For A Bill of Rights

Most of you would remember a television show called Hypothetical, hosted by lawyer Geoffrey Robertson, in which public figures were forced to pursue their convictions and ideologies to their logical conclusions often to their acute discomfort. In some ways, 2005 has resembled a year-long Hypothetical, without ad breaks, and without the luxury of knowing it is all in the name of entertainment.

Jon Stanhope

Perhaps most ghastly has been the instalment played out over the past month or so, in the form of the doomed campaign to save the life of Van Nguyen. There may never have been a great prospect of saving this man’s life, but our attempt, as a country, would have had more credibility if it had had consistency.

As it was, those at the head of the solemn procession of petitioners for Van Nguyen’s life were on the public record exhibiting at best ambivalence and at worst tacit approval of the death penalty. They included our Prime Minister and our Foreign Minister. And one is left with the uncomfortable suspicion that the whole excruciating episode will be replayed before too long, if any or all of the Bali Nine are convicted and sentenced to death.

In other episodes of the 2005 season of Hypothetical, we have seen the same solemnity, the same grave faces, masking the same lack of rigour, being brought to bear on the new anti-terrorism laws. We have heard bald assertions that our rights and liberties must be suspended or diluted in return for an assurance of greater physical security. We are told that the terrorists want to dismantle our freedoms, then we have set about doing their job for them.

I cannot say with certainty that if Australia had a national Bill of Rights anything would have turned out differently for Van Nguyen. Singapore may still have been disinclined to save the life of an Australian drug trafficker. But perhaps just perhaps our leaders might have thought twice before making throwaway remarks about the appropriateness of the death penalty in relation to the Saddam Husseins, Amrozis and Osama bin Ladens of the world.

Thanks to Leahy

Perhaps, with the aid of a domestic charter of fundamental rights, they might have, instead, offered the view that Australia’s official position was that capital punishment was never appropriate, at any time, for any crime, for any criminal.

Perhaps, had such a Bill of Rights existed, more care would have been exercised in the drafting of the Anti-Terrorism Bill. Perhaps, instead of stubbornly insisting, in the face of overwhelming evidence to the contrary, that its Bill was human-rights compliant, the Federal Attorney-General would have been able to proudly hold aloft a certificate attesting to that compliance, or at the very least been forced to justify and account for the breaches he planned to inflict.

ACT Human Rights Act
I cannot say precisely how this year of tests would have played itself out, had there been a national Bill of Rights. What I can say is that having a Bill of Rights here in the ACT in the form of the Human Rights Act of 2004 has compelled my own Government to confront this year of not-so hypothetical challenges in a manner unlike that of the rest of the country.

New Matilda’s campaign for a national Bill of Rights is timely. One of the unexpected consequences of the moral dilemmas we have all faced in recent times has been that the notion of a national Bill of Rights has greater momentum now than it has had for many decades.

Now, perhaps more than at any time since the nations of the world came together to codify basic human rights in the wake of global war, we must remind ourselves that human rights are not luxuries, to be indulged in during the good times. Nor should human rights be things conferred on those who abide by our laws. They belong to those who offend against our standards too.

That is why, here in the ACT, where we are building the Territory’s first ever jail, we are constructing it on the bedrock of human rights. These foundations will affect the way it looks, the way it runs, the interactions between inmates and staff, the opportunities for rehabilitation we offer prisoners, and the dignity we will permit them to retain, even at a time when we are depriving them of their liberty.

It is also why the complementary anti-terrorism legislation the ACT proposes to introduce into the Legislative Assembly later this month will comply with the ACT Human Rights Act. I intend to show that it is possible to have tough security laws that respect human rights. And I intend to expose our draft to the fullest possible consultation before its passage.

Same-Sex Civil Unions
One of the most compelling aspects of Geoffrey Robertson’s Hypothetical was the way in which he forced individuals to apply their generalised ideological positions to extreme situations the way he led people towards the logical conclusions of their dearly held beliefs. Those who champion human rights, and who are apt, sometimes, to see themselves as occupying the moral high ground as a consequence, can find this journey as confronting as anyone else.

