CONTENTS
Introduction
Why Australia Needs a Bill of Rights
Peter H. BaileyThe Australian Bill of Rights -- Some Disturbing Social Implications
J.K. BowenAn Overview of the Bill and Response to Critics
Lionel BowenBill of Contradictions
Geoffrey BlaineyThe Case for Supporting (and Strengthening) the Bill of Rights
Janine HainesObjections of the Law Council
Michael GillA Bill of Rights Could Advance the Cause of Freedom
John HydeA Threat to Liberty
Mark CoorayA Constitutional Bill of Rights
Sir Harry Gibbs
Appendix: Australian Bill of Rights Bill 1985
INTRODUCTION
The Bill of Rights Bill 1985 has been the most debated bill in Parliament for a long time, some claim since Federation. A quarter of the petitions to the Senate in the 1986 Autumn Session concerned this Bill and, while many people still possess little real knowledge of its contents and implications, debate in the community has rapidly grown, particularly outside Australia's big cities.
The Attorney-General, Mr. Bowen, has suggested recently that the Bill of Rights be taken out of the Senate and referred to the Constitutional Commission, due to report in 1988, who would then consider entrenching it in the Constitution. But even if the Federal Government decides to drop the Bill, the debate over whether or not Australia should have a Bill of Rights is unlikely to disappear. Mr. Bowen is the third Labor Attorney-General in fifteen years to propose a Bill of Rights. He is unlikely to be the last. The international trend in recent decades has favoured the introduction of Bills of Rights (Canada introduced one in 1982 and New Zealand is considering it). Moreover, at the State level in Australia, the Victorian Government is seriously considering the question of legislation for a Victorian Bill of Rights.
As to the Bill's likely impact on the future direction of Australian society, if it is eventually introduced, leading participants in the debate radically disagree. Senator Janine Haines, for example, refers to it as a "particularly weak piece of legislation" which ought to have its powers extended, while Professor Geoffrey Blainey calls it "probably the most revolutionary change attempted in Australian life since the introduction of democratic government in the 1850s".
This booklet covers the main arguments for and against a Bill of Rights for Australia as well as including the Articles of the proposed Bill. The views of the Government and the Australian Democrats, who hold the balance of power in the Senate, are each ably represented. The position of the Law Council of Australia is also included as are the views of one of Australia's foremost historians, Geoffrey Blainey, Associate Professor of Law, Mark Cooray, and one of the most influential in developing the case against the Bill, Victorian barrister Jim Bowen. The, Bill proposes the establishment of an enlarged Human Rights Commission. Peter Bailey, Deputy Chairman of the existing Human Rights Commission, outlines reasons why he believes Australia needs a Bill of Rights. John Hyde, well-known as an advocate of the free market, also supports the concept of a Bill of Rights. The contribution by the Chief Justice of the High Court, Sir Harry Gibbs, focuses on a Constitutional Bill of Rights. The recently proposed Bill would not have amended the Constitution.
One of the reasons why the proposal of a Bill of Rights has stirred such an impassioned and essentially interesting debate is that it strikes at deep tensions within the broad tradition of liberalism -- a tradition which in Australia crosses party lines. Both camps claim as their goal the protection of the rights and freedoms of Australians. Both, moreover, claim a deep concern for the plight of the modern individual threatened by that traditional bete noire of liberals -- large, intrusive, centralist government. But they disagree strongly on the value of a Bill of Rights. The following is a brief summary of some of the more important points of contention surrounding the Bill. Some of the criticisms it should be noted, apply only to the current Bill and would be resolved by amending the Bill; others, however, would be equally as pertinent to any Australian Bill of Rights.
United Nations Influence
The Federal Government views the enactment of an Australian Bill of Rights and establishment of a Human Rights and Equal Opportunity Commission (HREOC) as a response to obligations incurred by Australia signing the International Covenant on Civil and Political Rights (ICCPR), the United Nations' document on which the proposed Bill is based. While supporters of the Bill appeal to the spirit oaf international fraternity implied in its origins, critics have expressed uneasiness at the influence exercised by the UN, a body seen by its critics as dominated by illiberal, undemocratic regimes with which Australia has little in common, nor towards which we should incur obligations.
