Millenarianism is as irrational as it is fashionable. Indeed it sometimes appears as if every public address made in the last six months has commenced with the phrase "as we stand poised on the dawn of a new millennium" or words to that effect. For this one could substitute as we stand poised on the beginning of next week, next year, next decade, next century, but for us there exists the unique opportunity to justify the gravity of our situation by celebrating, albeit one year early, the dawn of the new millennium. However, there are a number of contemporary and historical reasons for this to be an appropriate time to reflect upon human rights and the usefulness or otherwise of debating, legislating for, or indeed entrenching a bill of rights in this State or this nation. There is no doubt that the idea has spawned debate in this country but its legislative expression has occurred only in the form of some statutory law giving effect to international conventions, and the often fragile legacy of the common law and the expression of and the implication by the High Court of rights in the Constitution. Perhaps these matters do have one hundred year cycles. At the end of the eighteenth century some great new societies were born either by the overthrow of unjust regimes or by national wars of independence to achieve separation from imperial regimes. The birth of such societies was imbued with great idealism and a deep rooted belief in democracy. The Declaration of the Rights of Man and the Citizen adopted by the National Assembly in France during the French Revolution on 26 August 1789 put great store on the value of liberty which it described in Article 2 as one of the "natural and imprescriptible rights of man." Article 4 defined liberty as follows:
Inherent in this definition of liberty is the notion of equality reflected in the first article which provided that "men are born and remain free and equal in rights." The United States Bill of Rights (1) to an even greater extent promulgated freedom as its highest value including a prohibition on Congress’s making a law respecting the establishment of a religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and petition the government for a redress of grievances. Other well known liberties originally included the right of the people to keep and bear arms; a citizen’s right to a speedy and public trial by an impartial jury of the State and district wherein the crime was committed, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence.(2) By the end of the nineteenth century countries achieving their independence from, for example, Great Britain were not obliged to go to war or engage in bloody revolution to achieve that independence. Consequently their constitutions, for example those of Canada, Australia and New Zealand, revealed a more complacent view of the need to protect human rights constitutionally or by legislation and a greater belief in the power of the common law.(3) The 1898 Constitutional Convention in Australia rejected a proposal to include an express guarantee of individual rights based substantially on the 14th Amendment to the Constitution of the United States including a right to due process of law and the equal protection of laws.(4) Perhaps it was the Second World War that finally destroyed western nations’ complacency about themselves and the human race. By the time the first half of the twentieth century was over, two terrible wars had engulfed the western hemisphere, one involving the mutual slaughter of millions of young men and the next an horrific realisation that contemporary, educated human beings were capable not only of discriminating against other human beings on the basis of their race or religion but of systematically setting out to kill them on that basis. The United Nations adopted a Universal Declaration of Human Rights (5) in December 1948 which changed the landscape of the human rights debate forever (6). So far as discrimination is concerned, Article 2 provides, "[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Australia was itself extremely influential through Dr Evatt (7)in the drafting of the original charter of the United Nations which begins by reaffirming a "faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small." The purposes of the United Nations were said to include developing "friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples . . . to achieve international co-operation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion . . ." Since then Australia has adopted and ratified a number of other international human rights instruments which have found expression in Commonwealth and State legislation (8). However, there is no bill of rights in Australia either nationally or in any State and yet most of the countries with whom we share a similar constitutional history have now agreed to measure their laws and the behaviour of governments and other persons in accordance with values set out in a bill of rights. The Canadian Charter of Rights and Freedoms enacted in 1982 says in clause one that it "guarantees the rights and freedoms set out in it subject to only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Charter then deals with fundamental freedoms such as the freedom of conscience and religion; freedom of thought, belief, opinion and expression; freedom of peaceful assembly; and freedom of association. It sets out the citizens’ democratic rights, their mobility rights, and their legal rights which are best summarized in s. 7 which provides that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Section 15 of the Canadian Charter deals specifically with anti-discrimination measures. Under the heading "Equality Rights" it provides:
This clause was expressed not to have effect until three years after the Charter came into force. The Charter applies to the parliament and government of Canada in respect of all matters within the authority of the parliament and to the legislature and government of each province in respect of all matters within the authority of the legislature of each province (9). The Charter itself set out guidelines to its construction. They provide that the Charter can not be construed as to abrogate or derogate from any Aboriginal rights or freedoms (10); it does not deny the existence of other rights and freedoms which exist in Canada (11); it must be interpreted in a manner consistent with the multicultural heritage of Canadians (12); the rights and freedoms are guaranteed equally to male and female persons(13); and that nothing in the Charter extends the legislative powers of any body or authority (14). Perhaps most important paragraph however is that which deals with enforcement. Section 24 provides:
This enforcement procedure has ensured that the Canadian Charter is not just a statement of pious hope but a rigorous piece of law-making (15). The Canadian Charter has been the subject of extensive litigation both in the lower courts and in the Supreme courts of provinces and of the nation. And yet apparently it enjoys a very high degree of public support with public opinion polls consistently showing approval rates of 70 to 80%. All four national political parties and most lawyers, including judges, have supported the Charter(16). Associate Professor Hiebert of Queens University in Canada has described a pre-Charter Canada which is not unlike a present-day Australia (17):
But it did not come to pass without strong proponents. The credit for its passing should be given to the indefatigable energy and political will of Prime Minister Trudeau (18)and the intellectual leadership provided by Chief Justice Laskin (19). Lest it be thought that Australians are any less likely to favour their rights being protected by a bill of rights, a thorough and carefully designed survey undertaken in the early 1990s by Dr Fletcher of Toronto University and Dr Galligan of the ANU Research School of Social Sciences, found that no less than 72% of the community generally favours a Bill of Rights of Australia (20). The Canadian Charter is part of the constitution of Canada. Part of the political compromise which enabled it to be passed was that a legislative override was inserted by s 33(1) of the Charter which provided:
