Arguments for an Australian Charter Of Rights

By The Hon. Michael Kirby AC CMG

What is a charter of rights?

Australia is one of the few countries without a constitutional, or even an enacted, statement of the general rights of the citizens.  The biggest consultation ever held on such a subject was initiated over the past year by the federal government.  It is due to report later in 2009.  It is examining whether, like all other modern, elected democracies, Australia should adopt, at the federal level, a law that sets out our basic civil rights.

An idea that has predominated in the consultation is that we should adopt a charter of rights.  This would contain basic principles.  They would not be stated in the Constitution but in an ordinary Act of the Federal Parliament.  So Parliament could readily amend or override the stated rights if it saw fit.  In cases coming before the courts, judges would be encouraged, so far as possible, to interpret federal laws and common law consistently with the stated rights.  If they could not adopt such an interpretation, courts would not have the power to overrule the inconsistent laws.  They would only have the power to call the inconsistency to parliament's notice.  They would then leave it to parliament to decide whether or not to cure the suggested defects in the law.  This would be a relatively "soft" option.  However, it would copy reforms adopted during the past 20 years in New Zealand and Britain.  The aim would be to encourage respect for basic rights whilst at the same time accepting the parliamentary form of democracy we have in Australia.

Isn't this alien to British traditions?

No, it is not.  The English-speaking people have adopted charters of rights in the past.  They did so in 1215 with the Magna Carta signed by King John.  This promised due process.  They did so again in 1688 in the Bill of Rights and other laws which promised judicial tenure and independence and basic rights for the people.  In America in 1776, they did so when the settlers decided that the British parliament was denying them the basic rights of Englishmen.  They did so in 1911 in England in restricting the powers of the House of Lords to block legislation passed by the lower house of parliament.  The Australian Constitution of 1901 contains a number of guaranteed rights.  Most English-speaking democracies, including Australia, have subscribed to the great UN treaties that have given effect to basic rights, re-stated in 1948 in the Universal Declaration of Human Rights (UDHR).  So there is nothing alien to our legal tradition in embracing a charter of rights that defines our fundamental rights and duties.

But won't it undermine parliament?

Australia is one of the most mature parliamentary democracies in the world.  The proposal for a charter, akin to the laws enacted in Britain and New Zealand, does not damage our parliamentary institutions.  On the contrary, it enhances them.  It is parliament that would state the fundamental rights of the Australian people.  Although courts would have a function to examine suggested departures from those rights, parliament would retain the last word.  Far from damaging our democratic institutions, such a development would strengthen them.  It would encourage parliament and all public officials to examine and, where they saw fit, to correct alleged injustices and inequalities that arise in the treatment of persons, measured against the charter.

Is there a need for it?

Sadly, Australians cannot claim that their parliamentary system works so perfectly that it does not occasionally need the stimulus of reminders that the law sometimes treats people (usually minorities) unjustly and unequally.  Australia's history has been repeatedly marked with unfortunate illustrations of such injustice:

• Take Aboriginals.  We denied our indigenous people respect for traditional rights to their land.  A century and a half of parliamentary government in Australia did not cure that great wrong.  It required a decision of the High Court of Australia, based on a re-expression of the common law, to overturn the unjust and discriminatory laws.  This step was taken in the Mabo decision (1992).  It had to rely, not on an Australian charter of rights, but on provisions of the International Covenant on Civil and Political Rights (ICCPR).  This is a treaty that Australia has ratified but not yet brought into domestic operation.
• Take also women.  There are many discriminatory provisions in our laws based on the sex or gender of individuals.  Some of these have been corrected by parliament.  But others remain relics of earlier times and attitudes.  A charter would encourage courts to cure such instances or to draw them to the attention of parliament.
• Take also Asian immigrants.  For more than a century, the White Australia policy excluded and discriminated against Asian immigrants.  They were made to feel second-class.  Eventually, the laws were amended by parliament after 1966.  If there had earlier been a national charter, such discriminatory provisions might have been avoided or certainly cured more quickly.
• Take also homosexuals.  Criminal laws and much unequal treatment have marked the lives of gay citizens.  Some of these have only recently been corrected in more than 100 statutes corrected in 2008.  Why did they exist for so long? Long after the scientific knowledge about diversity of human sexuality was well known to parliament? Previous governments did not treat the reforms as a priority.  Had a charter existed, it might have quickened the pace of reform.

In these and other instances, Australia's laws have sometimes reflected the values of past generations.  If we count every citizen as precious in Australia's democracy, we need effective means to stimulate the correction of injustice and inequality.  This is what a charter of rights can do.