Australia's Human Rights Record and the Adequacy of Common Law
It is argued by opponents that the proposal to introduce a Bill of Rights into Australia did not arise as a response to public demand; that Australia has an excellent human rights record without a Bill of Rights and that the traditional bulwarks of rights in Australia -- in particular, the common law -- are adequate mechanisms for the continued protection of rights.
Proponents of a Bill, on the other hand, underline the anachronisms, inadequacies and inconsistencies of common law. They point to key rights -- whether the rights of ethnic minorities or the right not to join a trade union -- which are not adequately protected in this country. A Bill of Rights, they argue, would add to common law protection not detract from it.
Mining Rights
Despite Article 2, which denies that any right not included in the Bill is devalued by reason of exclusion, critics believe that the absence of key rights, such as the right to own property, marginalises those rights. These gaps in the Bill are often attributed to its UN origins and the influence of socialist regimes over that body. (It is worth noting that while the right to own property is absent from the Australian Bill and the ICCPR it is included in the UN Declaration of Human Rights). The Opposition and Australian Democrats have declared their support for various amendments to the Bill to cover the right to own property, the right not to join a trade union and the right to choice in education.
Educational Value
Proponents of the Bill (or of the concept of a Bill of Rights) see great merit in creating a succinct declaration of rights. In a democracy ordinary citizens should be well-informed. There is thus value in providing a statement of rights which is brief, widely disseminated and comprehensible to the average citizen in a way that the vast tomes of common law, for example, can never be. Moreover, a formal declaration of rights, it is argued, contributes to the moral education of the community by fostering respect for rights.
Against this, opponents of the Bill point out that a society's respect for rights is not generated by the formal declarations of governments but, if it exists at all, has its source in the customs and sentiments of a community which are imparted from one generation to the next. A Bill of Rights, according to this view, encourages people to admire the foliage and fruit of political institutions while neglecting to preserve the roots.
Abstract Ideals
The laying down of rights in abstract, general terms -- of the type "Every person has the right to freedom of expression" -- while it evokes noble ideals also raises problems. For example, the charge is made that the Bill, because of its abstract nature, suffers from vagueness and will require considerable interpretation when it is applied. This raises Geoffrey Blainey's question: what is to be done when a conflict of rights occurs (between freedom of the press and the right to privacy, for example)? If rights are absolute (or qualified in only general terms -- see Article 3.1) and devoid of context (i.e. abstract) how can a court legitimately decide which right is to be given preference over another.
Independence of the Judiciary
This vagueness and potential conflict of rights, critics predict, will generate much litigation, from which lawyers might benefit, but which will involve the judiciary in politically compromising decisions, thus weakening their independence and undermining an important bulwark of Australia's liberal-democracy. Supporters of the Bill believe this is unlikely to happen, one reason being that most disputes will be resolved out of court by the HREOC.
Powers of the HREOC
The HREOC is itself a subject of great controversy -- particularly with regard to the inconsistency of its procedures with due process of law. Its apologists argue that as it cannot convict like a court of law it is not bound to behave like one. Further criticisms stem from what is perceived to be the radical political bias of the existing Commission which will be reflected, it is argued, in the educative role taken on by the HREOC.
Should the Bill be Secured by the Constitution?
The Attorney-General, Mr. Bowen, has expressed the wish that in the future the Bill will amend the Constitution. (A referendum resulting in the support of a majority of voters in a majority of States would be required.) Unsecured by the Constitution, the Bill is open to amendment or complete rejection by a parliamentary majority (the Opposition has promised to reject it once in government). It thus offers no more protection for rights than an ordinary Act of Parliament.
Who and What should the Bill Cover?
The current Bill is intended to apply only to Federal Government and its agencies, although the HREOC will have the power to investigate State legislation and report on it. Mr, Bowen has indicated that the Federal Government would consider legislation if the States could not be persuaded to bring particular laws into line with Articles of the Bill. The precedent, presumably, is the 1983 Franklin Dam decision by the High Court in which an international treaty enabled the Commonwealth Government to intervene in the affairs of a State. The Australian Democrats have voiced the wish that the Bill be amended to apply to the States, provoking States' rights supporters to express alarm at what is seen as a threat to federalism. A further amendment which has gained Opposition and Democrat support, but not the backing of Labor, extends the Bill to cover companies and trade unions. This, it has been argued, would provide individuals with a weapon against union power.
