The Sydney Morning Herald
December 4 2002
Hi. The deed is nearly done. By tonight, the NSW parliament will have passed new laws which allow police, on the say so of the police minister, to break-in to your house and search it, to strip search you, to search your vehicle, and to insist that you answer questions. The police minister is immune from scrutiny for whatever he authorizes and there’s no public disclosure of what is done under the new powers.
To read yesterday’s parliamentary debate, go to
http://www.parliament.nsw.gov.au/prod/web/phweb.nsf/frames/1?open&tab=Hansard
Independent liberal Helen Sham-Ho, independent Democrat Richard Jones, the Greens, the Democrats and Dr Peter Wong of the Unity Party expressed reservations about the bill and asked for safeguards. The Opposition wanted to give the police even more power and One Nation’s David Oldfield supported the bill without safeguards, a strange stance given the far right’s strident opposition to increasing the policing and surveillance powers of the State.
A read of the parliamentary transcript will give you a great idea of the state our alleged ‘democracy’ is in.
The new powers are supposed to be used when there’s a credible threat of a terrorist attack. We’ll never know if it’s being used only for that purpose, and that the powers aren’t being used to harass citizens the government doesn’t like, or whose activities the government wants to stop for political reasons. This is because citizens have no rights to ask the courts to examine the facts and determine whether Costa is acting within the law.
The United States has enacted sweeping new policing and surveillance powers, but there is a crucial difference. All such laws are subject to the Bill of Rights, which sets out the compact between citizens - the ground rules under which the citizen and the State operate. By this means, the government is subject to scrutiny by the courts when it seeks to alter the balance of rights between the State and the citizen. The European union also has entrenched civil rights, and Britain has just accepted that it must comply too. We’re just about alone in Western democracies in not having a bill of rights to defend ourselves against government excesses.
Add to that the de-funding of community groups - stripping them of the means to argue with government on the merits - the strangling of dissent and independent thought in universities, and the fear of speaking out these days, and we’ve got a real problem. It will get worse.
The federal government has limited controls on their power through the Australian Constitution. It insists, for example, that judicial power only be exercised by judges, which stops the government forming political adjudication bodies, with appointees not bound to be independent of the State.
There is nothing to constrain our State governments. If they’ve got the numbers in the parliament they can do anything. And in NSW, they just have, courtesy of Bob Carr and his strategy to win the March election, regardless of the costs. We’ll never get a bill of rights in this climate under the current political leadership on both sides - because governments would have to agree to put a constraint on their power and to justify winding back our rights on the merits, before an independent arbiter. Our major parties are too short-termist, too cynical, too small-minded, too morally bankrupt for that.
I thought you’d be interested in Bob Carr’s considered opinion on why he hates the idea of a bill of rights.
http://www.premiers.nsw.gov.au/premiers-docs/bill-of-rights.htm.
The highlights:
“The protection of rights lies in the good sense, tolerance and fairness of the community. If we have this, then rights will be respected by individuals and governments, because this is expected behaviour and breaches will be considered unacceptable.”
“A bill of rights is an admission of the failure of parliaments, governments and the people to behave in a reasonable, responsible and respectful manner. I do not believe that we have failed.”
Mr Carr, you haven’t given the good sense, tolerance and fairness of the community a chance! No debate, no inquiry. What happens when a clever manipulator of fear like you rams stuff down people’s throats and terrorizes opposition voices into silence? You pretend there’s a productive, constructive partnership between government and citizen.
There’s not.
Most of the time, the needs of the citizen, and the local communities, aren’t given a moment’s thought, except about how to sell them the latest diminution in their rights and their quality of life in the name of fast bucks, power and personal perky.
