A Constitutional Bill of Rights

Sir Harry Gibbs

The Rt. Honourable Sir Harry Gibbs, GCMG, KBE, is Chief Justice of the High Court of Australia.

Sir Harry Gibbs, in this article, originally an address to the Royal Australian Institute of Public Administration (Queensland Division) on 27 February 1986, examines some of the precedents and arguments relevant to the question of a constitutionally entrenched Bill of Rights.

It is fashionable to say that the Australian Constitution is out of date.  Committees have been set up by the Government to consider what amendments might appropriately be made to the Constitution in the Bicentennial year, and one matter that is sure to be considered is whether a Bill of Rights should be included the Constitution.

Sometimes the Constitution is criticised because it contains very few provisions which effectively safeguard the rights and freedoms of the Australian people, or of particular sections of the community which may be thought to be in special need of protection.  The purpose of this talk is to discuss some of the advantages and disadvantages of a constitutionally entrenched Bill of Rights.

I must emphasise that my remarks are not directed to the Bill of Rights which, at the time of writing this address, was before the Parliament and which may, by now, already have become law.  If passed, that Bill of Rights will be an ordinary statute;  it may therefore be repealed or amended by any later statute, and its validity may be challenged on constitutional grounds.

The subject of my discussion is a Bill of Rights which would form part of the Constitution and which, being itself incontestably valid, would prevail over all legislation, whether Commonwealth or State.  It would restrict the power of the parliaments of the Commonwealth and the States, as well as the power of the executive governments, so that any legislative enactment or administrative action which was contrary to its provisions would be unconstitutional and invalid.

Most people would agree that there are certain rights and freedoms which ought to be recognised and preserved in a democratic society.  For example, most people would think it fundamental that citizens should enjoy the freedom of belief and of expression, the right to vote and to take part in the conduct of public affairs and the right not to be arbitrarily deprived of life, liberty or property.  A declaration of fundamental rights of that kind has a comforting, if not inspiring, sound about it, and at first sight it might seem reactionary and even absurd to oppose a constitutional provision which protected them.  But of course things are not quite as simple as that.

PRECEDENTS

Before I embark on my main theme, it is necessary for me to recount a little history.  During my lifetime the tide of events appears to have turned so that it is now running in favour of the constitutional entrenchment of Bills of Rights.  Before World War II a constitution containing a Bill of Rights was rare indeed;  now it has become the norm.  The first such Bill of Rights came into existence in 1791, when the Constitution of the United States, which had come into force only a few years before, was amended to insert in it a number of declarations which, it was believed, gave effect in the United States to the rights and freedoms already enjoyed by Englishmen under the laws then in force in England.

The novel precedent set in the United States was not followed elsewhere, partly because those nations whose societies were free could not see the need for any constitutional protection of their freedom, which in any case was not available to nations governed by despotic rulers.  Moreover, the most favourable climate for enacting a constitutional Bill of Rights is when an entirely new constitution is brought into being, and in many cases that did not occur until after the Second World War.

When the Australian Constitution came to be drafted in the 1880s and 1890s, the United States example had not been followed elsewhere, except, oddly enough in Tonga, where, in 1875, apparently under the influence of missionaries, a Bill of Rights had been enacted which, amongst other things, prohibited work and games on Sundays.

The framers of the Australian Constitution were in other respects very much influenced by the United States Constitution, but they did not follow the United States precedent and include a Bill of Rights.  They appear to have been sceptical of the need or value of a Bill of Rights, mainly, perhaps, because it seemed undemocratic and inappropriate to Australian conditions and also because they foresaw some of the difficulties that a Bill of Rights might create.

The Australian Constitution does include some guarantees.  One which is effective against the Commonwealth but not against the States and Territories, forbids the acquisition of property except on just terms.  Another, which, as its framers foresaw, can easily be circumvented, requires trials on indictment against Commonwealth laws to be by jury.  Two others are of limited scope.  One forbids the Commonwealth to make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, or imposing a religious test as a qualification for office;  the other forbids a State to discriminate against residents of another State.