Rights and Duties
The question of what balance should be achieved between individual rights and the demands of social organisation is also opened up by the Bill of Rights debate. The Bill's unqualified stress on the rights of individuals, it is said by opponents, leaves it open to abuse by criminals and radical minorities. Against these claims, civil libertarian defenders of the Bill (or of a Bill) argue that the status quo is weighted against the individual and that a re-balancing in favour of individual liberties and rights is overdue. If a Bill of Rights did afford more power to minorities, the weak and the marginalised, this, it is said, would surely make Australia a more just society.
Big Government
One of the key points of contention associated with the proposed Bill is whether it will serve as a check or an aid to the big brother State. Those who see it as a check point out that the Bill has a strong bias in favour of individual rights against the actions of government. The contrary position stresses four principal lines of argument. First, that through the Bill the State will expand its own power by undermining traditional checks on that power, such as the common law and the independence of the judiciary. Second, that the excessive powers and probable bias of the HREOC suggest that it will violate more rights than it defends. Third, critics claim that the proposed Bill (because it excludes the right to own property) is a socialist bill designed to devalue the foundations of individual liberty and advance the cause of an interventionist government. Fourth, that if the Bill were to apply to the States it would be a victory for centralism over federalism.
Reform: Wide-ranging or ad hoc
A Bill of Rights, its proponents say, could provide a basis for an overdue renovation of Australia's law according to basic principles of freedom and equity. But those who oppose this do not deny that imperfections and inequities exist in Australia, only that reform is most effective and produces the least unintended consequences when it is piecemeal -- when specific laws are designed to cure specific problems.
WHY AUSTRALIA NEEDS A BILL OF RIGHTS
Peter H. Bailey
Peter Bailey, O.B.E., is Deputy Chairman of the Human Rights Commission.
Experience, argues Peter Bailey, has shown common law to be an inadequate protection for rights in Australia -- particularly the rights of vulnerable minority groups. A Bill of Rights could help remedy this situation as well as offer a much-needed check on the power of government. This address was first delivered at a debate organised by the ACT Branch of the Australian Family Association on 1 December 1985. It does not purport to be a discussion of pros and cons but rather a statement of the case for a Bill of Rights.
There are four major reasons why Australia needs a Bill of Rights:-
- First, I hope to persuade you on pragmatic grounds.
- Second, for those of you who are idealists there are particular reasons for wanting a Bill.
- Third, for those of you who are concerned about the future, and especially the future of your children, a Bill of Rights can be seen to be essential.
- Fourth, although most of us may not be concerned about keeping up with the Joneses, an increasingly influential Australia must play its part as a constructive member of the world community.
PRAGMATISM
One of the most common objections to a Bill of Rights I hear as I move around the community is that there is no point in it. "Why do we need a Bill of Rights?" I am asked. "What use will it be?"
The problem is that we just don't get the protection we need from the common law.
Perhaps a few examples will help. If you happen to be taking a stroll and get caught up with a meeting, you may find yourself whipped away to the police station, where you will be charged with some kind of obstruction. Your answer that you were simply taking an afternoon walk or were vaguely interested to see what the assembly was about will be of no avail. You may be fined or imprisoned. But, with a Bill of Rights, you would be able to claim a right to freedom of movement and assembly. In the circumstances I have described, you would almost certainly get off. But you would not necessarily get off at the moment.
If you were an Aboriginal appealing against a conviction and your counsel deserted you at the last moment, you might find your appeal lost without any defence from you. The Court would tell you that although you might have some need for counsel, the trial had been fair and so there was no need for counsel. That happened in the McInnes Case. If we had a Bill of Rights, you could claim the right to representation and a new trial would have to be ordered. Of course what would really happen is that the trial would not proceed without counsel.
