The Case for an Australian Bill of Rights

By Jack Humphrys

Ever heard of the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights*? Did you know that the Australian Capital Territory (ACT) has introduced a Bill of Rights since 1 July, 2004?

This reviewer freely admits that they were not in the forefront of his consciousness—notwithstanding the presence of the Universal Declaration of the Human Rights poster (1948) in my classroom. This is something that concerns me given that I teach a "government" topic as part of a social studies course to junior high school students. Of equal concern, this books tell us that in a civics expert group survey in 1994 only 18% of Australians had an understanding of what was in the Australian Constitution and only 33% "felt reasonably well informed about their rights and responsibilities as citizens". Given that not a lot has probably changed in this regard, this book tries to remedy this situation in regarding a possible Australian Bill of Rights.

Starting out, with the 1997 Northern Territory legislation (now repealed) on mandatory sentencing for minor property crimes and the subsequent increase in indigenous imprisonment rates, Professor George Williams presents a powerful case of how legislation like this can be passed given "there was no law or rights principle that could be used to defeat the law, despite its severe and disproportionate impact on Aboriginal people" [p.10]. Similarly, he examines the "war on terror" legislation enacted since 11/9/2001 in Australia. He points to similar concerns about the lack of a domestic Bill of Rights "required to navigate our way through the current war on terror while maintaining our basic rights" [p.37].As with all good social analysis, the author put our current situation in a historical approach and an international context. The existing Australian Constitution, the Universal Declaration on Human Rights, case studies such as the Hindmarsh Island Bridge situation of the 1990s and the Communist Party Dissolution Bill of the 1950s are examined. As well, the specific situations of the US, UK, NZ and Canada, which all have a Bill of Rights, are examined. Nationally he looks at attempts at reforms and assesses what we can learn from attempts to reform the Australian Constitution to make it more inclusive of human rights from the 1944 ("the four freedoms legislation") and the 1967 referendums (removing negative reference to Indigenous people in the constitution) through to the Human Rights Bill 1973, Australian Human Rights Bill 1985, and the 1998 Constitutional Convention/Republic Referendum of 1999.

George Williams, a leading media commentator and practising barrister, takes the reader through the processes that led to Australia’s first Bill of Rights in the Australian Capital Territory this year and its content. His description of the resources that went into consultation shows great credit to the ACT government and it serious intent. The rights included in the Act were primarily in the discrimination/equality before the law area. Nevertheless, the ACT government stopped short of implementing their consultative committee’s recommendations to protect people living in poverty, the mentally ill and indigenous people. The government argued that to do this raised difficult questions about allocating scarce government resources. In fact, it has been criticised for these omissions from a number of quarters. While the author agrees with these criticisms, he sees that what has been produced in the ACT should be seen as a first step in a long process of consolidation. Periodic reviews are built into the ACT Bill of Rights and should also be included in any national Bill of Rights. He proposes that a better starting point, in terms of the most disadvantaged, would be to include rights to housing, education and selfdetermination, as well as rights to vote, freedom of expression and freedom from discrimination in any proposed national Bill of Rights.

George Williams shows plenty of strategic savvy in the chapter "The Road to an Australian Bill of Rights", arguing that the goal is best achieved by taking the process through parliament with a statutory instrument and engaging the people through education rather than by popular referendum, first up, that, as history shows ,would likely lead to defeat. Given the difficulty of achieving constitutional change in Australia, it will be necessary to "build a broad political and popular base for change underpinned by understanding of the issues and proposals" amongst the 72% of Australians, who in 1997 said they were in favour of some Bill of Rights for Australia [pp.64–5]. Some will see this approach as too gradualist.

The October election result has made the promotion of an Australian Bill of Rights difficult. While John Howard supports a Bill of Rights for Iraq, it does not feature on the political agenda for his fourth term government [p.75]. The Howard Government having control of both the Lower House and the Senate makes things difficult, with the Senate Legal and Constitutional Committee likely to be less active and having less dissenting members. Perhaps it is up to state and territory governments, all Labor administrations, to follow the ACT example in the next three years and enact their own Bill of Rights, based around an extended ACT model as suggested above? However, there is no substitute for national leadership on the question of the Bill of Rights in the current political context.

Will we debate the death penalty for terrorists? Will we be asked to give up more of our privacy? Will our police and intelligence agencies be given even greater powers to detain Australian citizens? These and other questions could be better answered with a legal framework that recognises and protects our fundamental freedoms." [p.91].

*These two covenants were adopted by the UN in 1966.Together with the Universal Declaration they are often referred to as the "International Bill or Rights". Both convenants entered into force internationally in 1976 and were ratified for Australia by then Prime Minister Malcom Fraser.[see p.15].

Postscript: The Briefings Imprint of the UNSW Press produces topical books exploring social, political and cultural issues in contemporary Australia. These include:

• Jock Given, America’s Pie: Trade and Culture since 9/11
• Brian Walters, Slapping on the Writs: Defamation, Developers and Community Activism
• Geoffrey Barker, Sexing it Up: Iraq, Intelligence and Australia
• Spencer Zifcak, Mr Ruddock Goes to Geneva
• Klaus Neumannn, Refuge Australia: Australia’s Humanitarian Record
• Brian Costar and Jennifer Curtin, Rebels With a Cause: Independents in Australian Politics
• Gwendolyn Gray, The Politics of Medicare: Who Gets What, When and How

For further information, see: www.unswpress.com.au