FRANK BRENNAN. We need a Bill of Rights

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

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3 Responses to FRANK BRENNAN. We need a Bill of Rights

  1. Mike Yewdall says:

    Way back in 1998, Frank Brennan, whose writing I admire, argued in Legislating Liberty that a Bill of Rights would fail in Australia and that we would be better served through the parliamentary process and constitutional amendments. I can see how the rapid slide down the abyss that is currently effecting parliamentary process and the unlikelihood of achieving constitutional change would bring about a change in his thinking. The tragicomedy of the SSM “debate” must surely have been the final tipping point.

  2. Frank Brennan says:

    It was interesting to hear NZ Prime Minister Bill English on ABC RN Breakfast this morning. Speaking about same sex marriage which is now law in New Zealand, he stressed that freedom of religion is important. The New Zealand Bill of Rights Act 1990 provides:
    13 Freedom of thought, conscience, and religion

    Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

    14 Freedom of expression

    Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

    15 Manifestation of religion and belief

    Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

    We have no such provisions at a national level in Australia. Before, or at the same time as legislating, amendments to the Marriage Act, our politicians need to attend this shortfall in Australian human rights protection.

  3. Rosemary Lynch says:

    What could an Australian Human Rights Bill protect? Well, it is to be hoped, that at least the rights Australia signed up to in relation to various international protocol through the United Nations. Without a Human Rights Bill, an NT Judge found mistreatment of children in NT penal institutions was legal; the rights of refugees abused by forcible deportation to 3rd countries, and then forced and de facto imprisonment, characterised by inadequate healthcare, physical abuse, terror, and failure of sanctuary; indigenous rights failures that deprived ATSI people to their rights to culture, language, children, access to family, and exposed them to malnutrition, massacre, and cultural abuse; it continues to endanger international labour rights to safety at work, to the right to organise, and seeks to reduce entitlement to organise mutual support organisations like unions, and industry super funds. How can we defend a system where the US Military-Industrial complex invades our space, land, and universities, and pay no tax? How can we NOT support a human rights bill that would enshrine all these things? In conscience, I do. Politicians, take note, freedom is to be hard fought, by each and all of us: and a Human Rights Bill is the least disruptive way to do it, so get to work, please.

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