You are the parent of a child who has been subjected to punishment at school. You go to a court seeking damages but are told that there is an implied right of discipline in schools and therefore the normal laws relating to assault and battery do not apply. Your case is dismissed. If we had a Bill of Rights, you would be able to claim at least that the treatment had been inhumane or cruel. You would almost certainly have some right of redress, unless the punishment had been within reasonable bounds.
If you are a member of a migrant family and have lived here for 20 years, with a wife you marry in Australia and have some children, and then find you are about to be deported, you have no basis to seek protection at common law. If we had a Bill of Rights, you could invoke the rights of the family, and you would probably be allowed to stay, in the interests of the family as an important group unit in society.
If you happen to have a mentally ill family member that you feel is unfairly confined in a mental institution, you could try getting the member out by using the ancient writ of habeas corpus. But if, as is usual, British decisions are followed, you would find that the writ doesn't extend to decisions to confine the mentally ill. If we had a Bill of Rights, the patient would almost certainly have the possibility of freedom because you would be able to invoke the right to review of the detention order.
If you feel that ASIO or some other Government agency is unreasonably snooping on you or members of your family, you may well feel enraged -- like David Combe and his family. If you went to court, you would be told that the common law does not recognise a right to privacy. That is what the Church of Scientology found when it brought a case against ASIO in 1982. If we had a Bill of Rights, privacy would certainly be among the rights included. You would be able to claim, and the courts would have to accept, that there is a right to privacy and that it would have to be balanced against any other conflicting rights or interests.
I could go on with examples like this. I hope you are persuaded, however, that in recent years the much vaunted protections of the common law have found to be either inadequate, or lacking in a disturbingly large number of areas. Perhaps I should briefly mention a few others such as contempt of court, the free practice of religion, the conduct of public processions and the rigging of electoral systems and even the right to life itself, not to mention the rights of the family to protection.
I can hardly do better than quote that distinguished Australian, Dame Roma Mitchell, who for the past four years has been Chairman of the Human Rights Commission. She spent 20 years on the Supreme Court of South Australia and was closely involved in all its processes. She said:
"As one trained in the principles of the common law I used to believe that, in the majority of cases, the common law could do justice and that the proper approach was to rely upon the legislators to intervene when it became apparent that the principles of the common law were inefficient in any particular sphere. Now I am not so confident".
I rest my case on the grounds of pragmatism. Experience has proved that our common law is unable to guarantee some of the most basic of human rights.
IDEALISM
For idealists, a Bill of Rights is just the kind of measure we need. Our statute book is full of complex and detailed decisions about bureaucracy, about government powers and about nit-picks. Let me just read a few of the names of 1984 Acts --
Aboriginal Councils and Association
Acoustic Laboratories
Acts Interpretation
Advance Australia Logo Protection
Bank Account Debits Tax Administration
Bankruptcy
Bass Strait Freight Adjustment Levy
12 Bounties Act
Commonwealth Employment
Companies and Securities
6 Customs Tariff amendments --
and so it goes on.
All that legislation is about details and organisation. We are in need of something to put over and around these to give a framework for action. Otherwise all our little bureaucracies are going to be dashing off in their own directions. A Bill of Rights will declare some principles against which the activities of these bodies must be judged.
The Bill of Rights is a centrepiece of America's democracy, and the Declaration of Rights is important in France. Countries throughout the world celebrate their Bill of Rights day or similar days with a commemoration of a statement of ideals and objectives that all people adhere to. Why should Australia not have such a statement?
It is often not recognised that Australia has a Declaration of Rights. By annexing the International Covenant on Civil and Political Rights, and three international Declarations -- of the Rights of the Child, the Rights of Mentally Retarded Persons and the Rights of Disabled Persons -- and asking the Human Rights Commission to promote their observance, the Parliament has already declared a set of rights for Australia. We now need to bring them more into focus for the particular needs of the community by converting them into an Australian Bill of Rights.
Would it not be good to say in 1988 that we are not among the last in the line but that we are equipped with a Bill of Rights that states for us the objectives we have in protecting the rights of our citizens and promoting the kind of life they should be able to enjoy?
