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It is fashionable to say that the Australian Constitution is out of date.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  If passed, that Bill of Rights will be an ordinary statute;  it may therefore be repealed or amended by any later statute, and its validity may be challenged on constitutional grounds.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.

A Threat to Liberty

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.

A Bill of Rights Could Advance the Cause of Freedom

John Hyde

John Hyde is Director of the Australian Institute for Public Policy.

While critical of the Bill in its present form, John Hyde believes in the potential of a Bill of Rights to expand the freedom of Australians, particularly in economic relations.

Bills of Rights do not guarantee freedom or for that matter tyranny.  The USSR has one, but the USA also has one and is probably the freest society on Earth.  Australia is far more like the USA than the USSR.  It is worth noting that the US Bill of Rights is very short, and relatively unambiguous.

A properly conceived and honest Bill of Rights rather than the travesty now before the Parliament might help protect some rights.

Theories of rights involve complex philosophical arguments, but the rights which concern us here are relatively simple.  They are:

1. Freedom of Person.  This includes rights to life (possibly including those of the unborn) and various protections in legal processes, such as the onus of proof being on the prosecution or plaintiff, protection against double jeopardy, and the observance of rules of evidence.
2. Freedom of Ideas/  This includes freedom of speech, freedom of the press, and freedom of education.  It is offended by legislation making the expression of certain opinions or attitudes attract legal penalties, by government campaigns to stigmatise people who hold certain opinions, by discriminatory inputs into education both in curriculum and by selective subsidy, in laws against incitement such as those in Queensland's industrial legislation and in Federal anti-racial discrimination legislation.
3. Freedom of Association.  This is denied by compulsory unionism and by Section 54B of the WA Police Act.  The US courts have just ruled that compulsory union dues may not be used for purposes other than collective bargaining -- to do so would be a denial of free association.
4. Protection of the Franchise.  The West Australian Upper House and Queensland Parliament have very uneven electorates.  So does the Senate, though there special considerations may apply.
5. Various property rights, including the right to sell labour and skills on the open market, the right to enjoy private property with the minimum of interference, and rights to privacy.

If any Bill of Rights is passed, it should make perfectly clear, as in America, that it is inclusive, not exclusive, and that rights not specifically mentioned in the bill are not thereby nullified.

Citizens' rights against their governments and other centres of power are not adequately protected in Australia.  As it has evolved and been overlain by Statute, the common law sometimes fails.  This is particularly so as discriminatory social engineering and various types of "human rights" industries are set up.  Australian rights of freedom of association are violated routinely by compulsory unionism.  There is very little parents, taxed to pay for public education, can do, as things are today, about the violation of freedom of ideas.  Libel law has developed in a lop-sided manner which makes free speech risky for anyone without a wealthy employer.  The human rights industry as it is now being set up seems to have an affinity with ideas of "reverse discrimination", specifically favouring one group and thus specifically disadvantaging others.

A Bill of Rights should add to the protections of the individual offered by common law.  It should involve not coercive utopianism but the reinforcing of a cultural and mental climate of Liberty.  It should not permit, let alone be attached to, proposals of thousand-dollar fines for individuals who "insult" members of the misnamed Human Rights and Equal Opportunity Commission.  In drawing it up, the American experience should be a guide.  Look at Article 1 of the American Bill:

Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof;  or abridging the freedom of speech, or of the press;  or the right of people peaceably to assemble, and to petition the government for a redress of grievances.

Our rights are not inviolate at present, and their protection in clear, concise, unambiguous language might be worthwhile.  Even if lawyers can make a feast of interpretations, that is a lesser price than some we now live with, such as all that compulsory unionism and wage-fixing entail for freedom of employment.

Objections of the Law Council

Michael Gill

Michael Gill is President of the Law Council of Australia.

This article covers some of the major reservations of the Law Council of Australia to the Bill of Rights in its present form.  They include the implication of discrepancies between the Bill and the UN Covenant on which the Bill is based, the vagueness of statements qualifying articles in the Bill, the impact of the Bill on State laws and the powers of the proposed Human Rights and Equal Opportunity Commission.  This article is reprinted with permission from Australian Law News, March 1986.

When a committee of the Law Council of Australia sat down to consider the question "Does Australia need a Bill of Rights?", the lawyers around the table -- like the community as a whole -- were unable to come up with a clear-cut answer.

