J.K. Bowen
J.K. Bowen is a Melbourne Barrister. The views expressed in this paper are personal ones.
Despite the coincidence of surname, the views of J.K. (Jim) Bowen and the Attorney-General, Lionel Bowen, on the issue under discussion are quite opposed. Jim Bowen's case is essentially a conservative one: the Bill, if introduced, would be likely to undermine the existing protectors of our rights and disrupt the institutions of family, law and order and education.
In October 1985 the Federal Labor Government introduced the Australian Bill of Rights Bill into the Federal Parliament. This Bill has the capacity to affect dramatically the lives of most Australians.
Without consulting us, the present Federal Government has presumed to dictate in this Bill of Rights what our basic rights and freedoms are to be henceforth. The Bill diverts our rights and freedoms from their traditional sources of protection, and reposes the interpretation and enforcement of our rights and freedoms, in the first instance, in a Federal bureaucracy. The Bill contains no protections for the family, for private property, or for private trade and enterprise. It can fairly be described as a socialist Bill of Rights.
The Bill will require judges to evaluate the social desirability of laws, rather than simply to interpret the law. In this requirement there is a grave danger that the Bill will politicise the judiciary in Australia.
The Bill provides the basis for constitutional and social engineering by stealth. It has the capacity to damage severely our federal system of government in Australia by undermining the authority of the States to manage their own affairs in accordance with the Constitution.
The Bill also has the capacity to undermine the authority of parents in traditional family relationships. It will expose our children to lawful indoctrination at their schools, and elsewhere, with political ideologies and moral values that their parents could find completely objectionable.
The Bill enhances the rights of individuals at the expense of organised society. With crime in Australia soaring to new and alarming levels, the Bill of Rights ignores the rights of law-abiding citizens and offers new and powerful protections to criminals. To the growing army of victims of crime in Australia, the Bill offers only more harm and distress.
The Bill will require a complete and costly evaluation of all Federal laws over the next five years to see whether they are in conflict with the Bill. Thereafter, the law courts will be busily engaged in the expensive process of determining which laws are in conflict with the Bill. None of this is necessary. There are no grave threats to our rights and liberties in Australia. Accepted deficiencies concerning human rights can be dealt with by individual pieces of legislation, each dealing with specific problems, and after proper public debate.
One of the most disturbing features of the introduction of this alien legal mechanism into Australia is that its implications are so little understood by the ordinary Australians who will have to live with it. Never in the history of the Australian Federation has legislation of such vital significance to every Australian been so little debated in the community before it was introduced into Parliament. The purpose of this paper is to expose to public scrutiny some of the more disturbing implications of this so-called Bill of Rights.
An examination of the brief history of the Bill of Rights proposal in Australia shows no groundswell of public demand for it, and supports a conclusion that the Bill is a product of ideological commitment -- regardless of the implications for organised society!
It was the former Senator Lionel Murphy -- an Attorney-General in the Whitlam Government -- who surprised most Australians by suggesting to them that they needed the alien mechanism of a Bill of Rights to protect their rights and freedoms. Senator Murphy can fairly be described as the father of the Bill of Rights proposal in Australia, and when he was appointed to the High Court Bench, the controversial proposal was shelved until Senator Gareth Evans revived it in 1983, by commissioning a new draft Bill.
During the ten years prior to 1983, the only real pressure for an Australian Bill of Rights was being generated by the extreme left of Australian politics.
When Senator Evans was dropped from the office of Attorney-General after the 1984 Federal election, his successor in office, the Deputy Prime Minister of Australia, Mr. Lionel Bowen, was reported in The Age newspaper as stating that the proposed Australian Bill of Rights raised "enormous issues", "moral problems", "State problems", and he was further reported as suggesting that the Bill was "a mess" that should be scrapped. (1) Since having been reported as making those statements about the proposed Bill of Rights, Mr. Lionel Bowen has introduced a virtually identical Bill of Rights into the Federal Parliament.
One could reasonably have expected that a Bill which purports to declare the basic rights and freedoms of all Australians, and which sets up new mechanisms for enforcement of those rights and freedoms, would have been exposed to the widest possible community debate before it was introduced into Federal Parliament. However, no genuine, wide-ranging debate of the implications of the Bill of Rights was permitted by the Federal Government before the Bill was introduced into Federal Parliament in October 1985.
