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"The Content of an Australian Bill of Rights": DR SEV OZDOWSKI OAM (2002)

Rights Rights and Freedoms

"The Content of an Australian
Bill of Rights"

SPEECH GIVEN BY DR SEV OZDOWSKI
OAM, HUMAN RIGHTS COMMISSIONER
2002 BILL OF RIGHTS CONFERENCE, Friday 21 June 2002

It is a pleasure
to be able to address you today and I would first like to acknowledge
the Gadigal people, the traditional custodians of the land on which we
stand.

Today I will advance
three propositions:

1. that contemporary
Australians take their rights for granted and do not know them well,

2. that civil liberties
are essential if one wants to remain competitive in the global economy,
and

3. the Australian
people need a Charter of Customers Rights to re-establish their trust
in the political process; or as some commentators put it: promote the
development of "social capital."

The Federal Government's
package of "Anti-Terror Bills" and especially the "ASIO
Bill" has certainly focussed the need for close attention to these
issues as never before. As my narrative will explain shortly, unlike many
of you here today, I have no direct understanding of the Petrov Affair
or ASIO surveillance of anti-Vietnam demonstrations in the '70's, nevertheless
my upbringing has imbued me with a healthy scepticism for the Executive's
use of "intelligence services".

Prior to September
11, the issue of an Australian Bill of Rights for me fell into the category
of useful but not essential. Now that the Australian Government is getting
serious about "the war against terrorism", as evidenced by this
legislation, I feel the issue now falls into the category of absolutely
vital. They say that nothing concentrates the mind better than knowing
that one would be hang in the morning; well this is our collective "wake-up-call".

Personal Background

But
before advancing these arguments, allow me to start with a few personal
details so you understand better where I am coming from.

I am an Australian.
I speak with an accent as I was not born here.

I was born in post-war
Poland to a strong Catholic family. My early memories are of ruins, shortages
and Stalinist oppression. I witnessed the Poznan insurrection of 1956.
My early memories are also of stories of an independent, pre-war Poland
and of struggles against Nazi occupation.

My formative years
coincided with the reigns of Nikita Khrushchev, John Kennedy and Pope
John XXIII and his Vatican Congress. There were also echoes of Woodstock
and the Beatles; of Martin Luther King and Fidel Castro; of the first
sputniks with Lajka, Gagarin and others.

This was a time of
battle of ideologies. But this was also a time of hope. Young Poles like
me hoped that the communist system imposed on us would gradually change.
I became involved with forces working for that change.

My reality check
came in 1968. With the brutal suppression of the March 1968 student movement
(in which I participated), the invasion of Czechoslovakia in August 1968
and the collapse of the communist economy - all hope was gone.

The December 1970
shipyards workers' riots, with the consequent enhancement of the police
state in Poland (ironically fuelled by Western financial credits), only
confirmed my feelings that the communist system could not be reformed.

It also appeared
at that time, that the system, despite its totalitarian nature and inefficiencies,
would last forever. So, it was time to go.

In 1973 my wife and
I escaped to West Germany. After two years of waiting we arrived in Sydney.

We chose Australia
because of its fine democratic credentials and successful capitalist economy.
We also looked for a "new" society open to newcomers. Perhaps
the Australian climate was also seen by us as providing an advantage over
the Canadian option!

Ideas brought to Australia

We arrived here with
the proverbial "one suitcase" and a range of beliefs, or what
may sometimes be called biases, resulting from our past experience. These
included:

  • a strong distrust
    of any ideology and fundamentalism;
  • an awareness of
    the limitations of government (especially of its well-intentioned economic
    policies);
  • a healthy dose
    of pragmatism;
  • the belief that
    our freedoms and economic well-being can only flourish in a democratic
    society; and
  • a strong focus
    on individual responsibility and a drive to join the new society.

My experience in
Australia has added two other "biases" to the above list.

One is a strong sense
of egalitarianism. And the other is a belief that our cultural diversity
works to Australia's advantage and that good people come in all colours.

But in recent times
I have come to the view that Australia's democratic safeguards need, shall
I say , "freshening up " if we are to retain a position as one
of the foremost libertarian countries in the developed world.

