Alternative Law Journal
by George Williams, UNSW Press, 1999; 64 pp; $11.95 softcover.
George Williams' short book advocating an Australian Bill of Rights is an accessible and challenging publication. It is not a standard law book. The author does something which is not easy- he writes his text in a technically correct way but so as to marshal' his arguments interestingly and in a way that enables people not expert in constitutional and human rights law to engage with it.
Williams divides his book into five sections which deal with 'problems and solutions' in relation to bills of rights; those rights which already exist in Australia; attempts at reform; arguments for and against a Bill of Rights; and what he terms 'a gradual path forward'. The book is written to promote the case for Australians re-engaging in the debate about rights and liberties which, he con tends, should be formally recognised and entrenched via the Constitution.
Williams draws attention to the deficit in the Constitution by instancing the plausible argument advanced by the Commonwealth in the Hindmarsh Island case in 1998 that the federal government was entitled if it wished to enact racist laws -that the Constitution, as framed, facilitates its doing so. He points out that such a stance would be regarded as obnoxious by most con temporary Australians. He argues that:
The ambiguous result of the Hindmarsh Island case highlighted the unsatisfactory nature of Australia's legal arrangements and inadequate protection afforded to the civil liberties of all Australians. The case revealed that since 1901 we have made little progress in entrenching the basic rights of citizenship into Australian law, including protection against being singled out for negative treatment because of the colour of a per son's skin or their ethnic origin. [p.9]
He reminds readers too that the Constitution offered no assistance to the activist Albert Langer being imprisoned in 1996 for distributing leaflets encouraging voters to put the Australian Labor Party and the Coalition last. He argues that an attempt to introduce rights ought not to be based on judicial innovation but on the commitment and participation of the Australian people and their elected representatives, the product being a Bill of Rights constructed by popular consensus.
Williams also analyses those rights that Australians do have. The results of the analysis are disturbing. There are limited rights in relation to voting, trial by jury, freedom of religion, out-of-state residency, interstate trade, civil conscription, and government acquisition of property. However, there are many gaps as well, some of which have been partly addressed by human rights legislation but many of which remain.
The author interestingly instances examples of bill of rights reform, in particular the 1942 Constitutional Convention which failed to yield significant proposals for the 1944 referendum. Williams also draws attention to the disappointing history of referendum reform in Australia, a high point being the 1967 referendum which procured a significant level of support for removal of negative references to Australia's indigenous people in the Constitution.
Williams acknowledges that a rights regime cannot be imposed on the Australian people:
To do so would frustrate the aims of a Bill of Rights. Rights are meaningless unless they exist within an appropriate legal, political and cultural environment. [p.42]
Williams instances particularly the New Zealand Bill of Rights of 1990, arguing that it demonstrates the effectiveness of statutory Bills of Rights and the value, at least initially, of protecting rights by this means rather than by amendment of the Constitution.
He concedes that in protecting civil liberties some of the most difficult decisions relate to which rights and interests should be protected and which should not. However, he argues convincingly that this is not a legitimate excuse for inaction, suggesting that a useful place to start in locating rights worthy of protection would be the International Covenant on Civil and Political Rights, those favoured by the Constitutional Commission in 1988 or by the Report of the Queensland Electoral and Administrative Review Com mission in 1993.
Based on the success of Australia's human rights legislation, such as the Racial Discrimination Act, Williams argues that:
Over time, a statutory Bill of Rights enacted by the Federal Parliament and supervised through the parliamentary committee system, perhaps supplemented or even preceded by statutory Bills of Rights enacted by State and Territory governments, would contribute positively to a rights culture within Australian society. [p.54]
He argues that even after certain rights have been incorporated into the Australian Constitution, it may be appropriate to follow the example of the Canadian Charter of Rights and Free doms and allow the federal and State parliaments to override some or all of such rights. This is one of the aspects of Williams' argument that could have been augmented by further discussion. The Canadian Charter, in particular, has been attended by considerable controversy. It has generated dramatic amounts of litigation -a whole new focus and mechanism for challenging many administrative and curial decisions. It has provided marvellous fare for appellate advocates but the jury remains out on the extent to which it has improved the lot of ordinary Canadians or even the balance of rights and responsibilities in practice. In short, there is another perspective.
So too is it an exercise in fairly considerable optimism to contemplate any ready consensus in 21st century Australia on the rights and liberties that we as a nation currently consider should be protected. Unfamiliar as Australians are with rights consciousness and with the language of rights discourse, the task of formulating provisions of a Bill accept able to either the electorate directly or to our elected politicians can be expected to be fraught and divisive - sadly, probably a function in many ways of our political maturity. This is not to argue that the process should not be attempted, or that Williams' contribution is not worthwhile, but to reflect that perhaps Williams is a little overly sanguine about the difficulties which it is likely to encounter.
A Bill of Rights for Australia is accessible, cogent and convincing. It is an excellent piece of scholarship and advocacy without the pretence that so often afflicts those engaging in arguments about constitutional reform. His book is modest in size but not easily dismissed. It is an excellent teaching tool and, more importantly a fine vehicle for sensitising the general community to important issues of rights and liberties which have the potential to be protected by constitutional reform, should Australia reach a sufficient point of self-confidence as a post-colonial nation seriously to engage in the process.
Ian Freckelton is a Melbourne barrister.