The most important guarantee, however, is that contained in s.92 of the Constitution, whose deceptively simple words require trade, commerce or intercourse between the States to be absolutely free.  It is still not possible confidently to predict the effect of that section in many cases, notwithstanding that a multitude of conflicting judicial decisions and much academic discussion have attempted to explain its meaning.

The constitutional scene throughout the world changed rapidly after World War II.  The gross denial of human rights, and indeed of ordinary humanity, during that conflict, particularly by Germany and Russia, provoked a reaction which led the United Nations, in 1948, to proclaim the Universal Declaration of Human Rights.  This was followed by the European Covenant on Human Rights and the International Covenant on Civil and Political Rights.  Thereafter hundreds of nations declared or guaranteed the human rights and freedoms of their citizens.

As the former British colonies attained independence, they acquired new constitutions, with Bills of Rights modelled on the European Covenant.  The result was that by the beginning of the 1980s, almost all of the countries of the former British Commonwealth, except the United Kingdom, Canada, New Zealand, Australia and South Africa, had constitutionally entrenched Bills of Rights.

The original Constitution of South Africa did contain certain provisions protecting the minority rights of the coloureds but after a long constitutional battle these provisions were repealed.

Canada, which in 1960 enacted a statutory Bill of Rights, in 1982 obtained a new Constitution in the forefront of which is a Charter of Rights and Freedoms.

In New Zealand today there is active discussion about the enactment of a Bill of Rights, although since the Constitution there is a unitary one, questions will arise as to how it may be entrenched.

In the United Kingdom distinguished lawyers have urged that that country should have a Bill of Rights, although it does not appear that this is a live political issue.

It is striking that the United Kingdom, Australia, New Zealand and until lately Canada, the parts of the British Commonwealth in which democracy appears most stable, and where the rule of law and the protection of rights and liberties appear to be most firmly established, should have been the last to follow the trend and to write a Bill of Rights into the Constitution.  It becomes a question whether this has been due to an unwarranted complacency or whether (to use the words of a well-known legal writer, Professor de Smith) the urge to include a Bill of Rights in every constitution has been "nothing more than a manifestation of the familiar process in which the deplorable becomes recognised as the inevitable and is next applauded as desirable."

The International Declarations and Conventions, and the Bills of Rights resulting from them, have proved quite impotent to prevent gross violations of human rights in many countries of the world.  In the end, the stability and justice of society must depend on the wisdom, humanity and self-restraint of its people.  If economic stresses, social tensions or revolutionary forces prove too strong and society breaks down, no constitutional guarantees are likely to prove effective.

Anyone who has seen the film The Killing Fields will know that the fact that the Khmer Republic had adopted a Bill of Rights did not assist the inhabitants of that unhappy country.  We are all familiar with the abuses that have occurred in Uganda;  that country had a Bill of Rights on the European model, and had judges who bravely tried to enforce it, but were unable to resist the forces of lawlessness.

At the other end of the scale, in a society where the government is all-powerful, and maintains order effectively, again a Bill of Rights will be of no value unless there exist adequate and effective legal remedies for its enforcement.  Unless the enforcement of the guarantees provided by the Bill of Rights is in the hands of the persons who are absolutely independent of governmental control or influence, those guarantees can give no protection against a government which wishes to override them.  The USSR provides an example;  the Bill of Rights in its Constitution is no more than a meaningless sham, as the inhabitants of the Gulag Archipelago can testify.  This means, in effect, that the enforcement of a constitutional Bill of Rights must be left in the hands of the judiciary which must itself be constitutionally protected from government interference.

In Australia there seems to be no reason to fear such gross violations of human rights as those which regularly occur in some other countries -- such as arbitrary and secret arrest and imprisonment and the torture and murder of political opponents.  The common law has proved to be a flexible and effective instrument for the protection of freedom and the mitigation of injustices that might otherwise be brought about by ill-considered legislation.

However, those who advocate a constitutional Bill of Rights correctly point out that if a legislature is determined enough to deny human rights, either to society in general or to a particular section of it, the will of the legislature will in the end prevail in the absence of constitutional protection.

