Mark Cooray
Mark Cooray is Associate Professor of Law at Macquarie University. He is also Director of the Democratic Capitalist Tradition research project and founder of Australians for Common Sense, Freedom and Responsibility.
While not opposing a Bill of Rights in principle, Mark Cooray is highly critical of major aspects of the recently proposed Bill and the Opposition amendment on companies and trade unions. The Bill and its amendment he argues, have serious implications for federalism, affirmative action programmes, property rights and freedom in the private sector. This article is an extract from a longer paper on the Bill of Rights prepared by Professor Cooray.
The proposed Bill of Rights is a very complicated document which defies comprehension by the general public. Yet it is vital that the public understands its nature and effect if our present liberties are not to be compromised by default. On its face, the Bill of Rights seems an innocuous piece of legislation which cannot cause any lasting damage. Many of its provisions are prerequisites of a democratic society and ought to be incorporated into law if they are not already a part of it. The Bill of Rights, according to its drafters, is not intended to diminish the rights already enjoyed under our statutes and common law. The question arises what, if anything, is wrong with the Bill of Rights?
The basic objections to the Bill are many. It fails to substantiate, advance or improve any of our existing rights or freedoms. It tends to devalue some of them by exclusion. The document is a propaganda exercise to present a selected package of rights as the totality of rights which we require. Thereby the stage is set for the gradual de-recognition and eventual abrogation of fundamental liberties and rights through social engineering.
The proposed Bill of Rights will not form a part of the Constitution. It will be enacted as an ordinary Act of Parliament. This factor is critical to the understanding of the nature of the Bill. What this means is that it can be amended, modified or repealed at any time by another ordinary Act of Parliament. By ordinary Act of Parliament is meant one that can be passed at any time by a party commanding a majority in Parliament, without consulting the people at a referendum in the manner required to amend the Constitution. The rights that Australians enjoy today are also capable of being modified or abrogated in that simple manner. In what way does the Bill of Rights make our liberties more secure than they are now?
It will override laws passed before and after the enactment of the Bill of Rights. s.11 states that an earlier statute which conflicts with the Bill of Rights will be repealed by the Bill to the extent of the conflict. But this is usually the case with any enactment. It is a general rule that a later law will mend or repeal an earlier inconsistent law. There are certain exceptions to this rule, but it will apply in almost every case where the intention of the later statute is sufficiently clear. The difference is that in the ordinary case the later statute effects the repeal immediately whereas s.11 will repeal inconsistent statutes only after a period of five years! (s.11 read with s.2 (3)).
As regards future statutes, they will operate notwithstanding the Bill of Rights if there are "express words of plain intendment" to that effect (s.12 (2)). This is at best a refinement of the ordinary principle of statutory interpretation which states that a later statute can operate notwithstanding an earlier contrary statute if it is so intended by express provision or necessary implication. What difference the term "express words of plain intendment" will make to the existing principle is a matter which will no doubt be subject to protracted argumentation in courts, with the most likely winners being the lawyers!
But this is not the end of the story. Even if a statute is found to clearly violate the Bill of Rights without a clear intendment, it need not be considered to have been repealed or to be inoperative. Under s.14, if the court finds that "grave public inconvenience or hardship would be caused" by such repeal it can make a declaration suspending the repeal for a period of three months, so as to enable the Parliament to bring in legislation to uphold the law. Where such a suspension is granted the Parliament has only to enact a provision containing "express words of plain intendment" and the offending statute will continue to operate in violation of the Bill of Rights. For example, such statutes of "plain intendment" could be passed in relation to all the bureaucratic institutions which routinely violate the right granted in Article 26 of the Bill that "In the determination of any criminal charge or of any rights or obligation in a suit at law, every person has the right to a fair and public hearing by a competent, independent and impartial tribunal". s.14 expects a court of law to decide whether or not "grave public inconvenience or hardship" would be caused by the operation of the Bill of Rights. Can a court be reasonably expected to determine such an issue? How competent is a court to question the government's views on this matter? s.14 is an ill-considered provision which will thrust the judges into the field of political debate.
