In 1991-1992 the Research School of Social Sciences at ANU conducted a national survey of 1522 Australians and asked them about their attitude to rights. The report Rights in Australia 1991-1992 found that 70.6% of Australians want a Bill of Rights (7.4% were against and 21.8% were undecided). The Survey also found that 85.9% supported a referendum to determine whether a Bill of Rights should be put in the Constitution. The majority of Australians (57.8%) also believe that a Bill of Rights would strengthen our national identity.
Nevertheless, Australia’s politicians continue to deny Australians a Bill of Rights to protect our rights and freedoms. Why? Is it simply because a Bill of Rights would be an effective check and balance on their power? That would explain why former Prime Minister Howard supports a Bill of Rights for Iraqis, but not for his own people.
In a press conference in Canberra on 14 April 2004, the then Australian Prime Minister John Howard expressed “very strong support” for a Bill of Rights for Iraq. In the past the former Prime Minister has stated that he does not support Bills of Rights for Australia. I wonder why Mr Howard would support a Bill of Rights for Iraq and not support a Bill of Rights for Australia?
Australia is the only common law country without a Bill of Rights. In 2004, the ACT passed Australia’s first Bill of Rights: the Human Rights Act 2004 (ACT). The Victorian Charter of Human Rights and Responsibilities Act 2006 followed and became law on 25 July 2006. The preamble to the Charter outlines its founding principles, recognising that all people are born free and equal in dignity and rights.
The Charter aims to ensure human rights are valued and protected within government and the community.
Section 44 of the Charter requires the Charter to be reviewed after four years of operation. On 19 April 2011, the Government referred the review of the Charter to the Scrutiny of Acts and Regulations Committee of Parliament (SARC). More information on the review, including the terms of reference is available on SARC’s website.
A Bill of Rights for Australia
Over the years there have been numerous attempts to introduce a Bill of Rights into Australia; each has proved unsuccessful. None of the Bills introduced by the Federal government has been approved by both Houses of Parliament. This lack of progress at a national level has occurred despite the adoption of a Bill of Rights being included in the official policy platforms of political parties represented in the Australian Parliament, such as the Australian Labor Party, the Australian Democrats and the Greens.
In fact, the Federal government refused to support the Australian Democrats’ Australian Bill of Rights (2000). The NSW government has also refused to support a human rights Act.
Attempts to obtain the support of the Australian people for inserting rights guarantees into the Constitution have been similarly unsuccessful. For example, the proposals put to referendum in September 1988, which included certain human rights measures, were comprehensively defeated in every State. This led Professor George Williams to observe that:
Attempts to provide better legal protection for human rights in Australia – from national referendums to new federal legislation – amount to a series of failures. In each case, proponents of change have been unable to inspire Australians with the simple idea that improving the protection of their rights is a change for the better. (G. Williams, The case for an Australian Bill of Rights: Freedom in the War on Terror (2004), at p.64).
Critics of enacting a Bill of Rights argue that these failures reflect a widely held view among the Australian people that rights are already adequately protected in this country; however survey results do not support this conclusion. For example, a survey conducted in 1997 showed that 54% of respondents did not feel that rights were well protected in this country and that 72% supported the introduction of some type of Australian Bill of Rights (see G. Williams, The case for an Australian Bill of Rights: Freedom in the War on Terror (2004), at p.64). These results mirror the ANU 1992 survey. A majority of Australians do seem, therefore, to believe in the need to improve the protection of human rights and freedoms within Australia and are sympathetic to the notion of a Bill of Rights.
The need for a Bill of Rights in Australia was put succinctly by Devika Hovell, the Director of the International Law Project at the Gilbert and Tobin Centre of Public Law, who made this point in suggesting that:
On paper, Australia is a champion of the international human rights framework. Australia is a party to all the major UN human rights treaties, and has recognized the competence of five of the UN treaty bodies charged with monitoring state compliance with these treaties. Yet, while Australia has agreed to the rules and acknowledged the umpire, it consistently refuses to comply with the umpires decision. While, on paper, Australia contributes significant support to the international human rights framework, in practice, Australia contributes more to the great human rights paradox, referred to by Falk, that many prominent countries adopting human rights treaties basically believe that human rights are only relevant for other countries. (D. Hovell, The Sovereignty Stratagem: Australia s response to UN human rights treaty bodies (2003) 28 Alternative Law Journal 297, at p. 297)
Probably the argument most frequently raised against the adoption of an Australian Bill of Rights is that if it ain t broke, don t fix it. However, an examination of the current system of rights protection within Australia raises serious questions about the validity of this argument. Professor Hillary Charlesworth has pointed out that:
A marked gap in the celebrated features of Australian democracy, however, is a coherent system of protection of human rights. (H. Charlesworth, Human Rights in Australian Law (2002) 13 Public Law Review 155, at p. 155)
This gap becomes even more evident when we consider recent decisions by all arms of government in areas such as immigration, race relations, indefinite detention and counter-terrorism. Recent developments in these areas have highlighted the ease with which human rights concerns can be side-lined within Australia. They have emphasized the pressing need to address this problem through the adoption of a national Bill of Rights.