The Federal Bill is now stalled in the Senate, after having occupied more time in debate than any other legislation since Federation. Since its introduction into Parliament, a groundswell of opposition to the Bill of Rights hag been building up across Australia. Members of Federal Parliament have been literally overwhelmed by an avalanche of protest mail. Individual members have received as many as 25,000 separate protest letters and telegrams. (2)
I believe that many members of the Federal Government are appalled at public reaction to the Federal Bill, and are beginning to see the Bill of Rights as a significant election liability for the Government. Even supporters of the concept of a Bill of Rights on the Opposition side, such as the late Senator Alan Missen, appear to have become convinced that the present Bill was likely to divide the nation, and he said during the Senate debate "Now is clearly not the time to try to pass such controversial legislation as the Bill of Rights Bill." (3)
With the debate on the Bill of Rights now adjourned, it is not clear whether this highly controversial Bill will survive to become the major election issue that the Opposition appears determined to make of it.
THE CONCEPT
The concept of a Bill of Rights as a protection of human rights and freedoms is an eighteenth century concept which has not been shown to work effectively in either the United States or the Soviet Union. A Bill of Rights is supposed to spell out the basic values of a society in an authoritative and systematic statement of fundamental rights and liberties.
DEFECTS
One of the fundamental defects of a written Bill of Rights is that many rights tend to be left out, and over the course of time, the rights that are left out may be perceived as being of less value and consequently, more readily altered or deleted completely. England -- the home of the common law -- has always rejected the concept of a written Bill of Rights comparable to the Australian Bill.
Another fundamental problem with a written Bill of Rights is that the rights and freedoms declared in it tend to be stated in very general terms.
There will clearly be much doubt generated as to the ambit of the Australian Bill's operation. Many of the articles grant "rights" or "freedoms" in very general terms without qualification. Experience of such legislation in the United States shows how dangerous such broad statements of rights can be. They invite widely differing interpretations that may owe much to the political philosophy or values of the person called upon to interpret such legislation.
When legislation such as the Australian Bill of Rights gives very wide powers to courts to decide questions of social policy, with results that will differ according to the social or political philosophy of the court that decides the case, then uncertainty and injustice are introduced into the law. (4) Many Australians have been concerned at finding that a great deal of responsibility for the shaping of Australian society has been transferred by the Bill from the people and their elected members of parliament to unelected judges and officers of a Federal bureaucracy. (5)
A disturbing feature of the Australian Bill is the requirement that laws which are seen as limiting any of the rights and freedoms declared in the Bill must be "demonstrably justified in a free and democratic society" (6) -- whatever that may mean! This requirement will compel judges to make their own value judgements as to whether or not particular laws are "demonstrably justified in a free and democratic society", and require the judges to reject laws which they do not find to be so justified. The traditional role of judges in Australia has been to interpret the laws made by parliaments and the common law. Judges are not trained to evaluate the social desirability of laws as a criterion for acceptance or rejection, and by forcing them to do this, there is a grave danger that the Bill of Rights will politicise the judiciary in Australia. (7)
THE UNITED STATES AND SOVIET EXPERIENCE
Some may argue that we could have a Bill of Rights along the lines of the United States model. That argument ignores the fact that the United States Bill of Rights, and the associated human rights industry in that country, have proved to be a multi-billion dollar bonanza for lawyers, have greatly enhanced the rights of criminals at the expense of victims, and brought that country's criminal justice system perilously close to breakdown. The distinguished American constitutional lawyer, Professor Richard Morgan, has charged the human rights industry in his country -- with its obsessive pre-occupation with the rights of individuals at the expense of organised society -- with having disabled important American institutions. (8)
Some of the provisions of our Bill are similar to rights legislation in the United States which has tied the hands of law enforcement officers in their efforts to control crime and seriously undermined public confidence in that country's criminal justice system. If events in Australia follow a similar course to the United States, it is likely that the Bill will increase enormously the volume of litigation in our courts, and that a new class of human rights lawyers will emerge following introduction of the Bill. Much of the cost of this will have to be borne by the Australian taxpayer.
The Soviet Union has a very comprehensive Bill of Rights, but a world rating of countries for their protection of human rights accorded the Soviet Union only a 27 per cent rating. The world average rating was 64 per cent. (9) Australia (without a Bill of Rights) was given a 93 per cent rating in the same survey. The United States (with a Bill of Rights) was rated at 92 per cent.
Those who argue in support of adopting a Bill of Rights for Australia often claim that it is needed to protect individuals against government. However, an examination of the behaviour of governments in countries possessing Bills of Rights often reveals that the worst abuses of human rights occur in such counties.
Why does a human rights Bill containing fine declarations of rights not work in those totalitarian countries, including the Soviet Union, which have such Bills? The answer is that we have strong institutions to protect our rights and freedoms in Australia. Totalitarian countries like to have "window-dressing" such as a human rights Bill; but behind the facade there are no institutions, such as an independent judiciary and a democratically elected parliament, to protect the rights and freedoms declared in such "scraps of paper". A further valid explanation has been offered by the Chief Justice of the High Court, Sir Harry Gibbs, who said:
"If society is tolerant and rational, it does not need a bill of rights. If it is not, no bill of rights will preserve it".
