A bill of rights is now tantalisingly close.
Australia is the only western liberal democracy without a mandated charter of human rights. It’s now closer than at any time in 40 years.
There are certain basic rights that are essential in any liberal democracy. Without those, a country is neither liberal nor a democracy.
But in Australia, those rights rest on a legal and constitutional foundation that is unclear, tentative and potentially ambiguous. Other countries have legally enforceable charters – the US Bill of Rights (1789), the European Convention on Human Rights (1953), the Canadian Charter of Rights and Freedoms (1982), the New Zealand Bill of Rights Act (1990), the Human Rights Act in Britain (1998).
Our liberal democracy – and certainly the “liberal” part of it – depends on a set of legal precedents, international documents and assumptions, few of which are effectively binding. And above all, it depends on unwritten conventions.
That could be about to change. A joint parliamentary committee has released a draft bill for a Human Rights Act that would allow Australia to become, finally, a full member of the club of western democracies.
Australia’s constitution guarantees only five rights: the right to vote, protection against acquisition of property on unjust terms, trial by jury, freedom of religion and prohibition of discrimination on the basis of state of residency.
In case law, the High Court has ruled that there is an implied freedom of political communication but its actual meaning, and its limitations, remain uncertain and disputed.
And that’s about it. So what’s missing?
- Habeas corpus, the right for a person charged with a crime to be brought promptly into a court. This is a fundamental assurance against arbitrary imprisonment.
- Free speech, including the limitations on freedom of speech.
- The right to peaceably assemble.
- The right to form organisations, including trade unions.
- The right to privacy and reputation.
- Right of access essential services such as shelter, healthcare, education and personal safety.
And so on. None of this is to say that these rights do not exist now. They do, mostly. But because they are hidden in so many layers of law and precedent, they can be – and are – bypassed and ignored by intrusive governments and over-zealous officials.
Australia does a reasonably good job in protecting the rights of its citizens. Despite some serious assaults on those basic freedoms by Peter Dutton as Home Affairs minister under the previous government – such as the attempt to cancel Australian citizenship – we remain high on the global rankings. This one is from Freedom House:
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Particular problems arise with people who are not full citizens. To what extent do we owe civil liberties to those without official citizenship? Are they covered?
The Universal Declaration of Human Rights, a foundational document of the United Nations to which Australia was an original signatory in 1948, is clear. Human rights belong to everyone:
Everyone 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.
The joint parliamentary committee, headed by Labor MP Josh Burns, issued a draft Human Rights Bill as part of its report. It draws heavily on the many earlier attempts to introduce a bill of rights, including the unsuccessful referendum pursued by the Hawke government in 1984.
If it becomes law, it will resolve many of the human rights problems and uncertainties in many fields – criminal law; detention of migrants; education; freedoms of speech, opinion and religious belief; involvement in politics and public life; personal security; and employment.
But it also creates other potential problems, many of which are hard to predict. The practical application of these newly-enshrined principles will need to be defined in the courts – and that is a process which, without heavy-duty financial and legal help, is not open to most individuals. Even so, we can expect a heavier workload on the High and Federal courts.
The bill, if it eventually becomes law, will have immediate and obvious impacts on the way Australian politicians treat non-citizens. It will no longer be as easy to lock someone up.
Australia does a reasonably good job in protecting the rights of its own citizens but a remarkably poor job of dealing fairly with non-citizens. And even citizenship is not protected: Peter Dutton, as Home Affairs minister, was able to cancel the Australian citizenship of people who also had citizenship rights in other countries.
And the current Labor government has legislation before the parliament that would disqualify anyone migrating to Australia from any country that refused to take back people being deported against their will.
Like its predecessors, the draft bill uses the inclusive language of international law, for instance:
29 (1) Every person is equal before the courts and tribunals.
“The landmark feature of this bill is that it’s really clear that it applies to everybody,” the Human Rights Law Centre’s CEO, Caitlin Reiger, told me.
