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Salvatore Babones’s column in the October issue about fundamental rights and freedoms raises important points that are widely overlooked in contemporary Australia. This is especially so in regard to those who are usually most vocal about “human rights”: they were notably silent after the arrival in this country of COVID-19, when Australians suffered “lockdowns” and what Jonathan Sumption early identified as the greatest infringements on our personal rights and freedoms for many centuries.
This essay appeared in a recent Quadrant.
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The particularly important point which Professor Babones (himself an American citizen) raises, is that our various traditional rights and freedoms are in the very first place antecedent to such statutory conferrals or declarations which are the typical fare of “human rights” legislation in Australia, based on UN or other international models. Rights and freedoms, such as those of free speech and religion, of owning and using property, of carrying on a business, trade, profession or other lawful means of livelihood, the freedom of movement throughout our own Australian nation, and so on, are vital inherent rights of the Australian people, just as the United States’ constitutional documents, including the Bill of Rights, speak in terms of rights and freedoms which were already the rights and freedoms of the people. They are accordingly cast in terms of “inalienable” rights and hence in appropriate constitutional verbiage such as “the right of the people”. They do not depend upon the gift or any definition by the United Nations or any other international body or forum. Human rights and freedoms and the doctrine of natural right were not invented in 1945 or 1948.
There are currently moves towards a national bill of rights in Australia. Any such bill which fails to include and to entrench all of the various traditional and antecedent rights and freedoms will be inadequate and of no use.
That is to say, our rights and freedoms are not limited to the “trendy” ones of “human rights” as framed by the now very extensive human rights lobby. If the many terrible things done and suffered in Australia during the Covid outbreak have taught us (even conservatives) anything, it is that we Australians really have no truly fundamental rights and freedoms. The wide powers invoked by chief medical officers, premiers, police and other government officials in response to Covid show that such rights and freedoms as we think we have can be abolished or abrogated at the stroke of a pen. Also, it is now far too late to expect that any mere appeals to sensible traditional “common law principles” will suffice in the face of the fiats and diktats of chief medical officers and others, not to mention also the enactments of draconian legislation. By and large (and perhaps precisely because of the absence of entrenched rights commanding judicial attention and vindication) even the Australian courts have not proved effective in preventing the abuses since early 2020.
Attorneys-General in the Morrison government failed to uphold section 92 of the Constitution, which in 1945 had been held by the High Court not to be overridden even by the national emergency of wartime. It is arguable that, apart from some very few statements on rights in our Constitution, Australia’s constitutional arrangements are still little better than what obtained under the governors of colonial days. For example, the typical verbiage in state constitutions, about powers to “make laws for the peace, order and good government of [State]” is unrestrained by due entrenchment of our traditional and antecedent fundamental rights and freedoms mentioned above. Indeed, by a process of various “readings down”, even express provisions of the Commonwealth Constitution dealing with rights or freedoms have been rendered of little practical use or benefit to the Australian people.
Most conservatives are rightly wary of bills of rights because of the danger of “judicial activism” by “unelected judges” (although one may note, would we really want “elected” judges, either?). Judicial activism is not only of the Left.
Examination of case law in Australia even since the advent of various “human rights” legislation shows, in many instances, a strange reluctance or refusal to embrace and to vindicate the rights and freedoms declared by such legislation. Further, even appeal to the traditional antecedent rights and freedoms does not cut much ice now, since most law schools, despite their constant espousals of “human rights” and the like, also tend to produce an adherence to positivist and mechanistic legal reasoning, which forgets (or perhaps never knew much of) the work of the greatest reforming judges, such as Lord Mansfield in Britain. Indeed, some of the best of the early judges in colonial New South Wales were more vigilant to vindicate fundamental rights and freedoms than one typically sees now in Australia. And this is so despite all the talk about “human rights”. When Australia acceded to the International Covenant on Civil and Political Rights, we made a “declaration” undertaking, within our federal system of government, “to develop judicial remedies” for the vindication of the fundamental rights and freedoms in the ICCPR. By and large, this has not happened yet, despite recent moves in the ACT.
Hence this modest proposal: any national bill of rights would need (at the very least) to (1) expressly re-state as traditional and antecedent rights and freedoms, and also to entrench all of the same as noted above; (2) be included in our Constitution with an additional express “covering clause” making all of the rights and freedoms in the national bill of rights part and parcel of our national fundamental law and thus to be “fully binding upon all of the people, judiciary, parliaments and executives throughout Australia”. It could usefully also impose upon all officeholders in all of the three arms of government (legislative, executive and judicial) a constitutional duty to uphold and defend the national bill of rights and not to do, or to permit, any act or thing which denies or abridges any of the rights and freedoms referred to in the national bill of rights. It perhaps might need to so provide upon pain of ipso facto forfeiture of office by those who so permit, or deny or abridge any of the same.
