Freedom fighters face great divide

By Paul Kelly, International editor
The Australian, 11 April 2001

THE next decisive debate on Australia's political system is unlikely to be a renewed push for the republic – it will probably be about a national bill of rights.

If Australian politics shifts to the Centre-Left at this year's federal poll, then this idea will take off. It is a social and intellectual fashion, backed by an unusual coalition of support – judges, media, human rights activists, lawyers, the Left, most minority lobbies and the Labor Party. It is official ALP policy.

It is also a cause. It gains force via the battles over discrimination against women, gays and Aborigines. In his Manning Clark lecture, Michael Kirby – judge, homosexual and political campaigner – renewed his call for a bill of rights. He warned that the laws of Australian democracy offer no automatic mechanism to deny oppression.

"Even today, basic equality is still denied to my segment of Australians," Kirby said. "Governments and parliaments endorse or refuse to remove discriminatory laws." He declared that "until Australia has a bill of rights" it will lack the means to reconcile a pluralistic society with majority pressure.

In this unfolding debate there are two key documents. They are both startling. The first is the June 2000 address by Robert McClelland, A Charter of Rights and Aspirations, in which McClelland locates himself in that Labor tradition spanning Evatt, Whitlam, Murphy and Evans. Declaring that "there has never been a greater need for an Australian charter of rights", McClelland outlines the goals and politics by which it can be achieved.

The second document is the book A Bill of Rights For Australia by George Williams, a blueprint by which the federal parliament can proceed. Williams, a republican, asserts that constitutional reform "has been dominated for too long by the symbolic issues raised by the minimalist republic".

He begins with the Hindmarsh Island case, when the High Court split over whether the race power of the Constitution could be used to discriminate against indigenous people. Kirby asked from the bench whether this power could be used to enact Nazi race laws in Australia, and solicitor-general Gavan Griffith answered that in the commonwealth's view any action to oppose Nazi laws would be invalid under the race power.

Williams says: "The case revealed that since 1901 we have made little progress in entrenching the basic rights of citizenship into Australian law, including protection against being singled out for negative treatment because of the colour of a person's skin or their ethnic origin."

He says that Australian parliaments have the power to deny freedoms and they do so. In 1901, non-Europeans were banned; in 1950, the Communist Party was outlawed; in 1996, Albert Langer was imprisoned for electoral law breaches.

Williams surveys the sad history of reform culminating with the Hawke government's 1988 referendum defeat on voting, religious freedom and trial by jury rights. It was a humiliation.

He draws three conclusions. First, the way forward is a statutory bill of rights, not constitutional enshrinement. Second, a federal parliamentary committee be created to examine all bills to ensure compliance with the charter of rights. Third, that the New Zealand model be adopted, which limits the discretion of the judiciary and provides instead for judges to draw such inconsistency to the attention of parliaments – in short, to prevent a shift of power from parliaments to judges.

McClelland also prefers a statutory charter. The advantage is that a Beazley government should win Senate support for this idea. He agrees with Williams that the onus for correcting defective laws should lie with parliament, not judges.

McClelland warns that "the will of the majority can be just as harsh and oppressive as any totalitarian regime". His argument for a charter of rights emphasises the degradation of services to regional Australia. He argues that the wellbeing of the regions in terms of health, education and employment "is a matter of fundamental human rights".

McClelland wants to awaken a sleeping giant: the gains for the mainstream. He wants public involvement in defining rights for the charter. But he goes much further – he wants a charter to include aspirations, not just rights. And aspirations involve "access to physical and mental health facilities, educational opportunity, technological and civil infrastructure, and to basic commercial and public services". McClelland's vision is to empower individuals who lose out to powerful sectional interests.

His scope is ambitious – a framework of rights that "becomes a code of behaviour". Yes, behaviour.

Kim Beazley has said the republic is a 10-year struggle. The charter of rights is no substitute for a republic, nor is it a Beazley priority. But it will be addressed by the next Labor government and it is almost certain to be pursued. It will occasion a great battle. This is a proposal to change Australia. There are many inside and outside the ALP who are convinced it is not a change for the better.