A bill of rights sets a benchmark. For government to reduce people’s rights within respect to government, justifications must be put and argued. The merits must be considered, the proportionality assessed. This is what Bob Carr does not want. A bill of rights is a means that can be used by the individual and communities - especially the poor, the weak, the unpopular and the marginalized - to assert their rights as against the government. Bob Carr doesn’t want that. He’s no Labor man. He hates the underdog almost as much as he hates informed public debate.
by Bob Carr, Premier of NSW
The Standing Committee on Law and Justice has requested me to inform it of my concerns about any proposal to enact a bill of rights for NSW. In this submission, I will outline my general objections to the legislative enactment or constitutional entrenchment of a bill of rights, rather than what types of rights should be included and how a bill of rights should apply.
The transfer of policy decisions from governments and Parliament to the judiciary
A bill of rights transfers decisions on major policy issues from the legislature to the judiciary. It is not possible to draft a bill of rights which gives clear cut answers to every case. No right is absolute. Rights conflict. The right of freedom of speech will conflict with the right to equality (e.g. racial vilification) and the right to equality will in turn conflict with the right to freely exercise one’s religion (e.g. the right to exclude females from the priesthood). While these are extreme forms of conflict, most conflicts will be more subtle and difficult to determine.
A bill of rights can only be interpreted by the Courts by balancing rights and interests. Most modern bills of rights include a clause recognizing that rights may be subject to such reasonable limits as can be demonstrably justified in a free and democratic society. This is clearly a policy decision, not a judicial issue.
If a bill of rights were enacted, it would then be up to a court to decide whether freedom of speech should be limited in relation to pornography, tobacco advertising, solicitation for prostitution and the publication of instructions on how to make bombs. These are issues which need to be considered in the context of community views. They are issues which should be decided by an elected Parliament whose Members are ultimately responsible to the people for the decisions they make. They are not decisions which should be made by judges, who are not directly accountable to the people.
There are additional problems in legislatures abdicating their policy role to the courts on human rights issues. Courts operate within an adversarial process. Matters only arise before them when there is a dispute and judgments are made on the basis of particular facts. Decisions are therefore piecemeal in nature and cannot take into account all issues relevant to determining policy. The material before the courts is limited by rules of evidence and procedure and the courts do not have presented before them all the matters which should be taken into account when developing a broad policy on rights issues. In short, a court is not an appropriate forum for making these decisions.
Further, a bill of rights will unduly politicize the judiciary. Judges will be seen more and more as policy-makers, undermining the role and independence of the judiciary.
How are rights really protected - by courts or by the good sense of the community?
Some of the most abusive and oppressive regimes have had extensive bills of rights. In reality, it is not a ‘bill of rights? which protects rights. Nor can the courts alone adequately protect rights. The protection of rights lies in the good sense, tolerance and fairness of the community. If we have this, then rights will be respected by individuals and governments, because this is expected behaviour and breaches will be considered unacceptable. A bill of rights will only have the effect of turning community values into legal battlefields, eventually undermining the strength of those values.
The respected American jurist, Judge Learned Hand once said:
“[T]his much I think I do know - that a society so riven that the spirit of moderation is gone, no Court can save; that a society where that spirit flourishes no Court need save; that in a society which evades its responsibility by thrusting upon the Courts the nurture of that spirit, that spirit in the end will perish.”
‘Freezing’ rights
Our view of the importance and priority of rights changes over time. A constitutionally entrenched bill of rights freezes those priorities at a particular point in time. If a bill of rights had been included in the Commonwealth Constitution in 1901 it would most likely have enshrined the ‘White Australia policy’. The ‘right to bear arms’ is a “right” under the United States Constitution which many see as the root of the tragic shootings which afflict that country. It is not enough to say that these rights can be changed by a constitutional referendum. We all know that referenda are rarely held and are rarely successful.
Even when a bill of rights is not constitutionally entrenched, and can therefore be changed by legislation, the political reality is that a bill of rights is given ‘quasi-constitutional status’ and is almost impossible to amend.
Another problem with a bill of rights is the unpredictable ways in which it will be applied by the Courts. Sir Harry Gibbs, former Chief Justice of the High Court, has noted that the ‘due process’ clauses of the United States Constitution (which prohibit anyone from being deprived of life, liberty or property without due process of law) have been used to render invalid laws limiting working hours, fixing minimum wages and standardizing the quality of food?.
