A Bill of Contradictions

Geoffrey Blainey

Geoffrey Blainey, A.O., is Dean of Arts and Ernest Scott Professor of History at Melbourne University.

Proponents of the Bill of Rights view its relative simplicity and succinctness as a source of clarity and certainty for people unsure of their rights.  Geoffrey Blainey thinks the opposite:  the Bill promises uncertainty, conflict and the destabilisation of areas of Australian life.  This article is based on two separate articles appearing in The Australian on 18 April and 14 June, 1986.

The Bill of Rights passed by the House of Representatives and now before the Senate is probably the most revolutionary change attempted in Australian life since the introduction of democratic government in the 1850s.

The creation of the Commonwealth of Australia in 1901 was likewise a revolutionary event, but most facets of political and social life were not changed in the first 10 years of the Commonwealth.

The Bill of Rights, however, has the capacity to change life greatly in the next 10 years.  It even has the capacity, in association with the U.N. Covenant on Civil and Political Rights, to undermine the federal system as we know it.

The Bill of Rights has the potential to overturn many of the principles of Australian life, alter many of the political practices, and erode many of the important institutions.  It would be unwise to predict that the Bill will have these effects.  It is so full of camouflages and contradictions that nobody can confidently predict its effects.

The Bill of Rights seems like the long-awaited appearance of Father Christmas in political and social life.  The Federal Government proclaims that hitherto Australia has been deficient in civil liberties and civil rights.  Now, however, through this new Bill of Rights, every Australian will receive 32 precious, inalienable rights.

The Bill of Rights, when read aloud, conveys a rock-like certainty, but few important Bills in federal history are so slippery and uncertain.  The Hawke Government has not set out a list of typical cases that will come before the Human Rights and Equal Opportunity Commission.  If Mr. Hawke made such a list, most Australians would be astonished.

The Bill of Rights promises us a long list of rights but some of them are contradictory.  Some rights are near the top of the ladder and others near the bottom and those near the bottom will be easily trampled upon.  The Federal Court, not the Federal Parliament, is the arbiter of which right should prevail in this bedlam of clamouring rights.

CONFLICT OF RIGHTS

Even Dad and Dave and the assembled people of Snake Gully knew that their own civil rights were like motor cars and could easily collide at the town's only corner.  Rights must sometimes collide because no right automatically has the right of way.

Even if all members appointed to the Human, Rights Commission happen to be neutral and upright citizens they would still have to set up a Premiership List of Rights with some rights overriding others.

If Jim Wilson of Port Macquarie is to receive his favourite right, Mary Jesaulenko of Alice Springs could well lose the right which to her is precious.

Fifty examples of such conflict of rights could be given.  Thus, under Article 6, every Australian has the right "to have access on general terms of equality to public employment".  But what if he is denied employment in the Commonwealth's own shipping line simply because he is not a trade unionist?  He then appeals to the Commission but may well find his case rejected because it is said to conflict with the right, under Article 11, "to form and join trade unions for the protection of that person's interests."

Depending on who sits on the Commission, and which party is in power in Canberra, we could see either the abolition of preference to trade unionists or the enforcement of it.  Do the trade union leaders wish the Human Rights Commission to exercise such a wide power?  Their answer is "yes", but they may live to regret that "yes".

Similarly, the Human Rights Commission can become the adjudicator on the question of Aboriginal land rights.  Thus Article 5 insists that ethnic groups have the right to "enjoy their own culture" and the Commission might well decide that for Aboriginals such a right can be implemented only by granting them an exclusive right to lands.

And yet the assertion of that right could contradict Article 15, which clearly gives every Australian "the right to freedom of movement and choice of residence" -- including the right to mine or live on Aboriginal lands -- if the Commission so resolves.  Indeed, the Commission could claim the power to confiscate land from Aboriginals because there is no clear right to own private property.

If you read the 58 pages of the "Explanatory Memorandum" which accompanies the Bill of Rights you will also find an admission that some of the crucial rights will have to be curbed if the Human Rights Commission so decides.  Thus we read on page 14 that "the freedom of expression guaranteed by Article 7" is not guaranteed after all.

Nothing could be more emphatic than the Bill's insistence that everyone has the right to freedom of expression "without interference".  But when you turn to Article 3 you find that there exists a right to interfere with freedom of expression.

The public is entitled to complain that all these rights promised so positively, will melt like chocolate if the Commission turns on the heat.

Curiously, the Bill of Rights could ultimately weaken the trade union movement and throttle the universities, but hardly a murmur let alone a shout, has come from those institutions.

The Bill promises to grant and safeguard rights, but those rights can be obliterated or altered by changes of membership in the Human Rights Commission, by the appointment of a new generation of judges to the Federal Court, as well as the election of a new Federal Government.

HUMAN RIGHTS COMMISSION

I can only marvel at the powers vested in this reformed Human Rights and Equal Opportunity Commission and yet these powers are underplayed by the Hawke Government which calmly suggests that the granting of citizens' rights is a straightforward matter.

The Bill of Rights is dangerous because of the means it will employ and the enormous judicial powers it will give to a group of short-term political appointees who do not have to possess legal training let alone a name for impartiality.

