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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-02 Daily Xml
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BILL OF RIGHTS

The Hon. I.K. HUNTER (15:50): I rise today to call for the introduction of a bill of rights. In 2006, the Victorian parliament passed its Charter of Human Rights and Responsibilities, which was designed to ensure that all legislation passed in the future would have to adhere to a set of principles—principles thus far not enshrined in any Australian constitution.

Human rights encompass values held in common by all of us: equality of opportunity; a fair go in life and at work; and freedom from unfair and unnecessary persecution. A bill of rights, had it existed in Australian law 10 years ago, may have prevented some of the more draconian anti-terrorism legislation drawn up by the Howard government. It may have seen our processing of asylum seekers and refugees conducted in a more humane fashion, and it may have prevented the worst aspects of WorkChoices.

We have seen many attempts over time to introduce such changes, both in statute and to the Constitution. The Curtin government, in 1944, was unsuccessful in its attempt to enshrine freedom of speech and expression in the Constitution. In 1973, the Whitlam government sought to implement the International Covenant on Civil and Political Rights in the Australian Human Rights Bill. The conservative Senate, of course, blocked it. In the 1980s, Labor introduced similar bills, only to see them fail again in the senate.

I should say that the Australian Democrats, to their credit, have been pretty consistent in their support for a legally enforceable regime of individual rights, as have the Greens. I welcome their embrace of these historically Labor issues.

I believe that it is time that we looked again at the human rights legislation, preferably at a federal level and preferably with a view to enshrining it constitutionally, but also at a state level as an interim step.

We live in a country where many of us take our basic freedoms for granted. Indeed, thanks to American television, it may be the case that many Australians already believe us to have constitutionally guaranteed rights, but this is simply not the case. The Constitution's guarantees are simply not adequate.

It is true that there are some rights enshrined quite clearly—the right to freedom of religion, at the federal level, and the qualified right to a trial by jury are two often cited examples. It is also true that some activist High Court judges have sought to extrapolate implied rights from the bare bones of the Constitution. Most of the freedoms we take for granted, however, are simply not explicitly guaranteed.

Were we to find ourselves in the situation where a government controlled both the House of Representatives and the Senate, coupled with a conservative High Court given to strict legalistic interpretations of the Constitution, such a government could trample unhindered over any number of human rights. Indeed, within the confines of the Constitution, such a government could do pretty much whatever it wanted.

This may seem an unlikely scenario, and I do not want, for one second, to impugn the professionalism of the High Court. It is, however, technically possible, and can only be comprehensively avoided by the establishment of a bill of rights. Ideally, this should be a constitutional change, achieved through the amendment provisions of the existing Constitution, but statutory bills, such as the Victorian charter, are a welcome start and guide the framing of state legislation and the decisions of state judiciaries.

As a political moderate, I see perfect sense in working first towards a statutory bill of rights, even if they are only stated-based, such as the Victorian legislation, before seeking to enshrine such changes in the Constitution.

A bill rights of rights assists legislators like us in passing legislation which complements the values of our community. Should such a bill exist, all legislation would have to be held up to it and judged and be held accountable on the basis of the legislation's adherence to the principles contained therein before becoming law.

A bill of rights would protect my rights and your rights. It would protect our rights to free speech and expression, free association and freedom of (and from) religious worship. It would prevent arbitrary law-making by governments of any stripe. It would also protect the individual rights of minority groups who may never make their voices heard above the majority.

Obviously these freedoms would need to be qualified in some cases, and any constitutional change would need to be very carefully considered, but I believe that this is an idea whose time has come. The spirit of cooperative federalism in this country at the moment means that the conditions are right to bring human rights legislation in Australia into the 21st century.

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