But what do average
Australians think about their current human rights culture?

Australian human rights culture

The answer to that
question is simply: not very much!!

When I address different
community meetings across Australia I am often being asked basic questions
about our human rights. Some people do not even know that we have a Constitution.
On occasions I am told that human rights are un-democratic and even un-Australian,
because they are imposed on us - in violation of Australian sovereignty
- by the United Nations, which in turn is portrayed as an unaccountable
world government.

Very few Australians
know that our country is usually involved in drafting any UN human rights
instrument; that each convention needs to be signed and ratified; and
that, even then, it has no domestic legal status unless conferred by specific
domestic legislation.

Equality rules supreme

However despite the
lack of detailed knowledge of their human rights, Australians have a very
strong sense of social justice. We have a "fair go" culture.
Australians know what is "fair" and how the national cake should
be divided.

And those egalitarian
aspirations have been enshrined by legislation since Federation.

Economic rights

In fact, Australia's
particular achievement has been the development of a comprehensive system
of protection of economic and social rights. Its foundations were put
in place well before the Bolshevik revolution and long before we ratified
the UN Covenant on Economic, Social and Cultural Rights in 1975.

Economic rights for
adult European males were strongly supported with the introduction of
the conciliation and arbitration system in 1904 and sealed by the "Harvester
Decision" of 1907.

These examples provide
evidence of Australia's historical capacity to box above its weight, especially
in the development of international rights and modelling of world's best
practice. However, it makes the Government's current bashfulness regarding
UN conventions even more anomalous; but more of that later.

Social equality - anti-discrimination
measures

Since
the 1970s, incorporation of international human rights into domestic legislation
has focussed on measures to ensure greater opportunity for social equality.

By now we have federal
statutes prohibiting racial, sex and disability discrimination and recently
the Government has proposed to develop age discrimination legislation.

Australians however
do not have a similar focus on civil and political liberties.

The prevailing wisdom
is that our system of democratically elected governments, with an independent
judiciary and free press are the best protectors of individual rights.

From this emerges
the current theme that we do not need a bill of rights to protect our
civil and political liberties. The recent NSW parliamentary committee
inquiry into the issue went even one step further by asserting that a
bill of rights would positively harm public good.

And there are good
historical reasons for such a culture. The Australian Federation was not
forged in war or revolution and white Australians have no history of struggle
against massive human rights abuses.

Nations established
in violence have been much more likely to entrench those hard won liberties
in their legal system. But that is not the experience of Australia.

The Human Rights
and Equal Opportunity Act also reflects this culture. There is a stark
contrast between remedies available in race, sex and disability discrimination
versus remedies in civil and political rights. The courts can adjudicate
on equality complaints when the Commission's conciliation fails. But no
court can award a remedy to civil and political rights violations under
the Human Rights Act.

To sum up - the Australian
HR culture

To
sum up, the Australian contemporary human rights culture is strong in
terms of protection of equality rights but weak on civil liberties.

Or to use Brian Galligan's
words [Prof. ANU Div. of Politics and Economics]: "The tendency
of Australian democracy was towards equality (except of course for Aboriginals)
rather than individual liberty - levelling down as well as up to standardise
material circumstances."
(An essay titled 'Australia's Political
Culture and Institutional Design').

This reminds me of
a story somebody told me after he visited the Sydney Fish Market. There
was a man selling crabs. He had two baskets with crabs. One basket had
its top open and the second basket was covered by a net over its top.

The man was asked
why this difference. Why is only the second basket covered?

He replied with a
smile: "It's simple. The crabs in the first basket are local. The
other are imports. You see, our local crabs in the first basket pull each
other down, so no-one escapes. The foreign crabs don't pull each other
down. On the contrary, they climb over each other to escape. If I took
the net off, there would be only few of them left for cooking."

Protection of individual liberties
internationally

In fact, our relative
neglect of civil and political liberties puts us at odds with other first
world countries with which we traditionally compare ourselves.

