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12 August 2002 The Australian Bill of Rights debate: Putting the cart before the horse?Over the past five years, Australia’s record on human rights has been tarnished by international criticism of its policies toward refugees and asylum seekers, and its treatment of Indigenous people. The Commonwealth government’s reluctance—or, in some cases, refusal—to support the strengthening of international rights mechanisms, including the International Criminal Court, the Convention on the Elimination of all forms of Discrimination Against Women, and the Convention Against Torture, have also been condemned. At the same time, Australians must continue to rely only on the shaky foundations of the parliament and the common law to uphold their rights. It seems more important than ever to explore the potential of a Bill of Rights for better defending and upholding human rights in Australia. On 21 June 2002, a conference was held to discuss the development of an Australian Bill of Rights at New South Wales Parliament House. It was popular, informative, and timely, given the recent decline in human rights protections. But like much of the debate about an Australian Bill of Rights, this conference was narrowly conceived. All but one of fifteen speakers was a lawyer, and almost all papers concentrated on the most appropriate model for an Australian Bill of Rights. The panel of politicians also considered models, digressing slightly from the legal debate to outline the position of their various parties. Attorney General Daryl Williams made it clear that neither he nor the Liberal Party supports the introduction of such a bill. Shadow Attorney General Robert McLelland argued in favour of a Bill of Rights, but gave neither a clear commitment that the Australian Labor Party would introduce one in future nor any indication of how broad support was within the ALP. Given that NSW Labor Premier Bob Carr has rejected outright such a development, it would be wrong to assume there is consensus in the ALP on this issue (see New South Wales Legislative Council Law and Justice Standing Committee 2001). The Australian Democrats representative, Brian Greig, stood out for his unequivocal support for a Bill of Rights and discussed the draft bill that the party planned to introduce in the Senate.
These political contributions and the otherwise legally focussed nature of the conference raised for me a number of questions about the debate and progress of a Bill of Rights in Australia. What is the likelihood of Australia ever achieving a Bill of Rights if one of the major parties is opposed and the other is ambivalent about its introduction? What is the point of the Australian Democrats drafting a model if their bill has no chance of becoming legislation without the support of the major parties? More importantly, why focus so much attention on developing a model for a Bill of Rights without also having some clear political strategy for achieving community support for the issue and convincing political leaders to implement such a bill? Until these questions are answered, the debate remains purely abstract and theoretical. The failed Australian republican referendum shows that the public needs to understand and to be convinced by the general principles of constitutional change before being presented with a specific model. Although a Bill of Rights does not necessarily require an amendment to the constitution—a legislative bill could be enacted—like the republican issue, it has the potential to alter the constitutional balance; in this case between the parliament and the courts. Thus, widespread community debate and understanding, as well as demonstrable support for the principle of a Bill of Rights, must develop before detailed models are considered. This is not to say that canvassing possible models is not important. But exclusive focus on the legal and constitutional dimensions puts the cart before the horse. A prior issue needs to be addressed: how to achieve a level of political support that would guarantee the success of a Bill of Rights? Comparison with the United Kingdom where a Bill of Rights has recently been enacted offers some answers to this question. Australia shares with the United Kingdom key political institutions including a parliamentary democracy and common law system. For many years the United Kingdom stood alongside Australia as one of the few common law countries refusing to introduce a Bill of Rights. With its strong tradition of parliamentary sovereignty, many in the United Kingdom advanced arguments commonly heard in Australia about why such a bill was unnecessary. These included claims that parliament was able to respond to breaches of human rights through legislative measures, that a Bill of Rights would hand too much power to unelected judges at the expense of parliament, and that because rights develop and change over time, they should not be codified.
