of a crime. That function is for the courts alone.
  • The freedom to discuss matters relating to Australian government so that voters can participate effectively in elections.

The Constitution is silent in relation to numerous other rights that are well recognised in the constitutions of other Western democracies.   For example, the Constitution does not guarantee:

  • the fundamental freedoms such as the freedom of association, freedom of movement, freedom of peaceful assembly, freedom of thought, belief and opinion, and freedom from arbitrary arrest or detention;
  • the right to a fair trial or due process;
  • equality of all persons in Australia before the law.

This could be largely explained by reference to our history – Australia’s mostly peaceful development towards nationhood and independence and reliance on the common law.

5. Economic argument to support BoR

Now, I was reinforced in my belief that a Bill of Rights was essential, by a more conceptually challenging notion: that a Bill of Rights could also have a long term economic benefit. Put simply, this theory suggests that in the wake of economic de-regulation and globalisation, which places much greater emphasis on individual responsibility for financial security, the missing link which is potentially capable of unleashing a positive tide of entrepreneurship in the Australian community, is the lack of an enforceable Bill of Rights.

I first used this argument in a televised address to the National Press Club in Canberra on 6 February 2002.

6. Proposed changes to our IR structure.

Ironically, it was the reverse of this theory which recently provided me with a good example, to further amplify this argument. The lukewarm community polling that has greeted the government’s proposed industrial relations reforms, indicates to me that Australians find it hard to be enthusiastic about the government’s proposition: that it is necessary to dismantle this last bastion of the ‘nanny-state’ if we are to remain internationally competitive.

Perhaps there is a community sense that we are being asked to forgo a collective bargaining chip, without the substitution of adequate individual bargaining chips in the form of a Bill of Rights.

7. High Court decision in Al Kateb.

However, even if my economic argument lacks sufficient empirical proofs to support a Bill of Rights, recent High Court outcomes in connection with the Migration Act certainly provide them. I refer here of course to the majority High Court decision of Al-Kateb. It was this decision which Justice McHugh was referring to in his lecture last Wednesday at Sydney University.

This decision establishes that pursuant to the Migration Act, the government is permitted to continue the immigration detention of Mr Al-Kateb indefinitely; so long as it remains committed to finding a deportation solution, even if realistically there is no prospect of ever deporting him. In Mr Al-Kateb’s case this could mean that legally he is reduced to a life-time in detention. In acknowledging this prospect, Justice Mc Hugh’s judgement observed: the only way out of this legal cul de sac is the enactment of a Bill of Rights.

Now you see why Justice Mc Hugh referred to ‘tragic consequences’ in his Sydney University speech!!

8. Federal Parliament’s Power under the Constitution.

In fact where federal parliament passes a law that is unambiguously linked to a ‘head of power’ within the Constitution, the potential reach of that law is quite startling.

When the Hindmarsh Island Bridge Case (Kartinyeri – 1998) was being argued before the High Court, the Commonwealth Solicitor-General agreed with Justice Kirby’s (incredulous) question, whether: “Under the “race” power of our Constitution, Nuremberg-style race laws or South African apartheid laws, if enacted by our federal parliament, would be binding?”

The Solicitor-General confirmed such laws would be binding.

In other words, Federal parliament is free to legislate in a morally ambiguous way, so long as it stays within the Constitution’s heads of power.

9. Proposed subversion of the Constitution for new anti-terror measures.

While on the subject of our Constitution, I find it disturbing that the Federal government proposes, and the States have agreed to allow their parliaments to pass laws, which the Commonwealth believes it may be constitutionally barred from enacting.

I refer here of course to the situation where ASIO holds suspicions about a person, but the information is insufficient to permit criminal charges be laid. Instead the person would be placed under ‘preventative detention’ for up to 14 days, forbidden to tell anyone outside their immediate family and only advise their workplace that they are ‘safe’.

In the absence of the details of the legislation I cannot be definitive about which Constitutional aspect the federal government is concerned about with regards to this proposal.