For example, the
legal protection of individual liberties in the USA is much superior because
of its constitutional Bill of Rights. It has been the subject of many
books and films; similarly the European Union, which is a world leader
in protection of human rights.

And there is a clear
trend toward better protection of civil liberties in other first world
countries. Canada adopted its Charter of Rights and Freedoms in
1982 and New Zealand its Bill of Rights in 1990.

Even "mother-England"
adopted a Human Rights Act in 1998, despite the previously held
view that the common law adequately safeguarded human rights.

Impact on Australia of inadequate
protection of civil liberties

The lack of adequate
legislative protection of civil liberties in this country is now bringing
a range of negative consequences to Australia.

To start with it
may result in the erosion of existing civil liberties.

Lack of a statutory
statement means there are no clear benchmarks to follow. It makes both
enforcement through the courts and civic education difficult. It allows
executive power to grow.

The effect of this
was particularly evident in the recent examination by the Senate's Legal
and Constitutional Legislation Committee of the suite of six "anti-terrorism
bills", and in passing let me congratulate that Committee on its
outstanding recommendations as well as those people here today for the
quality of your submissions to that body.

But imagine how
much easier it would have been to gauge the likely effect of those Bills
had there existed a legislative benchmark of "civil liberties"
against which measurement could be made.

Another example:
the rule of law is an important foundation of our society. It means that
disputes are determined under the law by independent judges. It provides
for the supremacy of law over administrative actions. But the legislation
passed by the Parliament in the context of the Tampa crisis abolished
judicial review of many DIMIA decisions under the Migration Act. So some
asylum-seekers are not permitted their day in court.

As you all know the
"privative clause" is now before the Federal Court and in an
exchange between the Chief Justice and the Solicitor-General the proposition
was put from the Bench that the effect of this clause was to make the
provisions of the Migration Act mere "guidelines" and accordingly
incapable of any judicial review; the Solicitor-General replied in the
affirmative, adding that this was the Parliament's clear intention and
respectfully the Bench better get used to it. To paraphrase "I doubt
that even Solomon in all his glory was arrayed with powers such as these!!"

Absence from international
human rights law developments

This neglect of civil
and political liberties from our domestic agenda is made even more surprising
by the fact that there is an increasing trend towards international goal
setting. Put bluntly this means that if we don't involve ourselves in
the process, we could find ourselves disadvantaged by the outcome. A proposition
clearly understood by the current Government as shown by its total engagement
with the "Kyoto" process and successive WTO decisions.

By way of overseas
example, Britain's decision to adopt a Human Rights Act in 1998 was partly
motivated by the desire to allow British judges to have a greater influence
on the case law. It was rightly believed that the adoption of the Human
Rights Act would influence the European Court of Justice in Strasbourg
and, in turn, the European Court would gain a greater understanding of
customs, laws and procedures throughout the United Kingdom.

The simple message
here is that globalisation means: "participate or get left behind".
This also applies to human rights law.

Expect Australian courts to
develop protections

The lack of legislation
defining our civil liberties means our courts are left with developing
common law in this area. For example, the Australian High Court in 1995
in the Teoh case said that public officials must take rights under the
United Nations Conventions ratified by Australia into account where the
convention right is not clearly excluded by domestic law.

But the courts should
not have a determining role in public policy beyond their responsibility
to interpret the laws as laid down by Parliament.

Therefore, it would
be more satisfactory if this process was developed by Australian-own legislation,
drawn from an appropriate mix of UN Conventions and reflecting the Australian
experience.

In time this would
produce a body of Australian human rights jurisprudence which would influence
international thinking on these subjects.

Lack of individual protections
impacts on our economy

One of the key questions
for Australia, however, is whether our lack of focus on individual freedoms
suppresses Australia's competitiveness in a globalised economy? Remember
my crab story.

International evidence

There is an enormous
body of evidence that the importance of the individual in any State must
never be underestimated, especially in economic terms.

For example, few
of us would realise the enormous economic importance of the Magna Carta
of 1215. This restricted the royal power and prohibited kings from levying
taxes without the agreement of Parliament. According to Roger Sandall
(The Culture Cult) "kings could no longer freely wage war and
pay for it later by seizing the wealth of their subjects"
. This
clearly led to accumulation of wealth by individuals and restraining of
state power.

