Book Review: Bills of Rights

Bills of Rights in Australia has been produced as part of an ARC Linkage Project looking at the impact of the Australian Capital Territory (“ACT”) Human Rights Act 2004, Australia’s first statutory bill of rights. The publication of Bills of Rights in Australia at the beginning of 2009 has been very timely as the discussion engendered by the appointment, by the Commonwealth Attorney-General, Mr. Robert McClelland, of a Consultation Committee chaired by Father Frank Brennan SJ, to “undertake an Australia-wide community consultation for protecting and promoting human rights and corresponding responsibilities … and to advise” launched into full swing at about the same time.

As might one expect from a book written by three distinguished researchers, Bills of Rights in Australia is written in measured tones and carries a scholarly air. The book is, however, never dull and the information with which it is packed is presented clearly and in a logical manner.

Bills of Rights in Australia is the must-have resource for students, lawyers, ordinary people and, indeed, anyone who wants to understand and even participate in the current debate5

The opening chapter is entitled What are human rights? The discussion of the history of human rights thinking starts, appropriately, with Sophocles’ Antigone, an early natural rights challenge to legal positivism. In recognising that the history of human rights recognition is as full of blind spots as it is of advances, the story of Olympe de Gouges is told, a woman who wrote a Declaration on the Rights of Women in 1791 to protest the male oriented focus of the famous French Declaration of the Rights of Man and Citizen, adopted by the Assembly, two years earlier. De Gouges perished on the guillotine for her iconoclastic approach, some three years after she published her declaration. The opening chapter of Bills of Rights in Australia concludes its historical and philosophical analysis with a guarded conclusion: “Despite their limitations, international human rights represent a significant global consensus regarding the conditions that are fundamental for people to live lives of dignity, and to the freedoms that must be safeguarded to prevent oppression”. It is this position that guides the analysis of later chapters.

The second chapter of Bills of Rights in Australia is also focussed on historical developments and looks at previous attempts to put in place an Australian Bill of Rights. The current perception is that an Australian human rights act is championed by progressives and opposed by conservatives, although such conservatives may reside in the Labor Party as well as in the Liberal and National Parties. This is a strange dichotomy in that the protection of human rights is as much a conservative objective in a liberal democracy as it is a concern of the left and, overseas, conservative politicians have championed Bills of Rights.6 There are some interesting indicators of bi-partisanship on the issue of protecting human rights, however, tucked away in the history of Australian politics. There is a nice balance in the fact that he two major Covenants, the International Covenant on Civil and Political Rights (“the ICCPR”) and the International Covenant on Economic and Social Rights (“the ICESR”) were signed by the Whitlam administration but both were, in turn, ratified by the Fraser administration. Most surprisingly, looking back, it was the Country-Liberal government of Frank Nicklin who introduced to the Queensland Parliament in 1959 the Constitution (Declaration of Rights) Bill which was intended to entrench basic democratic rights into the Queensland Constitution. Faced with opposition, inter alia from the Labor Party, the government desisted.

Perhaps the most valuable part of Bills of Rights in Australia is its detailed consideration of the ACT and Victorian human rights legislation. The book looks at the consultation processes that were used in the ACT and Victoria as well as the yet unconsummated processes that took place in Western Australia and Tasmania. The book also looks in detail at the legislation in the ACT and Victoria. One of the criticisms of a human rights bill from opponents to the present process is that the legislation will ossify and fail to reflect changing values as new areas of rights protection emerge. It appears significant that this has not been the case in the ACT and Victoria where a cross-fertilisation process has ensued with Victoria building on the ACT experience and the ACT, subsequently, changing its legislation to pick up innovations from Victoria.

Other lessons from the recent but growing history include the significance of the human rights conversations which have developed with legislators required to analyse and publish the human rights implications of each piece of legislation. Roles have been given to Parliamentary Committees and to independent agencies such as the Ombudsman to participate with the Executive in that conversation. It is encouraging that Opposition Parties, although they may not have embraced the legislation, have embraced the conversation for which it provides. Also significant has been the take up by public service agencies in both administrations by using the new legislation to audit and bench mark their own operations and approaches. A flood of litigation has not ensued in either jurisdiction.

It is particularly noticeable that the beneficial impact has been felt mostly by people who would otherwise be powerless. An example identified in the Report of the Victorian Equal Opportunity and Human Rights Commission (published since Bills of Rights in Australia was published) involved a 50 year old woman with an acquired brain injury who was able to obtain access to badly needed surgery for a condition in her hand which saved her from more radical surgery at a later date which might have involved amputation or severing of her tendons. She had waited three years already but was not considered a priority because of her age.7 Intervention based on the Victorian Charter’s obligation on government agencies to take the Charter’s Rights into account in decision making allowed the woman to have her operation.

In its final chapter, Bills of Rights in Australia provides guidance on the lessons learned from the experience of the existing bills of rights in Australia and elsewhere that can be applied to developing an Australian Human Rights Act. In answering their own question as to the difference that such legislation can make, the authors go the heart of the matter:

“Bills of rights have been particularly useful in challenging the rigid application of policies in ways that ignore the realities of human lives. A 2006 study of the effect of the UK HRA outside the courts illustrates the value of recourse to human rights guarantees to improve the quality of basic services. For example a woman with a disability required a special bed so that her carers, employed by a local authority, could lift her for baths. She requested a double bed so her husband could share it, but this was denied, although she offered to pay the extra costs. Finally the woman invoked her right to privacy and family life under the UK HRA, which immediately led to a change in policy.”

Opponents of a human rights act who have engaged in the public debate seem unable to acknowledge and recognise the benefits that flow from such legislation as is shown by this and many other examples.

Bill of Rights in Australia provides much more analysis and information than is able to be prevented in this review. The book is not cheap at $34.95 recommended retail price. However, if you are at all interested in the debate about human rights legislation for Australia, it will be money well spent.

Stephen Keim SC

Footnotes

1. Professor of International Law at University of New South Wales and Chair of the Australian Human Rights Centre.
2. Australian Research Council Federation Fellow and Director of the Centre for International Governance and Justice, Australian National University.
3. Director of the Australian Research Council Linkage Project at the ANU examining the impact and implementation of the ACT Human Rights Act. A profile of Gabrielle may be found here.
4. This publisher was established in 1962. It is owned by the University of the same time but operates independently under its own board. Its website may be found here.
5. Father Brennan launched the book on 31 March 2009 and said: “The book which we launch today is a fine primer for all Australians interested in participating in this broad ranging national consultation on rights…. This book will do a power of good in helping all Australians to be better informed as we conduct the national conversation on human rights in the months ahead. I commend these three academics for giving of themselves in sharing their expertise, passion and insights with the Australian public.”
6. Digressing, I have always been surprised that conservative politicians (in both major party groupings) have tended not to be concerned with protecting the environment, perhaps the most conservative of all causes.
7. The case study is report at page 94 of the report of the VEOHRC.