Essay: "Is there a need for a Bill of Rights in Australia?"
Evan Ling, 15 October 1996
This essay discusses whether an Australian Bill of Rights would enhance the maintenance and enforcement of human rights in Australia. If a Bill of Rights is to be included in the Constitution, this debate involves the questions surrounding the difficulty and favourability of change to the Australian Constitution. The problems which arise in regard to Constitutional change effect the form which a Bill of Rights can take, and therefore have a practical impact on the issue.
If the term "Bill of Rights" is defined broadly, it could be argued that a Bill of Rights already exists in Australia as the sum total of the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Crimes and Torture Act 1988, the Privacy Act 1988, the Disability Discrimination Act 1994, and the Racial Hatred Act 1995. These laws have not been made with any intention to provide a full treatment of human rights. They merely attempt to protect individuals and society from discrimination, and provide a minimal level of rights in a few areas. Also, as Acts of Parliament, they can be amended or repealed suddenly and at any time (Legal and Constitutional Committee, 1986: p. 10).
Existing human rights laws are administered by commissions. These commissioners have some independence, but are appointees, not elected. It is easy to imagine these bodies becoming unrepresentative of public opinion. They could also become very controversial.
Federal human rights laws must reflect international covenants in order to be valid under the Australian Constitution. Sections 51 and 52, listing the powers of the federal government, do not list human rights. As the states have residual powers, human rights are largely a state responsibility Legal and Constitutional Committee, 1986: p. 10). To have any meaning or effect, a Bill of Rights written into the constitution or as an appendix to the constitution would have to include a specific statement placing these matters under federal powers. It is very unlikely that such constitutional changes could be made given the Australian history of rejection of Constitutional amendments and the strength of the "states rights" advocates.
If a Bill of Rights were included in the Constitution, it could be found that these "rights" were as much a limit to freedom as they would be a guarantee of freedom. We can be sure that it is the privileged who would have the opportunity to draft and interpret this Bill, not the oppressed, and that such a Bill would be written in such a way as to protect the rights of those who already have power in our society. These people have no need of a Bill of Rights, already having the wealth and position to protect their so-called "rights". There is unequal access to the Courts due to the high cost of legal representation, and if legal action is necessary to interpret the Bill of Rights, it is clear that those with greater ability to pay would be advantaged. This is why "state rights" have a higher prominence than individual rights in Australia - state politicians have greater access to the courts than most individuals, and can use government money and public service lawyers to assist their case.
The problem with this argument against a constitutional Bill of Rights is that it applies equally to the other law-based methods of expressing human rights. Common law, which is law made by judges; legislature, made by politicians; and international conventions, made by politicians and their diplomats, all provide unequal access to decision-makers and their decisions. The constitutional Bill of Rights would involve a referendum, which would at least allow greater public discussion and some level of democratic choice. The current federal debate over the Northern Territory Rights of the Terminally Ill Act is an example of the current political discussion on human rights, arbitrary and ignorant of public opinion.
Rights held to be universal need to be universally held to be rights (Editorial, The Age, 19th August 1986:p. 13). The American Bill of Rights, for example, includes statements which might not be widely acceptable in Australia. Some rights are controversial, such as "the right to life" and "the right to choice" as conflicting arguments in the abortion debate, the "right" to own certain weapons, and the Northern Territory Rights of the Terminally Ill Act. Even so, the proponents of each of these claims could become extremely agitated if a constitutional Bill of Rights was put to referendum without the inclusion of these claims, whilst their opponents would be equally agitated if these claims were included.
Other rights are uncontroversial, and there might be little debate if they were included in a Bill of Rights. They include the right to vote in fair and democratic elections, trial by jury, freedom of religion, and the right to own property. Closer scrutiny would reveal how arbitrary and uneven these rights are. The right to vote is arbitrarily denied to those under the age of eighteen, and the electoral process is controlled by a minority of Australians. The existing Australian Constitution does not even guarantee the existing level of suffrage (Senate Standing Committee on Constitutional and Legal Affairs, 1985: p. 11). The right to trial by jury is limited in Australia to those offences which are deemed to be "indictable" by the law-makers (The Australian Constitution, section 80), and many laws deny the presumption of innocence. The definition of what is a "religion" is subject to the whims of parliament and the judiciary. Some sections of society have a much greater access to property than others.
The United Nations Universal Declaration of Human Rights claims to list "equal and inalienable rights of all members of the human family" (Kindig, 1993). This raises one of the key problems with the issue of human rights: to what extent is it intended that each and every stated right be "equal and inalienable"? Article 3 states that "Everyone has the right to life, liberty and the security of person." Under article 29, this right is limited from the time one is found guilty of a crime and imprisoned. If imprisonment is considered just and consistent with human rights, the human right listed in article 3 is not inalienable.