A current example
is the most successful contemporary world economy, the US. It is characterised
by a minimum of State interference. Individual freedoms are encouraged,
giving rise to "can do" capacity, innovation and collective
reward. Protections are provided by the US Constitution with its Bill
of Rights which allows individuals aggressive pursuit of their rights
through legal action.

In the case of my
personal experience, the total inability of the communist state to utilise
individual enterprise, innovation and aspirations was undoubtedly one
of the more significant causes of its failure.

In other words, individual
enterprise and innovation are one of the key factors in the history of
economic development. To put it simply, they tend to flourish in the culture
of freedom.

Focus on Australia

When focussing on
Australia, one could say, that by and large up until the late 1960's,
the equality system referred to earlier in my speech (as compared to individual
rights) worked reasonably well for most white Australians.

But the last 30 years
have produced massive structural changes in the way business, both domestic
and international, operates. Australians find themselves confronting situations
where individuality has assumed far greater importance. Just think about
labour market changes alone. When I joined the public service in 1980
I joined it for life. Wage centralisation was paramount. Nobody works
in the public service for life any more and most are on individual performance
based contracts.

At the same time,
traditional protections have weakened. Trade union membership is declining.

Governments of all
persuasions are vacating traditional roles and pulling back to basic service
provision of health, education and law and order.

It may well be that
Australia is becoming more competitive internationally BUT where are the
individual's rights protected??

This loss of traditional
protection is not well perceived by many Australians who feel threatened
by the changing trends. To them economic rationalism means loss of control
over individual destiny. This partly explains the attraction of Pauline
Hanson - who seemed to articulate the fears of many ordinary Australians,
but failed to provide answers.

Also our political
process no longer provides the kind of protection and assurance that it
once might have.

The dominance of
the major political parties and the rigidity of their discipline undermine
the prospects of individual protection at the parliamentary level. Take
for example the "anti-terrorism bills". It took considerable
courage in the party room for Marise Payne, Bronwyn Bishop, Petro Georgiou,
Bruce Baird and Christopher Pyne, and I base that list from newspaper
reports, to move for extensive amendments to the Bills; but the system
should not depend for its workability on extraordinary acts of political
courage.

The judiciary is
effective BUT limited as Justice Brennan said in Mabo: "in discharging
its duty to declare the common law of Australia, this court is not free
to adopt rules that accord with contemporary notions of justice and human
rights if their adoption would fracture the skeleton of principle which
gives the body of our law its shape and internal consistency."

The media, using
a "squeaky wheel" approach is still capable of championing individual
causes. This is because they have the ability to mould public opinion
and impact on decision makers.

But change via media
is necessarily a haphazard approach to public policy and to the protection
of human rights.

A "black hole"

So I put it to you
that there is a "civil liberties black hole" at the heart of
this issue.

All systems need
harmony to produce optimal outcomes and harmony requires checks and balances.
It is evident that in contemporary Australia, the capacity for individuals
to protect their rights is severely depleted.

This condition is
not widely understood, but its effects are. The result is that people
become change and risk averse as they find themselves more and more affected
by trends beyond their control.

The nub of the argument
is that we have been so busy dismantling the old ways in our drive for
efficiency, that we have neglected to erect appropriate new safeguards.

The time is right for change

Examination of available
public opinion data on human rights suggests that there are significant
changes emerging that would enable us to fix the "black hole".

It suggests that
Australians are growing more comfortable with the notion of civil rights
and freedoms. In opinion surveys over the last decade or so, Australians
have overwhelmingly agreed on various rights as fundamental. Some of them
received 100% endorsement including:

  • Freedom of political
    speech - on the process and functioning of government;
  • Trial by jury
    - a trial by jury should cover everyone as a fundamental right;
  • Freedom of religion;
  • Right to vote;
    and
  • Freedom from arbitrary
    arrest.

Further, more than
half of those surveyed believed that their rights are NOT well protected
against unfair government action.