The Law Council of Australia is the national body representing more than 20,000 Australian lawyers.  It has not expressed a view one way or the other on the basic question of whether Australia needs a Bill of Rights.  What it does say, however, is that there is cause for serious concern with the present proposals for a Bill of Rights and the powerful Human Rights and Equal Opportunity Commission.

If Australia is going to have a Bill of Rights, then it should be the best Bill of Rights that can be put together and the present proposal is not that.

The Law Council was concerned that the Bill of Rights legislation and the legislation to set up the new Human Rights and Equal Opportunity Commission were proceeding through the Federal Parliament without the community having sufficient opportunity to fully consider the implications of the proposals.  The Council believed that there should also be an opportunity for widespread public debate on these issues of fundamental importance.

The Council therefore in October and November strongly urged the Government and the Parliament to defer further debate on the legislation in 1985.  The Council's objective was to ensure that more time was allowed for thorough Parliamentary and public discussion of the proposals.

The Council welcomed the Government's decision on November 26 to take the legislation off the Senate Notice Paper.  I hope, through this article, to contribute to the continuing public debate.

What is it about the Government's current proposals that worries the Law Council?  There are many matters on which the Council has put its views to the Government.  I can mention only some of them here.

FOSSILISING RIGHTS

The Law Council is concerned that instead of preserving existing rights that will not be enshrined in the Bill of Rights, the present legislation, if passed, could have the effect of inhibiting the grant to individuals of further rights which might otherwise have been recognised by courts in the future.  In other words, there is a danger that the Bill of Rights might fossilise rights at their existing level.

Rights might be fossilised in another way.  Rights are appropriate in today's society may not be either appropriate or relevant in a later society.  What is relevant today may be an anachronism tomorrow.  An example is provided by the right to bear arms which is guaranteed by the Constitution of the United States.  We should not encumber future generations with today's notions of what should be guaranteed as fundamental freedoms or rights.

DIFFERENCES FROM INTERNATIONAL COVENANT

The Bill of Rights is set out in the Australian Bill of Rights Bill 1985.  The Bill of Rights is modelled on, but is not identical with, the International Covenant on Civil and Political Rights.  The fact that the Bill and the Covenant are not identical raises questions in lawyers' minds as to the constitutional validity of the Bill of Rights.

The Law Council has not expressed a view on the constitutional validity of the legislation, but it has drawn the attention of the Parliament to the limitations on the use of the external affairs power of the Constitution.  One of those limitations appears to mean that the Bill should adhere to the terms of the Covenant and give effect to the Covenant.  If the Parliament were to pass an Act which went beyond what the Covenant authorised, the Act may be invalid.

Of course there is room for debate, and there has been debate in the Courts, on the extent to which legislation must adhere to the terms of a treaty.  In the case of the Bill of Rights legislation, the extent to which the Bill departs from the Covenant raises serious questions as to the constitutional validity of the legislation.

Two articles in the Australian Bill of Rights which provide examples of significant departures from the International Covenant are Articles 3.1 and 4.2

Article 3.1 provides:

"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."

Article 4.2 provides:

"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."

Neither of these articles has any counterpart in the International Covenant.  As will be demonstrated a little later, both articles are of fundamental importance in giving effect to the Bill of Rights.  The inclusion of these articles, despite their being absent from the International Covenant, might lead to constitutional difficulties.

The Parliament seems to have some concerns that parts of the Act may exceed its legislative powers.  Clause 47 of the Bill is designed to deal with this possibility.  The effect of Clause 47 is that if any part of the Bill exceeds the legislative power of the Commonwealth Parliament, the Bill shall operate as if the offending provision were omitted from the Bill of Rights.  Article 4.2 of the Bill of Rights may cause difficulties for this intended operation of Clause 47 of the Bill.

Article 4.2 is designed to ensure that laws which permit benign discrimination or affirmative action are not invalidated by other parts of the Bill of Rights.  Its operation therefore will colour the manner in which courts interpret and apply certain of the rights and freedoms set out in the Bill of Rights.  Because of its pervasive effect it seems unlikely that it could be dropped from the Bill without altering the manner in which the courts have previously interpreted the effect to be given to those rights and freedoms.

Even as the Bill now stands, Article 4.2 directs the manner in which the Bill of Rights is to be interpreted.  If Article 4.2 is omitted, another interpretation in some circumstances might be adopted.  The omission or inclusion of Article 4.2 may well affect the validity of laws which provide for affirmative action or benign discrimination.

