Lionel Bowen
The Hon. Lionel Bowen, MP, is the Federal Attorney-General.
This article is designed to give a brief outline of the way in which the Australian Bill of Rights Bill 1985 would operate, and to answer some of the misunderstandings that Mr. Bowen believes have arisen in recent months about what the Bill will and will not do.
PURPOSE
The Australian Bill of Rights Bill 1985 is designed to secure the basic civil and political rights and freedoms of all Australians. The rights and freedoms are set out in the Bill of Rights itself and are implemented through the enforcement provisions in the rest of the Bill.
CONTENT
The Bill of Rights (which constitutes clause 8 of the Australian Bill of Rights Bill) is based on the International Covenant on Civil and Political Rights. The rights and freedoms guaranteed in the Bill of Rights include:
- the basic political rights, including the right to vote and the freedoms of expression, thought, conscience, religion, belief, assembly and association;
- the right to life, liberty and security of the person;
- the right to equality and non-discrimination;
- the right to privacy;
- freedom of movement;
- the right to be free of torture and cruel, inhuman or degrading treatment or punishment;
- the rights of ethnic, religious and linguistic minorities; and
- a number of criminal procedural rights, including the right to consult with a lawyer, the right to be presumed innocent until proved guilty, and the right not to be subject to retrospective criminal laws.
ENFORCEMENT MECHANISMS
These rights will be secured in a number of ways.
First, where a Commonwealth or Territory enactment is open to more than one possible interpretation, courts will be directed to prefer the interpretation that would result in the enactment not being in conflict with the Bill of Rights, or that would further the objects of the Bill.
Secondly, where it is not possible to construe a future (or, after 5 years, an existing) Commonwealth or Territory enactment in a way that is consistent with the Bill of Rights, the courts may declare that enactment to be rendered inoperative or repealed to the extent of the inconsistency.
Thirdly, where evidence is obtained in a way that infringes certain of the rights set out in the Bill of Rights, the evidence is to be excluded from criminal proceedings unless its admission would involve a substantial benefit to the public interest in the administration of criminal justice that would outweigh any prejudice to the rights and freedoms of any person that might occur as a result of the infringement or the admission of the evidence.
Fourthly, governmental acts and practices (at the Federal, State and local level) which are alleged to infringe the Bill of Rights may be the subject of inquiry by the proposed Human Rights and Equal Opportunity Commission which will attempt to conciliate the complaint and, if it cannot be settled by conciliation, will report on the matter to the relevant Minister and the Commonwealth Attorney-General.
Finally (and perhaps most importantly), the Bill will represent a simple and clear public affirmation of the value and importance of the basic civil and political rights of the individual in our society.
MISUNDERSTANDINGS
Having briefly reviewed the purpose, content and enforcement mechanisms of the Bill of Rights, I would like to address a few of the serious misunderstandings about the Bill which seem to have gained circulation in recent months.
The need for the Bill of Rights
Some people have suggested that the Australian Bill of Rights is unnecessary because our civil rights are already protected by legislation, common law and the Constitution. Sadly, existing protections are inadequate. The Constitution guarantees almost none of the basic civil and political rights which Australians take for granted. While there is some useful legislation in the civil rights area, such as the Racial and Sex Discrimination Acts, there are important rights and freedoms which are protected insufficiently or not at all.
The common law offers remedies in a haphazard and incidental way, and is often plagued by complex procedural requirements. Over the past century or so, there have been many areas in our legal system where the common law has had to be supplemented by statute. Instances of such statutory intervention have included the abolition of capital punishment, the right of accused persons to give evidence on their own behalf, the extension of the franchise, the right of married women to sue and be sued without their husbands and to own property, and the right to form trade unions, to name just a few. The law relating to the basic civil and political rights of the individual is an area where common law protections are not sufficient to protect the individual from infringement of those rights by governments and government agencies.
Appropriateness of Covenant
The International Covenant on Civil and Political Rights, upon which the Bill of Rights is based, was drafted by the United Nations during the 1950s and the early 1960s, at a time when Western interests were particularly strongly represented in the United Nations. Most Western nations, including the United Kingdom, Canada, New Zealand, France, the Federal Republic of Germany, Italy and the Netherlands are parties to the Covenant. In Australia, it was the Menzies Government which participated in the negotiation of the Covenant, the Whitlam Government which signed it and the Fraser Government which ratified it in 1980. In 1981, under the then Attorney-General Senator the Hon. Peter Durack, the universally accepted statement of civil and political rights embodied in the Covenant was used to define the concept of "human rights'' in the Human Rights Commission Act.
The position of rights not mentioned in the Bill of Rights
In implementing the Covenant in the Bill of Rights the Government cannot, for constitutional reasons, depart too far from the terms of the Covenant. In particular, it is not open to the Government to include in the Bill of Rights those rights which do not appear in the Covenant, such as the right to own private property. This is not to deny the importance of such rights, and Article 2 of the Bill of Rights expressly provides that no existing right or freedom is to be diminished merely because it is not mentioned in the Australian Bill of Rights.
Is there a right not to join a trade union?
Article 11 of the Australian Bill of Rights guarantees the freedom of association, including the right to form and join trade unions for the protection of the individual's interests. Neither the Bill of Rights nor the Covenant deal specifically with any right to refuse to join a union. In considering a similar provision in the European. Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights has held that, while the provision might not be infringed by all forms of compulsory trade unionism, a sufficiently severe form of compulsion (e.g. threat of dismissal), if directed against persons engaged prior to the introduction of a unionism requirement, would be prohibited by the provision. Although one must be cautious in applying European decisions in Australia, and Australia has a long tradition of labour relations based on collective bargaining for the interests of employees generally, it seems to follow that any law that sought to impose compulsory trade unionism on existing employees might well be challenged under the Bill of Rights. I would point out that there is no such Commonwealth law at present. On the contrary, the Conciliation and Arbitration Act 1904 makes provision to prevent discrimination against persons who conscientiously object to joining a union.