Political thinkers have long been aware of the possibility that democracy might degenerate into the tyranny of the majority, or become an elective dictatorship under which a party, having been voted into power, might so modify the electoral laws as to hold power indefinitely, or might bring about radical and irreversible changes to society which a minority or even a substantial majority of citizens might oppose.  Without anything so dramatic happening a government insensitive to human rights might enact laws which gradually eroded the freedoms of its citizens.  Those who favour a constitutional Bill of Rights consider that these things might be prevented or delayed by the protection which a constitutional Bill of Rights would give.

However, the question of what rights ought to be protected by the Constitution is not an easy one to answer.  Some rights that might seem fundamental today may be regarded as irrelevant, archaic or even burdensome to future generations.  This process has occurred in the past.  The provision of the United States Constitution which protects the right to trial by jury in suits at common law, where the value in controversy exceeds $20, must now be regarded as an anachronism.

Sometimes the makers of a constitution will include, amongst the so-called rights, prohibitions which later will be found to be oppressive.  I have already mentioned the prohibition in the Tongan Bill of Rights against breaking the Sabbath.  The Irish Constitution, under the heading "Fundamental Rights", contains the provision that no law shall be enacted providing for the grant of a dissolution of marriage.

There can be little doubt, in the light of history, that, if the framers of the Australian Constitution had included in it a Bill of Rights, the protection which it afforded would not have been extended to Aborigines or to persons of Chinese or Polynesian extraction.

One generation can never be sure that a later generation will share its attitudes.  And there may be strong disagreement among members of the present generation as to what rights should be protected -- for example, should the Constitution protect the right to strike, or the right to refuse to join a union, or the right to have an abortion, or the right of the unborn child not to be aborted?

Actual Bills of Rights, of which, as I have said, precedents abound, contain provisions which take two forms.  First, there may be a broad general statement of a right in simple,, unqualified terms, such as "No person shall be deprived of life, liberty or property without due process of law" or no State shall "deny to any person within its jurisdiction the equal protection of the laws".  Those are some of the words of the 5th and 14th Amendments to the United States Constitution and the men who framed them could not have imagined the meanings which would later be given to such apparently plain expressions.

Second, the statement of rights may be expressed in specific terms such as those of s.10 of the Canadian charter:

"Everyone has the right on arrest or detention:-

1. to be informed promptly of the reasons therefore;
2. to retain and instruct counsel without delay and to be informed of that right;  and
3. to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful".

WIDE INTERPRETATIONS

Experience has shown that even provisions drafted in a careful and specific way can have unexpected results, but where a provision is expressed in broad and general terms the meaning which will later be given to it will often be quite unpredictable, and will depend very much on the philosophy of the judges who decide the question.

This has been very clearly seen in the fluctuations of opinion on the United States Supreme Court.  One or two examples will suffice.

In 1856 it was held, in the famous case of Dred Scott v. Sandford that the provisions of the 5th Amendment that no one should be deprived of life, liberty or property without due process of law, rendered invalid a law of Congress which provided that no slaves could be held in a United States territory, because that would deprive slave-owners of the property in their slaves.

As late as 1923 the same words were held to render invalid laws fixing minimum wages, on the ground that such laws would interfere with the liberty of contract and amount to the deprivation of property.

Words protecting the right to life have been invoked both by those who oppose abortion and by those who uphold the right of a woman to have an abortion if she wishes and the results have differed from jurisdiction to jurisdiction.

In the United States it has been held that the right to life includes the right to privacy anti that the privacy of a woman was infringed by a law which forbade all abortions except to save the life of the mother.  The court drew a distinction between the three trimesters of the period of gestation, and held that the law could not interfere with a woman's decision to have an abortion within the first three months, but could regulate abortion procedure within the next three months and could forbid abortions except to protect the life or health of a mother during the last three months.

In Germany, on the other hand, it was held that the right to life protected the life of an unborn baby and that laws allowing abortion were invalid in most respects.