It might be added that Article 4.2 has the capacity to detract from Article 4.1 which says:

"Every person has the right without any discrimination to the equal protection of the law."

In other words, the rights guaranteed by Article 4.1 are subject to the group rights favoured by the government of any particular day which are permitted by Article 4.2.  Article 4.2 acknowledges that at different times there may be different forms of group rights.  This is hardly consistent with the notion that the Bill of Rights provides a charter of fundamental freedoms.

This approach is quite different from that provided in the International Covenant.  Unlike the Australian Bill of Rights, the International Covenant prohibits any form of discrimination.  The Law Council believes that Article 4.2 should be deleted from the Bill or at least amended to conform with the Covenant.

It can be seen therefore that Article 3.1 and 4.2 represent substantial departures from the terms of the Covenant which call into question the constitutional validity of the Bill.

PERMISSIBLE LIMITATIONS

This brings us to the question of limitations or qualifications on certain rights or freedoms.  Some of the fundamental guarantees are expressed very widely.  The International Covenant recognises that some of the rights are not absolute and must be qualified in respect of such important matters as the protection of national security, public safety, public order and public health.  Many of the rights in the International Covenant are qualified by limitations which appear in the same paragraph as provides for the fundamental freedom or right.

The difficulty with the Bill of Rights is that it provides for these qualifications in a way that is quite different from the way they are dealt with in the Covenant.  While the Covenant is quite specific as to how each fundamental right or freedom is qualified, the Bill of Rights refers to limitations and qualifications in a very general way, but more importantly it does not specify which articles in the Bill should be qualified or how they should be qualified.

The Bill of Rights provides in Article 3 two broad grounds of permissible limitation.  It does not repeat the limitations in the International Covenant.  Instead, it provides two hurdles which a person seeking to uphold an existing law must clear if the law is not to be struck down by the Bill of Rights.  The first is Article 3.1 which has already been noted.  The second is Article 3.2, which says:

"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."

This is an indirect way of incorporating the qualifications contained in the International Covenant.  The problem is that it does not in any way indicate which of the qualifications are to apply to which of the rights and freedoms guaranteed in the Bill of Rights.

In addition to having to demonstrate that the law under challenge does not limit the rights or freedoms in the Bill to any greater extent than is permitted by the International Covenant, Article 3.1 creates a second test of permissible limitation which is extraordinarily difficult to justify.

A limitation will be permitted only if it "can be demonstrably justified in a free and democratic society."  What does this mean?  What is a free and democratic society?  How do you judge whether a society is free and democratic?  There are no satisfactory benchmarks by which to judge the law.

The burden of proving that a particular law is "demonstrably justified" suggests that it must be patently clear.  Is it required to be so certain as to admit of no qualification?

This second test is not to be found in the International Covenant.  Its inclusion will create great uncertainty and provide a difficult task for anyone seeking to uphold a law.

UNCERTAINTY ON LIBEL

An example of the uncertainties is provided in the laws of libel.  The International Covenant recognises that freedom of opinion and speech should be qualified.  The limitations are set out in the same paragraph as guarantees the freedom.  However, if the laws of libel are challenged as being contrary to the Bill of Rights, a person seeking to rely on them will have to be able to discharge the onus of proof which, as pointed out above, is going to be extraordinarily difficult.

The difficulty can be illustrated by pointing to the fact that the Standing Committee of Attorneys-General is still unable to agree and adopt the Australian Law Reform Commission's 1979 report concerning reforms to the laws of defamation.

The same sort of problem arises in relation to other parts of the Bill of Rights.  Article 20 says that no person shall be held in slavery or servitude or be required to perform forced or compulsory labour.  The same article in the International Covenant recognises that laws enabling courts to order penalties of imprisonment with hard labour and community work orders are recognised as appropriate limitations on the right not to be held in slavery or servitude.  But if a challenge to Australian laws is to imprisonment or community work orders is made, the person seeking to answer the challenge will have to satisfy Article 3.1 in addition to relying on any qualifications contained in the International Covenant.  It may be quite difficult to do so -- many would contend it is unnecessary to do so.

The Government says that the qualifications in the International Covenant were not reproduced in each relevant article of the Bill of Rights because of the Government's view that there was a need to produce "an inspirational charter of rights in a simple declaratory style".  Whilst there is much to be said for a simple proclamation of rights, the Law Council does not support the use of a simple declaratory style if it is going to lead to uncertainty and to expensive litigation to clarify its meaning.

