Kildea, Paul --- "Constitutional Law: Bills of rights back on the agenda" [2001] AltLawJl 93; (2001) 26(5) Alternative Law Journal 254

• CONSTITUTIONAL LAW
• Bills of Rights back on the agenda

CONSTITUTIONAL LAW
Bills of Rights back on the agenda

PAUL KILDEA^[*] discusses developments in the debate on a Bill of Rights for Australia.

On 17 August 2001, ACT Labor leader Jon Stanhope announced that a Labor government in the ACT would work towards establishing a Bill or Charter of Rights. Outlining the ALP’s ‘Justice and Community Safety’ policy in the lead-up to the October election in the ACT, the ACT Opposition leader envisaged that a Bill or Charter of Rights could be enacted before the end of a Labor government’s first term in office. Put in the context of other public pronouncements on the topic, Stanhope’s announcement represents the latest development in a debate which is slowly clawing its way back onto the agenda.

Ever since the framers of the Australian Constitution deemed a Bill of Rights unnecessary, the desirability of such an instrument has sporadically emerged as both a topical and contentious issue. Between 1973 and 1985, three unsuccessful attempts were made by federal Labor governments to introduce a statutory Bill of Rights — that is, a Bill of Rights passed by the parliament but not incorporated in the Constitution. In the wake of this failure the Hawke government sought to insert certain basic rights into the Constitution, but its proposals were resoundingly defeated at the 1988 referendum.

Attempts at the State and Territory level to enact a Bill of Rights as legislation have been equally unsuccessful. As a result, the recognition of rights at a State and Territory level has proceeded on an ad hoc basis, such as the right of peaceful assembly, in Queensland’s Peaceful Assembly Act 1992.^[1]

Perhaps with these failures in mind, Stanhope has acknowledged that the issue is ‘too important to be left to one party’. His first step would be to establish a broadly based representative committee, to be chaired by Professor Hilary Charlesworth, Director of the Centre for International and Public Law at ANU. The role of this committee would be to consider the matter, consult widely with the community, and make recommendations to the government about an appropriate model. Stanhope also promises a full public debate about the issue before any legislation is proposed.

The Stanhope proposal foresees that a Bill of Rights in the ACT will incorporate ‘the core values we share’ and ‘a range of agreed rights’. Although Stanhope does not speculate as to what the content of such rights might be, he alludes to certain rights ‘we might assume to be inherent’. These include the right to thought, conscience and religion; the right to freedom of expression; the right to peaceful assembly; and the right of association.

The Opposition leader foresees that these rights could be used by courts in determining whether a person’s rights have been infringed, and perhaps also as a standard against which the Legislative Assembly’s Scrutiny of Bills Committee could measure new legislation. Another stated possibility is that any government proposing legislation that is inconsistent with protected rights would be required ‘to take a deliberate decision to do so’.

The decision of ACT Labor to make a Bill or Charter of Rights part of its election platform comes soon after public pronouncements by the federal Shadow Attorney-General, Robert McClelland, who has raised the possibility that a federal Labor government will work to introduce a Bill of Rights. In a speech to the ACT Labor Lawyers Dinner on 7 June 2001, McClelland spoke positively about the introduction of a Bill of Rights.^[2] Like Stanhope, he emphasised the need for community support and consultation. He considers the way forward is for an inquiry to examine whether the Australian public wants a Bill of Rights and, if so, the sorts of rights that should be included.

McClelland stated that it is important for the public to be made aware of models and mechanisms used overseas which ‘have overcome hurdles that have toppled previous proposals in Australia’. These include proceeding by way of legislation rather than Constitutional amendment; the option of a ‘notwithstanding clause’, to require governments to expressly acknowledge when they legislate inconsistently with a protected right; and the United Kingdom’s model of empowering courts to give only declarations of incompatibility where they are of the opinion that an Act contravenes a protected right.

McClelland also advocated the inclusion of a statement of aspirations. He said that such aspirations could include the aspirations of fair and equitable access to physical and mental health facilities, educational opportunities, technological and civil infrastructure and to basic commercial and public services. While not justiciable, the stated aspirations might ‘prescribe standards against which legislation could be scrutinised before it is introduced into Parliament’.

The Bill of Rights question has also arisen at a State level in New South Wales, with the Standing Committee on Law and Justice recently handing down its report on an inquiry into a Bill of Rights for NSW.^[3] The Committee opposed the introduction of a Bill of Rights, but recommended the establishment of a NSW Scrutiny of Legislation Committee. Its opposition to a Bill of Rights is consistent with the stance of Premier Bob Carr. In an opinion piece that appeared in the Canberra Times shortly after Jon Stanhope’s policy announcement, Carr argued that a Bill of Rights is unnecessary because the ‘protection of rights lies in the good sense, tolerance and fairness of the community’.^[4]

Beyond the question of necessity, Carr argues that the introduction of a Bill of Rights is undesirable for four reasons. First, he contends that it would result in the transfer of policy decisions from governments and parliament to the judiciary. Second, he expresses concern that a constitutionally entrenched Bill of Rights would ‘freeze’ rights at a particular point in time, and that even if the instrument was not constitutionally entrenched the political reality is that it would be given ‘quasi-constitutional status’ and be almost impossible to amend. A third argument, raised by Carr, is that a Bill of Rights may be interpreted by the courts in an unpredictable fashion. Fourth, Carr argues that a Bill of Rights will ‘further engender a litigation culture’, with the result that the courts will become more inaccessible to the ‘ordinary person’, and will cost more to run. For Carr, ‘[t]he main beneficiaries of a Bill of Rights are the lawyers who profit from the fees and the criminals who escape imprisonment on the grounds of a technicality. The main losers are the taxpayers.’ ACT Attorney-General Bill Stefaniak expressed agreement with Carr’s comments, signalling the government’s opposition to Stanhope’s proposal.^[5]

The public statements of Stanhope, McClelland and Carr mark the welcome return of the desirability of a Bill or Charter of Rights to public debate. By making the issue central to ACT Labor’s election policy, Stanhope has moved the discussion beyond the abstract and, if implemented, the ACT will become the first jurisdiction in Australia to have a Bill or Charter of Rights. The caution and modesty that characterises the Stanhope and McClelland proposals indicates that they have learnt from past mistakes, and that the Bill of Rights debate may well be entering a new stage.

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^[*] Paul Kildea is a Social Justice Intern at the Gilbert and Tobin Centre of Public Law at the University of New South Wales.

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^[1] See Williams, George, A Bill of Rights for Australia, UNSW Press, Sydney, 2000. Two other recent books on the topic are Brennan, Frank, Legislating Liberty: A Bill of Rights for Australia?, University of Queensland Press, St Lucia, Queensland, 1998, and Wilcox, Murray, An Australian Charter of Rights?, Law Book Co., Sydney, 1993.

^[2] McClelland, Robert, ‘A Just, Secure and Successful Society’, Speech to ACT Labor Lawyers Dinner, 7 June 2001.

^[3] Standing Committee on Law and Justice, ‘A NSW Bill of Rights’, Report 17, October 2001. The report is available online at <www.parliament. nsw.gov.au>.

^[4] Carr, Bob, ‘How a bill of rights lays a trap’, The Canberra Times, 20 August 2001.

^[5] Landon, Daniel, ‘Stefaniak against Bill of Rights’, The Canberra Times, 24 August 2001.