This however has been hailed as a strength rather than a weakness. It has given rise to what has been described as a "constitutional conversation" between the legislature and the judiciary. Associate Professor Hiebert has described post-Charter Canada in the following terms (21):
Yet the override is not used widely. Outside of Quebec it has only been used once, in 1986. But the existence of the override means that a democratically elected Parliament is not forced to accept and abide by a judicial outcome to which it is opposed. Other nations similar to Australia have introduced legislative bills of rights which appear to be relatively effective. In 1990 New Zealand passed a Bill of Rights Act, which is not entrenched, whose purpose was said to be:
It applies only to acts done by the legislative, executive or judicial branches of the government of New Zealand or by any person or body in the performance of any public function, power or duty conferred or imposed by that person or body by or pursuant to law. As a matter of statutory interpretation wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights that meaning is to be preferred to any other meaning (22). The rights covered are civil and political rights, including life and security of the person; democratic and civil rights; limitation on powers of search, arrest and detention and what are called "non-discrimination and minority rights." These are covered by s. 19 of the Bill of Rights Act which provides:
In other words, like its Canadian counterpart, it allows affirmative action for disadvantaged groups while prohibiting discrimination. But it should be noted that importantly it has no enforcement procedures, without which the bill of rights is lofty in tone but far less effective in practice. Freedom from discrimination to give effect to our right to equality is a relatively modern concept. Justice Kirby described modern democracy as "not brutal majoritarianism, but a complex system which reflects the will of the majority while protecting the rights of minorities, vulnerable groups and individuals within society (23)." Why Have a Bill of Rights in Australia? Although Australia was created as a nation at a time when the need to protect human rights in the Constitution was not a priority, we have often been in the vanguard of reform. As Sir Ninian Stephen remarked in his foreword to Justice Murray Wilcox’s informative study An Australian Charter of Rights? (24):
The former Chief Justice of Australia Sir Anthony Mason is a convert to the idea of a bill of rights. He has said:
A bill of rights of course represents the legislative expression of a nation or a community’s core values, core values that have united the nation and which underpin its continued existence. These core values are not fragile as they are deeply held but they are nevertheless capable of being lost through our failure as a people to protect them. It has been suggested that as a nation we Australians have a core cultural value of fairness. It would be deeply challenging in a mature and sophisticated society to consider our common core values and how they can be protected in a bill of rights. The debate may even be painful to some and potentially divisive and it might well be overly optimistic to think such a debate possible even if it would be productive. After all, in 1959, the Nicklin government in Queensland produced the Constitution (Declaration of Rights) Bill said to have been based on the Universal Declaration of Human Rights but it was never put to the vote(26). The Constitutional Commission’s 1988 recommendation (27) for an Australian Charter of Rights and Freedoms to be inserted as a new Chapter 6 in the Constitution has never been put to the vote either of the parliament or the people, and the Electoral and Administrative Review Commission’s recommendation for a bill of rights for Queensland in its August 1993 Review of the Preservation and Enhancement of Individuals’ Rights and Freedoms ("the EARC Report") similarly has not been voted on by the parliament or the people. There is no doubt however we have core values, and many of these are reflected in the proposed preamble to the Australian Constitution such as the "rule of law" and "equality of opportunity". At the very least if there were public and parliamentary debate about our core values as a nation and from this the introduction of a bill of rights initially passed by the parliament to be entrenched in the constitution once that bill of rights was accepted, then there would be a full and open debate about what should and should not be in the bill of rights. One of the problems that besets our judicial system and body politic at present is the lack of established consensus as to core beliefs and fundamental human rights which tends to undermine the legitimacy of their expression. A number of rights are, for example, recognised and usually protected by the common law. These include the right to silence, the right to a fair trial (28), native title (29), the right to natural justice and many others but these rights are vulnerable (30) to being removed by statute. As Brennan J held in Nationwide News Pty Ltd v Wills:(31)
The common law protection of human rights may also be thought to be quite haphazard as there are a number of important rights and freedoms that are not necessarily recognized (32) including, for example, universal suffrage or freedom of speech. When the common law has been measured against international human rights standards it has been found wanting (33). The common law is necessarily directed towards specific issues rather than general statements. Common law rights are the result of inductive reasoning from cases that deal with specific facts and try to find specific solutions to them. The common law so generated does not necessarily reflect or embody fundamental rights (34) and cannot be certain to protect them. However, it must be acknowledged that the common law can provide powerful protection of minority rights by reference to such core concepts as equality before the law. As Brennan J said in Mabo v Queensland [No 2](35):
The Commonwealth Constitution provides for certain limited fundamental rights in respect of religion(36), trial by jury(37), the acquisition of property on just terms(38), the right to vote at federal elections(39), immunity from certain legislative interference with interstate trade, commerce and intercourse(40) and freedom from discrimination by any State against the citizens of other States(41). Thirdly, Australian courts actively consider the norms of international human rights instruments to which Australia is a party in their interpretation of the law(42). Further, the Commonwealth government has acceded to the First Optional Protocol on Civil and Political Rights which permits people to complain to the United Nations Human Rights Committee about interference with their rights by government as set out in that covenant(43). Lastly, the High Court has controversially been prepared to find implied rights in the constitution(44). Senator Bolkus was quoted in the Weekend Australian of 9 January 1993 (45) as hailing the High Court’s striking out of the law banning political advertising as the "start of a judicially created Australian bill of rights." But that of course has proved illusory and perhaps it is dangerous(46). There is community uncertainty about court developed rights and they are developed away from public debate. This is a matter of public concern. On 30 June 1999, The Australian published an article by George Williams where he canvases many of the problems thrown up by the inadequate, haphazard and judicially led statement of fundamental rights in this country.