The declaratory style of the International Covenant does not suffer from the inclusion of these qualifications and limitations.  A document of such fundamental importance as the Bill of Rights should aim at certainty and clarity, with a view to avoiding unnecessary litigation.

In fact there are a number of areas in the legislation which have considerable potential to lead to protracted and expensive litigation, which plainly would be contrary to the public interest as well as having the potential to lead to uncertainty as to the operation of a number of laws.

Some of these potentially litigious areas occur in the context of:

• constitutional questions
• possible conflict between Articles within the Bill of Rights itself
• justifying limitations on the rights and freedoms guaranteed in the Bill of Rights
• the uncertainty of the meaning of the operation of the terms of the Bill of Rights and
• the delay and added expense of the "removal of causes" from State Courts to the Federal Court as provided for in the Bill of Rights.

LIMITATIONS OF RIGHTS TO "PERSONS"

The limitation of rights and freedoms set out in the Bill of Rights to "natural persons" raises the question as to who, legally speaking, is a person.  Does the expression "natural persons" include unborn children?

A separate issue is whether the rights and protections in the Bill of Rights should be extended to companies and corporations.  While a number of the rights in both the Covenant and the Bill of Rights are appropriate only to natural persons, there is no reason why other rights and freedoms contained in these documents should not be available also to corporations.

For example, the right to freedom of expression should be available to a corporation just as it is to an individual.  Indeed, the limitation of these freedoms to natural persons could create difficulties for corporations which are engaged in the media.  As the Bill is at present drawn, the media would not be entitled to the freedom of opinion and speech guaranteed by the Bill.

EFFECT ON STATE LAWS

An area of major importance is the potential effect of the Bill of Rights upon State laws.  This matter needs to be clarified.  As at present drawn, the Bill does not directly affect State laws but has a capacity to affect them indirectly and significantly.

The Attorney-General, in a speech in Melbourne in August 1985, said:

"The fact that the Bill of Rights will not override of its own force inconsistent State laws does not mean that the Commonwealth will fail to act where the Commission recommends legislative change by the States and they fail to do so."

The Attorney-General was referring to the proposed new Human Rights and Equal Opportunity Commission, which will be discussed later.  What is clear at this stage is that the Bill of Rights does have a capacity to have a significant effect on State laws if a report of the Commission tabled in Federal Parliament recommends changes in State laws, and those changes are not made.  The Law Council believes that, at the least, if there is to be any effect upon State laws, that effect should be universal so that there is not potential for any one State to be singled out.

The Council believes the proposed Human Rights and Equal Opportunity Commission has the potential to be used as a lever to put pressure on State Governments to change their laws.  Of particular concern to the Council is the fact that before the Commission can investigate State laws, the consent of the responsible Federal Minister must be obtained.  This provision clearly has the potential for abuse for political motives.  The Council believes that any capacity for arbitrary or discretionary power for governments to act in this way should be removed.

THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

When it looks at the powers and functions of the proposed Human Rights and Equal Opportunity Commission, again the Law Council has serious concerns.

The Council shares the concern of the Senate Standing Committee on Constitutional and Legal Affairs about the possible incompatibility of the range of functions which the Commission will be required to perform -- a question which has already arisen in relation to the existing Human Rights Commission.

The Senate Committee has expressed concern about the decision-making function of the present Commission under the Sex Discrimination Act conflicting, or at least being seen to conflict, with its conciliation and educational activities.

The Law Council's concerns go further than those expressed by the Senate Standing Committee.  In investigating complaints made to it, and in performing related tasks, the Commission would have power to do anything necessary or convenient to be done in the exercise of its powers.  It can command persons to appear before it and to produce documents.  In conducting inquiries it may order compulsory conferences.  The Commission may act in any manner it sees fit and is not bound by the rules of evidence.  Inquiries and conferences can be held in private and persons called before the Commission for such inquiries or conferences would have no right to be legally represented.  It is in effect both prosecutor and judge.

The Commission has very wide powers of investigation, decision-making, conciliation and settlement.  These are supplemented by its power to report its findings to Parliament when no settlement can be effected.  The Law Council thinks this is an unacceptable mix of functions.

The Law Council believes the proposed Commission's decision-making function should be vested in a separate tribunal.  The Council is strongly of the view that the decision-making tribunal ought to be either the courts or, at the least, the Administrative Appeals Tribunal (or some new division of it).

The Commission's proposed powers are so wide-ranging and the Commission, in the exercise of them, may so seriously affect the position of individual citizens that the Law Council believes the legislation in its present form cannot be supported.