THE ORIGIN OF THE AUSTRALIAN BILL OF RIGHTS
Mechanisms such as the Australian Bill of Rights and the Human Rights Commission, were not drawn, like other features of our legal system, from English models, but from the United Nations -- an organisation now increasingly dominated by countries having single-party governments or dictatorships. The Australian Bill of Rights is based upon the International Covenant on Civil and Political Rights 1966. Australia has signed and ratified that international treaty. However, there are significant differences between that Covenant and the Australian Bill. Many of the restrictions on the exercise of rights and freedoms imposed by the Covenant in the interests of national security, public order, and public health and morals, have been omitted from the Australian Bill of Rights.
The Australian Bill of Rights is clearly a socialist Bill of Rights. Basic values of a free enterprise society were absent from the Australian Bill when it was introduced into Parliament in October 1985. The Bill contained no rights to own private property, to engage in private trade and enterprise, and to freedom of choice in education. The Australian Bill does not protect Australians from being forced to join organisations like trade unions, and provides no protection for the rights of companies. The Australian Bill professes "respect" for the family, but contains no real protections for the traditional family and its values. The Federal Government has resisted attempts by the Federal Opposition to insert these rights in the Australian Bill.
The Bill of Rights incorporated into the 1977 Constitution of the Soviet Union also appears to be based upon United Nations Covenants. Like the Australian Bill of Rights, the Soviet Union's Bill of Rights professes to protect an impressive range of human rights and freedoms. (10) The Australian Bill in fact grants Australians less rights on paper than Soviet citizens.
OBJECTIONS
There are four fundamental objections to the imposition by the Federal Government of a Bill of Rights upon Australians without their consent. Firstly, it is contrary to the basic common law traditions of this country for a government to dictate to Australians what their fundamental rights and freedoms are to be. Secondly, the Australian Bill diverts rights and freedoms of Australians from their traditional sources of protection. Thirdly, by requiring the States to submit to investigation of their laws, acts, and practices, by a Federal Commission, the Bill undermines the separation of authority between States and Commonwealth provided by the Constitution. Fourthly, the Federal Government appears to have blundered into enacting a Bill of Rights without any apparent concern for the destabilising implications for Australian society.
UNDERMINING OUR COMMON LAW TRADITIONS
Australia is a common law country. One of the functions of the common law, devised over a course of centuries in England, and inherited by us in Australia, has been to protect individuals against infringements of the personal rights they possess at birth. (11) In accordance with common law tradition the view is held that, while powers capable of interfering with our rights and freedoms are delegated by us to parliament for purposes such as national security and public order, and to regulate relations between citizens, and between citizen and government, our rights and freedoms are the birth right of each citizen and are not concessions from government. Abuse by government, of the powers delegated to it, is restrained by ensuring that members of parliament remain responsive to the public through regular elections, and by maintaining an independent judiciary to interpret the common law and laws made by parliaments.
The Bill of Rights undermines these fundamental concepts of a society based upon common law traditions. By enacting a Bill of Rights without first obtaining the consent of Australians, the Federal Government has assumed authority to dictate to Australians what their "fundamental rights and freedoms" (12) are to be henceforth, and to prescribe the means of enforcement of those rights and freedoms. In doing so, the Federal Government has rejected our common law traditions, and adopted a view, espoused by authoritarian governments in other places, that rights and freedoms are concessions granted to citizens by their governments. If that concept is accepted, then it follows that governments also have the authority to take away rights and freedoms from citizens as governments see fit. I believe that most Australians, if given the opportunity to do so, would reject the Federal Government's imposition of a Bill of Rights upon them without their consent, together with the concept that they owe their rights and freedoms to the Federal Government.
DIVERTING RIGHTS AND FREEDOMS FROM TRADITIONAL SOURCES OF PROTECTION
The purpose of this paper is not to oppose the protection of human rights, but to defend the rights and freedoms which we have inherited from England, and which have been developed and refined to suit our way of life over hundreds of years. The traditional protectors of those rights and freedoms in Australia have been the common law, our parliaments and our independent judiciary.
The Australian Bill of Rights diverts our "fundamental rights and freedoms" from their traditional sources of protection. The Bill declares these new rights and freedoms in broad, general terms, and reposes the interpretation and enforcement of these rights and freedoms, in the first instance, in a Federal bureaucracy called the Human Rights and Equal Opportunity Commission (hereinafter referred to as "The Commission").
I believe that there is a grave danger involved in undermining in this way the traditional protections of our rights and freedoms, and in allowing an unelected Federal bureaucracy to tell us what our rights and freedoms are to be in future.
