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Pace, John P --- "A Bill of Rights? - Moving On" [2002] HRightsDef 13; (2002) 11(2) Human Rights Defender 1

A BILL OF RIGHTS? – MOVING ON

John P. Pace

The Gilbert and Tobin Centre for Public Law and the Australian Human Rights Centre should be congratulated for organising the recent conference “A Bill of Rights for Australia?” The speakers provided a stimulating array of opinion on a topic that needs wide community input. A conference such as this, bringing together lawyers, academics and politicians, is an important step towards attracting wider public interest and participation.

The Australian Human Rights Centre will publish the presentations made at the conference in a special issue of the Australian Journal of Human Rights. It should provide stimulating and provocative reading.

Should Australia have a Bill of Rights? Some conference speakers considered that the existing arrangements for the protection of human rights were adequate. They argued that Australia has an excellent human rights record, the result of a constitutional, democratic and legal framework which has served us exceptionally well for more than a century. Other speakers felt that this was not the case and that it was necessary to address the human rights problems in the country by codifying human rights, thereby ensuring that they are safeguarded through a more efficient application of the balance of power. It was further argued that Australia’s international human rights obligations necessitate a better definition of human rights at the national level in order to ensure better protection.

In my view, for law to serve its purpose it has to be − and at all times to remain − relevant to society. The law must reflect what it seeks to protect and society is in constant evolution. A society like Australia’s is always changing and enriching itself through the influx of people from different cultures. The institutions that some would say have worked so well for over a hundred years need to be looked at again and again to ensure their continued relevance and effectiveness.

At the national level, government tends to make itself less and less relevant to the people that elect it to govern, as a result of downsizing and privatisation. At the international level, governments are in danger of becoming even less effective as a result of globalisation.

If the institutions that have protected human rights have worked well so far, then we have to make sure that they continue to do so, and get even better at it. What we cannot allow is stagnation, because this will inevitably result in gaps in human rights protection. Such gaps encourage lawlessness of the sort that we see in countries where government has lost its relevance and where anarchy or organised crime has taken over.

Most Australians do not even know what their human rights are. At the most basic level they are simply not listed anywhere. The Constitution is a “technical” one, setting out the organs of state and their lines of demarcation and making scant mention of rights.

Further, although international human rights standards are clearly set out in international conventions that Australia has ratified, not all these standards have been made part of the law of the land. In some cases, Australia has refused to ratify international instruments giving the individual recourse to international protection, such as the Optional Protocol to the Convention on the Elimination of All forms of Discrimination Against Women. If the system works as well as the government claims, what justification is there in preventing people from seeking protection internationally?

Not only do people simply not know what their rights are, but if they wanted to find out they would have not easily know where to look. Human rights in Australia must be distilled from the Constitution, from numerous pieces of legislation and from the common law. Spreading rights around various laws and building protection of these rights through the common law deprives these rights of their true purpose, which is to ensure that the dignity of the individual is protected in all aspects of life.

Most critically, however, Australians are at the mercy of Parliament as to which rights apply and when. This has been exemplified by the ease with which Parliament has legislated to detain people indefinitely, or to excise parts of its territory to exclude judicial protection. Freedom is a right which can only be denied under very clearly established criteria. It is an inherent component of the dignity of the human person, which international human rights standards have sought to protect for at least the last fifty years. A Bill of Rights can re-establish the balance, by affording the protection of judicial power and ensuring against the “dictatorship of democracy”.

There are many good reasons to think seriously about the need for a Bill of Rights. The debate launched at the conference must extend to more and more people, so that Australians can understand how important it is to know what rights they have and how they can use them.

Is it not time for Australia to move on?

John P. Pace

Geneva

3 October 2002