FUTURE
This brings me to the next point. We should be looking to the future of our community, not sanctifying the past and relying on it to carry us forward in the old English traditions. It is no denigration of those traditions to recognise the need for a fresh approach to the future.
One distinguished commentator recently has observed that if society is tolerant and rational, it does not need a Bill of Rights. If it is not tolerant and rational, no Bill of Rights will preserve it. That is an argument based on false premises. Do we hear people say that because they are good drivers they need not worry about insuring? Of if they are bad drivers, that they had better wait till they have a crash, when it will be too late to insure? Of course not. That kind of proposition defies all logic.
Our society is neither bad nor good. It is neither tolerant nor intolerant, nor wholly rational or irrational. It is a complex mixture and it needs a point around which to rally. Our courts have no clear direction: a Bill of Rights is necessary to tell them where we want our society to go.
Let me quote Amnesty International, a sensitive and internationally linked organisation which argued in a submission to the Senate Standing Committee on Constitutional and Legal Affairs that:
"If the opportunity now presented is allowed to slip, our society, or at least its successors, may live to regret it. It is much better to act now and not wait for a flood before we build a dam. It is not difficult to imagine a situation where a political crisis might arise of such dimensions as to result in a declaration of a state of emergency where violations of human rights would become the norm rather than the exception. All too often we have seen in recent times apparently stable countries where this has happened".
Another objection made by opponents of a Bill of Rights is that it would disturb our future. On the contrary, it would give a measure of stability and certainty. For that reason the Conservative Party in the United Kingdom have wanted a Bill of Rights for a long time: they see it as guaranteeing some of the fundamental rights and liberties we now see being eroded.
Why are these fundamental rights and liberties being eroded, and why is the common law proving inadequate? Part of the answer is given by Professor Weeramantry in his recent book The Slumbering Sentinels. His view is that the rapid development of technology threatens to overwhelm the existing structures of society -- for example, medical and biological research, chemotherapy, live subject research, cloning, the creation of new cells, computers and nuclear fission. He suggests that a substantial revision of legal structures will be required and that some form of process rights may be needed to regulate developments just as process rights are now incorporated in the trial process.
A Bill of Rights would provide guidelines to deal with many of these points and give us protection as our society moves into the 21st century.
Another aspect of concern for the future is the rapidly growing power of the State. It is not generally understood that the way the common law has worked is to grant broad rights, all of them desirable in themselves and most of them incorporated in the International Covenant on Civil and Political Rights and the Government's draft of a Bill of Rights. But progressively, as these multitudinous statutes I have mentioned are enacted and put into operation, the common law rights have been cut back. They are already seriously depleted; for example, rights of entry and control of movement and all the other rights I have mentioned. We need a restatement of the core rights we want observed in and by society, to keep our burgeoning bureaucracies in control, to guide the interpretation of our statutes, and to protect individuals from the growing power and interferences of the State.
AUSTRALIA IN THE WORLD
My fourth point is that Australia's membership of the world community lends powerful force to the view that we should adopt our own Bill of Rights. We have now worked for four years with a set of rights declared by the Parliament. They have I believe served us well. The Commission received over 700 complaints on human rights matters during the first three years of operation of the legislation, and the complaint rate is rising. We should recognise that these international rights, though valuable, would be better replaced by a fully developed Australian set of rights.
The Attorney-General, Mr. Bowen, made the point in his Second Reading Speech. He said:
"It is with great pleasure that I move the introduction of the Australian Bill of Rights Bill. This Bill will provide real and significant protection for rights and freedoms essential to democracy and to the respect for human dignity in Australia. The rights and freedoms established by the Australian Bill of Rights are those rights and freedoms internationally recognised as the minimum standards to which governments should conform in dealing with individuals within their jurisdictions."
There are few countries in the western world which do not now have their own Bill of Rights. Western European countries all have them, as do many of the former British colonies. It has always been said that common law countries do not need a Bill of Rights. But Canada has felt the need for one, the United States has always had one and New Zealand is on the way. Why should Australia resist the move? Indeed, a Bill of Rights is one of the most convenient and compendious ways of honouring Australia's obligation under the International Covenant on Civil and Political Rights. By Article 2 of the Covenant:
"... each State party to the present Covenant undertakes to take the necessary steps, in accordance with its Constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant".