It is also encouraging
to read data that public opinion favours better protection for individual
rights. In 1991, 72% of ordinary citizens surveyed wanted a bill of rights
setting out basic rights and freedoms for individuals.

Perhaps I should
add, that in contrast, 79% of legislators (both Labor and Coalition) believe
that human rights are well protected against unfair government action.
To paraphrase a famous quote: "They would think that, wouldn't
they."

The issues such as
the Tampa asylum-seekers incident, September 11 and Afghanistan have added
complexity to the issue. Australians who believe in basic human rights
are also concerned about their security.

The clash of cultures
that these incidents have highlighted reveals important tensions within
Australian society, and between ideas of protecting freedoms and protecting
security. No one disputes the right to protect our borders. But its coupling
with the asylum seekers issue has now spawned the "privative clause.".
Historically executive actions, without frequent judicial review, have
been an explosive cocktail.

The way forward

So, where do we go
from here?

One possible safeguard
would be to legislate for our own Australian Citizens' Charter, in the
same way most Australian corporations, even banks, have done with "Customers
Rights".

It simply makes good
business sense.

There is a real
political opportunity here for Australians to be re-empowered by these
rights. As a result people will have less to fear from an increasingly
interventionist executive arm of Government, whatever its political lineage.

I am suggesting that
these rights would provide an opportunity for Government to re-engage
with the Australian people in a tangible way. The Magna Carta established
operating procedures for King John and his nobility. This gave them a
degree of certainty in their relations and boosted their economy. It might
be useful to provide Australians with a similar boost in the development
of new "social capital".

I am also reminded
of Lord Scarman's [distinguished British jurist] remarks concerning "rights"
in Britain: "if you are going to protect people who will never
have political power, at any rate in the foreseeable future - not only
individuals but minority groups - if they are going to be protected, it
won't be done in Parliament - they will never muster a majority. It's
got to be done by the courts and the courts can only do it if they've
got proper guidelines."

So to sum up, I believe
an Australian Citizens' Charter would firstly assist people by replacing
some of the institutional protections that previously existed, but have
now disappeared. This may then encourage them to react more pro-actively
to the global changes that are engulfing us all.

Secondly, if that
was not a strong enough reason prior to September 11, then the proposed
curtailing of personal freedoms explicit in the Government's "war
on terrorism" makes it essential.

And thirdly, I believe
we must assemble the maximum degree of public support possible; modern
democratic government's of all political persuasions are totally "focus-group"
driven. This is now the "sine qua non" of any public campaign,
no matter how overwhelming the logic.

So, what kind of
Charter should we develop? In my view it must not be too ambitious. It
should limited to basic freedoms (freedom from arbitrary arrest or detention,
right to a fair trial or due process, the freedom of association, equality
of all persons before the law) and statutory not constitutional. It must
reflect Australian values and traditions.

However, before this
can happen- we need to have a national debate. We need a discussion: on
what rights to protect and how it should be done.

It is in forums such
as this that the fire for the cause must be re-ignited; but we must also
ensure the general community is engaged to the maximum extent possible.
And dare I say it, learning from the Republican debate: our efforts must
be concentrated on acceptance of a simple minimalist model, with the realisation
that division amongst our ranks spells certain disaster.

And finally to stiffen
our resolve, let us not be intimidated by the magnitude of the challenge
facing us; Benjamin Franklin said it all in 1788 when the proponents of
the new American Constitution genuinely feared for its success due to
the number and prestige of those opposed: "popular Opposition to
a public Measure is no Proof of its Impropriety, even tho' the Opposition
be excited & headed by Men of Distinction."

What is needed now
is a sufficient groundswell of public opinion to encourage the Australian
Parliament to establish those guidelines, or Citizen's Charter, for the
courts to interpret. In a democracy like Australia's, with its Westminster
traditions, and the chequered history of this subject, it is probably
the only model likely to achieve success.

For the last word
on this subject I can do no better than John Stuart Mill: "The worth
of a State, in the long run, is the worth of the individuals composing
it". I say it's high time we started helping all Australian individuals
with a few "RIGHTS".

Last
updated 24 June 2002

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