A Human Rights Bill For Australia?
from Human Rights In Australia by LJM Cooray (1985)


Bill Of Rights Or A Bill Of Wrongs?

Rights Or Oppression?

Problems For The Future

14.1 The Context
The ultimate fate of the Evans Bill of Rights is not clear. The present Attorney-General has taken a neutral stand and released the bill to the public under freedom of information legislation. Commentators take the view that the Attorney-General has decided that the bill will not form the basis of legislation to be presented in Parliament.

However, it is proposed to examine the provisions of the bill. This is done for a number of reasons. First, the bill was a document which was carefully drafted with consultation between the Human Rights Commission and the Attorney-General's Department. It therefore provides an understanding of how the minds of individuals in the Human Rights Commission and the Attorney-General's Department operate and their views and perspectives on human rights. An analysis of the bill provides valuable understanding of the mentality of the Human Rights Commission. Second, it likewise provides understanding of the issues and perspectives of the many activist pressure groups, particularly in the field of feminism and racism. Third, even if the Attorney-General and the government are loath to proceed with the bill, it can be expected that pressure groups and activists will strongly press the case for proceeding with the bill. If they do not succeed, the tactics adopted will probably be to amend the Human Rights Act, the Racial Discrimination Act, the Sex Discrimination Act and to enact other legislation which will constitute piecemeal attempts to introduce into the legal system some of the provisions in the Bill of Rights. The tactic of gradual introduction will be adopted. An unpopular policy is not introduced in its entirety. It is introduced in stages. Each stage is dressed up with media connivance in a moderate garb. And those who are affected and who might have mounted an opposition do not realise what is happening until the final stages. This is too late. Opposition at each stage is diluted.

For these reasons it is valuable to look at the Evans Bill of Rights and critically examine it. The critical arguments and perspectives which are developed, may be relevant in the near future when amendments to the above-mentioned acts and other proposed legislation is put before the public.

The Commonwealth Parliament has established regulatory agencies to deal with human rights. The Human Rights Commission has a general and very widely defined area. The Sex Discrimination Act establishes agencies with a role limited to what is called sex discrimination. The Racial Discrimination Act establishes agencies to deal with racial discrimination. One serious objection to the powers of all these agencies has been referred to — the extent to which these agencies are not bound by traditional rules of law and particularly the extent to which the right of a defendant or an accused to due process of law and a fair trial is ignored. These agencies are invariably not staffed by independent judges, but by activists who have very definite views.

It has been stressed that no rights are absolute, though some rights are more important than others, such as freedom of speech, freedom of the person, and freedom of property. It is also important that among the less important rights (excluding freedom of speech and freedom of property) there is a considerable overlap between the rights. If for instance, the right to be free from racial discrimination is pushed to an extreme, this will restrict freedom of speech and prevent even jocular references to people of a race. This is actually the effect of the amendments to the Racial Discrimination Act. If the Sex Discrimination Act is pushed too far and quotas are introduced, the consequence will be that persons who are not qualified for a job will receive it over and above those who are better qualified.

The agencies established by the Commonwealth Parliament have a depressing record. They have not given the slightest indication of being conscious of the need to consider the relationship between rights. They are essentially activist organisations concerned with promoting particular rights over others. Where the activists in charge of these organisations believe that a particular so-called right or the rights of a particular group are important, they will assert those rights over and above all other rights.

Thus the organisations, including the Human Rights Commission, have done more to undermine human rights than to promote them.

It is in this context that any attempts by the Commonwealth Parliament to establish a Bill of Rights should be carefully viewed. It is very likely that the proposed legislation will seek to entrench and establish some rights and degrade other rights. The rights to be established are those which the proponents of the legislation favour. A Bill of Rights of the Evans type, if enacted by the Commonwealth Parliament will do a great deal of harm to human rights. It is very likely that the absence of safeguards for defendants and accused and wide discretionary powers vested in bureaucrats, which are such noticeable defects in the three Acts referred to above, will be further expanded and entrenched in other social engineering areas.

