Janine Haines
Janine Haines is a Senator for South Australia and Leader of the Australian Democrats.
The proposed Bill of Rights, Senator Haines argues, is surrounded by misconceptions and baseless fears. She believes the Bill offers a much needed protection for the rights of the individual against the power of government and would offer even greater protection if its jurisdiction would extend to the States. The eventual fate of the Bill may well depend on the position of the Australian Democrats, the party which Janine Haines now leads. This article is an edited version of the speech which Senator Haines delivered in the Federal Parliament on 14 February 1986.
In all the five years that I have been a Member of Parliament I have never before run into so much misinformation being spread around the community about any piece of legislation as that which has been disseminated about the Australian Bill of Rights Bill and the Human Rights and Equal Opportunity Commission Bills which accompany it. The number of Chicken Littles who are running around this community claiming the sky will fall in if we pass this piece of legislation is extraordinary. Sadly, they are often masquerading as Christians and are behaving in a most un-Christianlike manner, peddling lies and stirring up fear in the minds of ordinary, honest, reasonable people in the community. The letters that I have had from people who have been subject to this misinformation campaign indicate the extent to which some people in the community will go to stop a piece of legislation going through. It is, I would suggest, a campaign that most totalitarian regimes would envy for its extent and success.
Before I go into some of the concerns that have been expressed to me about this Bill, quite unnecessarily I might add, I think we need to look at its origin and just exactly what it does do as distinct from what some people think it will do. It results, of course, from the United Nations International Covenant on Civil and Political Rights and it is, in fact, a particularly weak piece of legislation. It follows not only the signing but also the ratification of that Covenant by the previous Fraser Government in 1980. It is not only Australia, of all Commonwealth or Western countries, which has signed and ratified this Covenant, despite the fact that the majority of letters that I get say things like: "It is based on the United Nations ICCPR which has been accepted by Warsaw Pact countries and rejected by the UK and the USA." Hence, they argue that it will lead to a totalitarian state.
In fact, not only has Australia signed and ratified this Covenant but so has the United Kingdom, which in addition is a participator in and covered by the European Covenant, which I suggest is a much stronger Covenant. Canada ratified the United Nations Covenant on 19 May 1976. Prior to doing that, in 1960 it implemented the articles of the Covenant in its own Bill of Rights and it did that in a legislative form. By 1982 the Canadians were sufficiently satisfied with the working of it to allow it to be incorporated into their own Constitution. To the best of my knowledge, so far Canada has not become either a communist or a totalitarian state.
Then we have the misinformation that the Bill of Rights is going to seep into the entire community, that somehow it is going to set neighbour against neighbour, individual against company and that it is going to get its tendrils into all sorts of areas, including interfering with States' rights. Apart from the fact that I happen to believe -- and my Party supports me in this -- that it ought to cover the States, in fact it is a particularly weak Bill in that it only offers to protect individual citizens against jackbooting (federal) bureaucracies. This is one of the reasons why the much maligned proposed Human Rights and Equal Opportunity Commission, like a lot of other commissions and tribunals that we have in this country, does not allow legal representation. It is intended to defend the individual against the much bigger organisations of Federal Government departments. I leave it to the imagination of honourable Senators to work out who would be able to afford better and more lawyers in a fight between an individual and the Department of Social Security, for example. Even if it only covers Federal Government instrumentalities, this Bill goes some way towards giving additional protection to ordinary individuals.
UNELECTED BODY
Another concern of some people is that the Bill is to be administered by an appointed, as distinct from a democratically elected, body of people. I do not know what they think judges are, by the way, since most other pieces of legislation are interpreted by the courts which, of course, are made up of appointed bodies of people. Anyway, critics say that the Bill of Rights is to be administered by an appointed body of people with powers that exceed the normal processes of the law. They say it is a Star Chamber and an inquisitorial body. It allows no right of appeal, they say, and can have closed hearings. It can call for documents and no legal representation is to be allowed.
I suggest that the same applies to things like the Social Security Appeals Tribunal, the Repatriation Review Tribunal and the Administrative Appeals Tribunal. To argue that there is no appeal from the Human Rights and Equal Opportunity Commission ignores the fact that there is only one additional power given to the HREOC under this legislation that does not already exist under the Liberal Government's Human Rights Commission, and that is the power to call compulsory conferences. It also ignores the fact, as I read the Administrative Decisions (Judicial Review) Act 1977, that in section 5 there is an appeal mechanism. To argue that this is some kind of inquisitorial Star Chamber that is going to stop people from doing what they want ignores a number of facts, including the fact that all it can possibly do is report to the Minister and suggest that some dictatorial bureaucracy is stopped from doing what it wants. To argue that the HREOC is some kind of totalitarian communist-inspired organisation not only overlooks the facts, it overlooks the important correlation between that Commission and a number of other existing bodies we have in this country which are established specifically to protect the rights of individual citizens against very large organisations.