Yet the Soviet and Zimbabwe had such rights

It is true that unjust societies can have ostensibly perfect laws.  A charter alone will not cure inequalities or right wrongs.  However, in functioning democracies, like Australia, a charter could stimulate the removal of unjust discrimination.  The fact that more than a piece of paper is required is no reason for withholding a statement of fundamental rights in the form of a charter.  After the terrible sufferings of the Second World War, this was recognised by the adoption of the UDHR by the world community.  All that a charter would add would be a local mechanism for requiring courts and parliaments to take such rights seriously.  A charter would also help us to teach children about the rights and duties we hold in common.  It would help improve governmental practices and public attitudes.

But would it lead to judicial activism?

Some critics of a charter complain that it would lead to excessive judicial activism.  This is like a swear word, designed to frighten the people.  Where there is injustice, a little judicial activism will sometimes be a good thing.  Democracies are often effective is protecting majority interests and rights.  They are less effective in protecting vulnerable and unpopular minorities.  Yet all human beings have basic rights that must be respected, simply because they are human.  Australia has accepted this principle by ratifying many international human rights treaties.  The question is whether we take these treaties seriously.  And whether we will afford effective remedies to our own citizens at home to make sure that we observe and enforce such principles.

Why should we have to go to the Human Rights Committee in Geneva?

It was this thought that led to the reforms in Britain and New Zealand, adopting the charter model.  These are two countries with legal systems closest to our own.  The complaint of judicial activism is unconvincing.  Especially because, under the charter model, all that the judges can ultimately do is to draw the suggested inequality or injustice to the notice of parliament so that it can consider curing the wrongs that are drawn to its notice.

Are not some of the complaints trivial?

Once a charter is adopted, courts have to deal with the cases brought to them.  For example, some critics dislike the idea that prisoners might use a charter to complain about their treatment.  However, recently, the High Court of Australia, in Roach's Case (2006), upheld a complaint by prisoners that a law denying every Australian prisoner the right to vote in the last federal election was unconstitutional.  In that case, the Court affirmed, in part, the prisoners' complaints.  Prisoners are human beings and, as citizens and individuals, have rights.  The law is there for everyone.  Not just the majority and the popular.  It can be left to the good sense of courts to decide if a claim under a charter is justified and warrants remedial orders.

Are the judges incompetent in such matters?

Some politicians, full of a high opinion about their own wisdom, complain that judges have no business scrutinizing legislation by reference to fundamental rights.  They suggest that judges have no special expertise in such matters and should butt out.  This would be a more convincing argument if it were not the fact that, in most countries of the world, judges are already entrusted with upholding the basic rights of citizens expressed in bills or charters of rights.  The suggestion that Australian judges are somehow incompetent to do this is completely false.  There is now a large and growing body of law, in national courts and transnational bodies, like the European Court of Human Rights, to guide judicial decisions in particular cases.  As well, in some matters, common law principles already encourage judicial intervention.  All that a charter of rights does is to make the procedure more systematic, principled, modern and transparent.  Indeed, having a charter of rights actually operates in advance of judicial decisions.  Those who draft laws for enactment by parliament are required to ensure that those laws conform to the charter.  This imports throughout the law important standards of respect for fundamental rights.  It prevents laws overriding citizens' rights by oversight or neglect.  In today's world, where fewer and fewer and people join political parties, leaving everything to MPs is a very risky choice.  We all know that politicians are sometimes out of touch with ordinary people.  Occasionally, they play on prejudice to get elected.  Sometimes they neglect minority interests.  They are arrogant and prejudiced, as Australia's record shows.  And in any case, a three yearly visit to the ballot box hardly involves writing a blank cheque for everything that politicians do, once elected.  The wise, calm voice of the courts can occasionally be required to help identify and sometimes cure unjust laws.  Anyone who has been on the receiving end of unjust laws will know that parliament sometimes gets things wrong.  When that happens, parliament needs judicial and other stimulus to get it right.

Is a charter constitutionally impossible?

Some commentators have suggested that the charter model is impossible in Australia because it would involve the judiciary in giving advisory opinions.  Under our Constitution, it has been held that judges cannot do this, but must simply decide real cases brought between contesting parties.  I have no doubt that any federal charter in Australia could be drawn to avoid this problem.  Our country is now virtually alone in the world in failing to provide effective national laws for upholding the fundamental rights contained in international law.  This does not necessarily mean that we are wrong.  But it certainly raises the question as to whether our legal system has been so perfect that we do not need the occasional stimulus of a charter.  Anyone who knows Australian history will deny such perfection, unless he is a starry-eyed politician who has come up the greasy pole of politics or a media mogul who resents the scrutiny of the law in case it addresses the injustice done by the powerful to the powerless and the vulnerable.

But will anything be done?

Finally, it is suggested that we should not waste our time on this consultation or in worrying about a charter because nothing will, in the end, be done.  It is true that we are good in Australia in talking about ideas such as a charter of rights, but slow in delivering the machinery of justice.