A Bill of Rights enacted by the Commonwealth Parliament, dominated by a political party, should be strongly opposed. The party would have obtained a bare majority of votes at an election — and even that majority may or may not support a Bill of Rights drafted by a small group within the party. However, a Bill of Rights, enacted by Parliament and supported by the people in a referendum, could be given cautious support. There are obvious difficulties in getting referendum approval for a Human Rights Act. But this is the only legitimate way in which a statement of rights should be enacted as law. A Bill of Rights passed by a referendum will embody compromises reflecting the views of all Australians. A Bill of Rights passed by the Commonwealth Parliament will embody the values of the Australian Labor Party and the Australian Democrats who hold the balance of power in the Senate.

There is a second advantage which a Bill of Rights inserted into the Constitution by a referendum will possess. Such an act would be a part of the Constitution and it would prevail over all Commonwealth and State law. A Bill of Rights enacted by Parliament drawing on the wide external affairs power, will prevail over State legislation, existing Commonwealth legislation but not future Commonwealth legislation. The reason for the latter proposition requires a detailed discussion of a technical legal area involving Parliamentary supremacy and the proposition that Parliament cannot bind itself. The scope of this publication does not permit further elucidation. It must suffice to say that a Bill of Rights will be immune from violation by the Commonwealth Parliament only if it is incorporated in the Constitution.

14.2 The Bill Of Rights Or A Bill Of Wrongs?
Senator Evans' secret Bill of Rights is a further attempt to take power away from the public and transfer it to a select few politicians and bureaucrats. The former Attorney-General is reported to have said that the reason he did not want the Bill of Rights released and the reason why he was so concerned that the Premier of Queensland had leaked it to the media was that he did not think it appropriate that the Bill of Rights should be discussed "in the hot-house and heady atmosphere of the run up to an election". What arrogant nonsense! Once again we have the mistrust of popular participation except through selected interest groups. Certain civil liberties organizations, the state governments, and selected academics (it was not distributed to the community of scholars at large) were given the draft Bill of Rights on a confidential basis. Thus we have a situation in which the public at large was not to be told the contents of the Bill of Rights before returning the government which is pledged to introduce it. It is worth noting that one of the reasons why the government did not introduce the Bill of rights in its first term of office was the belief that it may have been "too controversial" and therefore have reduced their chances of being returned in the premature election.

Many people have said to me that they do not think the Bill of Rights is really an issue. How can you possibly be against it? Even if it does not do any good, it surely will not do any harm. Is not the worst possible outcome just a few more bureaucrats administering a practically idle piece of sentiment expressing legislation? And surely there is some good in being seen to affirm the values enshrined in the Bill of Rights, even if no other practical good comes of it?

I find this line of thinking, and the extent to which it operates, very disturbing. It is important that we ask the question of why the Attorney-General is so keen to introduce a Bill of Rights. It is my view that a Bill of Rights that means something is generally the expression of some historic compromise, or an element of a post-revolutionary settlement. It is interesting to note that there is no correlation between having a Bill of Rights and actually enjoying the rights proclaimed. The new Constitution of the USSR of 1977 embodied a magnificent Bill of Rights, guaranteeing freedom of expression, freedom of worship, of religion and irreligion, and freedom of movement. It guarantees to the nationalities and ethnic minorities the right to preserve their languages and cultures. Yet it is common knowledge that these guarantees are ignored or flagrantly abused. Some have expressed the view that what they see as the new McCarthyism in Australia following the publication of extracts from the Costigan Commission of Enquiry would not have occurred or could not occur if there were a Bill of Rights. But this is simply not true. It is worth reminding ourselves that the original McCarthyism in the USA occurred notwithstanding the Bill of Rights, and that proponents and opponents of Senator McCarthy appealed to the Bill of Rights to legitimise their conduct. Moreover, the anxieties, the poverty, and many of the tragedies associated with race relations in the United States happened notwithstanding the Bill of Rights, with different interpretations of the Bill of Rights favouring at one time enforced segregation, at another out-lawing segregation, at another licencing affirmative action including (on some views) reverse discrimination. A Bill of Rights is only as good as the regard in which it is held and the human interpretation of the human words in which it is written, and all of these are so elusive and delicate that there is no way any sort of structure can guarantee the eternal generation of the right results. One jurist has remarked that a country which is animated by the right spirit of decency and respect through its institutions has no need of a Bill of Rights, while one that is not so animated will gain nothing from having one. With all their warts, Britain and Australia, which lack a Bill of Rights in the modern sense, have been among the nations with the best recent human rights records.