If we allow this Federal bureaucracy to become the guardian of our rights and freedoms, we will be rejecting the constitutional legacy which we inherited from England, and we will begin to tread the path taken by the Soviet Union and other countries, which possess comprehensive Bills of Rights, but permit bureaucracies to define and limit as they see fit the rights and freedoms declared in such Bills.
THE ROLE OF THE HUMAN RIGHTS COMMISSION
The controversial Federal Human Rights Commission has been made the guardian of the rights and freedoms of Australians under the Bill of Rights. The revamped Commission, renamed in the Bill the Human Rights and Equal Opportunity Commission, has been selected as the main mechanism for determining what our rights and freedoms are to be under the Australian Bill of Rights, and for enforcing those rights. The Bill also gives the Commission an educative role in promoting understanding and acceptance of the Commission's views of the rights and freedoms declared in the Bill. (13)
The Bill equips the staff of the Commission with far-reaching, intrusive and coercive powers to investigate complaints of alleged breaches of the new rights.
Since it was created in 1981 the Commission has engaged in activities which many Australians believe are indicative of deeply entrenched intolerance and bias. The Commission has promoted values and ideologies that are out of step with those of many Australians. There are powerful examples in the short history of the Commission to support such viewpoints. (14)
Since 1984 the Commission has been pressing strongly for limitations on freedom of speech in Australia. The Commission proposes to make it a criminal offence to utter words in public which, in the view of the Commission, would be likely to incite racial hatred or were deemed to be defamatory of a racial or ethnic group. Ethnic jokes would disappear overnight from the repertoires of comedians if this intolerant proposal became law in Australia, but more seriously for all of us, the proposal would be likely to stifle serious public discussion of subjects which the social engineers do not want us to discuss -- such as multi-culturalism and the racial mix of our immigration policy.
Another act of the Commission which has caused many Australians to regard it as biased and intolerant, and quite unqualified to define and enforce rights, was the suppression in 1984 of a major report on affirmative action -- funded by the Australian taxpayer, and commissioned from the distinguished expert, Dr. Gabriel Moens. In his report, Dr. Moens had dared to suggest that affirmative action programmes would not promote equal opportunity based upon merit, but would create discrimination in employment on behalf of favoured groups regardless of their merit, skill or experience. Dr. Moens also dared to voice the obvious conclusion that such affirmative action practices would be likely to destroy incentive in male workers and produce hostility towards the favoured groups.
During 1985 the Commission alarmed many Australians when it banned the shadow Federal Attorney-General, the Honourable Neil Brown, from all of its offices, without any cause being shown for such intolerant and arbitrary action by a Commission funded by the Australian taxpayer.
The Commission has indicated that it regards homosexual relationships as an alternative lifestyle worthy of the same recognition and protection as traditional marriage. (15) The Commission has supported the right of homosexuals to bring foreign homosexual lovers into Australia as immigrants. (16)
The Commission has supported the right of the feminist group Women against Rape to disrupt solemn Anzac Day observances by protest demonstrations. (17)
The Commission has foreshadowed that it will be investigating Queensland laws as soon as the Bill of Rights gives it the power to do so. (18)
This behaviour of the Commission, and these disturbing indications of the values and ideologies entrenched in the Commission, have aroused interest in what the Commission has actually been doing to promote human rights. The Commission has produced a teaching kit for children at schools called Teaching for Human Rights. It contains disturbing value judgements directed at our children, for example:
THE FAMILY
The traditional Australian family is described as "secular, racist, sexist and materialistic." (19) The author then goes on to argue that there is "no ideal form of family", and that governments should protect as families all "group units" that people find "natural" and "fundamental" in the performance of familial functions. (20) Presumably, this means that homosexual relationships, single parents by choice, and communes should be elevated to the same status as the traditional family!