We have already done well with legislation in the area of racial and sex discrimination. We should now be moving in the more general field of civil and political rights.
Having made the four main points which seem to me to argue for the early introduction of a Bill of Rights in Australia -- based on the pragmatism, idealism, preparation for the future and Australia's obligations as a member of the world community -- I now want to pick up a few more points which seem relevant but which fall outside those four major headings. They relate to:
- effects on the Federal system
- the fear of a litigious society
- the rights of the family
- the fear of judicial control
- the control of crime
- the control of executive power
- the needs of small groups
- the needs of ethnic communities
EFFECTS, ON THE FEDERAL SYSTEM
Great play has been made by such distinguished proponents of the federal system as the Premier of Queensland that a Bill of Rights represents a threat to the federal system. Perhaps I should rest my case there. But if I were to continue, I would ask why the States should not comply with rights which Australia has agreed internationally will be observed. Article 50 of the International Covenant says that "provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions". The Commonwealth Government's proposals are designed to allow States to legislate for themselves to implement the Covenant. Why will they not do that? If that is because they wish to withhold basic civil and political rights from their citizens, then it is not only proper but desirable that a federal Bill should override State provisions which infringe human rights? Who would want it otherwise?
THE FEAR OF A LITIGIOUS SOCIETY
Many people are apprehensive about the possibility that Australia would become a litigious society along the lines that are perceived as operating in the United States. I believe that is unlikely for two reasons. First, we in Australia follow the British rule that the loser customarily pays the costs of a court proceeding -- "the costs follow the results" as they say. That discourages reckless litigation by comparison with the position in the United States, where each party normally bears its own costs.
Second, and perhaps more important, we are uniquely advantaged in that Australia already has in position human rights machinery both at the Commonwealth and the State level to handle a large number of complaints. More than 3000 complaints a year are coming to the Human Rights Commission and to State equal opportunity agencies in four of the six States. These complaints are handled by a process of conciliation. Few of them go to court-like processes. Indeed, in many of them the parties would not find court processes easy or even very satisfactory. One would expect the large preponderance of cases to continue to come to the Human Rights Commission and state agencies, thereby syphoning off from the courts a lot of the cases that might arise.
For these reasons, we don't need to fear excessive litigation, Australia can remain a community in which matters are more often sorted out by conciliated discussion than by judicially determined outcomes.
PROTECTION OF THE FAMILY
At the present time the rights of the family unit receive fairly scant recognition, and then mainly in terms of the rights of the male head. It has only been by statute that married women have been able to hold separate property. There are at present no general legal principles that courts can apply when making decisions in difficult cases. It is important to have a statement about the family in a Bill of Rights that can be drawn on. As people concerned with the family, we must recognise -- indeed, welcome -- that the State cannot do everything. Backed by a Bill of Rights, we should look more to the family as a unit which can, at relatively little cost, and with adequate legal protection, perform uniquely valuable functions of personal service, such as helping care for ageing relatives.
THE ROLE OF THE JUDICIARY
The fear is often expressed that a Bill of Rights could place excessive power in the hands of the judiciary. Judges are skilled and devoted people, but their world is that of interpreting the law rather than of determining social trends. One of the advantages of a Bill of Rights along the lines the government has proposed is that it avoids excessive reliance on the judiciary. The legislature will have a role to play. Further the Human Rights and Equal Opportunity Commission will be able to undertake research and report to government where issues have arisen that need attention by the legislature. So the Bill of Rights will keep important policy issues in the hands of government and Parliament.
THE CONTROL OF CRIME
There have been suggestions by the police that a Bill of Rights may impede their ability to control crime effectively. All of us have great respect for the police, and recognise the difficulty of their work. But there is nothing new in the expectation that the police be required to enforce the law without infringing human rights. A Bill of Rights will give those working for effective and uncorrupt police forces some clear principles to appeal to. It will challenge our police forces to observe high standards, provide those standards and a means of enforcing them. Further, by protecting private citizens from unreasonable actions, it will help ensure their support for the force and the law.
