An opportunity for a Bill of Rights

One of the striking outcomes of the equal marriage survey is that a lot of people who had always assumed themselves to be part of (in Spiro Agnew’s phrase) the “silent majority” have been presented with undeniable evidence that they are actually in the minority. Not only that, but the minority to which they belong on equal marriage would be even smaller if it weren’t boosted by lots of people they’ve always thought of as undesirable minorities. Most notably, the No vote was swelled by Muslims and recent migrants from more traditional cultures.

Against that background, it’s not surprising to see people who have never had a good word to say about the United Nations, or about a Bill of Rights, embracing the idea of incorporating the International Covenant on Civil and Political Rights into Australian law (we’re already a signatory, but that has no legal effect).

It would be absurd to incorporate a document dealing with topics as diverse as the death penalty and war propaganda (both prohibited) into the Marriage Act. Nevertheless, now that the issue has been raised, it’s a great opportunity for Australia to get something like a Bill of Rights enshrined into law (though of course it wouldn’t change the Constitution).

It’s tempting to use the thumping majority recorded in the survey as a stick with which to beat those (variously described as “dinosaurs” or “reactionaries”) who campaigned against equal rights on this occasion. But all majorities are temporary. It would be far better to use this moment to make common cause in support of protections for minorities of all kinds.

A couple more points

As occasional commenter Fran B points out on Twitter, there’s no risk of the ICCPR becoming a backdoor way of implementing Brandis’ “right to be a bigot”. Section 18(3) reads

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

and this clearly includes the protections of our current anti-discrimination law, not to mention Article 26 of the ICCPR which prohibits all kinds of discrimination.

Another appealing feature of this approach is that it doesn’t leave room for lots of quibbling about what rights to protect: we can’t amend the ICCPR, so the appropriate approach is to legislate it as a binding set of principles, then use subsequent legislation to interpret.

So, let’s get equal marriage done straight away, then turn to the broader question of protecting civil and political rights for everyone.

30 thoughts on “An opportunity for a Bill of Rights

  1. Australia is a “small-l” liberal country as the AFR pointed out this morning. I think the surprise at seeing this is due to the fact that, as a nation, we are overly self-critical. To listen to some on the left we are racist reactionary homophobes. And on the right, too, our economy has for 30 years always been on the verge of falling off a cliff. I am unsure what drives the pessimism but partly it is a media creation designed to sell drama not news. Partly too it is the cultural cringe.

  2. Frank Brennan has also been arguing for a Federal Bill of Rights – like the Charter of Rights in Victoria and the ACT.
    He also points out in the article below that the church already has a lot of exemptions from anti-discrimination legislation with regard to many things.
    https://johnmenadue.com/frank-brennan-same-sex-marriage-and-freedom-of-religion-2/

    But he points out ‘The UN Human Rights Committee in Geneva has just published its concluding observations on its periodic review of Australia’s human rights performance. This committee, … has expressed its concern ‘about the lack of direct protection against discrimination on the basis of religion at the federal level, though it notes that a parliamentary inquiry on the status of the human right to freedom of religion or belief is underway’. That parliamentary inquiry is being conducted by the Joint Standing Committee on Foreign Affairs, Defence and Trade’

    So while there is a lot of ad hoc protection for established religions in various laws,(some of which should be revised), there is no principle in law which protects freedom of religion. Nor a protection in law for a lot of other principles like freedom of speech.

    It is the right who have always opposed a Bill of Rights, and now they want freedom of religion rights stuck into the Marriage Act. Talk about hypocrisy.

    John sums it up perfectly with his concluding sentence ‘So, let’s get equal marriage done straight away, then turn to the broader question of protecting civil and political rights for everyone.’

  3. It must be an anomaly for Australia to have a written constitution without a bill of rights. The state-of-the-art constitution of the Netherlands, thoroughly revised in 1983, has one: and it’s otherwise minimalist and institutional, without SFIK any other policy commitments.

  4. S116 only governs the Commonwealth – States by and large do not have any S116 limits apart from Tasmania.

  5. When two such luminaries as John Quiggin and Frank Brennan are in agreement … My concern about the need for a Bill of rights is been driven by the High Court’ unwillingness to call any limits on laws passed by Parliament on asylum seekers that have been strongly intrusive of human rights – including a de facto indefinite detention.

  6. John Goss :</strongSo while there is a lot of ad hoc protection for established religions in various laws,(some of which should be revised), there is no principle in law which protects freedom of religion.