On the other hand, the consultation on the charter in 2009 has been the biggest enterprise of its kind in Australia's national history.  The time has come to bring fundamental human rights home to the law of Australia.  We have signed up to so many treaties containing such rights.  We have allowed our citizens and others to take their complaints to the United Nations in Geneva and New York.  What we now need (as the British and New Zealanders, the Canadians, South Africans and others have found) is a home-made mechanism for testing our laws against the standards of fundamental human rights.  Beyond dispute, our history shows the need for such a process.  The high level of interest in the consultation is itself an insurance against neglect or indifference to its outcome.  I hope that the outcome of the consultation will be the recommendation for the adoption of a federal charter or statute or rights, actionable in the nation's independent courts.  We can trust Australia's courts and judges to get such decisions right, to learn from the judges of other countries and to use their role to strengthen our parliamentary democracy by making it truly attentive to equal justice under law for all Australians.

The Hon. Michael Kirby AC CMG is a former Justice of the High Court of Australia, serving from 6 February 1996 to 2 February 2009.  He was appointed a Companion of the Order of St Michael and St George (CMG) in 1982, for his services to law.  He received Australia's highest civil honour when he was made a Companion of the Order of Australia (AC) in 1991 and in the same year was awarded the Human Rights Medal.  In August 2008, Kirby was presented with the inaugural Australian Privacy Medal by Senator John Faulkner and Karen Curtis, the Australian Privacy Commissioner.  He was awarded a honorary Doctor of Laws degree from the Australian National University in 2004.  He was awarded a honorary Doctor of Laws degree from the University of New South Wales in September 2008.

Arguments against an Australian Charter Of Rights

by The Hon. Bob Carr

If Australians were asked whether they wanted non-elected judges to enjoy the final say on all public policy it is pretty clear how they would vote.  A modest increase in judicial review was proposed in 1988.  Voters were only asked to endorse trial by jury, freedom of religion and fair terms for property acquired by State governments by inserting these as rights in the Constitution.  The referendum lost in every State and Territory by votes of up to 75 percent.

Now the Federal Government has an inquiry into how rights can best be protected in Australia.  The advocates of a Bill of Rights have watered-down their proposal to a Charter, based on legislation and not added to the Constitution and which parliaments can in theory over-rule.  This faces a bigger hurdle than mere public disdain:  there is now close to a consensus it would be unconstitutional.

"How can anyone be opposed?" ask the frustrated enthusiasts who've tried to agitate this issue.  Well, to start with, a charter or even a Bill of Rights guarantees nothing.  Britain abolished slavery in 1772, with a court decision based on the common law.  The United States as late as 1857 confirmed slavery was legal, notwithstanding its constitutional Bill of Rights.  Indeed America had a Bill of Rights for 150 years before black Americans in the South could even vote.  And they didn't get it through the Supreme Court;  they got it because black Americans mobilized politically.

Stalin's 1936 Constitution was very eloquent on rights but he murdered 20 million Soviet citizens.  I've probably made the point but bear in mind some of the least democratic countries in the world have enumerated freedoms in their constitutions -- Zimbabwe and the Sudan for starters.

Because this will be determined within the ALP, Labor supporters need to think how a charter will be used by future conservative governments.  Conservatives would add to it a right to property -- I think inevitably.  Given a conservative court, this would be enough to prevent a Labor government stopping the clearing of native vegetation on farms, stopping the clearing of pockets of rainforest on private land or banning a developer from carving canal estates into property.

The right to property, written into a charter of rights, could go anywhere because a charter is filled with decorous generalities or abstractions but judges determine what the words mean.

Another possibility should concern Labor.  It's a reasonable assumption a conservative government would add freedom of association to a charter.  This would invite conservative judges to outlaw trade union recruitment in a workplace.  That would mean parliament being required to overrule the court.  That may mean persuading a Senate with a non-Labor majority to take on the judges.

I am surprised at the naiveté and gullibility that leads some people to think a charter of rights means that, for the ages, courts will facilitate a left-liberal or reform agenda.  They imagine it's only the rights they want that will be enshrined in judge-made law.

Who disagrees with freedom of speech?  In 1994 in Canada the Supreme Court interpreted that right -- expressed in the charter adopted in 1982 -- to mean tobacco advertising could be resumed, even near schools.  The right to freedom of movement -- again, who could disagree?  In 1999 judges relied on this right to strike down British Columbia's policy requiring incoming doctors from other provinces to work in rural and remote areas.

Advocates respond saying that with a charter of rights -- not a Bill of Rights -- Parliament will still have the final say, as under the Victorian charter.  So when a court issues an opinion the government has breached rights, Parliament has the opportunity to fix things up with another act of Parliament.  But we now know that at the Federal level this model is unconstitutional.  Two former high court judges, Michael McHugh and Sir Gerard Brennan have said as much.  They believe requiring the High Court to play an advisory role to Parliament, rather than make decisions binding on parties to a lawsuit, is outside the court's power.