The powers of the proposed Commission
The Human Rights and Equal Opportunity Commission will only be empowered under the Australian Bill of Rights Bill to inquire into the acts and practices of governments. It will have no power to inquire into the activities of individuals, since the Bill of Rights is only about the rights of the individual against government and not about the relationships between individuals or private organisations.
The whole emphasis in the Commission's complaint-handling functions will be upon conciliation and the amicable settlement of complaints wherever possible. It is to further that process that the Commission is to be empowered, in the rare cases where it may be necessary, to protect the identity of the complainant and to ensure the informality of proceedings by excluding lawyers and other non-parties where necessary. Similarly, the Commission's powers to collect information are designed to further the conciliation process by ensuring that all the relevant facts are known.
If the Commission misuses its powers, it may be the subject of review by the Federal Court under the Administrative Decisions (Judicial Review) Act.
Recent criticism of the powers to be conferred on the Commission under the Bill has ignored the fact that those powers are virtually the same as the powers conferred in 1981 by the Fraser Government on the Human Rights Commission (which will be replaced by the proposed new Commission), and are very similar to powers in most legislation of this type, including State anti-discrimination and Ombudsman legislation.
Does the Bill go far enough?
Many people have suggested that the Australian Bill of Rights Bill does not go far enough and that there is a need to provide even stronger protection for individuals' civil and political rights.
While I have some sympathy for that point of view, I consider that a carefully measured approach is best at this stage. The Bill is to act as a "shield" and not a "sword". This means that the Bill of Rights will be available to be relied upon in any action otherwise on foot in which the application of a law which is inconsistent with the Bill of Rights is relevant. On the other hand, the Bill cannot be used to initiate a challenge to a law on the basis that the law is inconsistent with the Bill of Rights. This restriction upon an individual's rights of action is designed to avoid any undue disruption that might be caused by excessive litigation in the early stages of the operation of the Bill. At the same time, any individual who is the subject of an action under law that conflicts with the Bill of Rights will have available the protection of the Bill.
The 5-year delay in the application of the Bill to existing Commonwealth and Territory laws will enable those laws to be reviewed and amended where necessary. It certainly seems better to allow time for an orderly review of existing laws and to make any necessary amendments so that they conform with the Bill of Rights, rather than have the existing form of a law challenged in possibly expensive litigation. However, the Bill ensures that any future Commonwealth or Territory law should be consistent with the Bill of Rights.
Application of the Bill to the States
While the Bill will allow the proposed Human Rights and Equal Opportunity Commission to examine laws and inquire into governmental acts and practices at all levels of government (in order to ensure that the rights and freedoms in the Bill of Rights are being respected), the Bill does not have the capacity to override State laws. This is in the hope of securing a co-operative Commonwealth/State approach to the protection of human rights. If it should prove to be the case that some States refuse to amend laws which seriously offend against the rights and freedoms set out in the Australian Bill of Rights, the Commonwealth might have to consider further legislation. It is sincerely hoped that most States will approach the Bill of Rights in a constructive manner, and do their best to conform to the fundamental standards it sets which are, after all, standards which Australia has committed itself to the international community to observe.
Constitutional entrenchment
The Australian Bill of Rights Bill does not, of course, amend the Constitution. That could only be done after a referendum. It is hoped that one day, after a suitable period in which the operation of the Bill of Rights as an ordinary statute can be evaluated and fine-tuned, it will be possible to incorporate the Bill into our Constitution. But that is not proposed at this stage. It should be noted that, in Canada, the Canadian Bill of Rights was enacted as an ordinary statute in 1960 and was followed by the constitutionally-entrenched Canadian Charter of Rights and Freedoms in 1982.
The role of the Courts
As mentioned above, the courts will have the function of applying the Bill of Rights to particular Commonwealth and Territory laws in limited circumstances.
There are those who have expressed doubts about the ability of our judiciary to fulfill this task. I do not share those doubts. The Australian Bill of Rights Bill represents a clear statement of Parliament's intention that civil and political rights should not just be acclaimed but should also be upheld by governments. The application of Parliament's general intention to particular situations is a traditional role of our courts. In relation to the Bill of Rights, Australian courts will have available to help them the experience gained under earlier instruments, such as the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and the 1982 Canadian Charter of Rights and Freedoms.
With these matters in mind, there is no reason to doubt the ability of our courts to apply the Bill of Rights fairly and effectively. Should any problem develop in a particular area, it will be open to Parliament to address the problem through further legislation.
Exposure for public consideration
It is sometimes said that the Government has not allowed enough time for public consideration of the Bill of Rights. It is difficult to know why further time is thought necessary when the Government's intention to enact a bill of rights was first announced on 25 October 1983, and the current Bill has been before the Parliament since 9 Oct 1985. I believe that there has been an adequate time for public consideration (and indeed there has been a lively public debate, especially in recent months), and that the time has now come to enact the Bill without undue further delay.
Traditional Values
Finally, as I hope is obvious from the above, the Bill of Rights will not destroy traditional values or change the lifestyle of the Australian community. Rather, the Government's aim is to ensure that those rights and freedoms which Australians, quite rightly, generally take for granted, are afforded adequate protection.
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