Ron Boswell (Queensland, National Party) Share this | Link to this | Hansard source

The matter of public interest I wish to raise is the prospect of this nation bringing in a bill of rights. The National Human Rights Consultation Committee will report to the Australian government on the options to promote human rights in Australia by 30 September 2009—a couple of weeks away. I remember when this issue was raised over 20 years ago in this place. There was a fierce public debate and my office was inundated with a groundswell of protest from ordinary Australians who were definitely opposed to a bill of rights. I do not believe that that sentiment has changed in the intervening years. The matter was comprehensively settled then. The current revisiting of this issue has more to do with offering a sop to the extreme left supporters of the government than reflecting genuine need or desire for such a significant change to the way this country is democratically government.

A bill of rights is really a bill of frights. It is a frightening situation when you take power from the elected representatives and hand it over to unelected judges. The job of judges is to interpret the law, not to make it. That is why you have parliament elected by the people. Governments can be voted out; judges cannot. Let judges judge and legislators legislate. Once you mix them up you undermine the very basis of our Westminster system of representative parliamentary democracy.

What is a bill, or charter, of rights? It is a list of general, nice-sounding statements about the rights a person has. Smart, rich people can then use those rights in the courts to allow them to get away with wrongs. A statutory bill of rights is essentially a set of declaratory statements about individual rights contained in an act of parliament. My colleague the former senator Bill O’Chee stated recently:

By relying on courts and lawyers for reinforcement, rights become the luxury of the educated and the rich. Rights should, however, exist for the protection of the marginalised and the poor.

As soon as we create a list of rights we create a competition between rights, because they will overlap. That means that there has to be a hierarchy of rights. Someone has to weigh up which right comes before the other. For example, does the right of free speech get priority over the right to be protected from pornography? When you create a hierarchy of rights you also have to work out how to resolve the conflicts of rights within the same class of rights. That all means that you have to create an endless source of income for lawyers and opportunities for activists.

Already in Victoria a parliamentary inquiry is putting basic religious freedoms at risk by suggesting that religious organisations should employ people who do not share their beliefs. This is despite public expression of religion being specifically protected by article 18 of the United Nations International Covenant on Civil and Political Rights. And it is despite Christians being at the forefront of protecting the human rights of society’s most vulnerable.

The distribution of power in a democracy is key to the effective working of that democracy. Once you have a charter or bill of rights, you bring in a competitive framework for power parallel to the system of representative democracy. Australia is the Australia we know and love because our founding fathers got the location of power pretty well right. A charter of rights would threaten that finely balanced location of power. Everybody in Australia supports greater recognition of human rights, just like we support motherhood. But the question is: how do we go about it? Do we turn our back on democracy and the parliament to embrace a world of courts, lawyers and judges, none of whom are elected or accountable to the people? And I remind the Senate of the existing elements of parliament that deal with human rights. First of all, we have the Human Rights Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade. The Joint Standing Committee on Treaties looks at treaties, amongst other things, from a human rights point of view. Both of those parliamentary committees look at international instruments and overseas issues. We have the Senate Standing Committee on Regulations and Ordinances, which deals with delegated legislation. And the Senate Standing Committee for the Scrutiny of Bills is specifically tasked by the Senate’s standing orders to look at legislation from the point of view of individual rights, liberties and obligations.

When you talk about rights you are talking about fundamental political values that are currently in the safekeeping of our democratic institutions. Once they are taken out of that arena then there is no parliamentary scrutiny. The coalition supports establishing a parliamentary committee that will bring together and take to a higher point the existing mechanisms of human rights in Australia. The option we propose has the advantage of locating greater emphasis on human rights at the heart of the political system itself, while it is free of the potentially undemocratic consequences of placing unprecedented power to resolve essentially political questions in the hands of the judiciary.

My colleague from Queensland Senator Brandis made the following point in a recent address about the proposed bill of rights. He said:

It is a claim to take the received opinions of one random point in time—2008—and say that we alone, not the founding fathers, not those who built the nation over successive generations, not all the generations yet to come, have the right to say what is fundamental to being an Australian.