The Law Council cannot support legislation which, as this legislation does, permits one body to act as both prosecutor and judge in the same cause.

ASSURANCES NOT ENOUGH

We believe that fundamental questions such as these cannot be solved merely by assurances that the persons who will be appointed to the Commission will be of such high standing that there is no likelihood that they would abuse their powers.  It is not the likelihood of abuse which concerns us -- it is the potential for abuse which the granting of such powers to an unrepresentative and non-judicial body creates.

We are also concerned that the Commission is given power to preserve the anonymity of a person who makes a complaint or who assists the Commission.  We see this as a serious impairment of the right -- long recognised in our judicial system -- to be able to confront one's accuser and to test the evidence given by him and by those who have given evidence on his behalf.

The ability to know one's accuser may occur if the Commission calls a compulsory conference.  However, the Commission has power to conduct inquiries without necessarily calling compulsory conferences, and a wide discretion is vested in the person presiding at the conference as to the way the conference is conducted.  Thus the accuser may not be present.  The Law Council believes that the ability of a person to know and to properly answer any complaint against him is very severely circumscribed by the legislation in its present form.

The Commission would have power to compel the attendance of any person before it to answer any question relevant to an inquiry.  The Commission could require the evidence to be given on oath or affirmation, and impose penalties for failure to comply with the requirement to attend and give evidence.  The privilege against self-incrimination would be removed -- a step which would appear to be at odds with the whole notion of a Bill of Rights.

This defect, in the Law Council's opinion, is not remedied by the provision which says that the information given is not admissible in evidence against that person in other proceedings.  Anyone familiar with the operation of clauses of this kind knows how easily they are circumvented in practice.  The privilege against self-incrimination should not be removed by the Bill of Rights.

Persons required to attend compulsory conferences should be entitled to the legal representation of their choice or to representation by some other agent if that is their wish.

DANGER IN SECRECY

The requirement as to secrecy should be removed.  There is too great a potential for abuse if conferences are held behind closed doors and if those affected are not entitled to legal representation.

There is no means of any kind in the Bill of Rights by which decisions of the Commission would be subject to review and, given the penalties which might be imposed and the possible consequences of an infringement of the Bill of Rights, the Law Council believes that such review is desirable.

It is true that the Bill of Rights provides that the Commission shall not furnish a report to the Minister in relation to what the Commission believes to be an infringement of a right or freedom set out in the Bill of Rights until it has given a reasonable opportunity to the persons concerned and to the responsible Minister to make submissions to the Commission.  This is not good enough.

Careers may be ruined by reports of the Commission.  The Commission would have power to recommend payment of compensation to people whose rights and freedoms have been violated by governmental action, and the legislation therefore creates legitimate expectation in that regard.

In the light of these things, people affected by reports of the Commission ought to have the right to state their case before the Commission has, in effect, made up its mind.

The comments which the Law Council has made on the powers and functions of the Commission have focussed mainly on the powers and functions conferred on the Commission by the Australian Bill of Rights Bill.  The Commission would have parallel powers in respect of other areas of its responsibilities, and the Law Council voices parallel concerns about that.

There are other concerns of the Law Council with the Bill.  I have not dealt with them all.  Nor have I referred to all of the Council's concerns as to the manner in which some of the rights and freedoms in the Bill are expressed.  They have been referred by the Law Council to the Parliament.  One concern is that the rights and freedoms are expressed in terms which are so general and vague that they will require a considerable volume of litigation to resolve their meaning.  The Law Council is concerned that, where possible, doubt should be removed before the Bill becomes law.

In its written submissions to the Government and parliamentarians, the Law Council has drawn attention to some areas of difficulty and concern with the legislation.  A large number of other questions also exists.

In short, the Law Council believes that a great deal more thought should be given to the whole question of a Bill of Rights and its contents and to the powers and operation of any organisation to be set up to enforce it.

The Case for Supporting (and Strengthening) the Bill of Rights

Janine Haines

Janine Haines is a Senator for South Australia and Leader of the Australian Democrats.

The proposed Bill of Rights, Senator Haines argues, is surrounded by misconceptions and baseless fears.  She believes the Bill offers a much needed protection for the rights of the individual against the power of government and would offer even greater protection if its jurisdiction would extend to the States.  The eventual fate of the Bill may well depend on the position of the Australian Democrats, the party which Janine Haines now leads.  This article is an edited version of the speech which Senator Haines delivered in the Federal Parliament on 14 February 1986.