Possibly it is because the High Court has previously found that a number of rights, while not expressly stated in the Australian Constitution, can be implied, including that the Commonwealth Parliament cannot pass laws that adjudge a person to be guilty of a crime - that function is for the courts alone.

It could be that it is due to this implied Constitutional ‘right’, the Commonwealth feels it would be safer if the States passed this law. Whatever the reason, surely if you are proposing to circumvent Australia’s Constitution over such an ancient individual Anglo-Saxon legal tradition, (limits to power to detain to a max of 48 hours before laying charges) the proper course would be seek the views of the Australian people by way of referendum?

10. PM Billy Hughes’ WWI Conscription Referenda

There is of course ample precedent for such a course of action taking place. When Australia was under the hammer from Britain in WWI to maintain its overseas voluntary reinforcements at the rate of 5,500 per month. Despite the urgency of the war crisis, Australia still managed to conduct one ‘compulsory conscription’ referendum on this matter in 1916 (which of course failed) and a second one in 1917 (failed again).

Surely, in the current environment, which hardly resembles the desperate war footing of Australia 1916/1917, it is not too much to ask the Australian people whether they agree to the proposed circumvention of Australia’s written Constitution?

11. How would a BoR help with anti terror laws?

The proposed curtailing of some personal freedoms explicit in the Government’s “anti-terrorism measures” is broadly something we have accepted as necessary to this point.

And let us be clear. Terrorist attacks against civilian targets constitute the gravest possible assault on human rights imaginable.   Acts of terrorism are conceived and perpetrated by a few with the deliberate intent of causing indiscriminate death and serious injury to their victims – whoever they happen to be – for some often undefined and unspecified cause.

It is important, however, to note that such arbitrary and unjustifiable acts not only violate the human rights of their victims, but also circumvent both the democratic principles and the values established by the various international human rights conventions - the very essence of the society against which they are perpetrated.

In other words, a society’s civil liberties may also become a victim of terrorism.

Here I would like to quote from Professor George Williams, who is chairing Victoria’s Human Rights Consultation Committee, from his 2003 NPC address:

“The (ASIO) Bill must NOT be assessed as if we have become divorced from our history and shared values since September 11.   This context is an important source of guidance at a time of community fear and national grief after the Bali attack.”

My argument is – when it is necessary to draft new anti-terror laws, let us assess the new laws, in a systematic way, against the freedoms they are likely to infringe.   Let us also ensure that the necessary infringements of HR are kept to minimum.

Human rights principles are capable of delivering wisdom and balance - a combination that has served Australians well in the past and could be said to represent the core of our democracy.

I believe that our government and Attorney-General are more than capable of looking after the ‘anti-terror side of the ledger’.

My job, along with the rest of the constituent parts of the civil society, is to balance the other column in that ledger – the one marked ‘human rights’.

12. HR Standards help measure proportionality and necessity

Achieving this balance makes a judicially enforceable Bill of Rights even more essential. In the absence of a legislated list of existing rights, it is difficult to measure what we are being asked to give up, when the Government proposes new security measures.   We have no easy way to assess the “proportionality” of government anti-terror proposals.

Sometimes I worry that collectively we may become so de-sensitised to future erosions of our civil liberties that after a while we simply won’t recognise how much we have sacrificed along the way as each new amendment is passed.

A bit like the frog experiment:  put a frog into a beaker of boiling water and it jumps out, like any sensible frog would.   But, put it into a beaker of cold water and slowly bring it to the boil and the frog lets itself be broiled alive!!

13. ASIO amendments hard to measure what was HR sacrificed

The Federal Government’s previous parliamentary difficulties with the ASIO Bill is a good case in point.

Both within the Liberals’ Party Room and in the Senate, much effort was expended to try and establish exactly what the proposed legislation would mean in practice. And what a difficult task that proved to be.

Even so the Bill that was finally approved, with Labor support, contains a number of extremely confronting features from a human rights perspective.