That brings us to the question of Senator Evans' enthusiasm. What of the argument that it may be foolish to think it will do any good, but it certainly will not do any harm? I now wish to address this issue directly, because I believe that it will do enormous harm. Let us assume that the Bill of Rights to be introduced is substantially the one leaked in the Sydney Morning Herald and The Age of 26th October 1984. This Bill increases the powers of that most regrettable innovation, the Human Rights Commission (an innovation, in its present form, of the Fraser government). The Human Rights Commission will be able to inquire into "any act or practice that may infringe a right or freedom set out in the Bill of Rights" (The Age). It will be "empowered to direct people to appear before it". Failure to comply carries with it a penalty of $1000 or three months jail for an individual or a $5000 fine for a body of appointed officials. These powers are being conferred on a body with the wretched track record of the Human Rights Commission. If this report in The Age is correct, then Senator Evans' proposal is one of unspeakable contempt, and it is no wonder the government was scared to let the people see the Bill of Rights before the election. I would strongly urge absolute defiance of the Human Rights Commission if these provisions were ever legislated into practice. I am one who actually favours the view that one should obey the law, even if one disagrees with it, unless it requires you to act in a way which you consider absolutely unconscionable. But that general obligation to obey the law is, to my mind, conditional on two factors. The first is that the society is a broadly democratic one with at least minimal freedoms, in which there are lawful avenues for seeking legislative change. The second is that, if one does violate the law, one has the expectation of a fair hearing by an impartial body with the right to professional assistance in presenting one's case in relation to the law, and procedural guarantees in relation to the format of the hearing and the lines dividing admissible and inadmissible evidence. In any matter involving the Human Rights Commission the second of these critical factors is not guaranteed. It is not an impartial body. Anybody who appears before it in relation to its present powers under the Racial Discrimination Act and the Sex Discrimination Act would be naive to expect justice. Moreover, as an examination of Sections 65 and 77 of the Sex Discrimination Act shows this legislation, endorsed by a Prime Minister who has expressed his concern about British justice, civil liberties, and the right to a fair hearing, denies the ordinary citizen the absolute right to be represented by counsel in a determination by the Human Rights Commission as to whether or not he or she has broken the law. It also explicitly excludes the body determining whether or not you have broken the law (which will be determined without you necessarily having the right to counsel assisting you) from being bound by the ordinary rules of evidence.

The draft of the Bill of Rights leaked to The Age actually proposed to enhance the already appalling powers of this absurdly mis-named body with whopping penalties including the right to jail individuals for non-cooperation for up to three months to boot. And all in the name of preserving our rights! Thus it should be clear why I believe that the Bill of Rights, if accurately reported in the press, will do enormous harm. It is interesting to note that Article 26 of the leaked draft actually guarantees the rights denied by the Commonwealth Discrimination laws in criminal matters, while Article 27 guarantees that there will be no retrospective criminal offences. But by making breaches of anti-discrimination (and presumably other) human rights laws non-criminal all of the guarantees associated with the Bill of Rights are waived to one side. By making breaches of the taxation law revenue rather than criminal offences, the guarantees in relation to retrospectivity are made irrelevant.