THE RIGHTS OMITTED AND THEREBY DEVALUED
After all these reservations and qualifications have been applied what remains of the effect of the Bill of Rights? According to Attorney-General Lionel Bowen, it has a vital educative function. In his Second Reading Speech, he states:
"It has the capacity to inspire respect for fundamental freedoms and liberties by setting out rights in positive declaratory form. It is a broadly based declaration drafted in Australia for Australians, in conformity with international standards. Alternatives -- whether reliance on the common law, particular legislation .or administrative mechanisms and programs without more -- do not spell out and proclaim key rights and concepts in the same way as does the Bill of Rights."
The Attorney-General in the above paragraph reveals the true object of the Bill of Rights. What are the "key rights and concepts" which it spells out and proclaims? Undoubtedly the due process rights regarding criminal proceedings are fundamental to our system of government. But have they not always been so regarded and enshrined in our statute law? Does the ALP Government seriously intend extending these rights to the numerous statutory boards and authorities which violate due process? There is no such intention. s.12(2) provides opportunity to immunise bodies from the requirements of due process.
The Bill of Rights omits rights and liberties such as the freedom to hold and enjoy private property and the freedom to engage in a lawful trade, profession or occupation. Are these not "key rights and concepts"? They may not be to the socialist mind but are certainly important to the Australian people.
The legal argument against the inclusion of property rights will be that the Commonwealth has no power to enact provisions not included in the International Covenant. But such an argument begs the question. If Australia is to have a proper Bill of Rights it should not blindly adopt an international treaty which was drafted by a body in which a significant majority consisted of representatives of totalitarian governments of one sort or another. The treaty was a compromise which left out many of the economic rights considered basic to the western democratic way of life. If Australia must adopt a Bill of Rights, it should take account of all such values and give them effect. To do so of course, will require an appropriate constitutional amendment with the approval of the people. But that is the only way in which a meaningful and acceptable Bill of Rights can be set up. The exclusion of proprietary rights from the category of "key rights and concepts" will only set the stage for their further relegation and eventual extinction.
The exclusion of proprietary rights from the Bill deprives the document of much of its effective content and reduces it to the level of a socialist programme on human rights. It is often overlooked that the right to private property undergirds all other rights. In particular, political rights lose much of their effectiveness where the right to private property is denied. At the practical level, the exercise of freedoms such as those relating to expression, association and religion are difficult if not impossible without independent sources of income or wealth. In societies which deny the right to hold, enjoy and productively use private property, citizens are dependent for their employment and livelihood on the government. They have therefore no capacity to oppose the government or to exercise their fundamental political rights. (1)
RIGHTS GRANTED ONLY TO NATURAL PERSONS
There are other serious deficiencies in the proposed Bill of Rights. One is that the rights recognised are granted only to natural persons (s.9 (3)). Companies and other incorporated associations are thereby denied these rights. The implication of this restriction for freedom of expression and the rights of the press are immense. In the modern age, it is almost impossible to establish a mass media channel of communication without forming a company. It is a fundamental right in a free society for persons to associate in the corporate form in order to enjoy and exercise their rights. Without such corporate association, television and radio broadcasting and the publication of newspapers would be almost impossible. The denial of the freedom of expression and of the press to media companies is therefore a serious curtailment of that freedom. It leaves the way open for government to regulate and stifle the press and publishers.
DISCRIMINATION FORESHADOWED
Article 4 (2) of the proposed Bill of Rights will in effect provide further sanction for the implementation of policies of reverse discrimination which are highly contentious. Many of the affirmative action programmes launched in Australia will fall within this category. The work of Dr. Gabriel Moens demonstrates how such programmes compromise the equality principle. They penalise those who have done no harm and benefit those who have not suffered (on the alleged ground that the class to which the latter belonged have suffered discrimination in the past). The programmes also fail to achieve their declared objectives in practice and involve considerable financial and other costs to the community. (2) But the Bill of Rights attempts to foreclose further debate on this question by expressly sanctioning such programmes.
NO JUDICIAL REMEDIES AVAILABLE
Even as regards natural persons, s.17 of the proposed Act ensures that they will have no effective remedy for the violation of human rights. This section debars criminal or civil prosecutions for such violations. One of the important consequences of the creation of a statutory right in Western jurisdictions is the automatic availability of an action for damages for the breach of the corresponding statutory duty. This can be denied by the statute itself but in that case the right can become ineffective. The exclusion of the rights of action under the Bill of Rights is a further indication that the Government intends to keep human rights in Australia as far away from the courts as possible.