CONTROL OF EXECUTIVE POWER
There seems to be a lack of control over executive power, particularly when it is exercised under the prerogative rather than under statute. In its inquiries the Commission has found that government agencies are inclined to take action as they judge best, rather than by reference to human rights principles. We need a Bill of Rights so that administrators can be referred to principles that should apply in the particular case, rather than be trusted to be nice people. They sometimes aren't. More than that, the courts need to be told that they are to enforce Bill of Rights principles in appropriate cases that come before them. Unfortunately, courts have been reluctant so far to pick up the principles as endorsed by Parliament and attached to the Human Rights Commission Act. The judgement of the Federal Court in Kioa's Case is an example. It simply is essential that we have a Bill of Rights that requires courts to impose on administrators an obligation to observe human rights.
SMALL GROUPS
On a recent visit to Queensland, the Human Rights Commission met representatives of a number of non-government organisations. Those representatives felt threatened by actions they thought might be taken by government authorities, like withdrawal or reduction of government subsidies. They said that, when they go to plead a case, there are no principles on which they can rely. They may feel that family life is threatened, or individual rights of worship, or rights to assemble; or that the rights of disabled persons or of homosexual persons are being brushed aside on grounds of status and not of substance. But they have nothing to which to appeal, except the hoped-for goodwill of the administrator. A Bill of Rights would give those small, relatively powerless people a chance of claiming, against firmly stated principles, that they have a case which should be considered and, unless due cause can be shown, conceded in the light of principles stated in the Bill of Rights.
ETHNIC COMMUNITIES
Australia is privileged to have within its community a substantial number of people who have come from other countries and cultures. A difficult and continually changing balance has to be maintained between the rights of the cultural majority, and of new arrivals who want in some way to preserve their own language, faith and culture. Australia is, I believe, a country tolerant enough to allow this -- we have done it with some success in the past. But discussions with some of the older ethnic groups suggest that there has been a very cruel process of accommodation. If, through a Bill of Rights, we could declare that minority ethnic groups have rights to practise and to profess their own religion, language and culture, then the way would be open for a less painful accommodation than now occurs.
CONCLUSION
I sum up by saying that we as Australians have a right to the best legal system obtainable. We have a good regal system. It has brought us to the present with an international rating as a country where human rights are well observed. But that does not mean we can rest. In a changing community with continually arriving new influences, and at a time when technological and other changes are proving almost overwhelming we need to look ahead to greater protections for the individual. Let me quote that splendid Catholic philosopher Pierre Teilhard de Chardin. He said:
"Whether we like it or not, humanity is collectivising, 'totalising' itself, under the influence of physical and spiritual forces of a world-wide nature. Hence the new conflict, which is taking place in every human heart, between the human unit who is ever more conscious of his individual value, and his social ties, which become ever more exacting ... From this new point of view it becomes immediately apparent that the object of a new definition of the rights of man must be ... to enhance in each of us, I will not say independence, but -- what is quite a different thing -- the incommunicable uniqueness of the being within us".
A Bill of Rights must protect not only the individual, but the community as a whole, and important units within it such as the family. We need a fresh statement of fundamental rights if we are to move into the future confident that our individual uniqueness will not be swallowed up in the corporate entity, or unnecessarily distorted by outward coercion.
Drawing on another great author, Harold J. Laski, we should be aware of the importance of ensuring in a Bill of Rights that equality before the law does not mean only protection of the rights of the middle class. Laski said:
" 'Equality before the law' has not meant very much in the lives of the working-class in most political communities, and still less to Negroes in the southern States of the United States".
One might add the same comment about Aborigines in Australian society. My belief is that a Bill of Rights will help consolidate the emergence of the rights of these under-privileged groups in our society. Indeed, I would not be happy without a Bill of Rights which contained within it a significant measure of support of the disadvantaged.
Perhaps I could conclude it all by quoting an adaptation of a well-known hymn --
"Change and decay in all around I see
Yet in a Bill of Rights there's security for thee
Protection from the winds of change, a shield for the day
When those wielding power from rights paths do stray".
I conclude as I began and hope I have now convinced you that Australia needs a Bill of Rights -- and soon.
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