The Bill of Rights is thus, in practical terms, a monumental exercise in hypocrisy and as I said earlier, it is no wonder the former Attorney-General was scared to have it debated in the run-up to the election. Indeed, that a man who professes to detest hypocrisy and to be a champion of civil liberties should associate himself with it is just shameful.

When my criticisms of the Human Rights Commission and Dame Roma Mitchell's racialist denigration of opposition to the Commission's proposals to further restrict freedom of speech were delivered in the Earle Page Lecture at Sydney University, Senator Evans (Weekend Australian, 3rd November 1984) was reported as saying that I had resigned from my objectivity as an academic and had entered the party political arena. Apart from being a convenient but typical way of avoiding responding to the particular charges I laid, it was revealing in its implication that Senator Evans does see the Human Rights Commission as an arm of Labor Party policy. I wonder how many of the increasingly disfranchised blue collar workers who were Labor's original backbone would share his view?

It saddens me to see how the 'human rights lobby ' has, in the last three years, made so many gains in eroding our human rights. Not only do we have the loss of power to the people which flows from society's shift to group democracy based on articulated interest; not only do we have enthusiastic support for proposals to make it easier for Australian governments to reshuffle their powers without public endorsement — we also have an erosion of the common law court based approach to determining whether people have acted unlawfully, in favour of enlarging the powers of quasi-judicial administrative tribunals, pre-eminent among which is the Human Rights Commission, composed primarily of legally unqualified zealots empowered to ' modify behaviour ' in order to ensure that it conforms with the undemonstrable standards of new class of social imperialists.

In case this is seen as a contribution to party politics, let me add that I am saddened even more by the failure of the opposition to respond to these very profound and disturbing social transformations. Are they not aware of them, or is it all too hard for them? Are they so opportunistic that they do not think there is a vote in it, or are they so contemptuous of the public's mentality that they do not think the public can be led to understand these issues? My experience is that most people, including very uneducated as well as very highly educated, are horrified by the fine print of current social trends — once the fine print is drawn to their attention. It is the duty of any opposition to do this, and it is not acceptable that it should offer the lame excuse, if indeed this is its excuse, that these issues are too hard for the average voter. Rather, such a claim is nothing less than an admission of a lack of talent in making things clear.

My real worry is that there are many in the opposition who do not oppose these trends publicly, because they are not opposed to them. It should be remembered that most of the leaders of the Liberal Party voted for most of the provisions of the Sex Discrimination Act in its present form. It should be noted that there are people in the Liberal Party who are in favour of a Bill of Rights and may be in favour of it in its present form, which makes the Human Rights Commission a third legislative chamber, as well as a court which can only be the envy of those associated with the People's Courts of the Chinese Cultural Revolution

So long as Prime Ministers see political mileage in talking about British justice, fair hearings, and presumptions of innocence, there is hope. We must anchor these sentiments by exposing and expunging the counter trends.

In Quadrant, July-August 1984, p 62 Roger Scruton, the notable English conservative philosopher, remarks on the parallel between Britain and Australia, in the hatred by the new class of the reality of the nation's history. The move to redesign the Australian flag is a symptom of the hatred of the past, of the refusal to accept that our past was anything other than barbaric, racialist, sexist, and an orgy of uncultured selfishness. That is no truer a description of our past than in its extreme opposite. The madness of multiculturalism with its mis-represenation of things Anglo and its implications of ethnic separatism is another symptom. Perhaps it is time for those of us who do not hate this country and do not hate everything in its past and its heritage to take a stand.

14.3 Rights Or Oppression?
What on earth was the former Federal Attorney-General, Senator Evans, up to? It took the Queensland Premier, in a totally inappropriate context, to reveal that for about seven months there has been circulating to privileged circles a draft of a proposed federal Bill of Rights. Why should such a document, above all, be treated as secret and confidential?