To quote from the HREOC press release that was issued after the passage of the Bill and the effect on children:

“It is also relevant to note that the ASIO Act provides for significantly greater periods of detention than the Crimes Act 1914 (Cth), which already makes careful and measured provision for the detention and questioning of children arrested on suspicion of having committed a crime.  Under the ASIO Act a person aged between 16 and 18 may be detained for periods of up to seven days under any one warrant.  In contrast the Crimes Act (Cth), provides for a maximum of two hours detention (not including time taken for matters such as consulting legal representatives)”.

14. Bill of Rights allows you to measure proportionality

I am not suggesting that the pre-existence of a Bill of Rights would automatically preclude a government from implementing legislation such as the ASIO Bill, after all the current British Government has passed similar laws.

The difference is that in Britain the Home Secretary was required to formally suspend the operation of the Human Rights Act in order to implement those sections of the proposed bills which were contrary to the Human Rights Act.

This has the effect of putting the parliament and their constituents “on notice” that existing “rights” are under threat, thereby concentrating everyone’s attention and most importantly permitting proper consideration of the vital issue of proportionality.

15. Terrorists will always be a factor.

Suffice to say, in this short space, that continued scrutiny by civil society of proposed anti-terror legislation as to its necessity and proportionality is critical. That is if we wish to avoid inflicting greater long term damage to our human rights, than is currently being done to them by the actions of terrorists. Again the lessons of history demonstrate that there have been, and will continue to be, threats to civilised society posed by malcontents. In a sense the ‘war on terror’ is as ancient as civilisation itself; just as in another sense, there can never be a future ‘VT Day’ – victory over terror day, in the way we celebrate VE Day – victory in Europe WWIIwise. In accepting this we make our task with proposed anti-terror laws a little easier, because the benchmark then becomes the measure of permanent sacrifice of particular individual freedoms versus the ‘half-life’ of fleeting success against the current manifestations of terror.

16. Conclusion

As I draw to a close, first let me quote from Terry Higgins, the Chief Justice of the ACT Supreme Court, from an address he gave at the Isaacs Law Society Ball recently on what he thinks about the proposed new anti-terror laws:

“If the war (on terror) is open-ended, its boundaries ill defined, how can we guarantee that the recent encroachments on civil liberties won't continue ad infinitem? The sunset provisions for the law permitting detention for questioning have come up for renewal, and of course the Government is seeking to extend the operation of those powers.

But how many times will such extensions be granted? What is brought in with a dramatic bang often stays with an insidious whisper; these laws are like a dubious party guest who refuses to leave. How do we ensure that our fundamental freedoms don't waste away under the weight of volumes of long forgotten, dusty, neglected counter- terrorism legislation? The argument that it is simply a matter of 'extraordinary times call for extraordinary measures' is initially persuasive, but less compelling when subject to closer scrutiny.

History has shown that, unfortunately, once taken away, rights don't tend to hover in the stratosphere, waiting to be reactivated. There is the problem that measures that are introduced during times of national emergency have a nasty habit of outstaying their welcome.”

And now on the need for a Bill of Rights, I refer to former High Court Chief Justice Sir Anthony Mason who said at the Law and Justice Foundation of NSW 2005 Address on 6 October:

In Australia, the adoption of a Bill of Rights has been a controversial issue. Although there are arguments against a Bill of Rights which merit serious consideration, it is extremely significant that Australia is virtually alone in the Western world without a general Bill of Rights. The adoption of such a Bill would promote a culture of respect for the autonomy and dignity of the individual and, at least, ensure that politicians, government and administrators pay closer attention to the impact of legislation on individual rights and freedoms. It would also encourage them to focus their attention on the personal needs and concerns of the citizens of this country”.

Therefore, in closing let me urge you as members of Australia’s ‘civil society’, it is imperative that we continue agitating for a Bill of Rights as a necessary off-set to the raft of anti-terror measures that are either in place or proposed for implementation.