Article 4 states that "No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms", and yet again it could be claimed that the imprisoned person could effectively be under a form of slavery. Article 4 is therefore also not inalienable. So which of these rights is inalienable? For the purposes of public order and general welfare, can an individual be first imprisoned, and then be deemed to be outside the scope of articles 9, 10 and 11, which deal with such issues as arbitrary arrest and detention, a fair and open trial, and the presumption of innocence?
Ben was a prisoner in Pentridge Prison. Ben found some political literature which interested him in the library inside Pentridge Prison, so he wrote to the publisher and began receiving similar political material as a subscriber. The literature was satirical, but did not advocate any form of violence. When Ben was moved to Loddon Prison, the Loddon Prison staff removed this literature from his cell and denied him access to this political material.
Ben decided that he wanted to appeal to the Ombudsman to have this decision reviewed. The prison authorities did not want the Ombudsman to become involved, so they refused to allow Ben to lodge a complaint. Ben found that he had very little power to support what he considered to be his right to receive political literature, so on the 30th August 1996 he commenced a hunger strike even though he knew it would effect his chance of parole. Nine days into the hunger strike, the publishers of the literature began issuing media releases about the situation, and Ben's supporters began ringing the Minister for Justice and Correctional Services, the Department, the Prison and the Ombudsman to raise the issue. After two weeks, Ben was transferred back to Pentridge.
Only one media outlet in Victoria would report on Ben's hunger strike (aside from 3CR, on which the publisher of the political material has a weekly programme), and that was The Age, where a crime reporter, Gabrielle Costa, took an interest in the story. There was at least one caller to "talk back" radio who was allowed to mention Ben's hunger strike on 3LO, but radio and television news services would not report the story. Rallies were held outside the Minister's office and outside Pentridge Prison. Finally, on the thirty-third day of the hunger strike, the political material was returned to Ben, and he was personally assured by the Minister that he could continue to receive political publications and posters while in prison. Ben had lost over 17 kilograms. (Toscano, 1996: pp. 5-10).
Whether a Bill of Rights would have helped, hindered or had any effect on Ben's campaign depends on what rights were listed in the Bill of Rights, and to what extent these rights would be judged to be maintained during imprisonment. Article 19 of the United Nations Universal Declaration of Human Rights states that "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers", but all the rights listed appear to be limited by section 2 of article 29, which states that rights and freedoms are limited by law "solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society" (Kindig, 1993).
If human rights are equal, how does this effect the right to own property listed in article 17? Does each human have the right to an equal share of property, or an equal right to ownership of all property? If one person has the "right" to own billions of dollars worth of property, while another has a theoretical "right to own property" but in fact owns nothing, does this constitute an equal human right?
Overall, the debate over whether Australia should have a constitutional Bill of Rights is largely nonsense, as are most debates over constitutional change. The Australian electorate is exceedingly careful about constitutional change, and it is unlikely that even a very limited Bill of Rights could be added to the Constitution. Once added, it would be largely up to the Cabinet to draft more bills to enforce these rights, the Parliament to pass more Acts, and the judiciary to whimsically interpret the Constitutional changes and the new laws. People like Ben could still be denied access to the processes put in place to defend their rights. If Australia had a constitutional Bill of Rights, and Ben's supporters had the money to mount a High Court case, the process could well have taken a much longer period than Ben could sustain his hunger strike, and he would find unacceptable such a long and difficult road to securing basic human rights.
The Age Editorial Opinion, 1986, "Second thoughts on Bill of Rights", The Age, 19 August 1986.
The Australian Constitution as altered to 30 April 1991, Parliamentary Education Office.
Kindig, T., 1993, "The United Nations Universal Declaration of Human Rights" in We the People, Las Cruces: Left Justified Publiks.
Legal and Constitutional Committee, 1986, Human Rights Reference Discussion Paper No. 1: A Bill of Rights for Victoria? Some Issues, Melbourne: Parliament of Victoria.
Senate Standing Committee on Constitutional and Legal Affairs, 1985, A bill of rights for Australia? An Exposure report for the consideration of Senators, Canberra: Australian Government Publishing Service.
Toscano, J., 1996, Anarchist Media Institute media releases of 9th September 1996, 16th September 1996, 18th September 1996, 23rd September 1996, 30th September 1996, 7th October 1996, reprinted in Anarchist Age Monthly Review, No. 70, Melbourne: Anarchist Media Institute.