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| Reiger ... 'huge significance' |
“It’s what human rights really are: that they are inherent in everybody and that it is part of the obligations of a government to ensure that is taken into account in all decision-making.
“It includes aged care, whistleblowers, people in immigration systems as well. It’s a huge step forward.”
There are some specific protections that would make it much harder, though not impossible, to expel legal migrants. Right now, any Australian citizen found guilty of a criminal offence involving a year or more in prison, and who has dual citizenship with another country, can be deported to that country at the discretion of the minister.
A ministerial directive that someone’s ties to Australia should be taken into account led to the Administrative Appeals Tribunal to reverse the cancellation of about 30 visa cancellations and deportations. The Immigration Minister, Andrew Giles, promptly re-cancelled them – but that did nothing to avert the attacks from Dutton and the opposition. The directive has now been replaced with something a bit stronger.
The relentless assault on sober reason remains unchanged. This, from the opposition leader:
It is deadly simple, but very dangerous, politics. “The significance of a major political leader playing so divisive a card on our community is a step that shouldn't go unnoticed,” wrote the ABC’s Laura Tingle,” no matter how inured to it we have become over the years in the wake of Pauline Hanson and ‘boat people’ politics.”
Throughout decades of immigration scare-mongering from the Liberals, the Labor Party has had one default approach: surrender to the nastiest, most racist impulses in right-wing populist politics. It now seems too late to change.
“The Commonwealth Government did not want to do this. If I had any legal power to do it, I would keep every one of those people in detention,” she told reporters.
“Some of those people have committed deplorable, disgusting crimes. I am raising three children in this country, and I want a safe Australia. And that is why our government is managing the mandatory impact of this law and doing everything that we can to keep the community safe at the same time.”
Attempting to out-Dutton Dutton will never work. But still they try.
Against this bipartisan malevolence, the draft Human Rights Bill offers some protection for non-citizens alike. It’s worth quoting the whole section:
30 Right not to be expelled without due process
(1) A non-citizen lawfully in Australia may only be expelled from Australia pursuant to a decision reached in accordance with law.
(2) Subject to subsection (3), a non-citizen subject to expulsion has the right:
(a) to submit reasons against the expulsion; and
(b) to have the case reviewed by a competent authority; and
(c) in any such review, to be represented for the purpose of the review.
(3) Subsection (2) does not apply if compelling reasons of national security require otherwise.
But what is national security? Who defines it? What does it include and exclude? Under a Human Right Act, this would be decided by a court, not by the unchallengeable pronouncement of a minister or an official.
The current scare over marauding criminals released from detention is impervious to reason; it might be a little more responsive to a human rights law.
If someone has been in Australia for most of their lives, they are ours. Some of them might be disgraceful and even, very occasionally, dangerous; but they’re our disgracefuls. We, not another country, have the responsibility to deal with them. The courts know this, even if politicians from both major parties don’t.
The case of the innocent doctor
Dr Mohammed Haneef is neither disgraceful or dangerous. He’s not ours either: not any more.
In June 2007, two men drove a Jeep Cherokee loaded with propane canisters through a glass door to the Glasgow Airport terminal. The driver was fatally burnt in the ensuing fire and five members of the public were injured, none seriously.
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| Haneef ... false arrest, illegal detention |
The case against him was that he was the second cousin once removed of the fatally-injured Glasgow driver, that a SIM card previously owned by him was found in the burnt-out Jeep, that he did not have a return ticket from India and that his diary contained incriminating details.
The case fell apart. The one-way ticket was adequately explained; the AFP invented the SIM card story; and evidence purporting to be the diary entries were in fact notes written by AFP officers.
But before the claims could be tested in court, Dr Haneef was kept in solitary confinement for twelve days without charge. It was eleven days before his wife could speak to him by telephone.
His first interrogation lasted for six-and-a-half hours. Judy Spence, police and corrections minister in the Queensland Labor government, said he would be “treated as a terrorist” and kept in solitary confinement with one hour a day for exercise.