The Bill introduces a system of neighbourhood spying and secret courts that this country has not known in time of peace, nor usually in time of war.  An informant can write to the Human Rights Commission, secretly stating a grievance.  The Human Rights Commission can then demand evidence from the person accused, but the accused has no right to know the name of the informer.  The person accused has no right to legal representation.

The Hawke Government, in its own defence, explains that those accused cannot be fined or jailed.  This is true.  But they can be publicly vilified by the Human Rights Commission, they can be forced to appear before the Commission, and they can be fined or jailed for refusing to co-operate.

The Bill of Rights welcomes and protects the poison pen and the secret informer.  Clause 29 of the Bill empowers the Human Rights Commission to withhold the name of the informer if it believes that such secrecy is necessary to protect his "privacy".

I can understand the need to protect his life but why his privacy?  It is odd that the privacy of the informer can be protected even though, by laying his original complaint, he violated the privacy of the person whose conduct he complained of.

This secrecy might not necessarily matter if the Human Rights Commission was merely adjudicating on the minor incidents of daily life:  a dispute about a bet, or a dog that bit the man who read the electricity meter.

The Human Rights Commission is dealing not with trivial happenings but with rights and liberties, with major issues of national life.  It is dealing with issues that are crucial -- rights in marriage, birth and death, abortion and euthanasia, the home and the workplace, the power of trade unions and the power of employers, free speech and censorship, State rights and federal rights, voting rights and Aboriginal land rights.

It is dealing with the right of universities to teach certain opinions and the right of citizens to refuse to believe in certain opinions.

The Hawke Government at one and the same time tells its ardent supporters that the Bill of Rights will provide vital protection to those who need it and punishment for those who deserve it, but it is also said to be so harmless that it will not hurt a kitten.

When, a few weeks ago, the Catholic bishops, through their Australian Episcopal Conference, criticised certain aspects of the Bill of Rights, Mr. Bowen as Attorney-General replied that the Human Rights Commission was almost a cuddlesome creature from whom everyone could find a friendly greeting.  It did not even have the power to determine guilt or innocence, he said.

Legally he is correct, but it possesses unlike the courts, a frightening propaganda capacity to make people seem guilty or innocent in the public eye:

Mr. Bowen added the comforting aside:  "If conciliation fails, the Commission will only be able to report to the relevant minister and to the Attorney-General."  But the Human Rights Commission can report in such detail -- and give that detail such publicity -- that its reports can be infinitely more damaging than a court conviction to some Australians.

Mr. Justice Murphy was the original proponent of the Bill of Rights.  On May 20, addressing the Institute of Criminology, Mr. Justice Murphy pointed out that the jury system "belongs to the people and the people should fight for it".

Ironically, nothing so violates the jury system as this Bill of Rights.  Its own Human Rights Commission is an utter denial of those principles for which the jury system stands.

Of course it would be unfair to maintain that Mr. Justice Murphy, if he had remained in the Senate instead of proceeding to the High Court, would necessarily have supported this particular method of adjudicating on rights.

Mr. Justice Murphy also denounced the tendency for "the clear distinction between the police and prosecutors" to become blurred.  The Bill of Rights, however, will actually do what Mr. Justice Murphy deplored.  In the Human Rights Commission not only can the police and prosecutor be one and the same person but that same person can then put on the judge's robes.  What a court!

Interestingly, Mr. Justice Murphy recently made use of the right to refuse to answer questions, to refuse to face cross-examination, when he was in court in Sydney.  It is strange then to find that, in this supposedly freedom-loving document, a citizen brought before the Human Rights Commission does not even possess that basic right.

I don't wish to make Mr. Justice Murphy central to my argument;  he is not.  But it is interesting to see the father of this Bill of Rights, faced with an extremely delicate and difficult situation, now fundamentally disagreeing with the Government on the question of which rights are important.

The Bill of Rights does not even mention that right he counts as indispensable -- the right to trial by jury.  It thus flaunts one of our basic freedoms and existing rights.

OPPONENTS AND SUPPORTERS

I think the strongholds of popular opposition to the Bill are Tasmania and Western Australia, and especially those groups which in America would be called the Moral Majority.  The legal profession is also uneasy, and the Chief Justice of the High Court has made known his concern.

On the other hand strong support for the Bill of Rights comes from minorities who believe they will be the gainers and can't see that the Bill can be their enemy instead of their friend.

Even stronger support comes from radicals who believe that the Bill of Rights is ultimately a way of undermining the Federal Constitution and a shrewd formula for reforming the States without having to seek the people's consent in a federal referendum.

The Queensland electoral laws are an indirect target of the Bill of Rights, and one of the Commission's first tasks will be to investigate those laws, see if they conflict with the Bill of Rights, and, if they do, force Queensland to change them by the enactment of what Canberra calls "overriding legislation to ensure electoral justice."

Some critics of the Bill have rightly pointed out that certain vital rights are not included, to which the Government has replied that the mere failure to mention a right does not mean that it will henceforth be discarded.  According to Senator Evans' speech in the Senate on February 19:  "those rights are to go on being protected and recognised to the extent that they already exist."

What he doesn't point out is that those unnamed rights must now be seen as vulnerable.  How can they be otherwise if certain rights actually proclaimed in the Bill are themselves vulnerable.

The Bill of Rights could be the beginning of a chance which every member of the Federal Parliament could live to regret.