In Canada, a third position was taken;  it was held that a law which allowed abortion only with the approval of a therapeutic control committee neither infringed the right to privacy of the woman nor the right to life of the unborn child -- an unborn child was held not be a person within the meaning of the provision.

It can be seen from these examples that the ultimate effect of a Bill of Rights must necessarily depend upon the judges and that if a right is broadly and imprecisely described, the power of the judges to make policy decisions on matters of a social, economic or political kind will be very wide indeed.

The result is likely to be, and has in fact been in some countries, that those charged with the responsibility of making judicial appointments will succumb to the temptation of appointing persons to the bench simply because of their social, economic or political views or affiliations.  Public confidence in the impartiality of the judiciary, so vital in any country living under the rule of law, is likely to be impaired if that occurs.

Further, the existence of a Bill of Rights seems to be a powerful incitement to speculative litigation.  In the United States, Justices of the Supreme Court are publicly complaining of what has been described as the "legal pollution" caused by the tendency of the citizens of that country to have recourse to courts to attempt to redress every fancied social or political injustice.  The Courts of India have become clogged with a mass of litigation that is quite unmanageable.  It has been predicted that in Canada a large proportion of the work of the Supreme Court will soon concern the Charter of Rights and Freedoms.  Many of the cases that thus congest the work of the highest courts would appear to be more appropriately dealt with by a tribunal such as the Administrative Appeals Tribunal in Australia.

The framers of most of the post-War Bills of Rights, recognising the difficulties caused by the inflexible operation of the Bill of Rights in the United States, have included a provision which allows the guaranteed rights and freedoms to be limited.  Various formulae have been used -- sometimes a restriction of the right or freedom is allowed if it is "reasonably justified in a democratic society" or "necessary in a democratic society" or (to use the Canadian expression) if it "can be demonstrably justified in a free and democratic society".  These clauses give a desirable flexibility but of course add to the uncertainty of the operation of the constitutional provisions and to the responsibility of the courts.

It should not be thought that I" am suggesting that the disadvantages of a constitutionally eatrenched Bill of Rights necessarily outweigh the advantages.  My intention is to point to the desirability, if consideration is given to a constitutional Bill of Rights, of defining each right or freedom as narrowly and precisely as possible.

It must be remembered that many of the advocates of a Bill of Rights do not merely wish to protect rights already recognised by the law;  they often seek, quite openly, to create rights which the law has hitherto denied and hope to achieve that result by securing a favourable interpretation of vague, general phrases which are not specifically directed to the matter which concerns them.  In other words, they hope to achieve social change by judicial rather than legislative decision.

To say that rights should be narrowly defined does not mean that they should not be comprehensive.  The contrary is true;  nothing would be worse than a Bill of Rights prepared selectively in a partisan way, so that it protected only rights which found favour with the party responsible for introducing it.

I have done no more than attempt to bring to your attention some of the matters that ought to be kept in mind if the question whether the Constitution should be amended so as to include a Bill of Rights comes to be debated.

Undoubtedly, a constitutional Bill of Rights involves some departure from democratic principles, but some may think that it is a measure which democracy, in its decline, needs to take to assist in its own preservation.  In the end, however, whether a constitutionally entrenched Bill of Rights is beneficial will depend partly on the precision and good faith with which it is drafted, but even more on the quality and independence of the judiciary called on to interpret it.

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APPENDIX:  AUSTRALIAN BILL OF RIGHTS BILL 1985

This excerpt contains the complete Articles of the Bill of Rights.  The Bill is a draft and at present has no status in law.  Several amendments to the Bill, the most important of which are mentioned in the Introduction (pp.1-2), have been proposed.

The Australian Bill of Rights is as follows:

DIVISION 1 -- GENERAL

Article 1 -- Entitlement to rights and freedoms without distinction

1. Every person is entitled to equality before the law and to the human rights and fundamental freedoms set out in this Bill of Rights, irrespective of distinctions such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Men and women have the equal right to the enjoyment of the human rights and fundamental freedoms set out in this Bill of Rights.

