Righting wrongs

The High Court’s judgment on 29 April that the Family Court did not have the authority to release children from the Baxter detention centre provides a compelling reason for Australia to revisit the question of a Bill of Rights. If a fully fledged Bill of Rights—one that could not be eroded by the Parliament or the courts—were in existence today, no child would ever be in detention as a result of government migration policy.

If Australia had a Bill of Rights, lawyers would not have to seek the court’s protection from the possibility that Immigration Minister, Amanda Vanstone, could consider returning vulnerable children to detention because the High Court has allowed her to do so.

Constitutional scholar Professor George Williams, speaking on the ABC’s PM program on the day of the High Court’s decision, pointed out that the issue of the rights of children to be protected from detention was unclear, even after the High Court decision.

‘The High Court in those cases will not be looking at it so much from the angle of the general welfare of children, which is what the Family Court had wanted to do, but it will be asking whether the Constitution enables children to be held in these circumstances, and that will be a hard argument to win because you have to actually justify that the Constitution says that the current Act is unconstitutional and that’s something that is unlikely to occur given the High Court’s earlier decisions’, Professor Williams noted. In other words, the Australian Constitution cannot be, and was not intended to be, an extensive protector of rights and freedoms.

In an excellent paper on the issue of a Bill of Rights for Australia published in a 1998 edition of Murdoch University’s Law Journal, the Chief Justice of Western Australia, David Malcolm, set out the inadequacy of the current system in Australia in a case by case determination of rights and freedoms.

Western Australia’s chief judge quoted his colleague, the Chief Justice of South Australia, John Doyle, who argued in 1992 that while the common law is able to adapt to changes in society, it cannot adequately protect rights and freedoms because the Parliament ‘may legislate to alter, restrict or negate any protection created by the common law’.

Malcolm added that ‘while the courts are increasingly responding to society’s attitude to human rights, the capacity of the common law is limited to the extent that it is opportunistic. No general statement of relevant rights can be developed in response to the individual case. The Court is restricted to a declaration of rights as between the parties before it’. And as he rightly noted, courts have to follow previous decisions when adjudicating cases. If a right to freedom has been denied in a particular case by the High Court, then all other courts have to follow that ruling, regardless of the circumstances of the case before them.

Politicians are always reluctant to give up their supreme law making power and, given the failure of the Hawke Government’s 1988 referendum on a Bill of Rights for Australia, it seems there is a reluctance to revisit the issue.
And even if a Bill of Rights were on the agenda, the temptation might be to follow the New Zealand model of a Bill of Rights legislation that does not give the courts the right to invalidate legislation. If such a Bill were adopted in Australia, changes to anti-terrorism and migration laws that infringe on basic rights and freedoms would be enforceable despite a Bill of Rights.

What Australia should do is adopt a Canadian-style Charter of Rights and Freedoms that keeps governments in check by striking down laws that impinge on the rights of vulnerable groups in the community like children, gay women and men and indigenous people.

Even the politicians in Canada—some of whom resented the curtailing of their decision-making power when the Charter was introduced in 1982—now take account of the Charter whenever laws are considered. As former Ontario Premier Bob Rae has said, ‘The charter infuses everything. There hasn’t been a single piece of law that has been passed that doesn’t take the charter into account’.

As the April 29 High Court decision on children in detention demonstrated, people living in Australia are not particularly well protected from government attacks on their freedoms and rights. Only a strong Bill of Rights will ensure that vulnerable individuals and groups receive the protection that a genuine democracy should accord them. 

Greg Barns is is a Hobart based writer and lawyer. He is a former senior adviser to the Howard government and is now a member of the Australian Democrats.



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