    Behind it all is not the Crown protector of the faith?

  7. @Svante
    THE Faith being the Church of England, so the catholics, now the biggest denomination in Australia, might not like this one. The power of the Crown effectively rest in the hands of the GG, ‘rests’ being the operative word here. By long standing precedent and convention this power is dormant until there is a constitutional crisis and then the only role accepted is to dissolve parliament and call an election. Everything else is rubber stamping.

  8. Douglas Hynd :
    S116 only governs the Commonwealth – States by and large do not have any S116 limits apart from Tasmania.

    But treaties override state constitutions, so…

  9. The argument against a prescriptive code is that future generations could be lumbered with the anxieties of their ancestors

    ref. US Bill of Rights Amendment 2: Right to bear arms

    I would favour a Bill of Rights that was mindful of other rights i.e. one freedom should not impinge on another freedom.

    I think that is what John is describing and I think it would have broad based appeal.

  10. @hc Marketers and media have hooked into this a long time ago, as a species we are inherently anxious and seek relief. Anger is the easiest outlet.

  11. @rog and sex – sex sells!

    I sail and row a fair bit, hopefully not at the same time, and the activity sure blows the mental cobwebs away. It’s both demanding and rewarding in many ways. I’m sure that deprived of constructive physical and mental outlets we humans implode.

  12. @Cameron Pidgeon

    “The power of the Crown effectively rest in the hands of the GG”

    The power of the Crown rests on the monarch, it is the monarch’s, all things refer and defer to the monarch wearing the hat. The GG merely advises the Crown – we’re still waiting for Queeny ER2 to release the pile of correspondence with Kerr concerning her dismissal of Whitlam.

    It may be that, per JQ’s wiki link, “In Australia, the monarch held the title “Defender of the Faith” until 1973, when it was formally removed. (The words “by the Grace of God” was retained, however)”. Yet Queeny is the Crown, our Crown, is head of a religion here, is head of some indeterminate seven or more sovereign states and some territories here, and effectively like the holy trinity, ridiculous as it is, is all those things in one at the same time separate and indivisible. There is no separation of church and state in that lot, they all fit under the one hat, the Crown, and, regarding S116, the 1981 Australian High Court “constitutional coup” in the State Aid or Defence of Government Schools case also formalised the situation finding that there is no separation of church and state in Australia.

  13. Wikipedia is interesting on section 116.
    ‘Section 116 has been interpreted narrowly by the High Court of Australia: while the definition of “religion” adopted by the court is broad and flexible, the scope of the protection of religions is circumscribed. The result of the court’s approach has been that no court has ever ruled a law to be in contravention of Section 116’
    Also it mentions the attempts in 2 referendums to achieve more effective freedom of religion.

    ‘A similar proposal to amend Section 116 was put to the Australian people in a referendum in 1988. The referendum contained four questions, the last of which sought to amend Section 116 and other constitutional “rights and freedoms”. Again, the proposal was initiated by a Labor government (under Bob Hawke); again, the proposal was opposed by the Coalition;[50] and again, multiple controversial proposals were bound into one question, being “to alter the Constitution to extend the right to trial by jury, to extend freedom of religion, and to ensure fair terms for persons whose property is acquired by any government.” The proposal in respect of Section 116 was to extend its operation to the states,[51] and expand the protection to cover any government act (not just legislation) that established a religion or prohibited its free exercise.[42] Some church officials objected to the proposal, fearing that funding of religious schools by the states could become unlawful.[52][53] The question failed to pass, being opposed by a majority of voters in each of the states.[50][54] The 70 to 30 per cent nationwide vote against the proposal was the largest margin by which a proposal to amend the Constitution had ever been defeated at a referendum.[55] Williams attributes the failure of the proposal mainly to the absence of bipartisan support for it, highlighting the “determined and effective” opposition of senior Coalition politician Peter Reith.[50] ‘
    Again positive change is sabotaged by the conservatives- in this case a particularly slimy one.

  14. The High Court has almost invariably given the narrowest possible reading to the very limited set of freedoms contained in our Constitution. Given that, and the difficulties of passing a referendum, it seems to be that a legislated Bill of Rights is the way to go.

  15. @John Quiggin

    In 1992 the High Court gave us the trifecta of the implied freedom of political communication in Theophanous, the right to a fair trial in Dietrich and of course Mabo.