CAPITALISM
"The rich want to keep what they have. They run the governments and the armies. They see change as needed only where it means preserving the kind of life they are used to." (21)
THE UNITED STATES
"There has been mass assassination too, by more covert and indirect means. The construction of a capitalist world economy, predicated upon dishonesty and greed, has slaughtered uncounted millions the world over through the exploitation and misdevelopment of global resources. The United States and other erstwhile 'free market' democracies have much to answer for in this regard". (22)
The Commission makes no secret of the fact that it intends to use education systems to indoctrinate our children with the Commission's values and ideologies. That this is the Commission's aim is made clear from the following extract from the Commission's booklet Teaching, Enacting and Sticking Up for Human Rights:
"Joining in the Commission's political project through its reconstructionist educational work, will be appealing to many teachers; they will welcome the opportunity to engage in conscientisation with their students in the interest of social justice. Others will find such work far too 'political' for their liking; they will regard the curriculum too 'radical' and too far removed from what they regard as 'education' to feel comfortable with. Perhaps they will be the majority of teachers". (23)
In the same work, the Commission rejects the accepted notion that Australian education should be neutral with regard to values and morals. It is asserted that --
"teachers considering adopting Teaching Human Rights should be aware that the programme makes no pretence at all at being value-free. It is value-heavy (but so are all curricula although that is not universally recognised), has explicit ideological commitments, and eschews the notion of 'neutrality' in education. The ultimate intent of the curriculum is emancipatory and reconstructionist; it quite plainly directs teachers to help their students 'to reflect upon the social, political, and economic contradictions in the culture and to take systematic political action against oppressive power blocs' (Nash & Agne, ibid. p.367). For many teachers that project is political work that will seem entirely alien to the tasks of 'responsible' and 'professional' educators." (24) (my emphasis)
I believe that many Australian parents have become concerned that a Federal Commission, espousing such values and ideologies, will be given increased authority over our children and a powerful means of access to their minds for the purpose of implanting its values and ideologies. This means of access is provided by Article 7 of the Bill of Rights, which will give the Commission the right to impart ideas or information of any kind in any form to our children without interference. I shall return to the dangerous implications of Article 7 later in this paper.
Under the proposed Australian Bill of Rights, the Commission is given extraordinary powers to conduct inquiries into laws, acts and practices which, in the opinion of the Commission, may infringe rights or freedoms declared by the Bill. (25) The Commission is empowered by the Bill to compel anyone, including high officers of State Governments, to appear before its public servants -- under threat of fine or imprisonment. (26)
When investigating complaints, the Commission is permitted to conduct compulsory conferences in private and in such manner as the person presiding over the conference sees fit. (27) Persons compelled to attend such conferences are not entitled to legal representation -- as they would be if their conduct was being investigated in the law courts. (28) There is no right to refuse to answer questions. (29) There is no privilege against self-incrimination. (30) There is no right to know the identity of one's accuser. (31)
It appears to me that when a person is compelled to appear before the Commission he or she will be effectively stripped of important human rights that are presently available in our law courts. The Commission -- with its alarming record of intolerance and arbitrary behaviour -- will effectively be able to tell us what our rights and freedoms are to be, and tell us how we are infringing the "rights" and "freedoms" of those who are demanding the Bill.
Many Australians are rightly concerned that the Commission has been made the guardian of their rights and freedoms, and granted such power over their lives.
UNDERMINING THE AUTHORITY OF THE STATES
Senator Evans' Bill operated against the States by overturning State law to the extent that any State law was found to be inconsistent with a particular provision of that Bill.
The Bill of Rights now before the Federal Parliament will operate against the States by deploying the full coercive powers of the Commonwealth against them, rather than by invalidating particular State laws. The Bowen Bill sets up machinery that will force State Governments, and local authorities and statutory authorities in the States, to submit to the humiliation of having their laws, by-laws, actions and practices investigated from time to time by the Commission to see whether any such laws or by-laws, actions or practices, infringe any of the rights or freedoms set out in the Articles of the Australian Bill of Rights. (32)
It is difficult to imagine a piece of legislation that could be more harmful to our federal system of government in Australia.
It would require a strong and very determined State Government, statutory authority or local council to withstand the type of pressure that the Federal Government is capable of bringing to bear. Accordingly, it appears to me that, despite the modifications to the operation of the Evans Bill effected by Mr. Lionel Bowen, his Bill is likely to produce identical results in the long term.
However, State Labor Governments will probably be obliged to co-operate with the Federal Government in implementing the Bill of Rights in their States because the introduction of a Bill of Rights, based upon international covenants, is the official policy of the Australian Labor Party. (33) A State Government could co-operate by enacting complementary laws to facilitate implementation of the Federal Bill in that State.
There will be considerable pressure on the present, and any future Federal Labor Government to restore the original Evans model after Australians have become accustomed to living with a Bill of Rights. The reason for this is that the Bill of Rights is designed to modify the behaviour of all Australians. It cannot do so with complete effectiveness unless the Bill is capable of overriding State laws. Dame Roma Mitchell, Chairman of the Human Rights Commission, is reported to have described the present Bill of Rights as a "softly, softly approach" designed to accustom Australians to living with a Bill of Rights before the Bill is given teeth. (34) Dame Roma was also reported as declaring that "if a State chooses to pass legislation which is in conflict with the articles of the covenant, somebody's got to do something about it." (35)
The Deputy Prime Minister, Mr. Lionel Bowen, has in fact repeatedly said that the Federal Government is prepared to pass a Federal law overriding any State law found to be inconsistent with the Federal Bill of Rights. It remains to be seen whether the High Court will hold such legislation to be a valid exercise of the external affairs power.