Despite these reservations, in 1998 the United Kingdom parliament passed legislation that incorporated most of the articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) into United Kingdom law in the form of the Human Rights Act. The act came into effect in October 2000, leaving Australia as one of the few common law countries in the world with neither a legislative nor constitutional Bill of Rights. What led to the change in the United Kingdom and what can Australia learn from its experience? How did the United Kingdom come to have a Bill of Rights?There are three answers to this question. The first is political leadership. The particular features of the British political system—a unitary structure that centralises political authority, an unwritten constitution, a weak upper house, and a first past the post electoral system—all contribute to a powerful executive. Combined with a political leader like Margaret Thatcher who was unconcerned with human rights, concentrated executive power can undermine existing protections. However, in the hands of a more sympathetic leader, such as Tony Blair, strong executive power can also be used to advance human rights. Thus, early in its first term, the New Labour government succeeded in pushing through legislation for a Bill of Rights. The external political and institutional environment also contributed to the development of a Bill of Rights in the United Kingdom. The treaties binding the United Kingdom to the European Union are particularly important. Since the 1950s, the United Kingdom has been party to the European Convention on Human Rights (ECHR). Although this treaty was not fully incorporated into domestic law, since 1966 it had provided a path for British citizens to take human rights cases to the European Court of Human Rights in Strasbourg once they had exhausted all domestic remedies. By 1997, the Court of Human Rights has presided over 6,000 disputes involving the British government and its citizens—more than any other European Union member state. Most of these cases were brought to the Court while Thatcher was in power, and most were found in favour of the appellant. Through these decisions, the European Court of Human Rights had demonstrated the imperfections in the existing human rights protection system in the United Kingdom, a fact missed by few in the legal profession and the general public. Beside its educational effect, the ECHR also had a political impact. Because the United Kingdom was already bound to the Convention, and the European Court’s judgments and jurisprudence directly and indirectly influenced domestic courts, the notion of developing a domestic Bill of Rights appeared more logical. Both politically and constitutionally, the transition from being merely a signatory to the ECHR to incorporating the Convention into domestic law with the Human Rights Act was much more manageable than it would have been had no existing model been to hand.
The third factor explaining the adoption of a Bill of Rights in the United Kingdom is the role played by advocates for reform. The political leadership of Blair and New Labour was vitally important to the eventual success of the Human Rights Act, but it came relatively late in the debate. Initially, both major political parties resisted supporting such a bill and only minor parties—especially the Liberal Democrats—supported codifying the rights of British citizens. Prior to formal support from Labour, a range of prominent activists had been working for many years to garner public support for a Bill of Rights. Many of these activists came from the elite. Prominent law lords Scarman and Lester had persistently argued in favour of a Bill of Rights within both parliament and the community. Many judges also made known their support for the change. Prominent publications like The Guardian newspaper and The New Statesman magazine had long called for reform, as had leading members of the community such as Salman Rushdie. The most important contribution came from a range of non-government organisations including trade unions, Liberty, (formerly the National Council on Civil Liberties), and the Institute for Public Policy Research (IPPR). The Joseph Rowntree Reform Trust (JRRT) played a critical role providing over two million pounds between 1992 and 1997 to fund support organisations campaigning for reform (Foley 1999, p. 137). Undoubtedly, the most influential advocate was Charter 88, an organisation created for the express purpose of lobbying for ‘a new constitutional settlement’. It had as its first objective enshrining ‘by means of a Bill of Rights, such civil liberties as the right to peaceful assembly, to freedom of association, to freedom from discrimination, to freedom from detention without trial, to trial by jury, to privacy and to freedom of expression’ (Charter 88 2002). The strategies these advocates used strengthened the cause of a Bill of Rights. Individuals and organisations lobbied, held conferences, and issued public statements about the need for rights reform. Between 1994 and 1996, Lord Lester unsuccessfully introduced three Bills of Rights to the House of Lords. Prior to the 1997 election, the IPPR also drafted its own Bill of Rights which was credited as influencing the Labour party’s more positive thinking on the issue. Charter 88 tirelessly advocated the case for reform with politicians, as well as encouraging greater community debate on the issue. An important and innovative strategy came from the JRRT, which funded detailed and ongoing public opinion research that demonstrated widespread voter support for constitutional reform, including a Bill of Rights. This research benefited the campaign by engaging the general community in the debate, thereby furthering their education on rights issues. Having found widespread public support for a Bill of Rights, campaigners then used this research to demonstrate to politicians, especially those on the Labour side of politics, that improved rights protection was not just an elite concern and so encouraged them to take action on the issue. What can Australia learn from the experience of the United Kingdom?Australia can learn several lessons from the British experience. The first is the importance of political leadership for the successful implementation of a Bill of Rights. Like the United Kingdom, the Australian system provides for strong executive power. However, it is clear that the current government is not interested in using its executive power to push for the improved protection of rights. Indeed, the Coalition has been reluctant to address a range of human rights issues including reconciliation with Indigenous Australians, women’s rights of access to reproductive technology, and, most noticeably, the treatment of refugees and asylum seekers. The government has also rejected arguments for reforms aimed at introducing a Bill of Rights. Indeed, the Attorney General stated at the June 2002 conference ‘Australia has an excellent human rights record’ and thus, ‘there is no need for a Bill of Rights in Australia’ (Williams 2002).