In all the five years that I have been a Member of Parliament I have never before run into so much misinformation being spread around the community about any piece of legislation as that which has been disseminated about the Australian Bill of Rights Bill and the Human Rights and Equal Opportunity Commission Bills which accompany it.  The number of Chicken Littles who are running around this community claiming the sky will fall in if we pass this piece of legislation is extraordinary.  Sadly, they are often masquerading as Christians and are behaving in a most un-Christianlike manner, peddling lies and stirring up fear in the minds of ordinary, honest, reasonable people in the community.  The letters that I have had from people who have been subject to this misinformation campaign indicate the extent to which some people in the community will go to stop a piece of legislation going through.  It is, I would suggest, a campaign that most totalitarian regimes would envy for its extent and success.

Before I go into some of the concerns that have been expressed to me about this Bill, quite unnecessarily I might add, I think we need to look at its origin and just exactly what it does do as distinct from what some people think it will do.  It results, of course, from the United Nations International Covenant on Civil and Political Rights and it is, in fact, a particularly weak piece of legislation.  It follows not only the signing but also the ratification of that Covenant by the previous Fraser Government in 1980.  It is not only Australia, of all Commonwealth or Western countries, which has signed and ratified this Covenant, despite the fact that the majority of letters that I get say things like:  "It is based on the United Nations ICCPR which has been accepted by Warsaw Pact countries and rejected by the UK and the USA."  Hence, they argue that it will lead to a totalitarian state.

In fact, not only has Australia signed and ratified this Covenant but so has the United Kingdom, which in addition is a participator in and covered by the European Covenant, which I suggest is a much stronger Covenant.  Canada ratified the United Nations Covenant on 19 May 1976.  Prior to doing that, in 1960 it implemented the articles of the Covenant in its own Bill of Rights and it did that in a legislative form.  By 1982 the Canadians were sufficiently satisfied with the working of it to allow it to be incorporated into their own Constitution.  To the best of my knowledge, so far Canada has not become either a communist or a totalitarian state.

Then we have the misinformation that the Bill of Rights is going to seep into the entire community, that somehow it is going to set neighbour against neighbour, individual against company and that it is going to get its tendrils into all sorts of areas, including interfering with States' rights.  Apart from the fact that I happen to believe -- and my Party supports me in this -- that it ought to cover the States, in fact it is a particularly weak Bill in that it only offers to protect individual citizens against jackbooting (federal) bureaucracies.  This is one of the reasons why the much maligned proposed Human Rights and Equal Opportunity Commission, like a lot of other commissions and tribunals that we have in this country, does not allow legal representation.  It is intended to defend the individual against the much bigger organisations of Federal Government departments.  I leave it to the imagination of honourable Senators to work out who would be able to afford better and more lawyers in a fight between an individual and the Department of Social Security, for example.  Even if it only covers Federal Government instrumentalities, this Bill goes some way towards giving additional protection to ordinary individuals.

UNELECTED BODY

Another concern of some people is that the Bill is to be administered by an appointed, as distinct from a democratically elected, body of people.  I do not know what they think judges are, by the way, since most other pieces of legislation are interpreted by the courts which, of course, are made up of appointed bodies of people.  Anyway, critics say that the Bill of Rights is to be administered by an appointed body of people with powers that exceed the normal processes of the law.  They say it is a Star Chamber and an inquisitorial body.  It allows no right of appeal, they say, and can have closed hearings.  It can call for documents and no legal representation is to be allowed.

I suggest that the same applies to things like the Social Security Appeals Tribunal, the Repatriation Review Tribunal and the Administrative Appeals Tribunal.  To argue that there is no appeal from the Human Rights and Equal Opportunity Commission ignores the fact that there is only one additional power given to the HREOC under this legislation that does not already exist under the Liberal Government's Human Rights Commission, and that is the power to call compulsory conferences.  It also ignores the fact, as I read the Administrative Decisions (Judicial Review) Act 1977, that in section 5 there is an appeal mechanism.  To argue that this is some kind of inquisitorial Star Chamber that is going to stop people from doing what they want ignores a number of facts, including the fact that all it can possibly do is report to the Minister and suggest that some dictatorial bureaucracy is stopped from doing what it wants.  To argue that the HREOC is some kind of totalitarian communist-inspired organisation not only overlooks the facts, it overlooks the important correlation between that Commission and a number of other existing bodies we have in this country which are established specifically to protect the rights of individual citizens against very large organisations.