Any provisions as to “derogations” would need to be much more limited and subject to express limitations and full, rapid, public parliamentary review and very early “sunset” timings. Mere appeals to “public order” or the (undefined and accordion-like) formula of “appropriate/justifiable in a democracy” are just not sufficient to prevent abuses of powers and the denial or abridgement of our fundamental rights. Such are mere tags, about which reasonable people will have different views. Nor does the legal siren-song of the so-called “doctrine of proportionality” suffice to restrain the overweening powers of governments. Indeed, it is in itself quite apt to foster a discretionary tyranny of the unelected. What is one person’s “proportion” can be another person’s outrageous excess. This too, became rather obvious during the Covid outbreak.
Babones is right to point out that all of these issues are not well understood in Australia. That certainly applies to citizens’ rights under the US Bill of Rights. It may be due to Australia’s origins in a penal colony under military governors. One recalls the spectacle of a senior Australian official charged with the task of developing measures to vindicate fundamental rights and freedoms confessing, in writing, to having no knowledge whatsoever of natural right. To paraphrase the title of a key book by one who was perhaps the greatest modern scholar of political philosophy, such operatives know neither natural right, nor history.
We need to recover all our rights and freedoms, out of the hands of the political class and their associated elites who exhibit disdain for the Australian people. Constitutional provisions entrenching our rights and freedoms and made fully binding upon all three arms of government may be the only way forward. They would need to be very carefully crafted to prevent their subversion by “judicial activism” or by legislative adventures in aid of newly oppressive agendas. Such dangers are quite real: of late, we even hear calls for the abolition of trial by jury.
Conservative suspicion of “rights” rhetoric is well justified: in modern times, various monstrous regimes pay lip service to “human rights” but often also enact laws designed to exclude the most vulnerable from those protections. In such regimes, compliant judiciaries complete such Orwellian exclusions. Hence the need for great care and caution in the drafting of the details, including for express constitutional commands and limitations against the “reading down” of our rights and freedoms. They are fundamental and vital to a truly civil society.
The United States is a republic. A full national bill of rights along the lines suggested above can become part of our Constitution by means of a duly passed section 128 referendum, even as we retain our constitutional monarchy under our sovereign, His Majesty King Charles III, King of Australia. Bills and provisions securing the rights and freedoms of the people are not unusual in the longer history of our constitutional system.
Douglas Hassall, a frequent contributor, lives in Canberra
The grandly worded bills of rights in both Victoria and Queensland have worked well during the last three years haven’t they.
My thoughts exactly.
I like it. But, if cases in the US are any guide, defense of one’s rights requires much money to trot off to court with a legal team in tow. I also note the bizarre US decisions about rights, for example: to think that a right to ‘happiness’ (which didn’t mean when written what it means now) creates a right to call an necessarily reproductively inert coupling a ‘marriage’.
As to legislated Bills of Rights, I look with scorn on those illusory statutory instruments (as opposed to the kind which is embedded in a constitution as in the U.S.) which appear to offer so much but which can be set aside as soon as a parliament decides it doesn’t want to accept a constraint on its power to legislate.
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With our Australian Constitution I believe that it is statute law and must be interpreted as such as stated in Potter v. Minahan [1908]:
“’in the last degree (it is) improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used”
Toohey J. in a speech delivered in Darwin in October 1992, accepted this kind of reasoning as applying to the Australian Constitution: J Toohey, ‘A Government of Laws, and Not of Men’ (1993) 4 PLR 158, 170 (Public Law Review) by saying:
“Where the people of Australia, in adopting a constitution, conferred power [on the] Commonwealth Parliament, it is to be presumed that they did not intend that those grants of power extend to invasion of fundamental common law liberties – a presumption only rebuttable by express authorisation in the constitutional document.”
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The proceedings of the Australasian Federation Conference Tuesday, 8th. February, 1898 starting at page 688 support the view of Toohey J. At that conference it was debated whether to include in the Constitution a protection against laws that would “deprive citizens of life, liberty, or property without due process of law”. Mr. Kingston and Sir John Forrest spoke against the proposition on the basis that it was unnecessary. The amendment was not carried, Sir John Forrest had suggested in the debate that even if such a bill was passed by Parliament that Royal Assent would be refused.
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I believe therefore, as Toohey J. said, that our Australian Constitution does not give Parliament the power to abrogate “fundamental common law liberties”. We already have in that effect our own bill of rights. What is lacking is the recognition of it.
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The “doctrine of proportionality” must surely apply also to the unenumerated but nevertheless inalienable rights of citizens (as justified above) when governments seek to infringe those rights. The recent High Court case on Section 92 which found that an “absolute” was not absolute must surely also create a precedent in favour of a citizen who does not obey a law when it infringes their fundamental rights. What I am saying here is that just as the High Court found that State governments could override a law (Section 92) by proportionate action (legislation), so can a citizen override a State or Federal law by proportionate action. (This is just my opinion for purposes of debate only, please do not act on it without getting your own legal advice.)
A bill of Rights, do you think that the power’s that be, would like to start charging us?
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Remembering of course that once upon a time when common sense and courtesy were the mainstay of a stable family orientated and Just society, we did not require political interference as a determinate of that which rightly belonged to all.
And alas the the fall of Rome ensued.