Amanda Stoker (Queensland, Liberal Party) Share this | Hansard source

Fundamental freedoms aren't given to us by governments, they are core to who we are, core to our status as human beings. For people of faith, they are not given to us by our fellow man, they are given to us by God. But the same is true whether one is a person of religion or not. Natural rights inform the development of the common law. The common law evolved slowly and cautiously, aware of the many human failings and frailties we bear, guarding against them and, in doing so, protecting us from a descent into a tyranny that has characterised places like Russia where, without the bulwark of the common law, it was all too easy to, in swift revolution, throw away years of history and implement a system that, while it might have had a bill of rights that promised to protect all kinds of things—things that on paper all sound great—in practice did not protect those things at all.

The common law has done a wonderful job of protecting us against that kind of tyranny. Under the common law, rights were protected. That's not to suggest it was perfect or that no person ever received a hard time—of course there are examples where things went wrong—but, for the most part, the common law has done an excellent job of protecting the rights of individuals against the imposition of the state. It's a really important distinction to make. Let's think about what was possible under the common law. Under the common law slavery was abolished, under the common law child labour was abolished and under the common law universal education was implemented. I could keep going with many more examples. No human rights instruments at international level were required in order to achieve those important protections. Indeed, the implementation of instruments at an international level has not better protected those rights since.

So it's important for us to think about what precisely we want done here. No bill of rights was needed for the Western tradition, stemming as it does from the United Kingdom, to secure the fundamental freedoms of the individual against the state. I notice that Senator Bernardi's explanatory statement for this bill says that it does not intend to establish an Australian bill of rights. No doubt that is Senator Bernardi's intention, and I know he cares deeply about individual freedoms—and rightly so; they are extraordinarily important. But I can't help but think, as I look at this bill, that it inevitably invites a bill of rights, with all of the problems that carries. It invites the expansion of the list of freedoms that he regards as important to include other things that might not have been included on his list, and it invites the expansion of the framework he has established to go beyond merely turning one's mind to these freedoms as laws are formulated and to include many of the other mechanisms that accompany a bill of rights, whether in the states of our country or in the governments of nations overseas.

Though it is well-intentioned and has its heart in the right place, this bill will, I submit, inevitably lead to a bill of rights. So we need to think very carefully about the implications of that. Why should we oppose a bill of rights? Why should we be cautious about implementing instruments that have at their heart these internationally derived agreements rather than the protection of fundamental freedoms in a way that reflects our legal development, our legal history and, indeed, our cultural history?

To understand that, I think it's helpful to go to a speech that the Prime Minister gave only about a week ago to the Lowy Institute. In it he talked about the relationship between Australia and its sovereignty and the international order—our bilateral, multilateral and United Nations-style relationships. He considered the way that there is a tension between the desire to act in Australia's sovereign interests at all times and the desire to seek the approval from international bodies who seek to monitor and approve and offer report cards on whether or not one is sufficiently meeting the standards set by these international bodies. The Prime Minister said:

Knowing who we are and what we stand for is as true today as it ever was.

We will continue to bring clear objectives and enduring values to our international engagement.

Freedom of thought and expression … of spirit and faith … of our humanity, including inalienable human rights.

Freedom of exchange, free and open markets, free flow of capital and ideas.

Freedom from oppression and coercion, freedom of choice,

These have never been more important.

And they are under threat, not just from the direct challenge of competing worldviews, but the complacency of western liberal democratic societies that owe their liberty and prosperity to these values.

Australia does and must always seek to have a responsible and participative international agency in addressing global issues. This is positive and practical globalism. Our interests are not served by isolationism and protectionism.

But it also does not serve our national interests when international institutions demand conformity rather than independent cooperation on global issues.

The world works best when the character and distinctiveness of independent nations is preserved within a framework of mutual respect. This includes respecting electoral mandates of their constituencies.

We should avoid any reflex towards a negative globalism that coercively seeks to impose a mandate from an often ill defined borderless global community. And worse still, an unaccountable internationalist bureaucracy.

That is put so well, and it encapsulates the way we should approach these issues. We need to take care of the fundamental human rights of Australians—absolutely—but we shouldn't be doing it through the framework of that 'negative globalism that coercively seeks to impose a mandate from an often ill-defined borderless global community'. The language of the human rights industry, if I can call it that, indulges that error. After all, human rights sound fabulous. Who could possibly be against the idea of human rights? Everybody likes rights. Everybody lines up to collect their rights. What the common law does is understand that rights are balanced with responsibilities. We give to our communities as much as we take. So we need to think much more critically about how we're going to approach these issues.

I'll give you an example that comes from the international human rights field. There are international human rights instruments like the International Covenant on Civil and Political Rights that attempt to protect the kinds of fundamental freedoms that Senator Bernardi had in mind when he put forward this bill—ideas like freedom of assembly, freedom of speech, freedom of religion. They are all noble, sensible and worth protecting. The idea that we should be free from arbitrary action by governments or free from torture are all most worthy, but they have in common the idea that they are protections from government action against the individual. Compare and contrast that to many of the other international human rights instruments that have followed. They cover matters as broad as rights to education, rights to health, rights to aged care, rights to child care, rights to all kinds of things. And while they are worthy things to have—education is worthwhile and health care is, of course, worthwhile; they are very well intentioned—they are very different in their character. They are demands for the provision of services by the state to the individual for a cost, which necessitates the redistribution of wealth; it necessitates the taxation of some people and the spending on others.