DISRUPTING THE DELICATE BALANCE OF OUR SOCIETY
In Australia relations between citizens, and between citizens and government, are held in delicate balance by a complex network of common law and statute law rules developed and refined over centuries.
I believe that the Australian Bill of Rights -- with its declaration of a catalogue of rights and freedoms in vague and general terms and without qualifications -- will disrupt the delicate balance of our society by interfering with sensitive relationships, by creating uncertainty in relationships where there was certainty, by producing collisions between vaguely-stated competing rights, by undermining police powers, and by producing a vast and quite unnecessary increase in litigation. All of this will occur at great cost to our society in terms of insecurity, disruption, conflict, resentment and money. All of these unfortunate consequences are being produced by Bills of Rights in the United States and Canada, and we may reasonably expect similar consequences to follow from an Australian Bill of Rights.
An example will serve to indicate the type of problem the Bill will produce. A predominantly Christian local Council may refuse to rent the town hall for production of a play which Council members consider likely to be offensive to Christians. The Council members may act in the belief that the protection of religious belief and practice asserted in Article 9 of the Bill supports their action. However, the producers of the play would be entitled to complain about the Council's actions to the Commission and support their complaint by reference to the right of freedom of expression contained in Article 7 of the Bill. In my opinion, there is a strong probability that the Council members would be adjudged at fault for attempting to impose their religious values on other persons.
IMPACT ON INSTITUTIONS AND SENSITIVE RELATIONSHIPS
The Bill contains provisions which will remove important police powers, and severely restrict the powers of police forces in Australia to act effectively against crime, and unlawful obstruction and trespass in certain situations. The Bill has a clear potential to interfere with existing sensitive relationships, such as those between parent and child, and teacher and pupil.
The loss of powers, and other restrictions on police control of crime, are likely to be highly damaging to police morale. The intrusions by the Bill into important institutions and relationships are likely to be highly destabilising to our society. In short, the Bill appears likely to offer nothing but harm to ordinary, law-abiding, decent citizens and clearly has the potential to undermine social cohesion in Australia.
THE FAMILY
The permissiveness, intolerance of all forms of authority and preoccupation with self-indulgence that invaded and permeated our society in the sixties, and in particular, our troubled public education systems, are still with us today and make it extremely difficult for many parents to maintain even a semblance of authority over their children. It appears to me that the Bill of Rights has the capacity to strike a serious blow at what remains of parental authority over children by its interference with the relationship between parent and child, and the powers it gives the Commission in relation to our children. Article 14 of the Bill grants children the fundamental rights and freedoms set out in the Bill to the greatest extent compatible with the age of the child. The qualification as to age is likely to produce widely divergent views in a permissive society such as ours. The rights to be granted to children by the Bill include rights of association, thought and expression.
Taken at face value, those declarations of children's rights sound fine, but consider the implications for parental authority over children when it is the Commission that will be telling our children what their rights are under the Bill.
From the Commission's own publications, it is clear that it intends to indoctrinate children with its values and ideologies, and with the stated aim of inducing in those children a desire "to take systematic political action" against targets provided by the Commission. (36) It is equally clear from the Commission's published teaching kit that it is hostile towards the traditional family unit which it sees as "racist, sexist, and materialistic". (37) It does not take much imagination to foresee that the Commission will add the label "oppressive" (38) to the traditional family unit if the Commission is given the power by the Bill of Rights to interpret and enforce Article 14. Clearly, there is a grave risk that the Bill of Rights will set the traditional family up as a prime target for the Commission's ''reconstructionist" and "emancipatory" activities with our children.
It must be borne in mind that, in addition to giving the Commission increased authority over many aspects of our lives, the Bill will also give the Commission the opportunity, through teachers, to impart ideas or information of any kind to our children without interference. (39)
Most civilisations, throughout recorded history, have recognised that the traditional two spouse heterosexual family unit is one of the most important factors contributing to a stable society. One of the main factors contributing to the destabilisation of Australian society since the fifties has been the undermining of this family unit by such measures as the continual withdrawal of economic support for it, easy divorce laws, and the elevation of "alternative" lifestyles, such as the voluntary single parent family and homosexual relationships, to a status equivalent to the traditional family. Those of us who see the traditional family unit as vital to the maintenance of a stable society are now faced with the alarming prospect of a powerful Federal bureaucracy -- hostile to this view -- being given even more power over our lives by the Bill of Rights.
EDUCATION
Article 7 of the Bill of Rights grants to every person the right "to impart ideas or information of any kind in any form, without interference".