RIGHT TO OWN PROPERTY

I now turn to one or two of the other misconceptions that are being spread around the community.  I would like to pick up the criticism that this Bill does not include the right to own property.  That, of course, is because it is not covered in the Covenant.  The Australian Democrats certainly would not have any particular objections to the Bill including a simple amendment to the effect that there is a right to own property.

There are large numbers of people in the community -- and I include the Returned Services League in this -- who believe that this Bill actually takes away a right to own property and that somehow we have had that right in this country, if not since its inception, since Federation.  In fact, that is not the case.  Neither at State level nor at Commonwealth level have we ever had the absolute right to own property.  At the Commonwealth level, section 51, Part 31 of the Constitution gives us the right to have the Federal Government pay either an individual or a State just compensation if it acquires your property, but at the State level not even that applies.  To argue, as the RSL does, that the Bill will take away our right to own property is an absolute nonsense and I suggest that some of these people acquaint themselves with State and Federal Government constitutions.  The point, however, is that, even if we do put into this Bill the right to own property, unless we also extend it to the States, it is not going to stop somebody like Mr. Wran from coming up with another Coal Acquisition Act of 1981.  Unless the States are covered by it we can put in any property rights we like and it will not stop Premiers and dictatorial parliaments from treading all over ordinary people.

I now come to the argument that there has been no time for discussion and examination of this Bill by the people, that it was rushed through the House of Representatives and passed in the dead of night, as if it were the first Bill to be passed in this Parliament in the early hours of the morning and as if that necessarily makes it sinister.  We have had a Bill of Rights of some sort before the Federal Parliament since 1973.  I would have thought that 12 years was long enough for 15 million people, or however many interested bodies there are among that 15 million people, to get to know what was in it.

MARRIAGE AND FAMILY

The Bills have all been different.  This has to be the weakest of them.  Unfortunately, the people in the community who have caught up with the legislation have got only as far as Senator Evans' Bill which was a much more grandiose scheme to extend various rights to people.  They write to me, unhappily quoting sections from Senator Evans' Bill, and are not aware -- I suggest that they have not been made aware deliberately by the people peddling these stories -- that this Bill bears no closer relation to Senator Evans' Bill than does the nature of the current Attorney-General (Mr. Lionel Bowen) bear any relation to that of the previous Attorney-General.  People are saying such things as:  "The Bill will lead to homosexual marriages".  The first time I saw this I thought:  "My God, what have I missed in this legislation?  People are writing to me saying that Article 13 will allow homosexual marriages".  I turned to Article 13.  It is headed "Right to marry and to found a family".  It says:

"Recognising that the family is the natural and fundamental group unit of society"

-- which again runs counter to the argument of all the people who say that the legislation is anti-family --

"and is entitled to protection by society and the State

1. every man and woman of marriageable age has the right to marry a person of the opposite sex and to found a family".

Anybody who can tell me how that can be interpreted to allow homosexual marriages has a mind more devious than my own.

COMMON LAW

We then get the argument that common law is sufficient for the protection of our rights.  Sir Harry Gibbs has said:

"If a society is tolerant and rational, it does not need a Bill of Rights.  If it is not, no Bill of Rights will preserve it".

But that overlooks the general point that we in this place do not make laws for when things are going right.  Normal practice is to make laws for when things are going wrong or are likely to go wrong.  Leaving that aside, Sir Harry needs to consider the comments of Lord Scarman:

"When times are normal and fear is not stalking the land, English law sturdily protects the freedom of the individual and respects human personality.  But when times are abnormally alive with fear and prejudice the common law is at a disadvantage:  it cannot resist the will, however frightened and prejudiced it may be, of Parliament."

We need to consider that.  It is fine having legislation for when things go right.  We really need legislation for when things go wrong.  But even then the things that we think we have absolute right to, as with property rights, we do not necessarily have.  Neither common law nor statute law provides us with full protection or gives us many of the rights that people, such as those in the Returned Services League, think we have.