The Australian Constitution contains few express human rights guarantees. Basically, it is a document designed to govern the distribution of legislative power between the States and the Commonwealth. The inclusion of a Bill of Rights was debated in the years leading up to Federation, including at the 1897-1898 Constitutional Conventions but was specifically rejected. To a large extent, the Convention delegates believed that the constitutional entrenchment of the doctrines of responsible parliamentary government and separation of powers would itself provide the best protection for human rights. There was also, however, a fear that express provisions to protect human rights, such as an equal protection clause, would prevent the operation of existing racially discriminatory laws aimed at Aboriginal people and the Chinese immigrants who came to Australia to work in the goldfields.
The lack of a Bill of Rights in Australia has profound implications for all minority and disadvantaged groups. On April 18 Herbert Mitchell became the latest Aboriginal death in custody. Mr. Mitchell died after being taken to Townsville’s police watchhouse on April 18.
Aboriginal activist and Townsville resident Gracelyn Smallwood said:
The Mitchell family is in a state of shock and mourning at the sudden and unexpected death of their family member. The family has no clear information except that he was picked up by police for public drunkenness and within four hours he was on life support in hospital.
Mr. Mitchell, 50, was initially taken to a halfway house, but was later transferred to the police watchhouse at about midday, after allegedly becoming aggressive.
Three-and-a-half hours later he was rushed to hospital where he spent 8.5 hours on life support.
Halfway houses, or diversionary centers, were set up around the country in response to one of the recommendations of the Royal Commission into Aboriginal Deaths in Custody in 1991. The aim was keep intoxicated persons out of police cells.
Mr. Mitchell’s death brings the number of Aboriginal people who have died in police custody since the commission to 270.
Smallwood said Mitchell’s family is concerned that, despite the growing numbers of Aboriginal people dying in police custody, there has never been anyone held accountable for their deaths.
An Australian Bill of might not stop tragedies like the untimely death of Mr Mitchell from occurring, but it might make the process of holding those responsible for his death accountable. Accountability is one of the profoundest issues impacting on Australian public life at the present time.
A lack of accountability from our politicians and public servants, combined with a lack of transparency in our policing and prosecutorial services, are having a profoundly negative impact of our democracy.
The AFP the CDPP and Australia’s Democracy
The second meeting of Australian and Pacific Chief Prosecutors was held in Sydney in June 2008. The meeting was co-hosted by the Commonwealth Department of Public Prosecutions (CDPP) and the NSW Office of the Director of Public Prosecutions.
A feature of this meeting was a lot of backslapping and other self-congratulatory gestures by the AFP and the CDPP over their success in the Captain Fred Martens fiasco. In fact, the CDPP devoted almost the whole of page 21 of the Australian Country Report prepared for this meeting to Captain Martens case:
The defendant was an Australian pilot who flew planes carrying passengers and cargo to and from Bensbach Wildlife Lodge in the Western Province of PNG. He had a business relationship with a traditional land owner of that area and had offered to arrange for the education of his 14-year-old daughter in Australia. The defendant flew the girl to Port Moresby where he took her to a club and then back to his house in Port Moresby where he had sexual intercourse with her on a date between 10 September and 16 September 2001. The girl was a virgin at the time.
After the incident the defendant took the girl to her father who was staying in Port Moresby and returned to see whether the girl would fly with him back to the Western Province, but she refused. The defendant later returned to the Western Province where he again contacted the girl and asked if she would come to Australia with him, but she refused and he retained her passport.
The matter was referred to the AFP by the PNG police. The defendant pleaded not guilty and required full evidence from all witnesses, including a number of witnesses from PNG, at both the committal and the Supreme Court trial. He denied having sexual intercourse with the girl.
A jury found the defendant guilty of engaging in sexual intercourse with a person who was under 16 years old, while outside Australia, contrary to section 50BA of the Crimes Act.
On 30 October 2006 the defendant was sentenced to five and a half years imprisonment with a non-parole period of 3 years.
The defendant appealed against both his conviction and his sentence. On 20 April 2007 the Queensland Court of Appeal dismissed the appeal against conviction and refused leave to appeal against sentence.
The issue is that during the following year, 2009, Captain Martens had his conviction quashed by the Queensland Court of Criminal Appeal amidst allegations that the AFP had tampered with the evidence to ensure that Captain Martens would be unjustly convicted. The Queensland Court of Criminal Appeal noted in its judgement that:
 The records have always existed and have now been produced. It is a poor reflection upon the two organisations that one should have failed to find them [the AFP], and denied their existence, and the other [the CDPP] object to their use in the reference on the ground that the petitioner should have obtained them earlier. (R v Martens  QCA 351)
If the Australian Federal Police can get away with tampering with the evidence in one case and go unpunished, as has been the case with Captain Martens so far, what is there to stop them from doing it again? In short, nothing! However with a Commonwealth Bill of Rights it would perhaps be easier for victims like Captain Martens to bring those government officials, guilty of wrongdoings, to justice.
I note as an aside to this post that I have been unable to locate any apologies or retractions to Captain Martens in the annual reports of the CDPP, the AFP or the Commonwealth Attorney General’s Department. It’s apparently easy and indeed OK to slander an Australian citizen if you are a public official, but sorry “seems to be the hardest word.” Just ask former Prime Minister Howard.