In any case parliaments are reluctant to overrule judges.  This then opens up a process of judicial creep in which judges get their way more and more, especially in the Australian system where it would be hard to get a Senate -- generally controlled by minority parties -- to overrule judges when they have invoked the charter.

Geoffrey Robertson argues that we are less free than nations with Bills of Rights.  This would be curious to Thomas Ivey who, as we go to press, is scheduled to be escorted from death row in Broad River Correctional Institution in South Carolina and judicially executed by either electricity or chemicals.

More than 3,000 Americans on death row in 34 states await this fate.  This year, a total of 36 prisoners are expected to be executed.

Say a prayer for sad, deprived Australia without a Bill of Rights.  Capital punishment was abolished by elected politicians years ago.

Advocates talk as if we have an agreed consensus on what goes in a Charter.  Geoffrey Robertson's draft Bill of Rights includes the rights of children.  Fine, but how, in schools, for example, does it get applied in practice?  Before long the exercise of classroom discipline by teachers or principals will run the risk of litigation.  This will then force changes to school practice in anticipation of what way a court may jump.

Consider Britain, where the whole bureaucracy -- including the police -- are now making decisions shaped by a fear of being over-ruled by court actions on human rights grounds.  Thus when a factory owner had a fence torn down by gypsies who camped on his land, the police told him they wouldn't shift them because they'd be over-ruled in court -- freedom of movement.  Jack Straw, Labor's justice minister, promises to redraft the Charter, the Conservatives to replace it.

Geoffrey Robertson's document would include a right to a pristine environment.  He's lived in Hampstead too long.  Twenty-five years of working with conservationists has demonstrated to me that not even on remotest Cape York does a pristine environment exist on this continent.  Only a clairvoyant would know what judges would make of this power but that they would make something of it -- to veto a wind farm quite possibly -- is entirely likely.

Susan Ryan argues that we need a charter of rights to protect the interests of the disadvantaged, the poor, the marginalized.  Strange that in America the disadvantaged still have no health care or guaranteed unemployment benefits and that one in three African Americans will experience prison.  America with its constitutional Bill of Rights has the biggest prison population in the world.

When Dr Haneef was mistreated by the Federal police, he had his rights reinstated by the court.  That's our common law tradition.  When the Howard government was seen to be treating too harshly the refugees who come to our shores it was -- for these and other reasons -- voted out of office.  All in the context of robust freedom of speech which sees executive power challenged and contested every day of the week, every minute of the day.  On this ethos our freedoms rest.

To those who say that the treatment of refugees is, on its own, a reason for a charter of rights, my reply is simple.  The Australian people will always want their elected representatives and not unelected judges to make decisions about border policy and migrant intake.  Any attempt to shift this to the courts will result in a wave of contumely washing over the judiciary.  That is in nobody's interests.

But Australia is the only country in the world without a charter, goes the complaint.  While in theory some European jurisdictions have given domestic force to the European Convention, it can have little effect on administration.  The freest countries in Europe are often those with the least judicial review.  Norway, for example, tops the ranking in the 2009 Freedom in the World report issued by Freedom House.  Holland, too.  Of course, Australia -- without a charter -- is also in the top bracket.

Are we going to give up compulsory voting simply because few other countries have it?  It works for us.  That is the only test.  It is part of our political culture.

Advocates talk about rights as if they were an abstract truth to be uncovered to public acclaim by High Court judges exercising a role like Roman priests in the Temple of Jupiter.  But rights are an area of constant contest.  A right to privacy can conflict with freedom of speech.  Freedom of movement with a right to property (the gypsies versus the factory owner).  Freedom of expression (a right to smoke) with a right to a pristine environment (the right to avoid others' smoke).  Always a balance to be achieved in the light of contemporary concerns and arguments.  But should the balance be designed by the judges or the people we elect?

When Geoffrey Robertson was asked to give examples of rights violations in Australia, he quoted two cases:  the shaving of a sailor's beard by hospital staff and the separation of an elderly couple into male and female areas of a nursing home.  Both are easily and better dealt with by a Health Complaints Commission, not resolved in constitutional court.

These examples, your Honours, hardly prove Australia suffers a brutal indifference to human rights.  The common sense of the Australian people tells them they are free and that a charter would increase litigation, not rights.  On that I rest my case.

Bob Carr was the 39th Premier of New South Wales, holding office from 4 April 1995 to 3 August 2005.  He holds the record for the longest continuous service as Premier of New South Wales.  Only Sir Henry Parkes has served longer, but he held the office on five separate occasions.