Unlike many jurisdictions internationally, neither Australia nor the states operate under a bill of rights - with the exception of Victoria and the ACT. While there is currently an investigation into 'traditional' freedoms at the instigation of the Commonwealth Attorney-General, there is no sign that a bill of rights will be coming any time soon at the national level. Indeed it is Coalition policy to do away with the human rights framework. The Prime Minister is reported as having said: 'Bills of rights are left-wing tricks to allow judges to change society in ways a parliament would never dare.'
But the question of a bill of rights can be framed a little differently in the Queensland context. Perhaps in recognition of that, following the 2015 Queensland election the government has indicated that it will seek advice from the Department of Justice and Attorney-General to allow 'public discussion' on the question of a bill, or charter, of rights. I think a public discussion on a bill of rights in Queensland is important and overdue. In this post I explain why.
Ancient liberties and human rightsI should admit at this stage that for a long time I was not a believer in a bill of rights. I had faith in the operation of the common law and all kinds of magicke, namely the ancient liberties. This is perhaps surprising considering I grew up, and studied law, in Queensland under the repressive (by Australian standards) government of Joh Bjelke-Petersen. Despite the erosion of civil liberties and the proven corruption of governance in Queensland during his government, Queensland nonetheless bred conservatism, particularly in the legal profession.
I am now of the view that the conservative position, rejecting a bill of rights, is untenable. The law, including our system of governance, is ill-equipped to protect civil liberties as we now understand them. Paradoxically the so-called conservative position is now capable of eroding human rights as can be seen from the effect of the Newman government's legislative program and the Commonwealth government's proclaimed dislike of human rights.
Theoretically our civil liberties are embedded within our system of justice, if not within our Parliament. The rule of law itself is a cornerstone of our system of governance. It underpins the operation of laws in a way that is intended to ensure justice for the citizenry. Questions of due process, the right to know the charges against you, the right to be heard in open court, the right to trial etc are all part of the most ancient common law rights that ensure our civil liberties - or in contemporary parlance, our human rights.
Human rights go further however. Arising from the Enlightenment project, for example, we understand the rights of the individual to self-determination and the right to liberty and personal freedom. These rights are entrenched in the Universal Declaration of Human Rights. But the more specific rights it spawned - for the elimination of discrimination against women, and based on race; for people with disabilities and for children, to name a few - have attracted somewhat more dissent. Contemporary debate over the fate of section 18C of the Racial Discrimination Act 1975 (Cth) is an example of the lack of consensus in Australia over the boundaries of human rights themselves.
Charter of rights and separation of powersThe disquiet over a bill of rights (or charter of rights) is founded upon the importance of parliamentary sovereignty. Itself a hallmark of our system of representative democracy, parliamentary sovereignty ensures that law-making is undertaken by our representative arm of government, the parliament, in preference to the courts. The concern voiced by those opposed to bills of rights, is that the unrepresentative courts would somehow use bills of rights to strike down the will of parliament in a grab for power.
I see a bill of rights operating quite differently. A bill of rights is a genuine expression of parliamentary sovereignty. It is a mature means of ensuring due consideration is afforded to citizens in the making of legislation. It reflects community understanding of the society we strive to be. At the moment in Queensland, this is articulated to some extent in section 4 of the Legislative Standards Act 1992 (Qld). The idea of ensuring individual rights and liberties is not a foreign one to our Parliament.
The operation of charters of rights in both Victoria and the ACT have not seen wholesale erosion of parliamentary sovereignty. These statutes seek to ensure interpretation of statutes in a way that is compatible with human rights and for public authorities to act in accordance with human rights. The judiciary's role in Victoria for example, is limited to interpretation and non-enforceable declarations. Judges cannot overturn validly made laws. Tellingly, the separation of powers has not collapsed in either jurisdiction. But governments are held accountable, under Parliament's own statute, for their enactment of human rights.
I wonder sometimes if the shrillness surrounding parliamentary sovereignty is somehow reflective of a misunderstanding of the law-making role of Parliament. Despite the broadest ambit of a Diceyan conception of parliamentary sovereignty, the Parliament's power is not completely unfettered. It is legitimately contained within the boundaries of the Constitution, including the separation of powers. Additionally, a bill of rights is a known and valid constitutional tool for the articulation of the relationship between Parliament and the people.
Could any Parliament genuinely deny that its role is making just laws that recognise the aspirations of its citizenry to be treated with dignity and humanity?
Unicameral QueenslandQueensland has no upper house. It was abolished in 1922. This need not mean that Queenslanders suffer from poor governance, but we have experienced our fair share. The Fitzgerald Inquiry revealed the extent of corruption but importantly also, the structures of government that allowed the corruption to flourish. These structures in turn created a vacuum of civil liberties in Queensland. Unionists, women, LGBTI people, Aboriginal and Torres Strait Islander people and young people were notably without civil liberties during the Bjelke-Petersen era.
The Fitzgerald reforms were enacted by the Goss government that succeeded the discredited National Party rule in Queensland. However after this high point of structural governance reform and consequent enhancement of human rights, the system has been slowly eroded by successive governments. According to Fitzgerald himself, speaking out before the 2015 Queensland election, erosion of systems of governance and attendant civil liberties reached a low point under the Newman government. Allan Ardill and I went through the Newman government's encroachment into civil liberties. We identified its significant departure from the Fitzgerald framework and the consequential erosion of the rule of law and its intrinsic connection to human rights.
Constitutional arrangements or governance structures such as Queensland's committee system that serves as a de facto review process might be beyond a bill of rights. But civil liberties falls squarely within the ambit of a bill of rights, and is often the first casualty of a failure of good governance. For the current Queensland government to open public discussion about a bill of rights is to afford Queenslanders the opportunity to express their desire for the responsibilities of government in its relationship with the people.
Time for a public discussion about a bill of rightsOur system is working as long as our democracy can eject a government that encroaches on the norms of citizens' ancient - and more contemporary - human rights. But for so long as such a government lasts, the citizenry remains at risk of an unthinking application of what is effectively expanded or rewritten parliamentary sovereignty. It is the citizens' right after all to indicate the framework within which its Parliament might make laws - regardless of the stripe of the party in government. That is truly giving effect to parliamentary democracy and it is timely for Queenslanders to engage in a discussion about a bill of rights.
Do you agree?