He quoted Justice Keane:

Our Framers were not indifferent to the rights of individuals; they were, however, content to entrust those rights to a legislature composed of citizens with an equal stake in individual rights as a check upon executive governments which depended for their existence upon the continuing confidence of the legislature … In embracing this ideal our Framers were taking a gamble on the political wisdom of future generations. They were, at this same time, exhibiting a modest appreciation of their own wisdom. That is to say, they were not so arrogant as to attempt to entrench their own views and priorities whatever the wishes of future generations. Had they done so, we might still be wrestling with the White Australia Policy.

This is a very important point: who are we to say that we hold all the cards on rights for now and into the future?

The Australian Chamber of Commerce and Industry point out that there is already a wide range of existing mechanisms for Australians with human rights grievances including: federal and state parliaments, courts, tribunals, statutory bodies and parliamentary committees, with accompanying legislation, industry codes and adopted international treaties covering this area. There is no political consensus in favour of a bill or charter of rights. The coalition opposes it, as do many influential members of the Labor Party including the Keating government Minister for Justice Father Michael Tate, the former Premier of New South Wales Bob Carr, and that state’s current Attorney General, John Hatzistergos. Without bipartisan support, a proposal to radically change the existing constitutional structure does not deserve to proceed. The judiciary themselves have grave concerns. Many of Australia’s most eminent judges are either outright opponents or at least deeply sceptical. They include the current chief justices of New South Wales and Queensland.

Another problem is that once you start making a list of rights you are bound to omit some. For example, the ACT Human Rights Act makes no mention of the right to own or enjoy the use of property, nor does it mention any other form of protection of economic relationships—for instance, the right to participate in commerce. By attempting to codify rights, a statutory bill of rights might actually limit the scope of defined rights and omit and thereby devalue others. When you remove from the parliament the ultimate power to resolve fundamental questions about political and social values, you are actually undermining a fundamental human right recognised by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights to participate in the conduct of public affairs through freely chosen representatives.

In effect, a charter of rights hands over the people’s political power to judges. The judiciary takes over the job of parliament. There is no longer a separation of powers. The experiences of the United Kingdom, Canada and New Zealand show that the introduction a bill of rights will inevitably involve judges resolving political controversies. Mr Jack Straw, the British Justice Secretary—a lifelong bill of rights advocate—declared recently that a decade’s experience of the UK Human Rights Act had convinced him that it was a villain’s charter. It inevitably increases the costs and length of court proceedings, allowing accused criminals to plead the bill of rights in addition to existing defences. The most high-profile individual who has so far relied on the Victorian Charter of Human Rights is Tony Mokbel.

British Columbia sought to encourage more rural doctors to the province through a scheme of incentives to attract new graduates. This measure was challenged successfully in the Supreme Court on the grounds that it violated the provisions of the Canadian Charter of Rights and Freedoms under section 6, Mobility Rights, and under section 7, Life, Liberty and Security of Person. In New Zealand an increase in public housing rental was challenged under their Bill of Rights Act on the ground that it was a violation to a tenant’s right to life.

The rights which we Australians enjoy are to be found in many sources of our law. The Constitution expressly provides a number of rights. For instance, section 80 guarantees the right to trial by jury for indictable offences against Commonwealth law. Section 51 guarantees non-discriminatory taxation, and that the acquisition of property must be on just terms. Section 116 guarantees religious freedom. The Constitution provides a number of other rights—for example, the right to freedom of political communication.

Common law recognises most of our fundamental rights and freedoms, such as those protecting freedom of expression and belief, the right to liberty and security of the person, the right to freedom of movement and the right to a fair trial. Additionally, the Commonwealth parliament has enacted specific legislation which guarantees certain rights. Bob Carr said:

A bill of rights is an admission of the failure of parliaments, governments and the people to behave in a reasonable, responsible and respectful manner. I do not believe that we have failed.

Neither do I.

My final point is that the existence of a bill of rights is no guarantee that those rights will be respected. Examples of this are the Nazi bill of rights, which guaranteed ‘the dignified existence of all people’, and the bill of rights of modern Zimbabwe.