In his submission to the Australian Senate on its 2008 debate on a proposed Bill of Rights, Professor James Allen contends that a bill of rights would be a terrible idea as it would take away power from the legislators in parliament and give it to the judiciary.

Allen’s first argument is that rights are an abstract concept; they are ‘vague’, ‘amorphous’  and ‘emotively appealing’. [1] But what are these rights that Allen refers to? The recommendations of the National Human Rights Consulting Committee state that they are:

  1. To respect the rights of others;
  2. to support parliamentary democracy and the rule of law
  3. to uphold and obey the laws of Australia
  4. to serve on a jury when required
  5. to vote and to ensure to the best of our ability that our vote is informed
  6. to show respect for diversity and the equal worth, dignity and freedom of others
  7. to promote peaceful means for the resolution of conflict and just outcomes
  8. to acknowledge and respect the special place of our Indigenous people and acknowledge the need to redress their disadvantage
  9. to promote and protect the rights of the vulnerable
  10. to play an active role in monitoring the extent to which governments are protecting the rights of the most vulnerable
  11. to ensure that we are attentive to the needs of our fellow human beings and contribute according to our means.[2]

These recommendations seem to be more about civic responsibilities than individual rights. They pertain to maintaining a cohesive, equitable and peaceful social order in which one would assume that most human beings would wish to live in order to maximise their own and their loved ones’ safety, survival and ability to thrive . However Recommendation 13 does state that the following are included into the definition of the Australian Human Rights Commission Act 1986 (Cth):

–         the International Covenant on Civil and Political Rights

–         the International Covenant on Economic, Social and Cultural Rights

–         the Convention on the Elimination of All Forms of Racial Discrimination

–         the Convention on the Elimination of All Forms of Discrimination against Women

–         the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment

–         the Convention on the Rights of the Child

–         the Convention on the Rights of Persons with Disabilities

–         the Declaration on the Rights of Indigenous Peoples.[3]

These are international conventions and declarations that Australia has signed and ratified at the United Nations, meaning that we believed them to be necessary for the peaceful coexistence of all nations and individuals.

Being a part of the international community brings its benefits and its responsibilities. When Australia’s sovereignty is threatened, we expect that the international community will uphold our national rights under the cover of the United Nations. Also, we expect to be given a voice at the international table. As a nation we want these rights to be upheld for us through the security of international cooperation. Therefore, Australia cannot cherrypick its way through its rights and obligations. Like the individuals that make up the nation, it must uphold the laws and universal structure that it has ratified and to which it has agreed through being a participant and through which it benefits.

However, Allen might argue that such international obligations override our sovereignty and allow the Australian judicial system to override the will of the people. Alan argues that leaving the judicial system in charge of overseeing the enforcement of such obligations and rights would deplete our democratic system stating that it would ‘diminish politics and (over time)… politicize the judiciary’[4]. Most importantly, for Allen, it is the ‘reading down provision’ within legislation that will allegedly give judges the ability to rewrite the law. This concerns Allen greatly as he considers that judges are simply ‘ex-lawyers’ who are left  to ‘decide what aspects of other statutes are or are not consistent with the vague, amorphous rights provisions’[5]. But is this a valid concern? Is it judges who breach or wilfully dismiss legislation, or the legislators themselves? Which group is more of a threat to democracy in these times of terrorism and war?

If we take Allen’s contention and the example that he has given, has Bill of Rights legislation in other countries like the United Kingdom, Canada and New Zealand contributed to a downgrading of democratic oversight or has it actually contributed to ensuring that citizens and others were protected from onerous legislation brought into being post 9/11? Allen does not gove any outrageous examples of human rights legislation being a threat to our democratic system. On the contrary, human rights legislation such as the Racial Discrimination Act has been interpreted by judges very carefully to establish a breach in accordance with the principles of the legislation. I will use the example of the Racial Discrimination Act 1975 (Cth) to show how the judiciary are far more careful about principles of legisaltion than are legislators.

Australia has obligations to implement protections against racial hatred under theInternational Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Sections 18C and 18D were introduced in response to recommendations of major inquiries including the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. These inquiries found that racial hatred and vilification can cause emotional and psychological harm to their targets, and reinforce other forms of discrimination and exclusion. They found that seemingly low-level behaviour can soften the environment for more severe acts of harassment, intimidation or violence by impliedly condoning such acts. The courts have consistently interpreted sections 18C and 18D as maintaining a balance between freedom of speech and freedom from racial vilification.

The courts have held that for conduct to be covered by section 18C, the conduct must involve “profound and serious” effects, not “mere slights”. The courts have also found that section 18C is an appropriate measure to implement Australia’s obligations to prohibit racial hatred under the ICCPR and ICERD. While many laws restrict freedom of speech, such as laws applying to defamation, advertising and national security, section 18C fills an important gap in legal protections for those affected by racial hatred and vilification.[6] While this important piece of legislation continues to protect social cohesion in our communities, legislators in the form of political parties influenced by lobbyist thinktanks, such as the Institute of Public Affairs, have actively tried to eliminate such legislation on the basis that it limits freedom of speech. In this respect, it seems that the judiciary are far more able to independently weigh the objectives of such legislation than are lobbied legislators.

Bill of Rights legislation is not designed to limit freedom or democracy, as Allen asserts, but to ensure its survival. Such rights do not require a group of people ‘who think their moral antennae are better than everyone else’s, who are sure they’re right’ or to rely on judges having greater moral and political perspicacity than do the elected representatives of the people. Such legislation requires legislators to ratify and enact international and universal legislation that they believe is required for their nation to be a part of the family of nations, and to put that legislation before both houses of parliament. It is not forced upon the people but openly enacted by the elected representatives of the people themselves after a process of consultation. The judiciary enforce the legislation, and yet Allen thinks this is where the problem lies.

However, if the judicial system is relied upon to ensure the people uphold their responsibilities on pain of incarceration if they do not, and that system is a functioning independent system, then why would we think that the judicial system could not enforce the rights that people have. These rights hold the legislature and the judiciary to account. They form an oversight so that special interests cannot undermine the democratic system itself.

Human rights are universal. They are found particularly in the Universal Declaration of Human Rights 1948. To dismiss them outright as undermining the people is to ignore their function as a guide for states’  behaviour towards their citizens and the people of other nations. Therefore, Professor Allen is quite wrong in ridiculing human rights or their advocates. We rely upon the judiciary to enforce our responsibilities, so we should also rely upon them to enforce our rights.