The only thing which this behaviour can give rise to is speculation as to the honesty of the Federal Government's motives. A Bill of Rights ought, by its very nature, to be discussed in detail from conception through elaboration to its first draft, and then beyond. Who could possibly have such a convoluted view of the purposes of legislation supposedly protecting human rights that it would be kept secret in its early stages?

Of course, Senator Evans, a professed civil libertarian, is becoming known for gaffes in this area. He has obviously not recovered from the treatment which his proposed uniform defamation law received when it was unveiled — what clearly stung him most was not the fact that the proposed defamation code was half-baked and repressive nonsense (that was not necessarily his fault) but that it was also extremely sloppy legal drafting. It seems that the drafts of the Bill of Rights are so bad that the public and the legal profession generally, could not be trusted not to tear it to bits and ridicule it out of existence.

From what Sir Johannes Bjelke-Petersen has revealed in his own special manner, there is very good reason to distrust the draft of the Bill of Rights and the Federal Attorney-General's motives. He seems to have become a captive of the modern neo-fascist notion that in the name of newly invented rights and the sensitivity of favoured groups, the fundamental rights of free speech and free conscience can be abrogated.

Selective exposure of the draft to sympathetic academics and civil liberties groups is not anything like enough. Most of the people associated with such interests can no longer be trusted to have any genuine commitment to freedom — rather they are more concerned with asserting the rights to free activity of everybody except the people whose freedom (not being in accordance with fashionable slogans) is truly in need of defence. The supposed defenders of human rights, in the Orwellian newspeak sense, are the people who would censor films, videotapes, advertisements, and expressions of prejudice in the supposed name of free speech and freedom for something or other. But what they are really concerned with is their own freedom from effective dissent.

The Human Rights Commission, which would be given yet further powers under the proposed new legislation, is a case in point. That body has no sensitivity to the real issues of human rights at all, and has totally discredited itself with the campaign which it is promoting to suppress still further freedom of speech on matters of race and community.

The Commission's Report No 7, Proposal for Amendments to the Racial Discrimination Act to Cover Incitement to Racial Hatred and Racial Defamation (November 1983) is a document which is shameful in its contempt for basic human rights — to which freedom of speech and opinion is fundamental. The fact that the Commission can publish such a document destroys any credentials which it might have as a guardian of human rights.

Effectively, this absurdly named body would prevent anybody from expressing views on race or communal matters which were not anodyne and milquetoast. It proposes, for example, that the law should include a "prohibition of utterances which would lead to distinction on the basis of race". What about the evidence that blood-types differ in their incidence between racial groups? The Commission would no doubt answer this by saying that that would be permitted in terms of the "serious and non-inflammatory discussion of issues of public policy". It is the commission and its ilk which would, of course, decide what is serious and non-inflammatory.

The Human Rights Commission also seriously advocates that there should be an offence of "racial defamation". So if someone says "all Irishmen are stupid and dirty" (a paraphrase of a remark by the great Irish philosopher, Bishop Berkeley), all people of Irish descent would be able to sue the author of such a statement. This is obviously pernicious and oppressive nonsense.

Moreover, the Human Rights Commission says,

"one cannot abuse one's own right of freedom of expression to campaign for the destruction of the rights of others."

A worthy sentiment indeed — but very questionable when one defines "rights" in such an innovative and multifarious manner as does the commission. The Human Rights Commission, it could well be argued, is actively campaigning for the destruction of the right of free speech. This is not, of course, to argue that the law should be used against the Human Rights Commission. It should simply be abolished. Certainly, it is clear that in its present form with its present membership and under its present legislation it could not be trusted to act as the guardian of anybody's rights.

Still less could it be trusted to act as the enforcer of any proposed Bill of Rights, which would set out to define rights in such a wide-ranging and comprehensive fashion that no person would have any rights except as defined by the authorities. The notion that any person should have a " right " to be free of criticism or to enjoy specific benefits or to punish others for behaving in a way which could by some stretch of the imagination be considered insulting, or that there can be " rights " which can be invented according to whatever is the current fashion, is repugnant to any sensible conception of human rights.

