November 2009


Bill of rights

By Geoffrey Robertson
Illustration by Jeff Fisher.

The most remarkable feature of the National Human Rights Consultation Report, released last month, is its projection of the voices of ‘ordinary people’ (a condescending phrase used by lawyers to describe people who are not lawyers). These voices are alternatively laconic, passionate, revelatory and querulous, all dialogue guaranteed verbatim, as heard by Father Frank Brennan’s caravan on its travels from Paraburdoo to Mintalie and thence to Yarrabah (check out its map). They speak of hospitals that turn away patients, police stations that ignore reports of crime, and even a public toilet in Alice Springs that charges an entrance fee high enough to deter you-know-who.

The consultation committee’s brief, according to the attorney-general’s office, was to “conduct a nationwide consultation to examine the protection and promotion of human rights and responsibilities in Australia”. The report’s simple finding is that our wealthy and allegedly egalitarian society disrespects many classes of its citizens. Most serious is the plight of those who “fall between the cracks” – the homeless, the aged, the mentally impaired and physically disabled, children in care and indigenous Australians living in conditions of “third world disadvantage”. More surprisingly, the committee also found that the Great Dividing Range is more than a geographical barrier: there is a massive difference in basic health, education and welfare-service provision between those who live in cities and those who live in rural or remote areas. These indignities and iniquities would be ameliorated, the report’s authors reason convincingly, by the adoption of a federal bill of rights.

In other words, those who oppose a charter – including, most stridently, the editors of and many of the commentators in the Australian – are hostile to a measure which, on all the evidence, offers some chance of betterment for the poor and oppressed. The onus now falls on those commentators to demonstrate that their objections – political, for the most part, or lawyerphobic – are sufficiently weighty to outbalance the evident public good of improving the lot of our underdogs.

Brennan finds little substance in their objections. A ‘lawyer’s banquet’ a charter most certainly is not: most of the human-rights legal work would be done by community legal centre lawyers, who are paid less than cadet journalists. The argument that judges will be empowered to override parliament is convincingly refuted: the charter model endorsed by Brennan would merely enable judges, if the language of a statute is ambiguous, to assume that parliament intended the meaning most consonant with human rights. In dealing with controversial issues such as euthanasia, abortion, gay marriage and so on, parliament would remain supreme.

Reactions to the Brennan recommendations so far have been knee-jerk political. Many of its antagonists condemn the idea of a charter because they believe it is some kind of left-wing plot. For Liberals, this delusion may be an ideological hangover from John Howard’s day, but it is philosophically mistaken. A bill of rights is an impeccably conservative idea. The great right-wing thinkers – going back to Edmund Burke, William Blackstone and Albert Dicey – all cherished rights that limited the power of government and were entrenched in the common law (that is, the law that is made by judges). Winston Churchill, in his impassioned speech to the Hague Conference in 1948, urged the adoption of a bill of rights for every country in Europe, “guarded by freedom and sustained by law” and ensuring that “the people own the government, not the government the people”. It was Churchill who insisted on establishing the European Court of Human Rights, building upon a proposal first made at the 1946 Paris Peace Conference by a man then recognised as a great international statesman, one Doctor Evatt. Two top advisers to the current British conservative leader, David Cameron, recently published an article in the Guardian in praise of bills of rights under the headline “Churchill’s Legacy”. Someone should send a copy to the Queensland Liberal senator George Brandis, who recently warned on Radio National’s PM program that a charter would be “inimical to democratic values”.

Senator Brandis has come some distance in the course of the Brennan consultation: the Liberals are still opposed to Churchill’s legacy, but Brandis is all for human-rights education (which should be the government’s highest priority, in Brennan’s view) and now wants “a comprehensive audit of existing legislation, to identify and repair gaps in human rights protection under existing law”. What he does not appreciate is that existing legislation is a morass of technical and pettifogging verbiage; simply “auditing” (that is, reading) it will not reveal the human-rights problems it can cause in practice. Only a charter can do that; if a charter were in place, the courts would operate as true auditors, either by interpreting ambiguous legislation in conformity with human rights, or by declaring it incompatible with the rights guaranteed by the charter and referring the matter back to parliament. That is a real audit. How many more years in Opposition will it take for the Liberals to realise that it is a very good thing to have a check on government power?