THE STATES AND THE BILL OF RIGHTS
Although the Bill of Rights does not bind the States, the Human Rights Commission is empowered (with the concurrence of the Minister) to investigate the activities of State governments and institutions. The coercive powers of investigation in relation to States raise serious questions regarding possible interference with the constitutional autonomy of the States. In his Second Reading speech, Lionel Bowen stated that:
"The Government has chosen to limit the extent of application of the Bill of Rights to the States not because of any doubts concerning constitutional power, but in order to achieve if possible a cooperative approach ..."
The reference to a cooperative approach is humbug. Bowen is blackmailing the States to fall in line with the Bill of Rights and warns that in the event of failure, the Government will extend the Bill of Rights to the States. The Government is seeking to compel States to conform to the Bill without the inconvenience of facing a constitutional challenge. It is yet another attempt to subvert the federal balance of the Constitution by depriving the States of another part of its constitutional autonomy. The subject matter of the Bill of Rights are matters which the makers of the Constitution intended to leave for the decision of the States themselves. The peoples of the States have the right to decide these matters themselves.
TRANSFER OF POWER FROM THE COURTS TO THE H.R.E.O.C.
The proposed Bill of Rights pretends to grant judicially enforceable civil liberties. But there is nothing in it which cannot be overridden or vitiated by a simple parliamentary majority. As demonstrated above its provisions can be set aside by "express words of plain intendment". Or they can be suspended on grounds of public policy. The rights granted create no actionable wrongs for violation. And they are unavailable to corporations. One reason why sections of the ALP wish to deny the public any effective judicial recourse is that their socialist programmes violate fundamental rights incorporated in the Bill of Rights.
Many of the statutory authorities which enforce regulatory laws and mechanisms of economic and social control violate Article 26 which declares the right to a hearing before a competent, independent and impartial tribunal. The Australian industrial relations system which is built on closed shop arrangements and monopoly unionism clearly violates the freedom of association and the right to form and join a trade union declared in Article 11. (3) Many of the statutory provisions governing broadcasting and many of the decisions of the Australian Broadcasting Tribunal prima facie violate the freedom of expression declared in Article 7. A large number of statutory provisions which give ministers and other bureaucrats unfettered discretions to make regulations, orders and determinations violate the equal protection clause of Article 4. These are only a few of the innumerable repugnant laws on which regulatory programmes are built. If the courts are given a free rein to determine these questions, and the citizens are given free access to the courts on these matters, the socialist programmes of the ALP Government will be adversely affected.
Thus the solution is to limit access to courts and the courts' own independence on matters relating to human rights. On the other hand, the Government (under pressure from sections of the ALP) wishes to increase the powers of the Human Rights Commission which is a body which it expects will selectively enforce human rights according to interpretations favoured by the Government. Its aim is to avoid all inconvenient judicial decisions and to coercively enforce its own version of the Bill through bureaucratic agencies such as the Human Rights Commission. The performance of the Human Rights and Equal Opportunity Commission thus far affords no hope whatsoever that it will serve as an effective guardian of civil liberties. It has already caused substantial damage to the cause of human rights in Australia. (4)
A GENUINE BILL OF RIGHTS
A case could be made for a Bill of Rights in Australia which confers rights on individuals against ever expanding government power and provides constitutional recognition to basic liberties and makes them determinable and enforceable by the duly constituted courts of the land. Above all such a Bill should accord with community values and be adopted by the people of Australia in a referendum. It should not be enacted by a transient majority in the Commonwealth Parliament.
OPPOSITION AMENDMENT ON COMPANIES AND UNIONS
The late Senator Alan Missen introduced an amendment to the Bill, which the Senate passed, to the effect that the rights contained in this Bill will apply to corporations and trade unions. The rationale for the amendment is that trade unions, being among the chief violators of the freedom of association, may now be compelled to pay more respect to that freedom. But where trade unions' powers to violate this freedom are derived from statutes, this amendment will be of limited use even as regards trade unions.
Insofar as the amendment seeks to enforce the Bill of Rights against private corporations, it is wholly misconceived. According to liberal definition, human rights are those which protect persons from governmental action. Historically, these rights have evolved in response to the need to prevent oppressive rule. This is so particularly with regard to civil liberties including due process rights, rights of political participation and rights relating to conscience. It is quite obvious that private corporations have no power to violate most of the due process rights. These corporations have no police or investigative functions. They have no powers to adjudicate upon any rights leave alone try criminal offences. The very existence of a corporation is dependent on law.