Proponents Lack Morality (Sanity)
It is no accident that many of the proponents of such versions of rights profess no commitment to any absolute standards of morality or freedom but treat such conceptions as purely relative and able to be jettisoned whenever some advantage or privilege for a particular group of people can be invoked. They are clearly not to be trusted when it comes to the protection of the rights of people with whom they do not sympathise, or to whom they are ideologically opposed.

14.4 The Problems For The Future
The weaknesses in the Evans Bill of Rights have been demonstrated. The purpose of such a Bill is not primarily to protect human rights, but to provide a platform from which social engineers could operate in accordance with their ideological motivations and perspectives.

However, the faults in the Evans Bill should not lead to a loss of faith in the idea of a bill of rights. The American Bill of Rights has had a chequered history. Many arguments can be put forward based on the American experience of the problems which a bill of rights creates. However, the positive and the negative aspects must be both considered and an evaluation made. The conclusion could well be that America would have been less free and subjected to greater government regulation, especially in the heyday of the welfare regulationist tide in the United States, if not for the Bill of Rights. The Bill of Rights acted as a brake on congressional and presidential power.

In the Australian context where the High Court has rewritten the Constitution to give virtually unlimited legal power to the Commonwealth, a properly designed bill of rights could operate to restrict the wide ranging scope of Commonwealth power.

Common Law Has Been Weakened
Opponents of a Human Rights Bill will focus on the Dycean argument that the common law offers guarantees against abuse of rights and provides an admirable balance between the need for rights and liberties and the restriction of such rights and liberties in the public interest. The advantages of the common law have been referred to above in chapter 3. The reality must, however, be faced that the common law has been gradually weakened by a mass of legislation. The evidential and procedural safeguards have been undermined by the establishment of tribunals and the conferment of wide powers to bureaucrats. The independence of the judiciary has been undermined. Restrictions on freedom beyond those which the common law painfully and carefully evolved have been imposed. In this context, it is not practical to rely on the common law " providing adequate safeguards " argument. The common law has become in many areas subservient to statute law which has denied in specific enactments many of its fundamental principles. In this context there are two avenues open to those who believe in the importance of the preservation of the fundamental human freedoms. They can attempt to repeal a mass of existing legislation and reinvigorate the common law. This is in practical terms impossible. It is not merely a question of repealing existing statutes, but closing down the regulatory bureaucratic agencies which have been established.

The alternative is to work towards a Bill of Rights on the American model. Such a Bill of Rights would guarantee the list of civil liberties mentioned above in chapter 2.1. A Bill of Rights, if it is to be effective, must receive the support of a significant section of the community. Unlike the Evans Bill, an attempt should not be made to bypass the people. Many differing opinions will be expressed in a public debate. The voters may be confused and when in doubt resort to the expedient of providing a negative vote.

Thus the future for many human rights in Australia seems clouded. The current Attorney-General, Lionel Bowen, has taken a non-committal attitude to the Human Rights Bill. The Bill is released under the freedom of information legislation to interested parties. The Attorney-General may be unenthusiastic for political if not ideological reasons. The Evans Bill would have been a political mill stone. But pressure groups, influential in government circles though not necessarily enjoying community support, can be expected to attempt to intimidate the government into acting. They may or may not succeed.

If they do not succeed, the tactic which is most likely, is that specific acts (analagous to the Human Rights Act and the Sex Discrimination Act) may be enacted at different times to give effect to some of the underlying principles in the Human Rights Bill. This has been a tactic of the present government. Where a policy, if presented in its totality, would be likely to incur widespread community antagonism and fail to attract political support, the procedure adopted is to proceed in stages. In this way the opposition is divided and diluted and the public does not know what is happening until the final stage. Then it is too late to protest.