Those things might be worth doing in many circumstances—no-one would argue that Australia's healthcare system isn't worth investing in—but they've got a very different character to a fundamental freedom. Demands for services are not the same as fundamental freedoms, and yet in bills of rights we always find the conflation of these two types of conceptions of rights. They are really very different, but bills of rights jumble the two together. They confuse, I think in the minds of all of us, the role that is to be played by governments, and they, really quite importantly, necessitate the ranking of all of these different types of rights into some sort of an order. Whenever we say that there is going to be a bill of rights, someone—inevitably our judiciary—has to decide which of those rights prevail in circumstances where they clash, as they often do, and we go about ranking them

The overseas experience and the experience from the states of Australia that have legislative bills of rights show that the values that Senator Bernardi so deeply seeks to protect are almost inevitably ranked right down the bottom of the list when it comes time to order those rights in the hierarchy. And that should trouble us—it really should. But that's just one of the many reasons why we should be reluctant to go down the path of a bill of rights, which I suggest this bill, though it is well intentioned and doesn't look like a bill of rights now, inevitably invites.

Compare the constitutional structures of Canada and Australia. Both are federal systems; both share the English common law tradition, the Westminster parliamentary form of elected government—although Australia might be a little more Washminster—and a great deal of history, and yet there is a Charter of Rights and Freedoms that was brought into force in 1982 in Canada. It's a significant constitutional difference. Australia, pretty much uniquely in the Western world, doesn't have a constitutional or national statutory bill of rights. We should see that as a strength for Australia because a jurisdiction like Canada is, in my humble view, far worse for having it. And I'd suggest Britain is too with its Human Rights Act of 1998.

The case against bills of rights in a successful liberal democracy comes on many fronts, but at its core is that these instruments undercut citizens' participation in social decision-making. They transfer too much power to our judges, who, while they do a wonderful job, aren't elected and aren't accountable in the same way that our politicians are. The rights set out in these bills, even like the right to freedom of expression, the right of religion or the right to equality, annunciate very general standards about the place of the individual within society more broadly, and bills of rights offer us all an emotionally attractive statement of entitlements and protections in what are really vague and broad terms.

Up in the abstract sense of abstract rights guarantees, nearly all of us can and do support them. I mean, what sensible person would say they are against free speech or freedom of association or religious liberty? But the problem is that the effects of these bills aren't felt up in the heights of the abstract; they are felt down in the quagmire of detail, of where to draw the line when it comes to something like the limits of speech or defamation law or how speech should manifest in campaign finance rules, for instance.

Repeating the mantra that we have a right to free speech doesn't change the fact that, once we get down into the detail of drawing these lines, there is rarely consensus. Tough calls have to be made about where to draw these lines. Those who happen to disagree on where to draw the lines will disagree about and dispute how this and other rights should play out. And when those who happen to disagree with you can't be easily dismissed as unreasonable or morally blind or evil or in need of re-education—and they shouldn't—despite the sanctimonious sermonising of some people who bandy the term 'human rights' around so often and who most enthusiastically ask for a bill of rights, then the reality is that these things are not simple value judgements about who is morally good and who is morally bad.

It is quite difficult to draw the appropriate line for the limits of these really important freedoms. It is a fact that how rights should play out is debatable, contestable and not self-evident. But using a bill of rights means you transfer responsibility for drawing those lines from this place and the other chamber and take away responsibility from our accountable people who are engaging with those difficult questions of drawing these contentious lines, and the language of rights is used to shunt it off to our judiciary, where they are engaged thereafter in making political value judgements.

So, without a bill of rights in place these difficult, debatable social policy lines are drawn on the basis of elections, of voting, of letting the numbers count. With a bill of rights in place, judges decide. But they vote, too, don't forget. Four justices will beat the views of three. Victory doesn't go to the judge who writes the most movingly, who writes the most persuasively or who makes the most references to moral philosophy in their judgements. They form their own consensuses, their own voting structures, as they decide the limits of these very important rights.

What makes a bill of rights and its transfer of power to judges appear attractive is the unspoken assumption that the moral lines drawn by judges are somehow always the right lines, that a committee of ex-lawyers will somehow have a pipeline to wisdom and greater moral understanding than will people who are plumbers, secretaries, labourers or manufacturing workers. And that's not something I'm prepared to sign up to. Judges are good people, they have good experience, and I know they do their best in their job. But they don't have a monopoly on good morality, they don't have a monopoly on wisdom and they aren't accountable to the secretaries, the plumbers, the lawyers and the manufacturing workers of this country.

Australians should be very glad that we don't have a bill of rights at this point in time. To do so would inevitably politicise our judiciary as we ask them to make, day in, day out, political judgement calls about what the limits of the rights we have as individuals should be. So while I utterly respect the sentiment behind Senator Bernardi's bill and the sincerity with which he wants to protect these fundamental rights—which are, at their essence, matters of natural law, entirely worth respecting—I suggest that the risk it poses of taking us down a bill-of-rights path mean that we should in fact stand against this bill.