In my view legislation is a much more open and transparent way of protecting what the community sees as fundamental rights. This has been done by the State governments through anti-discrimination legislation and by the Commonwealth government through race, sex and disability discrimination legislation which might be seen as a trial run of the legislative protection of human rights. Clearly a bill of rights would protect rights other than the right to be free of discrimination but it nevertheless provides an interesting first step. The Anti-Discrimination Act 1991 (Qld), for example, sets out as its statutory objects:(47)
This legislation clearly sets out the prohibited grounds, types and areas of discrimination and exemptions from liability. It has a number of significant elements seen in constitutionally protected rights:- it recognizes a right to substantive equality, not just formal equality(48), it protects affirmative action to redress inequality and the rights given under it have an enforcement regime. Its advantage over the constitutional bills of rights is that its rights and duties apply in favour and against all and not just against the State. Importantly, it is the product of public and parliamentary debate. My own experience as the first member and then first president of the Anti-Discrimination Tribunal in Queensland was of a perhaps surprising degree of public acceptance of the decisions of that tribunal which vindicated rights given to minority groups of disadvantaged people by the Anti-Discrimination Act 1991 (Qld). The police service after the decision in Flannery v O’Sullivan(49), introduced recruitment procedures free of irrelevant discriminatory requirements. The decision of O’Neill v Steiler(50) tested a race discrimination complaint in Cairns. The complainant was denied work, to which he was eminently suited, because he was Aboriginal. The decision was widely publicised with the local press, radio and television supportive of his right to be given employment free of irrelevant discrimination. The decision in Cocks v State of Queensland(51), commonly known as the Convention Centre Case, changed the rights to an expectation of access to public buildings for people with a mobility impairment. Very few in our community today support an employer’s right to sexually harass his or her employees or to discriminate in recruiting on irrelevant considerations such as sex, age, national origin or religion. Not all decisions of the tribunal were greeted with wide approval(52). But my experience in that field makes me optimistic about our ability to debate and agree upon core values to be included in a bill of rights and to give them public expression. Section 106 of the Anti-Discrimination Act 1991 (Qld) provides a statutory exemption from provisions of the Anti-Discrimination Act for an act that is necessary to comply with or is specifically authorised by a provision of another Act in existence as at 30 June 1992. No legislation passed after that date provides an exemption to unlawful discrimination under that Act although the Act has been refined by amendment. Indeed in the Industrial Relations Act 1999 (Qld), the grounds of discrimination have been extended to include discrimination on the basis of sexual preference and family responsibilities. The great democratic advantage of a bill of rights is that, although the principles are interpreted by judges(53), who are often criticised as an unelected elite(54), the bill of rights is itself passed by the parliament. It is an expression of parliament’s will and the court is given the usual task of interpretation of the legislation. This view is supported by Lord Scarman(55) who has said:
By entrenching a Bill of Rights we go further and ensure that it has been debated and is supported by the citizens of the nation or the State, a much more satisfactory situation in a democracy than the present five or six fold rather haphazard means of upholding fundamental human rights. As Associate Professor Hiebert describes:(56)
As well as that democratic advantage, is the fact that entrenchment makes the values expressed part of the constitutional fabric of the nation(57). When the courts regard themselves as guardians of the constitution, they will then be acting as guardians of agreed constitutional rights and freedoms. The Canadian Charter adapted for Australian conditions, and in my view extended so that the rights given are enforceable against as well as by citizens and other legal persons, would be a well tried model for this country to adopt. We could then give constitutional expression to our national values of fairness and egalitarianism and protect the freedoms we expect to be able to take for granted.
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