Many years, if the New South Wales Liberals are anything to go by. In a state where government incompetence is exceeded only by government arrogance, the penny still has not dropped; the New South Wales Labor Party’s ferocious opposition to a Human Rights Act may not be unconnected to its fear of being called to account for the indignities in its hospitals, care homes and other public services. As for the National Party, it might have been expected to welcome the Brennan Report’s exposure of the discrepancies between city and country, and to do voters in remote areas a favour by declaring its support for a charter. Instead, its members shout ‘left-wing plot’, failing to recognise that a charter would serve the interests of their constituents.

The truth, of course, is that human rights are apolitical. A charter will disfavour whichever party is in government, because it will expose maladministration and offer some protection to minorities from unfair or oppressive treatment. Ideally it would be introduced with cross-party support, although that is evidently some years away (another term in Opposition may prompt a Liberal re-think). The education Brennan advocates may in time produce greater awareness of a charter’s benefits, and will in any event help to produce more engaged citizens. (Human-rights courses in Canadian and British schools have been credited with doing exactly that, while reducing bullying and encouraging better behaviour and greater respect for students from ethnic minorities and even for teachers.)

One deficiency of the report is its failure to concentrate on rights that have emerged through the Australian experience, rather than those handed down by international treaties. The problem is that the easiest way to introduce a federal charter is as an exercise of the federal parliament’s external affairs power – that is, as legislation implementing international treaties that Australia has already ratified. This is all very well, but such treaties tend to be of the ‘lowest common denominator’ variety, and would give the charter a foreign rather than Australian flavour. For this reason, many human-rights experts in England now want to replace the European Convention on Human Rights with a British bill of rights.

In the history of the struggle for human rights, Australia has some great stories to tell, beginning in 1787 when Captain Arthur Phillip devised what he termed the “First Law” for a penal colony that only he believed would ever amount to a nation. That law asserted that “there will be no slavery in a free land and hence no slaves”. This, many years before William Wilberforce achieved the abolition of slavery in Britain, was not a bad start. The subsequent emancipist battles for the right to vote and for trial by jury, and Chief Justice Forbes’ declarations striking down Governor Darling’s censorship of the press, are worth celebrating. As Eleanor Roosevelt recognised, Australia contributed more than any other nation to the development of the principles enshrined by the Universal Declaration of Human Rights. We were the first to guarantee the minimum wage, the 40-hour week, paid holidays, long-service leave and even the fabled ‘smoko’, harbinger of the right to ‘down time’ at work. Doc Evatt and his delegates ensured that rights to health, education and welfare – the very rights most needed, according to Brennan, by those on margins of our modern society – were included in the Declaration, which calls upon all nations to protect human rights through domestic legislation. Tailoring such a domestic law to our own experiences, rather than anchoring it in the ether of UN conventions, is the best way forward.

Brennan’s most notable failure, at the end of a very long day (500 pages and many thousands of miles; this was a journey to rival that of Priscilla, Queen of the Desert) is the absence of any draft of his proposed bill of rights. Exhaustion, perhaps, accounts for this – his committee achieved a great deal in just nine months. But since the proof of the pudding is in the eating, we should at least see the dish before deciding whether to partake. The government would do well to reconvene the committee and lock them up with parliamentary draftspeople (plus Tom Keneally and Les Murray and some writers under 30) for another nine months, to see whether they can come up with prose inspiring enough, if need be, to carry a referendum.

This is no easy matter, as John Howard discovered when he made his stumblebum effort to insert “we value … independence as dearly as mateship” into the Australian Constitution (his draft preamble was understandably rejected at the 1999 referendum). It is said that Thomas Jefferson’s first draft of the Declaration of Independence began: “We hold these truths to be sacred and inviolable ...” When he read it to Ben Franklin, the latter shook his head: “Smacks of the pulpit, Mr Jefferson, smacks of the pulpit.” Franklin read on – all men are created equal, endowed with inalienable rights, et cetera – and commented, “These truths are ... self-evident, are they not?” Jefferson had to agree, and the rest is history.

As for Australian history, the case for a bill of rights to uplift those who have fallen through the cracks is now self-evident in the pages of the Brennan Report. It will not convince notorious charter opponents, but at least it should put them on the defensive.

Geoffrey Robertson
Geoffrey Robertson QC is a human rights lawyer and a Visiting Professor at Queen Mary College. His books include The Case of The Pope: Vatican Accountability for Human Rights Abuse and The Statute of Liberty: How Australians Can Take Back Their Rights. @RobertsonQC

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