Article 2 -- Effect of Bill of Rights on existing rights and freedoms

A right or freedom existing under, or recognised by, any other law shall not be taken to have been diminished or derogated from by reason only that the right or freedom is not set out in this Bill of Rights.

Article 3 -- Permissible limitations

1. The rights and freedoms set out in this Bill of Rights are subject only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society.
2. A right or freedom set out in this Bill of Rights shall not be limited by any law to any greater extent than is permitted by the International Covenant on Civil and Political Rights.

DIVISION 2 -- NON-DISCRIMINATION

Article 4 -- Equal protection of the law

1. Every person has the right without any discrimination to the equal protection of the law.
2. Nothing in this Bill of Rights affects the operation of any earlier or later law by reason only of the fact that the law discriminates in favour of a class of persons for the purpose of redressing any disabilities particularly suffered by that class or arising from discrimination against that class.

Article 5 -- Rights of Minority Groups

Persons who belong to an ethnic, religious or linguistic minority have the right, in community with other members of their own group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

DIVISION 3 -- FUNDAMENTAL POLITICAL RIGHTS

Article 6 -- Right of Participation in public life

Every Australian citizen has the right and shall have the opportunity-

1. to take part in the conduct of public affairs, directly or through freely chosen representatives;
2. to vote and to be elected at genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors;  and
3. to have access on general terms of equality to public employment.

Article 7 -- Freedom of expression

Every person has the right to freedom of expression, including the freedom of the press and other media of communication, and the freedom to seek, receive and impart ideas or information of any kind in any form, without interference and regardless of frontiers.

Article 8 -- Freedom of thought and conscience

Every person has the right to freedom of thought and conscience, including the right to hold opinions without interference.

Article 9 -- Freedom to have or adopt a religion or belief

Every person has the right to have or adopt a religion or belief of that person's choice without coercion of any kind, and to manifest that religion or belief in worship, observance, practice and teaching, whether individually or in community with others and whether in public or in private.

Article 10 -- Right of peaceful assembly

Every person has the right of peaceful assembly.

Article 11 -- Freedom of association

Every person has the right to freedom of association with others, including the right to form and join trade unions for the protection of that person's interests.

DIVISION 4 -- PRIVACY AND FAMILY RIGHTS

Article 12 -- Right to protection from arbitrary interference

1. Every person has the right to:
   1. protection of privacy, family, home and correspondence from arbitrary or unlawful interference;  and
   2. protection from unlawful attacks on honour and reputation.
2. For the purpose of giving effect to the right referred to in paragraph 1 and without limiting the nature and extent of that right, a search or seizure is unlawful unless --
   1. made pursuant to a warrant issued by a judge, magistrate or justice of the peace upon reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search, who or what is to be searched and what is to be seized;
   2. made pursuant to a law authorising search or seizure where search or seizure as so authorised is a necessary element in the proper administration or enforcement of revenue, customs or quarantine laws or the reasonable regulation of an activity carried on pursuant to a licence, permit or similar authority granted under a law;
   3. made pursuant to a law authorising search or seizure where search or seizure as so authorised is necessary to protect life or public safety;
   4. made pursuant to a law authorising search or seizure where there is a compelling need for immediate action;  or
   5. in the case of a search -- it is established that the search was made with free and voluntary consent and after the giving of a warning as to the consequences of the giving of consent to the search.

Article 13 -- Right to marry and to found a family

Recognising that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State --

1. every man and woman of marriageable age has the right to marry and to found a family;  and
2. no marriage shall be entered into without the free and full consent of the intending spouses.

Article 14 -- Rights of the child

Recognising that every child has the right to such measures of protection as are required by the child's age --

1. every child is entitled to the fundamental rights and freedoms set out in this Bill of Rights to the greatest extent compatible with the age of the individual child;
2. every child shall be registered immediately after birth and shall have a name;
3. every child has the right to acquire a nationality;  and
4. 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.