However, if the United Kingdom experience is anything to go by, the current government’s trenchant position may, in the long term, play a role in bringing about support for a Bill of Rights. As was the case in the United Kingdom after Thatcher, Australia’s negative record on rights under the Howard coalition government might just provide enough impetus to push the ALP, or possibly even a less socially conservative Liberal party, toward greater institutional protection of rights. The problem with this argument in Australia is that after the failed republic referendum, any future government may well be reluctant to engage in what the public may conceive to be a peripheral or purely symbolic issue, such as a Bill of Rights. The second lesson then that Australia should learn from the United Kingdom is the need to garner public support for the principle of a Bill of Rights. Just as New Labour was reluctant to advance constitutional reform until it was convinced that it had public support, so Australian politicians will need to be similarly convinced. Engendering public support for reform requires extensive, focussed advocacy and education strategies. Given the experience of the Australian Republican Movement (ARM), which was relatively poorly funded and unable to shake off its elitist tag, Australians could do well to follow the model set by both Charter 88 and the Joseph Rowntree Reform Trust. While the former kept up momentum on the issue at a community level, the latter provided much needed funding and public opinion research to bolster the claims of Bill of Rights lobbyists. The combined pressure and research of these organisations worked to secure community support on the one hand, and to convince the incoming government of the need for reform on the other. Finally, Australia can learn from the United Kingdom experience with external institutions. Although Australia does not have a regional supra-national body such as the European Union on which to secure a better rights framework, it is a signatory to important international human rights treaties, most significantly the International Covenant on Civil and Political Rights (ICCPR). Australians have already successfully brought domestic human rights abuses before the ICCPR (Charlesworth 2002, pp. 61–2). Although this is a lengthy and expensive process, it is important to keep up the pressure at the international level in order to expose the inadequacies of Australia’s existing parliamentary and common law human rights protections as well as to educate politicians and the community about the need for a Bill of Rights. Australia is still a long way from achieving a Bill of Rights. No matter what the preferred model, it will not become a reality until political leaders and the community accept the general principle of the need for a Bill of Rights. Before we focus our attention on formulating a model for an Australian Bill of Rights, it is first important to think about how to persuade all stakeholders that rights require better safeguards than those that currently exist. REFERENCESCharlesworth, H. 2002, Writing in Rights: Australia and the Protection of Human Rights, UNSW Press, Sydney. Charter 88, 2002, ‘About Us’ [Online] Available: http://www.Charter88.org.uk/politics/charter88.html [2002, July 16]. Foley, M. 1999, The Politics of the British Constitution, Manchester University Press, Manchester. New South Wales Legislative Council, Law and Justice Standing Committee. 2001, A New South Wales Bill of Rights, Parliament House, Sydney, 3 October. Williams, D. 2002, ‘Against Constitutional Cringe: The Protection of Human Rights in Australia.’ Australian Conference on Bill of Rights, NSW Parliament. 21 June. [Online], Available: http://www.ag.gov.au/ministers/attorney%2Dgeneral/articles/constcringe.html [2002, July 16]. Louise Chappell lectures in human rights and gender and politics in the School of Economics and Political Science at the University of Sydney. She is currently engaged in research comparing debates on a Bill of Rights in Australia and the United Kingdom. Read Megan Davis’s review of Hilary Charlesworth’s Writing in Rights View other articles by Louise Chappell:
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