Even as regards the other rights included in the Bill of Rights, corporations have no coercive powers. They only have common law contractual rights to enter into private arrangements with others subject to government regulation. By common law they have enjoyed the right to associate with whom they please, to employ whom they please and agree to terms and conditions in the conduct of their business. This is an essential part of the traditional liberty enjoyed by corporations as well as individuals. By seeking to enforce the Bill of Rights in the sphere of private conduct, the amendment is striking a blow at the very heart of the liberal conception of human liberty.
Under the US Bill of Rights, and under the European Convention on Human Rights, it is the states which are enjoined from violating human rights. This is because it is recognised (where human rights are clearly understood) that such rights are enforceable only against authorities who have coercive powers to violate rights. On the other hand, to interfere with the right of private persons to enter into voluntary arrangements, is to seriously curtail personal freedom.
It is important to realise the implications of this amendment, particularly as regards the provisions of the Bill of Rights which sanction affirmative action. The extension of this provision to private corporations would mean that freedom of association and freedom of contract would be substantially restricted. This has already been sought to be effected to some extent by the Affirmative Action and Equal Opportunity Act. The Opposition amendment will not only extend this obnoxious scheme to all corporations but will also make it more enforceable. In the United States, affirmative action programmes have been applied only to corporations which receive government assistance or which benefit from government contracts. Thus these corporations have at least a tenuous link with official authority. Even so the programmes have precipitated an immense controversy. The Opposition amendment draws no such distinction. It will curtail the freedom of corporations which derive no benefits from government.
It is also important to understand the position with regard to trade unions in Australia. Trade unions like any other corporation or individual should enjoy freedom of choice as regards membership. But freedom of association includes the freedom not to associate. However, in Australia the laws relating to industrial relations and the arbitration system have drastically curtailed this freedom by recognising and protecting closed shop arrangements. In practical terms, the system compels union membership for the purpose of employment in many fields. Thus, the laws and the arbitration system as a whole violate the freedom of association. It is nonsensical to expect the unions to respect the freedom of association when the law encourages and, indeed, requires them to violate that freedom. The amendment can make sense only if these repugnant laws are repealed or suitably modified. The government has no such intention. In fact if the courts hold these laws to contravene the freedom of association, it is almost certain that the Government will enact legislation to make them prevail over the Bill of Rights.
PLATFORM FOR EXPANSION OF LEGISLATIVE POWER
The Commonwealth Parliament has limited legislative powers. It is limited to the powers enumerated in the Constitution. Powers which are not so enumerated belong to the several States. This is the scheme of the Constitution. The Constitution has thereby conferred on the Australian people the right to decide certain matters through their own State legislatures according to their own wishes. However in a series of cases culminating in the Franklin Dam case, the High Court gave the power to the Commonwealth Parliament to legislate on subjects covered by international treaties. The implications of these decisions have been enormous and far-reaching. The Government in Canberra was given the right to create legislative power for the Commonwealth Parliament, by simply entering into an international treaty. Thus what the Parliament could not do under the Constitution it can now do by virtue of treaty obligations.
There are UN treaties on a great many subjects. Many of them reflect the ideologies and policies of the totalitarian regimes which constitute the majority of the UN. These treaties therefore provide a convenient means of introducing such policies into Australian statute law. As a result of the High Court's decisions, the Commonwealth Government can acquire legislative power in respect of such matters simply by agreeing to ratify such treaties. The Bill of Rights is the latest example of such an expansion of Commonwealth power. If it becomes law the Commonwealth Parliament may claim legislative power in relation to all its provisions. It sets a further precedent for the exploitation of the external affairs power for the purpose of encroaching upon the autonomy of the States and the rights and freedoms of the citizen. The Bill of Rights will provide more legislative power to the Parliament.
NOTES
1. L.J.M. Cooray, (ed), Human Rights in Australia, ACFR, Sydney, 1985, Ch.8.
2. See further, Ibid, Ch.9. Also, G. Moens, Affirmative Action: The New Discrimination, CIS, Sydney, 1985.
3. See arguments and authority cited in L.J.M. Cooray (ed) op.cit p.173.
4. Ibid, Ch.13.
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