In New Zealand, despite political assurances to the contrary when the Bill of Rights was enacted, the courts have created new remedies to apply to breaches of the Bill of Rights. For example, the NZ Court of Appeal has held that the ‘right to freedom of speech’ includes a power for the Court to order the publication of a correction of defamatory material.
The Court has also held that the State is liable to pay monetary compensation for breaches of the Bill of Rights. Even the Parliament found, to its surprise, that it was subject to the Bill of Rights and had to apply natural justice, particularly in parliamentary committee hearings.
While the New Zealand Parliament has the power to amend the Bill of Rights, as noted above the political reality is that this is usually not an option.
A Bill of Rights will further engender a litigation culture. Already it seems that people are unable to accept responsibility for their own actions. If a person trips and falls today, instead of blaming himself or herself for carelessness, the person will be looking for someone to sue. If a person is burnt by coffee while juggling it and driving a car at the same time, instead of recognizing that this is a really stupid thing to do, the person will sue because the coffee was too hot. How much more litigation will we be inviting by a bill of rights?
A quick look at the law reports of Canada and New Zealand will show the extensive use of their respective bills of rights in litigation. It will also show that the primary use of a bill of rights is in relation to criminal appeals. In New Zealand, in the first seven years after the Bill of Rights Act was enacted, it was invoked by the accused in literally thousands of criminal law cases, a large number of which were appealed to the Court of Appeal (the highest court in New Zealand). Some may argue that this shows the system for prosecuting defendants was deficient, and indeed reforms were made.
However, the fact is that the Bill of Rights continues to be routinely used as a ground for attempting to overturn the admissibility of evidence, including confessions, evidence obtained under search warrants and breath testing of drunk drivers. It gives lawyers a new source of technicalities to allow the guilty (including those who have confessed or were found with large quantities of drugs in their possession) to go free.
Bills of rights are notorious for being the last ground of the desperate in litigation. The broad terms of ‘rights’ can be argued to cover almost anything. For example, the NZ courts have considered the case of a man who claimed that the Bill of Rights protected his right to walk down his suburban street naked (on grounds of freedom of expression, religion and belief) and a case where it was claimed that a rise in rent for public housing breached the ‘right to life’ in section 8 of the Bill of Rights.
In a recent Australian case, a prisoner brought a legal action on the basis that his human rights were being abused because there was not enough variety in the vegetarian meals offered at a prison. He relied on the International Covenant on Civil and Political Rights, which is often described as the International Bill of Rights. However, his claim was rejected because (unlike a bill of rights) the treaty is not enforceable at Australian law.
While those who propose the enactment of a bill of rights do so with the intent that it be used for lofty purposes, the more likely result is expensive litigation concerning naked strollers, vegetarian menus, and new ways to avoid losing your licence for drink driving.
While the Courts are swamped with thousands of Bill of Rights cases, where will the ordinary person go for justice? The Courts will be made even more inaccessible and the cost of running the court system will increase. The main beneficiaries of a bill of rights are the lawyers who profit from the legal fees that it generates and the criminals who manage to escape imprisonment on the grounds of a technicality. The main losers are the tax-payers, and society in general through the reduction of community values to mere court room weapons.
Parliaments are elected to make laws. In doing so, they make judgements about how the rights and interests of the public should be balanced. Views will differ in any given case about whether the judgement is correct. However, if the decision is unacceptable, the community can make its views known at regular elections. This is our political tradition.
A bill of rights would pose a fundamental shift in that tradition, with the Parliament abdicating its important policy making functions to the judiciary. I do not accept that we should make such a fundamental change just because other countries have bills of rights. The culture of litigation and the abdication of responsibility that it engenders, is something that Australia should try and avoid at all costs. A bill of rights is an admission of the failure of parliaments, governments and the people to behave in a reasonable, responsible and respectful manner. I do not believe that we have failed.