As Attorney General Lionel Bowen dedicated a lot of time and energy to a Bill of Rights. He introduced legislation which was doomed. But he outlined the principles for an Australian Human Rights Bill espousing the preconditions for the common good in contemporary Australia. He told Parliament:
A strategy of compliance with international human rights standards which does not involve legislative definitions of rights must be half-hearted and hollow, if not suspect. Those who argue that our existing legal and social institutions make a Bill of Rights unnecessary, overlook that the common law does not offer clear or wide-ranging statements of an individual’s freedoms and liberties; at best, the common law offers remedies in a haphazard and incidental way often only after satisfying complex procedural requirements; the power of the Parliament to confine or withdraw totally common law ‘rights’- this may occur unintentionally and even unnoticed by the public at large; the fragility of community attitudes and pressures on which so many of what are popularly regarded as individual freedoms rely. In the light of this, the Government does not believe that it is sufficient or appropriate to rely on administrative measures alone and those aspects of our common law or general culture which recognise rights here and there. Furthermore, the enactment of a Bill of Rights has a vital educative function. It has the capacity to inspire respect for fundamental freedoms and liberties by setting out rights in positive, declaratory form. It is a broadly based declaration drafted in Australia for Australians, in conformity with international standards. Alternatives whether reliance on the common law, particular legislation or administrative mechanisms and programs without more do not spell out and proclaim key rights and concepts in the same way as does the Bill of Rights.
In 2009 when chairing the national human rights consultation for the Rudd government, I was surprised to hear Bob Carr’s boast about how best to preserve rights such as the right to religious freedom, belief and conscience. He had joined forces with the Australian Christian Lobby and religious leaders like Peter Jensen, the Anglican Archbishop of Sydney, and George Pell, the Catholic Archbishop, opposing a federal Human Rights Act. Carr was fond of telling audiences that debates about the scope of religious freedom and the intersection between freedom of religion and non-discrimination were best and most easily resolved by the state premier receiving personal representations from the religious leaders. He and they thought that religious freedom might suffer some diminution if the right to freedom of thought, conscience and religion were included in a statutory bill of rights. Eight years on, I daresay the political influence of church leaders meeting behind closed doors with political leaders has subsided.
Two years after the national human rights consultation, the Sydney Archbishops accompanied the Australian Christian Lobby to a meeting with prime minister Julia Gillard. After the meeting, Cardinal Pell reported that the religious leaders had told the prime minister: ‘We are very keen to ensure that the right to practise religion in public life continues to be protected in law. It is not ideal that religious freedom is protected by so called “exemptions and exceptions” in anti-discrimination law, almost like reluctant concessions, crumbs from the secularists’ table. What is needed is legislation that embodies and recognises these basic religious freedoms as a human right.’
In 2015, the Australian Law Reform Commission concluded a detailed assessment of traditional rights and freedoms — encroachments by commonwealth laws. Though the commission found ‘no obvious evidence that Commonwealth anti-discrimination laws significantly encroach on freedom of religion in Australia’, it did recommend that ‘further consideration should be given to whether freedom of religion should be protected through a general limitations clause rather than exemptions’. In February this year, the parliament’s select committee on the exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill unanimously reported: ‘Overall the evidence supports the need for current protections for religious freedom to be enhanced. This would most appropriately be achieved through the inclusion of “religious belief” in federal anti-discrimination law.’ Dean Smith who has drafted his own Marriage Amendment (Definition and Religious Freedoms) Bill 2017 was a member of that committee. His bill does not deal with many of the contested religious freedom issues.
Like Lionel Bowen, I have become convinced that we need a national Human Rights Act in order to enhance the common good in Australia
Frank Brennan SJ is the CEO of Catholic Social Services Australia.
The above is an excerpt from a longer article that appeared in Eureka Street on 29 August 2017
Frank Brennan AO is a Jesuit priest and Rector of Newman College at the University of Melbourne. He is a Distinguished Fellow of the PM Glynn Institute at Australian Catholic University and an Adjunct Professor at the Thomas More Law School at ACU.
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