I’ll give you a local example.

In its first term, my Government worked its way comprehensively through existing ACT legislation, eliminating the remaining vestiges of discrimination against gays, lesbians, transgender and inter-sex Canberrans. By the time we went to last October’s election there was just one remaining area to be addressed formal recognition of same-sex relationships.

Last week, I announced that the ACT Government would legislate early next year for civil unions, giving same-sex couples an opportunity, for the first time, to be put on a legal par with married couples. While I don’t regard this development as a direct consequence of having a Human Rights Act, I do see it as a logical progression for a Government that has worked hard to inculcate a human-rights consciousness into its deliberations.

Last week’s announcement was the decision to which Geoffrey Robertson might have led me in the final five minutes of my episode of Hypothetical. And he wouldn’t have been asking me ‘why?’ He would have been asking ‘why not?’

I don’t expect the decision to legislate for civil union will meet with universal acclaim, even among those who generally champion human rights. Each of us is prey to inconsistency at times. Each of us holds to belief systems that are an amalgam of upbringing, faith, conviction, gut feeling and habit. There’s plenty of room in that mix for intellectual gymnastics and personal credos.

But I believe that a Bill of Rights does help us avoid inconsistency, individually and collectively. It does this by pulling us back again and again to a form of words, asking us to explain our behaviour in the reflected light of those words, to measure our intentions against the standard established by those words.

Because they have essentially been co-opted from the International Covenant on Civil and Political Rights, the words in the ACT Human Rights Act have meanings that have been painstakingly determined over decades of international jurisprudence. We know what they mean and how far they go. We have not needed to reinvent the wheel. We have had the luxury of following the tracks left by earlier wheels.

Constitutional Protections?
The Federal Go
vernment maintains that we don’t need a national Bill of Rights. It even goes so far as to suggest that we already have one an amalgam of the Constitution, the common law and the various pieces of legislation that proscribe discriminatory behaviour.

Yes, the Constitution contains a few overt rights and a few more implied ones. And yes, both the common law and legislation offer certain protections, though they are generally couched in negative terms prohibiting people from acting in particular ways, rather than starting with an intrinsic right itself and arriving at the prohibition as a breach of that right.

But how robust are these protections?

What good have they done David Hicks, now enduring his fourth year of detention without trial in Guantánamo Bay?

And what did the Federal Government do the instant it realised that the Constitution would probably prevent it from legislating for Preventative Detention for 14 days, as it desired? Did it rethink its plan? Did it bow to the superior wisdom of the drafters of the Constitution? No, it just passed the buck to the States and Territories and asked them to legislate on its behalf. So much for constitutional protections.

When confronted with the inconvenience of a constitutional human right, the Government simply manoeuvred around it. I believe it would have been much harder to manoeuvre around a tailor-made Human Rights Act. It would have been much harder to get away, as the Federal Government seems to have done in relation to the Anti-Terrorism Bill, with a bald, unproven assertion that it believes the Bill complies with its international human-rights obligations.

If we had had a Bill of Rights there might have been some obligation, if the Attorney-General intended to derogate from the rights enshrined, for him to do so openly and deliberately, taking the people into his confidence and explaining the extraordinary circumstances that made it necessary.

As things stand, the Federal Government has needed to do none of this. Hence, it has done none of this. In fact, it has simultaneously proclaimed that its laws do comply with its human-rights obligations, and argues that suspension of those rights is only to be reasonably expected in these dangerous times.

Well, which is it? Are our obligations being met, or aren’t they?

Are we surrendering rights, or aren’t we?

And measured against what standard?

The ambiguity suits the Government very well. It has an answer for everyone “ for those who want adherence to human rights and for those so infected by fear that they will trade just about anything in their possession if they think it will eliminate the danger of a bomb under their bus seat.

It would be churlish of me to deny that the terrorism laws now before the Australian Parliament are a vast improvement on the draft that was first presented to the Premiers and Chief Ministers back in October.