    But that High Court was aberrant, and you wouldn’t expect anything like that from the black letter lawyers who currently have their backsides firmly planted on the bench.

  16. I’ve been thinking that there is a lot of hypocrisy being displayed by those on the “right” about having religious freedoms put into legislation whilst strenuously opposing a Bill of Rights and was wondering where to raise the issue and whether this would be the correct forum. Now, lo and behold, JQ has done so. I agree lets get this done ASAP. I suppose it would be a bit of an ask to have it introduced whilst the governments numbers are down in the House?

  17. @John Gardner

    I wouldn’t count on it. The Labor Party does not support a bill of rights.

    And, apart from the fact that rights conferred by Parliament are an oxymoron, because they can be taken away by a future Parliament, it is not obvious that the horse-trading on what rights should be protected would lead to a good outcome. You’d have Leyonhjelm pushing for the right to bear arms; Hanson would push for who knows what (but you can be sure it would be bad); and so on. There’s no reason at all to think that a bill of rights would simply protect the rights of minorities against discrimination.

  18. I see the rights discussion at the moment being entirely negative rights. The right to discriminate, the right to refuse service, the right to publicly hate others. Quite why Christians would be so emphatic that anyone should be able to fire them for being Christian I’m not sure, but there you are. Confident that would never happen or just foolish?

    I can’t help wondering how far they want to take this “right to do what my religion demands”… the right to stone adulterers? And biblical marriage is a really scary thing, so I can’t help wondering whether the people asking for it have any idea what the bible actually says. “for life” is just the start, “one person” would also shake things up – do they only get one vote? There’s also no apparent awareness of other religions, even the obvious ones – Islamic animal sacrifice for example, or Jewish sabbath rules, let alone weird stuff like Rastafarian cannabis use (religious obligations override secular laws, remember).

    I think a bill of rights that came from this would fail, probably quickly but definitely at the referendum required to embed it in the constitution..

  19. Smith :
    @John Gardner
    I wouldn’t count on it. The Labor Party does not support a bill of rights.
    And, apart from the fact that rights conferred by Parliament are an oxymoron, because they can be taken away by a future Parliament, it is not obvious that the horse-trading on what rights should be protected would lead to a good outcome. You’d have Leyonhjelm pushing for the right to bear arms; Hanson would push for who knows what (but you can be sure it would be bad); and so on. There’s no reason at all to think that a bill of rights would simply protect the rights of minorities against discrimination.

    It’s true that Parliamentary legislation to establish rights can be reversed by later legislation, but it’s equally true that a Constitutional amendment to establish rights can be reversed by a later Constitutional amendment. If you think that the establishment of rights only counts if it’s irreversible, I don’t know what irreversible mechanism you’re thinking of.

    And if the course taken is the one recommended by John Quiggin of simply incorporating the provisions of the ICCPR (to which Australia is already a State Party, theoretically already bound by the provisions under international law), horse-trading doesn’t come into it.

  20. John Quiggin :
    @Smith
    Yes, that was an impressive set of outcomes, but it turned out to be a flash in the pan.

    see Frank Hardy re “criminal libel”

    whether he was commie or not,the law was dealt to.

    flash in the pan instances by individuals have popped up often enough throughout the history of the country to be,over it’s lifetime, almost normal.

  21. The Four Corners program seemed to illustrate how offensive Murphy was to the status quo and how hard he pushed against it. Amazing man, how he legislated change that we can argue over but not be subject to.

  22. Yet Murphy came from a ‘take no prisoners’ ‘look after your mates’ partisan political culture (Sussex Street) and a terrifyingly corrupt court system (NSW in the 1960s and 1970s), and proved unable to leave all that behind when he went to the bench. It was not at all just “offensiveness to the status quo” which led principled if conservative fellow judges (including Labor appointees, BTW) to refuse to sit with him. That ABC doco was disgracefully unbalanced and far too flattering.

    Which I suppose just shows that bad people can do good things, just as good people can do bad things.

  23. @Smith
    “The Labor Party does not support a bill of rights. ”

    Labor has introduced statutory Bills/Charters of Rights in ACT and Victoria, and canvassed the idea in Queensland.

    As I understand it the (limited but significant) protection against subsequent Parliaments overriding the Act is that they must declare they are doing so, otherwise legislation that violates the Act will be invalidated by it. The same is true, IIRC of the Racial Discrimination Act, which Howard did over-ride in relation to native title.

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