This provision of the Bill could provide a foundation for the indoctrination of children, especially at government schools, with ideologies and moral values completely foreign to the attitudes and values of their parents and the community at large. The Bill could be used to justify exposure of children, under the guise of "education" to material that many parents might regard as pornographic.
The question is -- should any persons given the lawful custody of our children be granted such powers by the Bill of Rights?
Apologists for the Bill suggest that this is misleading propaganda against the Bill, and they point to Article 14 (d) which declares that "the liberty of parents and legal guardians to ensure the religious and moral education of their children in conformity with their own convictions is to be respected." An astute reader of the Bill of Rights will already have detected the fact that, in a solemn catalogue of rights, parents are not given a positive right to ensure the religious and moral education of their children -- only an entitlement to respect for their views. If the Commission is considering the right of a teacher to introduce homosexual studies into the classroom there is need only for respect for a parent's contrary view. It is not difficult to foresee that in most cases a positive right is likely to prevail over a mere entitlement to respect for a contrary viewpoint.
Article 5 declares the rights of ethnic and other minority groups, in community with other members of their own group, to enjoy their own culture and to use their own language. Could this article be used by a particular ethnic group to support a demand that their children be taught their own culture in their own language in government schools? Take for example Islamic fundamentalism. It is a chilling thought, but Hispanic ethnics in New York are achieving such rights in publicly-funded schools. Under the pressure of multiculturalism in Australia, it is quite possible that we could see similar developments here.
AUSTRALIAN CRIMINAL JUSTICE SYSTEMS
Every Australian should be concerned about the Bill's implications for our criminal justice systems and police forces. The Bill effectively introduces into our criminal justice systems provisions similar to the United States "due process laws". The Bill contains provisions which will remove important police powers, and severely restrict the powers of police forces to act effectively against crime, and unlawful obstruction and trespass. In other words, the powers of the police will be drastically curtailed, and the rights of criminals will be greatly enhanced.
Article 12 of the Bill provides that a search or seizure is unlawful unless made pursuant to a warrant "particularly describing the purpose of the search, who or what is to be searched and what is to be seized." The effect of Article 12 is to sweep away the sensible and flexible common law rules relating to search and seizure by police, and to replace them with more limited powers hedged about with restrictions. For example, if a policeman enters a house with a warrant to search for stolen property, but finds both stolen property and tools for counterfeiting, the existing law permits him to seize both the tools and the stolen property. Article 12 will deny the policeman the right to seize the tools in such circumstances, and will probably permit the occupier of the house to order the policeman from the premises as a trespasser, so enabling the tools to be removed and concealed.
Anyone familiar with the good practical sense embodied in our common law rules will doubtless be amazed that Article 12 of the Bill could produce such a situation, but such bizarre anomalies occur frequently in the United States under the "due process" provisions of its Bill of Rights.
Article 21 of the Bill of Rights requires police to inform a person arrested of the reasons for the arrest "at the time of the arrest", and requires that the person arrested "shall be informed promptly and in detail of any charges in a language which that person understands." For example, if a policeman sees an armed robber fleeing from a bank, the existing law does not require the policeman to explain the reason for arrest on the spot, especially if the armed robber resists arrest. However, the Bill will require the reason for arrest to be correctly explained to the criminal at the time of arrest. If the criminal cannot speak English, the arrest may be rendered unlawful if the police are unable to find quickly an interpreter who speaks the criminal's language, and can interpret the charges to him. Canadians have discovered, since they acquired a bill of rights in 1982, that criminals are being released when there has been a minor technical irregularity in the procedural and investigatory steps taken by the police. We may reasonably expect the same consequences to follow from the Australian Bill of Rights.
Article 22 confirms the suspect's right to remain silent, but also grants the suspect in custody a new legal right to consult with a lawyer. This new right appears to be designed to deter suspects from confessing to the police. The common law, as applied in this country, has never gone to such lengths to prevent confessions of guilt. Many serious crimes are solved and many dangerous criminals are brought to justice, solely on the basis of voluntary confessions of guilt to police.
At present in Victoria s.460 of the Crimes Act allows police to question suspects in their custody. Article 23 of the Bill requires any person arrested or detained on a criminal charge to be "brought promptly before a judge, magistrate or justice of the peace." This provision of the Bill appears likely to make it illegal for police to question suspects in their custody -- no matter how serious the crime! (40) I believe that police will confirm that Article 23 will significantly reduce their capacity to investigate and clear up serious crime. This provision would work in those European countries where an Examining Magistrate questions suspects rather than the police, but it will certainly not work in Australia. This provision of the Bill illustrates how absurd it is to introduce United Nations Covenants as laws in Australia without first considering the implications!
The unqualified right of peaceful assembly granted by Article 10 may render it very difficult for police to control "peaceful" demonstrations, or to remove demonstrators who are blocking public streets or trespassing upon public or private property.