“Anyone who is charged under terrorist legislation is obviously seen as a greater threat to the good order of our society than other types of prisoners,” she said.
Dr Haneef’s passport was confiscated and his work visa cancelled by the Immigration Minister, Kevin Andrews.
When the case finally came to court the magistrate granted bail of $10,000; Dr Haneef decided to remain in police custody until the appeal against his visa cancellation was heard. In the context of the public furore against him, initiated by the government and supercharged by the Murdoch media and radio shock-jocks, concern about his personal safety is likely to have influenced this decision.
The case took place in the lead-up to the 2007 federal election, which John Howard’s Liberal government thought they were going to lose. Labor, fearing a wedge, initially supported the government.
Eventually the case was withdrawn, the government was embarrassed, substantial compensation was paid and Dr Haneef left Australia, not to return. The AFP continued to investigate Dr Haneef, without result.
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| Andrews ... ignored law and justice |
If the proposed Human Rights Act had been in place in 2007, Dr Haneef’s situation would not have occurred. The rules of justice – including habeas corpus – would have applied.
“What’s being proposed is a broad base of considerations around everybody’s human rights standards that need to be taken into account by all decision-makers,” said the HRLC’s Caitlin Reiger.
“It wouldn’t override other existing laws per se: it preserves parliamentary sovereignty very clearly. But it would fundamentally change the considerations that have to be taken into account by decision-makers and lawmakers.”
The draft bill seeks to enshrine these rights and freedoms in several places:
26 Right to liberty and security of person
(1) Every person has the right to liberty and security of person.
(2) A person must not be subjected to arbitrary arrest or detention …
(5) A person who is arrested or detained on a criminal charge:
(a) must be promptly brought before a court; and
(b) has the right to be brought to trial without unreasonable delay; and
(c) must be released if paragraph (a) or (b) is not complied with …
(8) A person who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.
If that right had been specific in 2007, Dr Haneef could not have spent 12 days without being charged and without being able to defend himself in court. And the way he was treated in prison would not only have been improper; it would have been illegal:
27 Right to humane treatment when deprived of liberty
(1) Every person deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person …
(2) An accused person who is detained, or a person detained without charge, must:
(b) be treated in a way that is appropriate for a person who has not been convicted.
Nor could the four Nadesalingams – the Tamil Biloela family – have been subject to such extraordinary persecution under the Morrison government. The Human Rights Law Centre’s submission to the parliamentary committee says this case shows that relying on easy-to-ignore international covenants, rather than Australia’s own laws, did not work:
“At multiple stages of this process, the federal government failed to comply with its international obligations to protect human rights, including the right to freedom from arbitrary detention; the right to protection from torture and other cruel, inhuman or degrading treatment; and the rights of the child,” the centre said.
Nor has a change of government made human rights more secure. Releasing the Biloela family from detention was one of the first acts of the newly-elected Albanese government, but it was a one-off display of humanity. It was public relations, not policy.
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| The Nadesalingams ... Labor's law would have gaoled them |
The law, now stalled in parliament, would have compelled people to cooperate with their deportation process or risk between one and five years in prison.
“We might still be in jail, instead of living safely here as a family,” Priya said.
“This shouldn't happen to other people like us. In 2019, when the last government put my family on a plane to Sri Lanka, we were terrified. We did not know what would happen to us in Sri Lanka.”
A Human Rights Act may provide a brake on the autocratic tendencies of any government, including this one, says Cailin Reiger.
“Anybody who feels that their fundamental civil and political or economic rights are being [threatened] would have the right to take that up both with the Human Rights Commission or potentially a court action without having to jump through additional legal hoops that we currently have.
“It’s a pretty fundamental right.”
Codifying a multicultural Australia
The draft bill goes some of the way to protecting multiculturalism as a right in law, and not merely as a government policy. The key section says this:
36 Rights to culture
(1) All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy their culture, to declare and practise their religion and to use their language.
