Why Australia needs a Bill of Rights
By Matt Foley
April 04, 2008 12:30pm
Article from: The Courier-Mail
FORTY years ago, on April 4, 1968, an assassin's gunshot rang out in Memphis, Tennessee.
Martin Luther King died, but his dream of civil rights based on a universal brotherhood and sisterhood lives on.
Civil rights are again in the spotlight. The Rudd Government's 2020 Summit is scheduled to examine "the rights and responsibilities of citizens". It is now time to introduce an Australian Bill of Rights to protect the basic rights and freedoms of individuals.
In 1968, Tennessee and nearby Alabama were not the only scenes of civil and racial abuse. In Queensland, hundreds of peaceful protesters were being arrested. The democratic will of the people was corrupted through an electoral system choked with gerrymander and malapportionment. It was still an offence under the Vagrants, Gaming and Other Offences Act 1931 for a white person to lodge or wander "in company with any Aboriginal native" (not repealed until 1971).
We must protect against these civil rights abuses in future by enshrining a framework of law that respects the basic rights and freedoms of individuals.
After the horrors of World War II, the nations of the world set out in 1948 the Universal Declaration of Human Rights with these starting words in the preamble:
"Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world".
Many nations have adopted a Bill of Rights, including those jurisdictions that share common law tradition, for example the United States, Canada, New Zealand and the United Kingdom.
However, do we really need a charter of rights in order to protect fundamental human rights and freedoms? Those who argue against it assert that it gives too much power to judges, that the will of the majority should prevail and that there is no evidence to justify a greater bulwark for individual rights and liberties.
If the Bill of Rights were entrenched in the Constitution, this would give great power to the judiciary effectively to override the Parliament of the day. A statutory Bill of Rights would not face this problem. It would be open to Parliament to change the Bill of Rights by plain terms and this would overcome the democratic objection to unfettered power for the judiciary.
The former chief justice of Australia, Sir Anthony Mason, favours the adoption of a Bill of Rights, expressing concern that Australia jurisprudence may develop separately from the other common law jurisdictions which now have one.
This is a concern not to be sneezed at. The world has shrunk through the internet and iPods. In commerce, trade, aviation and intellectual property, Australia is part of the international game. It is difficult to scold China over human rights abuses in Tibet while remaining agnostic to an Australian Bill of Rights at home.
The recent example of the arrest and detention last year of doctor Mohamed Haneef illustrates how public fear and excessive law enforcement zeal may result in an abandonment of common sense and justice.
A Bill of Rights can help educate us to guard against the excesses of moral panic surrounding issues such as terrorism.
Freedom is one and indivisible. When one innocent languishes wrongly in a watch-house cell we are all diminished.
Things have changed and moved on since 1968.
The 2020 Summit properly addresses not only the question of civil rights but also the responsibilities of citizens. For every civil right there is an equal and corresponding civil responsibility. The right to free speech, for example, implies a responsibility to respect dissenting views. We should not close our eyes to the prospect of the debate moving on.
After all, the 2020 Summit is about the future governance of Australia and not merely reciting the remedies of the mid 20th century.
Wouldn't it be great to see a republic in Australia with an Australian head of state, genuine co-operation among the federal, state and local governments, with laws that enshrine the rights and freedoms of individual Australians?
On April 3, 1968, the day before his assassination, Martin Luther King delivered his famous "I have seen the mountain top" speech in Memphis. King predicted: "I've seen the Promised Land. I may not get there with you."
We seem to have a real chance to make things different and better in future. I hope we take it.
Matt Foley is a Brisbane barrister, former attorney-general of Queensland and a participant in the national 2020 Summit.
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