In my opinion, the Bill will produce changes to the criminal law that will severely hamper the efforts of police to control crime, and will greatly multiply the number of challenges at court to police evidence. The loss of powers, and other restrictions on police attempts to control crime, are likely to undermine police morale as dramatically as similar legislation has done to police forces in the United States.
The Bill offers nothing but more harm and distress to the victims of crime whose numbers are increasing dramatically each year in Australia. It is ironic that the rhetoric that has been used to support this Bill includes reference to a need to give individuals greater protection from governments. Crime has become insidiously the greatest violation of civil liberties in Australia. Most of us are now less free, more apprehensive, and less safe, because of the ever-present threat of the criminal -- and yet, the Federal Government's Bill will give the criminal greater protection from being brought to justice!
CONCLUSION
The Australian Bill of Rights Bill can only be justified, if at all, on ideological grounds. There is no practical justification for it especially when it will create so many problems. Our rights and freedoms in Australia are already well protected by traditional sources of protection -- our parliaments, the common law, and our independent judiciary. Like all human institutions, those traditional sources of protection can fail us in particular cases from time to time, but the outstanding success of those traditional sources of protection can be measured by Australia's high international rating for protection of human rights.
Despite the groundswell of opposition to the Federal Bill, and the calls for a referendum on the Bill, neither the Federal Government nor the Australian Democrats believe that they could convince Australians of the need for a Bill of Rights during the debate preceding a referendum. Government Senator Nick Bolkus is reported to have described the suggestion of a referendum as "an attempt to sabotage the Bill". (41) The Bill of Rights may still become law with the support of the Australian Democrats, but it is likely to remain forever tainted by the divisions it has produced in Australia.
NOTES
1. 8 December 1984
2. Senate questions, Hansard, 13 June 1986 at page 4022
3. Senate debate, Hansard, 14 February 1986 at page 373
4. The Chief Justice of the High Court of Australia, Sir Harry Gibbs, mentioned this danger inherent in a Bill of Rights in an address entitled: "Some Thoughts on The Australian Constitution", 21 November 1985.
5. The Human Rights and Equal Opportunity Commission.
6. Article 3(1) Australian Bill of Rights Bill
7. The Chief Justice of the High Court adverted to this risk inherent in giving to the judiciary a wide discretion in the interpretation of a Bill of Rights in his Eleventh Wilfred Fullagar Memorial Lecture: "The Constitutional Protection of Human Rights": Monash University Law Review, Vol.9, Sep 1982 at pages 6-8.
8. See: Disabling America -- the Rights Industry in our Time, Professor Richard Morgan (1985)
9. World Human Rights Guide, Charles Humana (1983)
10. The Soviet Bill of Rights actually declares the rights of citizens to own private property, such as their homes, their cars and their earnings, and to inherit such property from their parents. See article 13 of the I977 Constitution of the USSR. Article 53 declares that the family shall enjoy the protection of the Soviet state.
11. E.g. the presumption of innocence of criminal charges, the right to silence when accused of crime.
12. The words are those of Mr. Lionel Bowen The Advocate (Tasmania) 20 March 1986.
13. Section 25
14. The examples that follow were all cited in the debate on the Australian Bill of Rights in the House of Representatives Hansard at pages 2766-2767.
15. Ibid, and Teaching for Human Rights -- Pettman (1984) at page 153
16. Ibid
17. Ibid
18. Ibid
19. Teaching for Human Rights -- Ralph Pettman at page 152
20. Ibid, at page 153
21. Ibid, at page 102
22. Ibid, at page 66
23. Occasional Paper No.9 at page 73. The Commission has been offering financial incentives to encourage teachers to undertake the Commission's "political project"
24. Ibid at page 72
25. Section 25(a) and (d)
26. Section 33
27. Section 34 (2)
28. Section 34 (4)
29. Section 35 (2)
30. Section 36 (4)
31. Section 29 (2)
32. Sections 25 and 27 (2)
33. Australian Labor Party Platform Constitution and Rules (1984) at pages 20, 95-96. Although the Bill of Rights now before the Federal Parliament purports to control governments, government authorities, and the employees of both, it should be noted that the platform of the Australian Labor Party commits that party to extending the Bill of Rights ultimately to control the behaviour of private individuals. See page 20 at paragraph 45.
34. The Weekend Australian, 29-30 June 1985.
35. Ibid.
36. Occasional Paper No.9 at page 72
37. Teaching for Human Rights at page 152
38. Occasional Paper No.9 at page 72
39. Article 7
40. The Queen v. Iorlano (1984) A.L.J.R. 22
41. The Courier Mail, 13 December 1984.
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