It also specifies that indigenous peoples hold distinct cultural rights, including identity and cultural heritage, spiritual practices, languages and relationship with the land.
Perhaps more controversially, it proposes – in the section on freedom of thought and religion – not only that:
22 Freedom of thought, conscience and religion
(1) Every person has the right to freedom of thought, conscience and religion, which includes:
(a) the freedom to have or to adopt a religion or belief of the person’s choice …
But also that:
(3) A child’s parents have the freedom to ensure the religious and moral education of the child in conformity with the parents’ own convictions.
This excursion into education policy is aimed at affirming de facto rights that already exist. But its impact on schools, that may be required to accommodate moral education that may be at variance with its own values and important community values, needs to be more carefully defined.
This section notes a distinction between the personal right to hold a religious belief, and the right to manifest that belief:
The following limits are recognised under international human rights law as legitimate: those that are necessary to protect public safety; public order; public health or morals; or the fundamental rights and freedoms of others.
The measures affecting multiculturalism are likely to attract criticism from both sides – from the left and from ethnic communities for not going far enough, and from the right (and the Liberal Party) for entrenching a policy they have never embraced.
“Multiculturalism is a concept that I’ve always had trouble with,” John Howard said recently. “I take the view that if people want to emigrate to a country, then they adopt the values and practices of that country … I think one of the problems with multiculturalism is we try too hard to institutionalise differences, rather than celebrate what we have in [common].”
What are its chances?
The parliamentary committee was split along party lines. The five Labor members and two crossbenchers supported the majority report and the draft bill; the three coalition members opposed both, issuing their own minority report explaining that a bill of rights is not required.
“The [Australian Human Rights Commission’s] proposal is a bizarre reimagining of human rights with key rights deleted or distorted, absolute rights not recognised as such, and a deliberate devaluation of internationally recognised protections for the freedoms of thought, conscience, religion and belief … Coalition members consider that a Human Rights Act of this nature would weaken our parliamentary democracy and politicise our judiciary.”
The conservative parties are unlikely ever to support a move toward extending a human rights framework that might restrict their hard-line approach to asylum seekers and other “outsiders”. The antipathy to cultural and ethnic diversity goes back at least as far than the 1980s, when John Howard teamed up with Professor Geoffrey Blainey to attack what they regarded as the “Asianisation” of Australia, and of Howard’s tacit acceptance of Pauline Hanson and her assaults on the rights of Asian and Muslim Australians.
The outcome will rest on the Labor caucus, where there is likely to be some debate. Perhaps the most public opposition to a bill of rights came from the assistant treasurer, Stephen Jones, on Q&A in October 2022.
“I’m sure if we fast-forwarded 200 years and looked at the state of gun ownership in the United States today we wouldn’t think that was the thing we wanted to enshrine in our constitution.”
It’s a decent argument, but it’s an argument against a constitutional amendment, not an act of parliament. The advantage of a constitutional human right charter is that it is almost impossible to change, but that’s also its main disadvantage.
For a parliamentary act, it’s the reverse. It can be changed or repealed altogether by any future government that has the parliamentary votes to do so.
The constitutional approach – a referendum – is unlikely to appeal to a government that lost the Voice vote so heavily and so recently. A referendum in 1988 championed by Gareth Evans, then Attorney-General in the Hawke Labor government, had an even worse result than the Voice. Voters rejected it by 69% to 31%.
There is no chance that the matter will be put to parliament before the next election. The bill needs a lot more work, as the committee freely admits.
Even if the draft was finished and agreed by the caucus, it would be politically naïve to pursue it in public at the moment. Politically, it would provide Dutton and the conservatives with a scare campaign that could distract fatally from the issues Labor wants the electorate to concentrate on. And a scare campaign could kill off the proposal altogether, relegating Australia for the foreseeable future as the only western liberal democracy without specific human rights protections.
But it’s a measure most Labor people would support. After the election, it has a decent chance. Maybe.