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The Australian Commonwealth government has recently set up a national Human Rights Consultation Committee for the purposes of looking into questions of human rights in Australia and in particular whether we should have a human rights Bill or Charter.

Any suggestion that Australia should have a Bill of Rights fails two fundamental tests. First of all there have been no identified abuses of human rights within Australia which suggest any need for such a Bill. Secondly there is singularly little demand for a Bill of Rights within the Australian community. The argument advanced by the Attorney- General Robert McClelland seems to be that many other countries have Bills of Rights and that we ought to follow suit. Bills of Rights may be of singularly little benefit in promoting human rights and in fact there is a considerable body of current evidence which suggests Bills of Rights do not assist the promotion of human rights in a country and may in fact damage a democracy and its human rights. It needs to be remembered that Nazi Germany had what purported to be an excellent Bill of Rights as did the Soviet Union under Josef Stalin. Those Bills of Rights proved of little avail because there was no separation of powers. The judiciary was entirely subservient to the executive so that the only judicial rights which received any recognition were those which the executive permitted the judiciary to exercise. Today some of the worst abuses of rights in the world occur in Rwanda, China and Sudan, yet those countries unlike Australia have glossy Bills of Rights.

The present campaign for a Bill of Rights does not reflect any deep-seated community need but comes from small but vocal special-interest groups and some academic lawyers, one of the leaders being Professor George Williams who played an active part in the introduction of the Victorian Charter of Human Rights and Responsibilities 2006. As opposed to this small group we have a number of very distinguished lawyers which include Professor Gabriel Moens, Professor James Allan, Professor Mirko Bargaric, Professor Augusto Zimmermann, Peter Faris QC and Shadow Attorney-General George Brandis, SC.

One strong opponent of such a Bill was the late Sir Harry Gibbs, one of our greatest Chief Justices. Sir Harry Gibbs pointed out that rights are best protected by a proper separation of powers in which the executive, the legislature and the judiciary each play their respective parts and do not encroach on the functions of the others. Sir Harry said “If society is tolerant and rational it does not need a Bill of Rights. If it is not, no Bill of Rights will preserve it. [1] It should be borne in mind that we in Australia have the British common law which in many ways is the equivalent of a vast Bill of Rights and which has been devised over more than 800 years by the finest legal minds in the English speaking worlds. As such the common law is likely to be incomparably wiser and better than any Bill of Rights prepared by some allegedly expert government committee.

In a lecture delivered to the University of Virgina Law School in 1966 Sir Robert Menzies said “I am glad that the draftsmen of the Australian Constitution though they gave close and learned study to the American Constitution and its Amendments made little or no attempt to define individual liberties. They knew that, with legal definition, words can become more important than ideas. They knew that to define human rights is either to limit them, for in the long run words must be given some meaning, or to express them so broadly that the discipline which is inherent in all government and ordered society becomes impossible”.

The wisdom of what Sir Robert said has been more than adequately demonstrated in the USA during the last fifty years. For the first 150 years the American Bill of Rights created few problems for the American people but after the advent of the Warren Supreme Court in 1953 we had a number of activist judges who began to find within the American Bill of Rights new meanings which those who drafted the Bill certainly did not have in mind.

From the Bill of Rights Warren began to spell out new rights which overturned established laws about criminal procedures, prayers in schools, internal security, obscenity and legislative re-appointments. US judges allowed a torrent of obscenity to engulf the movies, television, the theatre, books and even classroom curricula. This was achieved by an entirely new interpretation of the First Amendment free speech clause which was originally designed simply to protect freedom of political speech. The US Courts suddenly discovered in this Amendment that pornography and a wide variety of other assaults on decency were to be elevated to a First Amendment right. What happened at that time indicates just how dangerous it can be to have judges determine the meaning of the words of Bills of Rights.

Human Rights activists in Australia have high regard for the Canadian Charter of Rights. However, the Canadian Supreme Court has found in its provisions “legal” grounds to invalidate all laws against the killing of babies in utero. The Court has also used the Charter to protect tobacco advertising and to re-write the marriage laws to include samesex relationships. Thus the Canadian judges have become major political players [2]. As Professor Gabriel Moens has pointed out, in such circumstances it is not surprising that in Canada the individual social and political beliefs of judges are considered more important than the Constitution itself. [3] Similar problems have been created in the UK and New Zealand by their Bills of Rights.

What has occurred in the USA, Canada, the UK and New Zealand demonstrates just how a Bill of Rights can shift political power from legislatures to the judiciary, thereby seriously damaging what was previously an appropriate separation of powers. The glossy brochure produced by the Australian National Human Rights Consultation Committee invites the Australian community to indicate which human rights should be protected and promoted but there is an element of danger in that invitation . Those human rights which are not frequently mentioned in submissions by the community may be downgraded. Submissions which indicate that we do not want any Bill of Rights in Australia will be of far more benefit to the Australian people. Inviting any government to produce a Bill of Rights seems to be making a concession that that government has the power to determine what our human rights should be.

As Thomas Jefferson pointed out, however, our human rights do not come from governments but are God-given rights which are inalienable. If we concede that the government has the power to determine what human rights we should have then, equally, it would seem the government has the power to take away those rights. The most basic human right is the right to life itself which should be a right from conception until death. If we are to have any Australian Bill of Rights then this right should be at its forefront. The Rudd goverment, however, not content by funding abortion in Australia, has recently demonstrated its total contempt for the right to life by providing funds for abortion in overseas countries even though no country requested such funding. Australians need to ask the question whether to such a government should any determination of human rights be entrusted. To the questions asked by the National Human Rights Consultation Committee the Australian public should be strongly indicating that we are happy with our current rights, we are happy to be a common-law country and that we do not want any Bill of Rights.

The public should also indicate that if contrary to its wishes the government proposes to introduce a Bill of Rights, that Bill should first require the approval of the Australian people by referendum.

References:

[1] Sir Harry Gibbs: “Does Australia need a Bill of Rights”, Samuel Griffith Society Sixth Conference, Vol. 6 Ch.7.

[2] Professor Augusto Zimmermann, “Eight reasons why Australia should not have a federal charter of rights, National Observer, No. 79, Summer 2008/09, p.39.

[3] Professor Gabriel Moens, “The wrongs of a constitutional entrenched bill of rights” in M.A, Stephenson and Clive Turner (eds) Australia: Republic or Monarchy? Legal and Constitutional Issues (Brisbane: University of Queensland, 1994) p, 236.