There is a common belief in the community that we have the absolute right to legal representation at a trial.  The McInnes case knocked that assumption fairly and squarely on the head.  There is an argument that we have a juristic right to protest.  I suggest that Campbell v. Samuels eliminated that idea for all time.  As far as the guaranteed inalienable right to freedom of worship is concerned, I refer honourable Senators to the Grace Bible Church case.  Finally, when we talk about how valuable common law is as distinct from statute law, I refer honourable Senators to that absurd Victorian case last year when a judge, who -- for very good reason -- suppressed his name as a consequence, ignored existing State legislation and went back to a 1609 British common law decision that allowed a man to violate and abuse his wife.  Senator Durack has talked about the fact that the Covenant on which the proposed Bill of Rights is based was established several decades ago and therefore we need to reconsider.  What on earth are we doing going back 380 years to a common law decision?

H.R.E.O.C. AND THE COURTS

I come back to the Human Rights and Equal Opportunity Commission.  Some people say that if the Parliament passes this Bill it will transfer the power of interpretation of legislation from Parliament to an unelected body -- first to the HREOC and secondly to the courts.  I do not know what they think has been happening in this country but to the best of my knowledge Parliament has never had the right to interpret legislation.  Certainly we have tried on occasions -- for example, through extrinsic aids to statutory interpretation and the odd Acts Interpretation Act.  Who pays attention to them?  I suggest that not many of the judges interpreting the Trade Practices Act have done so;  they apply their own interpretations.  They have turned their own minds to it.

The Parliament as an elected body, while it has the right to make laws, has never had the right to interpret them.  We have never come up with a perfect piece of legislation, anyway, so there is always a role for courts and lawyers in settling exactly what is meant by legislation.  The Human Rights and Equal Opportunity Commission is no less an unelected body than the courts.  Indeed, the Bill makes provision to allow judges to sit on the Human Rights and Equal Opportunity Commission.  It is not as if we are planning to leave the functions of the Commission to a clutch of people brought in off the streets, with no capacity to understand the legislation.

People also write to me saying that this is a back-door method of changing the Constitution, and that we ought not to pass it without a referendum.  We do not have referendums to pass normal legislation.

This Bill is by no means perfect.  I have already covered its omission of the right to own property.  There is also legitimate concern among Opposition parties and the community generally that, while there is a right to belong to an association, there is no additional right not to belong.  Lawyers will tell us that the negative is incorporated in the positive and other sorts of legal things.  My response to that is:  "If that is the case, gentlemen, you will not mind if it is attached because it is not doing anything that you argue is not already there".  A simple statement that would allow people the right not only to belong to an association but also not to belong to it would find no problems with me or, I suggest, with my Party.  The way that the Opposition wants to go about it, with an amendment that is extremely lengthy, is asking for trouble.

However, I also point out that, while countries have the right to reserve from Articles in the Covenant, problems arise when those countries then produce legislation including Articles which are not part of the Covenant.  That would make the chances of a High Court challenge so much greater.  The inclusion of the right to own property, and the fiddling about with the wording of the right to belong to an association to allow it to cover people who do not want to belong to an association, may well lead to a High Court challenge.  Nevertheless, I think the issue is probably important enough to chance that.

STATE GOVERNMENTS

I want now to come to the main objection that we as a party have to this legislation -- that the legislation does not apply to the States.  This is particularly unfortunate when one considers Article 6.  It seems wholly inappropriate for Australian newspapers to run indignant stories about rigging and unfair elections in the Philippines when we have the sort of situation that applies in Queensland.  At least Marcos managed to get 46 per cent of the vote to force his way into Parliament.  Queensland has a unicameral system -- not even the protective measure of an upper house, however awkwardly elected that may be, as indeed it is in Western Australia -- in which the National Party of Australia, by rigging the boundaries to the extent that one chunk of an electorate is in the middle of another electorate can get itself elected with 34 per cent of the vote.

The various people on this side of the House in the Opposition parties ought to get their act together -- I add that this is as good an act to get together as any -- and include the States under the system suggested by Senator Tate's Standing Committee on Constitutional and Legal Affairs.  That is a more than appropriate way of extending the scope of this legislation so that it really does apply some rights to individuals vis-a-vis State and Federal governments and departments.  That Committee suggested that at the very least a displacement provision mechanism should apply, that is, that the Bill be amended -- and we shall move in that way -- so that the States are covered by the legislation with the option of opting out of all Articles but Article 6.

If I have any complaint at all about this Bill it is that it does not go far enough.  In not going far enough, it may delude people into believing that they have rights that they actually do not have and, in so deluding people, it will perform a disservice rather than a service to the community generally.  We will consider amendments to improve the Bill, the main one of which will be that relating to its application to the States.  I look forward to enthusiastic support for that amendment from all people in this chamber who believe in freedom and democracy in Australia.