DIVISION 5 -- FREEDOM OF MOVEMENT

Article 15 -- Rights of persons in Australia

1. Every person lawfully in Australia has the right to freedom of movement and choice of residence.
2. A person who is lawfully in Australia but is not an Australian citizen shall not be required to leave Australia except on such grounds and in accordance with such procedures as are established by law.

Article 16 -- Right to enter Australia

Every Australian citizen has the right to enter Australia.

Article 17 -- Right to leave Australia

Every person has the right to leave Australia.

DIVISION 6 -- LIFE, LIBERTY AND CRIMINAL PROCESS

Article 18 -- Right to life

Every human being has the inherent right to life and no person shall be arbitrarily deprived of life.

Article 19 -- Liberty and security of person

1. Every person has the right to liberty and security of person.
2. No law shall authorise the arbitrary arrest, detention or imprisonment of any person
3. No person shall be deprived of liberty except on such grounds, and in accordance with such procedures, as are established by law.
4. No person shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

Article 20 -- Slavery and servitude

No person shall be held in slavery or servitude or be required to perform forced or compulsory labour.

Article 21 -- Right to be informed of reasons for arrest and of charges

Any person who is arrested shall be informed at the time of the arrest of the reasons for the arrest and shall be informed promptly and in detail of any charges in language which that person understands.

Article 22 -- Right to consult with lawyer and to remain silent

Any person detained in custody has the right to remain silent and the right to consult with a lawyer.

Article 23 -- Hearings, release and trial

1. Any person arrested or detained on a criminal charge shall be brought promptly before a judge, magistrate or justice of the peace.
2. No person awaiting trial shall be unreasonably deprived of the right to release on giving a guarantee to appear for trial.
3. Any person arrested or detained on a criminal charge has the right to be tried within a reasonable time.

Article 24 -- Right to test lawfulness of detention

Any person deprived of liberty has the right to take proceedings before a court for the determination of the lawfulness of the detention and to be released if the court finds that the detention is not lawful.

Article 25 -- Presumption of innocence

Any person charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Article 26 -- Right to fair hearing

In the determination of any criminal charge, or of any rights or obligations in a suit at law, every person has the right to a fair and public hearing by a competent, independent and impartial tribunal.

Article 27 -- Rights of the accused relating to trial

Every person who is charged with a criminal offence has the right --

1. to be informed of the right to obtain legal assistance;
2. to communicate with a lawyer;
3. to receive legal assistance without cost if the interests of justice so require and the person lacks sufficient means to pay for the assistance;
4. to have adequate time and facilities to prepare a defence;
5. to be present at any proceedings relating to the offence and to present a defence;
6. to examine the witnesses against the person;
7. to obtain the attendance of, and to examine, witnesses for the person;
8. to have the free assistance of an interpreter if the person cannot understand or speak the language used in court;
9. not to be compelled to testify or confess guilt;  and
10. in the case of a child, to be dealt with in a manner which takes account of the child's age.

Article 28 -- No retrospective criminal offences or penalties

1. No person shall be convicted of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it occurred.
2. No person convicted of any criminal offence shall be liable to a heavier penalty than was applicable at the time the offence was committed.

Article 29 -- Right of review of conviction and sentence

Every person convicted of a criminal offence has the right to have the conviction or sentence reviewed by a higher tribunal according to law.

Article 30 -- No trial or punishment for same offence

No person finally convicted or acquitted of a criminal offence shall be tried or punished again for the same offence or for substantially the same offence arising out of the same facts.

Article 31 -- Rights when deprived of liberty

1. Every person deprived of liberty has the right to be treated with humanity and with respect for the inherent dignity of the human person.
2. So far as is practicable --
   1. accused persons shall be segregated from convicted persons, and shall be treated in a manner appropriate to their status as unconvicted persons;
   2. accused children shall be segregated from accused adults;  and
   3. convicted children shall be segregated from convicted adults, and shall be treated in a manner appropriate to their age and legal status.

Article 32 -- No torture or inhuman treatment and no experimentation without consent

1. No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
2. No person shall be subjected to medical or scientific experimentation without that person's free consent.