A Bill of Rights Could Advance the Cause of Freedom

John Hyde

John Hyde is Director of the Australian Institute for Public Policy.

While critical of the Bill in its present form, John Hyde believes in the potential of a Bill of Rights to expand the freedom of Australians, particularly in economic relations.

Bills of Rights do not guarantee freedom or for that matter tyranny.  The USSR has one, but the USA also has one and is probably the freest society on Earth.  Australia is far more like the USA than the USSR.  It is worth noting that the US Bill of Rights is very short, and relatively unambiguous.

A properly conceived and honest Bill of Rights rather than the travesty now before the Parliament might help protect some rights.

Theories of rights involve complex philosophical arguments, but the rights which concern us here are relatively simple.  They are:

1. Freedom of Person.  This includes rights to life (possibly including those of the unborn) and various protections in legal processes, such as the onus of proof being on the prosecution or plaintiff, protection against double jeopardy, and the observance of rules of evidence.
2. Freedom of Ideas/  This includes freedom of speech, freedom of the press, and freedom of education.  It is offended by legislation making the expression of certain opinions or attitudes attract legal penalties, by government campaigns to stigmatise people who hold certain opinions, by discriminatory inputs into education both in curriculum and by selective subsidy, in laws against incitement such as those in Queensland's industrial legislation and in Federal anti-racial discrimination legislation.
3. Freedom of Association.  This is denied by compulsory unionism and by Section 54B of the WA Police Act.  The US courts have just ruled that compulsory union dues may not be used for purposes other than collective bargaining -- to do so would be a denial of free association.
4. Protection of the Franchise.  The West Australian Upper House and Queensland Parliament have very uneven electorates.  So does the Senate, though there special considerations may apply.
5. Various property rights, including the right to sell labour and skills on the open market, the right to enjoy private property with the minimum of interference, and rights to privacy.

If any Bill of Rights is passed, it should make perfectly clear, as in America, that it is inclusive, not exclusive, and that rights not specifically mentioned in the bill are not thereby nullified.

Citizens' rights against their governments and other centres of power are not adequately protected in Australia.  As it has evolved and been overlain by Statute, the common law sometimes fails.  This is particularly so as discriminatory social engineering and various types of "human rights" industries are set up.  Australian rights of freedom of association are violated routinely by compulsory unionism.  There is very little parents, taxed to pay for public education, can do, as things are today, about the violation of freedom of ideas.  Libel law has developed in a lop-sided manner which makes free speech risky for anyone without a wealthy employer.  The human rights industry as it is now being set up seems to have an affinity with ideas of "reverse discrimination", specifically favouring one group and thus specifically disadvantaging others.

A Bill of Rights should add to the protections of the individual offered by common law.  It should involve not coercive utopianism but the reinforcing of a cultural and mental climate of Liberty.  It should not permit, let alone be attached to, proposals of thousand-dollar fines for individuals who "insult" members of the misnamed Human Rights and Equal Opportunity Commission.  In drawing it up, the American experience should be a guide.  Look at Article 1 of the American Bill:

Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof;  or abridging the freedom of speech, or of the press;  or the right of people peaceably to assemble, and to petition the government for a redress of grievances.

Our rights are not inviolate at present, and their protection in clear, concise, unambiguous language might be worthwhile.  Even if lawyers can make a feast of interpretations, that is a lesser price than some we now live with, such as all that compulsory unionism and wage-fixing entail for freedom of employment.