RIGHT TO OWN PROPERTY
I now turn to one or two of the other misconceptions that are being spread around the community. I would like to pick up the criticism that this Bill does not include the right to own property. That, of course, is because it is not covered in the Covenant. The Australian Democrats certainly would not have any particular objections to the Bill including a simple amendment to the effect that there is a right to own property.
There are large numbers of people in the community -- and I include the Returned Services League in this -- who believe that this Bill actually takes away a right to own property and that somehow we have had that right in this country, if not since its inception, since Federation. In fact, that is not the case. Neither at State level nor at Commonwealth level have we ever had the absolute right to own property. At the Commonwealth level, section 51, Part 31 of the Constitution gives us the right to have the Federal Government pay either an individual or a State just compensation if it acquires your property, but at the State level not even that applies. To argue, as the RSL does, that the Bill will take away our right to own property is an absolute nonsense and I suggest that some of these people acquaint themselves with State and Federal Government constitutions. The point, however, is that, even if we do put into this Bill the right to own property, unless we also extend it to the States, it is not going to stop somebody like Mr. Wran from coming up with another Coal Acquisition Act of 1981. Unless the States are covered by it we can put in any property rights we like and it will not stop Premiers and dictatorial parliaments from treading all over ordinary people.
I now come to the argument that there has been no time for discussion and examination of this Bill by the people, that it was rushed through the House of Representatives and passed in the dead of night, as if it were the first Bill to be passed in this Parliament in the early hours of the morning and as if that necessarily makes it sinister. We have had a Bill of Rights of some sort before the Federal Parliament since 1973. I would have thought that 12 years was long enough for 15 million people, or however many interested bodies there are among that 15 million people, to get to know what was in it.
MARRIAGE AND FAMILY
The Bills have all been different. This has to be the weakest of them. Unfortunately, the people in the community who have caught up with the legislation have got only as far as Senator Evans' Bill which was a much more grandiose scheme to extend various rights to people. They write to me, unhappily quoting sections from Senator Evans' Bill, and are not aware -- I suggest that they have not been made aware deliberately by the people peddling these stories -- that this Bill bears no closer relation to Senator Evans' Bill than does the nature of the current Attorney-General (Mr. Lionel Bowen) bear any relation to that of the previous Attorney-General. People are saying such things as: "The Bill will lead to homosexual marriages". The first time I saw this I thought: "My God, what have I missed in this legislation? People are writing to me saying that Article 13 will allow homosexual marriages". I turned to Article 13. It is headed "Right to marry and to found a family". It says:
"Recognising that the family is the natural and fundamental group unit of society"
-- which again runs counter to the argument of all the people who say that the legislation is anti-family --
"and is entitled to protection by society and the State
- every man and woman of marriageable age has the right to marry a person of the opposite sex and to found a family".
Anybody who can tell me how that can be interpreted to allow homosexual marriages has a mind more devious than my own.
COMMON LAW
We then get the argument that common law is sufficient for the protection of our rights. Sir Harry Gibbs has said:
"If a society is tolerant and rational, it does not need a Bill of Rights. If it is not, no Bill of Rights will preserve it".
But that overlooks the general point that we in this place do not make laws for when things are going right. Normal practice is to make laws for when things are going wrong or are likely to go wrong. Leaving that aside, Sir Harry needs to consider the comments of Lord Scarman:
"When times are normal and fear is not stalking the land, English law sturdily protects the freedom of the individual and respects human personality. But when times are abnormally alive with fear and prejudice the common law is at a disadvantage: it cannot resist the will, however frightened and prejudiced it may be, of Parliament."
We need to consider that. It is fine having legislation for when things go right. We really need legislation for when things go wrong. But even then the things that we think we have absolute right to, as with property rights, we do not necessarily have. Neither common law nor statute law provides us with full protection or gives us many of the rights that people, such as those in the Returned Services League, think we have.