They are much more palatable laws than they were. But they are imperfect still, and the process by which they were developed was far from ideal. If the Government had had its way, the development would have been done out of sight and out of mind. Anyone who harbours any doubt on that score ought to recall the jaw-dropping hypocrisy of the Government, explaining that it felt justified in ramming the laws through Federal Parliament with only the most cursory and derisory nod to public consultation because the nation had already had its say, thanks to the actions of the ACT Government in posting an early draft on the internet.

A great leap forward for digital democracy. A sad day for parliamentary democracy.

The UK Experience
I have already suggested what difference a Bill of Rights might have made in practical, procedural terms, to the drafting of such laws. It might also have made a tangible difference in technical terms. Let’s take a quick look at the experience of another western democracy the United Kingdom, which recently incorporated the European Convention on Human Rights into its domestic law to see what difference an Australian Bill of Rights might have made to the detail of the Anti-Terrorism Bill.

Proponents of the anti-terrorism laws have been quick to trumpet the fact that some provisions of Australia’s new laws are similar to provisions in force in the UK. Yes, they are, but there is one important respect in which our laws can never replicate those of the UK. The UK has a Bill of Rights, and individuals have recourse not only to that Act but ultimately to the European Court.

Australia’s provisions resemble those of Britain’s in the sense that a Clydesdale resembles a Shetland Pony. Under the draft that was being championed and dogmatically defended by the Federal Government right up until last week, a person subject to a Preventative Detention Order had no right to private contact with their lawyer. In the comparable UK regime, monitoring is the exception, not the rule.

Under the Australian law, a detained person was allowed to tell their family only that they were ‘safe’, not where they were, or what had happened to them. Under the UK laws, a detainee had the right to inform a named person of the fact and place of their detention.

Disclosure of a detention order was an offence under the Australian Bill. Such provisions do not exist in the UK regime.

Every piece of expert advice I commissioned in relation to this Bill raised serious concerns in relation to the observance of human rights. Some of those concerns persist today.

What Are We Surrendering?
As commentators as eminent as HREOC President John von Doussa and Professor Hilary Charlesworth point out, what we are contemplating, as a society, is a situation in which we will accord greater safeguards and protections to those who have actually been charged with an offence than we do to those we merely suspect of involvement.

Nowhere in this Bill, even today, is there an explicit reference to the need to interpret its provisions consistently with our international human-rights obligations. It goes without saying that there is no reference to compatibility with domestic human rights.

Let’s assume for a moment that these laws in fact breach human rights. The Federal Government would still argue that this sacrifice was justified in such times as these.

After all, even our good friends the Americans are debating whether torture might not be a legitimate weapon in the War on Terror. They are not talking about interrogation techniques that might lead to organ failure and death. What they have in mind goes by the euphemism ‘torture lite.’ Fifty per cent less scarring than regular torture, perhaps? What’s the surrender of a bit of free speech or liberty, in comparison with the prospect of torture lite?

In fact, lower-order surrenders are critical. They are the first dents in our armour. They are the start of a process that, if we are not careful, will prove unstoppable.

United Nations Secretary-General Kofi Annan once said that to compromise on human rights was to hand terrorists a victory they would be incapable of achieving on their own.

Torture hands them that victory. The death penalty hands them that victory. Any act that degrades us, any law that encourages us to so degrade ourselves, cements the victory of our enemies, in absentia.

A national Bill of Rights is no guarantee that we will be able to always hold the line. But I do believe that, designed properly, it will make it harder to cross the line.

I congratulate New Matilda for instigating this new campaign for a Bill of Rights. I hope you will profit from our experiences here in the ACT and wish you all the fortune in the world as you pursue a national charter of the basic rights of all who have made this land their home.

‘Life is many days. This will end,’ James Joyce wrote in Ulysses.

I am confident that these times will end. I am not so confident that we will greet the new times with
our rights and liberties intact. I thank New Matilda for attempting to see that we do.

This is an edited version of the speech given by Jon Stanhope at the ACT Launch of New Matilda’s Human Rights Act for Australia Campaign in Canberra on Monday, 5 December 2005.