There is a common belief in the community that we have the absolute right to legal representation at a trial. The McInnes case knocked that assumption fairly and squarely on the head. There is an argument that we have a juristic right to protest. I suggest that Campbell v. Samuels eliminated that idea for all time. As far as the guaranteed inalienable right to freedom of worship is concerned, I refer honourable Senators to the Grace Bible Church case. Finally, when we talk about how valuable common law is as distinct from statute law, I refer honourable Senators to that absurd Victorian case last year when a judge, who -- for very good reason -- suppressed his name as a consequence, ignored existing State legislation and went back to a 1609 British common law decision that allowed a man to violate and abuse his wife. Senator Durack has talked about the fact that the Covenant on which the proposed Bill of Rights is based was established several decades ago and therefore we need to reconsider. What on earth are we doing going back 380 years to a common law decision?
H.R.E.O.C. AND THE COURTS
I come back to the Human Rights and Equal Opportunity Commission. Some people say that if the Parliament passes this Bill it will transfer the power of interpretation of legislation from Parliament to an unelected body -- first to the HREOC and secondly to the courts. I do not know what they think has been happening in this country but to the best of my knowledge Parliament has never had the right to interpret legislation. Certainly we have tried on occasions -- for example, through extrinsic aids to statutory interpretation and the odd Acts Interpretation Act. Who pays attention to them? I suggest that not many of the judges interpreting the Trade Practices Act have done so; they apply their own interpretations. They have turned their own minds to it.
The Parliament as an elected body, while it has the right to make laws, has never had the right to interpret them. We have never come up with a perfect piece of legislation, anyway, so there is always a role for courts and lawyers in settling exactly what is meant by legislation. The Human Rights and Equal Opportunity Commission is no less an unelected body than the courts. Indeed, the Bill makes provision to allow judges to sit on the Human Rights and Equal Opportunity Commission. It is not as if we are planning to leave the functions of the Commission to a clutch of people brought in off the streets, with no capacity to understand the legislation.
People also write to me saying that this is a back-door method of changing the Constitution, and that we ought not to pass it without a referendum. We do not have referendums to pass normal legislation.
This Bill is by no means perfect. I have already covered its omission of the right to own property. There is also legitimate concern among Opposition parties and the community generally that, while there is a right to belong to an association, there is no additional right not to belong. Lawyers will tell us that the negative is incorporated in the positive and other sorts of legal things. My response to that is: "If that is the case, gentlemen, you will not mind if it is attached because it is not doing anything that you argue is not already there". A simple statement that would allow people the right not only to belong to an association but also not to belong to it would find no problems with me or, I suggest, with my Party. The way that the Opposition wants to go about it, with an amendment that is extremely lengthy, is asking for trouble.
However, I also point out that, while countries have the right to reserve from Articles in the Covenant, problems arise when those countries then produce legislation including Articles which are not part of the Covenant. That would make the chances of a High Court challenge so much greater. The inclusion of the right to own property, and the fiddling about with the wording of the right to belong to an association to allow it to cover people who do not want to belong to an association, may well lead to a High Court challenge. Nevertheless, I think the issue is probably important enough to chance that.
STATE GOVERNMENTS
I want now to come to the main objection that we as a party have to this legislation -- that the legislation does not apply to the States. This is particularly unfortunate when one considers Article 6. It seems wholly inappropriate for Australian newspapers to run indignant stories about rigging and unfair elections in the Philippines when we have the sort of situation that applies in Queensland. At least Marcos managed to get 46 per cent of the vote to force his way into Parliament. Queensland has a unicameral system -- not even the protective measure of an upper house, however awkwardly elected that may be, as indeed it is in Western Australia -- in which the National Party of Australia, by rigging the boundaries to the extent that one chunk of an electorate is in the middle of another electorate can get itself elected with 34 per cent of the vote.
The various people on this side of the House in the Opposition parties ought to get their act together -- I add that this is as good an act to get together as any -- and include the States under the system suggested by Senator Tate's Standing Committee on Constitutional and Legal Affairs. That is a more than appropriate way of extending the scope of this legislation so that it really does apply some rights to individuals vis-a-vis State and Federal governments and departments. That Committee suggested that at the very least a displacement provision mechanism should apply, that is, that the Bill be amended -- and we shall move in that way -- so that the States are covered by the legislation with the option of opting out of all Articles but Article 6.
If I have any complaint at all about this Bill it is that it does not go far enough. In not going far enough, it may delude people into believing that they have rights that they actually do not have and, in so deluding people, it will perform a disservice rather than a service to the community generally. We will consider amendments to improve the Bill, the main one of which will be that relating to its application to the States. I look forward to enthusiastic support for that amendment from all people in this chamber who believe in freedom and democracy in Australia.
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