Irving on Robertson and an Australian Charter of Rights: my plea for fundamental freedoms

The new edition of Australian Literary Review (ALR) contains an interesting essay by Professor Helen Irving, responding to Geoffrey Robertson's proposal for a charter of rights at the federal level, something that Irving opposes except with respect to procedural rights for accused criminals and others who face punishment or some kind of preventive restriction on their liberty.

Although I have long supported a Bill of Rights for Australia, I am disappointed at the various drafts I'm seeing, which attempt to constitutionalise inappropriate matters that are better dealt with through ordinary political processes. Accordingly, I largely agree with Professor Irving's response to Robertson, for reasons I've explained in some detail here and here. I do not support the constitutionalisation of contentious issues on which reasonable people in a modern liberal democracy can disagree. In particular, I don't support the constitutionalisation of economic rights or other positive rights. In any event, such proposals are suicide; the electorate will never accept a Bill of Rights, or even a non-binding Charter, that goes wider than some basic protections against government power.

I also agree with Irving that it is somewhat frightening when Robertson suggests that a Charter of Rights be used as a means to "educate" us into a single moral vision. This is a fundamentally illiberal, even Orwellian proposal (thought crime, anybody?); and Irving's objection to it has my full support. In a liberal democracy, a wide range of ethical pluralism is not only permitted but welcomed, and we should be very slow to condemn a particular viewpoint as unAustralian or beyond the pale of tolerance. The only vision that should unite us is a commitment to liberalism itself - and even departures from this should be tolerated as far as possible.

I should add, however, that I also don't see a great need for further constitutionalisation of procedural rights - something that Irving appears to favour.

It is likely that many procedural rights that we'd want to constitutionalise are already protected by the separation of judicial power from the legislative and executive powers. I argued this at length in my article "Judicial Power, Political Liberty and the Post-Industrial State", Australian Law Journal, 71 (1997): 267-93. A review of the case law from the last decade or so has not made me change my mind: see my detailed discussion of the more recent law in my submission to the National Human Rights Consultation Committee (Chapter 9).

At the federal level, a significant range of government functions would be struck down as unconstitutional if they were assigned to the legislature itself or (more plausibly) to the executive in the form of a non-judicial tribunal. Such functions include punishment of crime, preventive detention, and preventive restrictions on liberty, such as control orders. As I state in my submission:

"While the issue has not been fully tested in the High Court, and dicta can be found that point in contrary directions, I submit that the better reading of Australia's constitutional arrangements is that, at the federal level, such powers as these can be exercised only by Chapter III courts. Outside of the immigration context and other recognised exceptions, the power to limit or burden the liberty of individuals should now be recognised as essentially judicial."

If these functions were assigned to a Chapter III court, they would be struck down if they required a court to act without the sorts of basic safeguards (including natural justice) that accompany a traditional curial process.

If a state government assigned a similar function to a state court, the relevant statute would be struck down if it required the court to act in a way that would tend to make it an unfit forum to deal with federal matters referred to it under the Australian Constitution.

If a state government assigned such a function to a non-judicial tribunal, that would (alas) be constitutional, as there is generally no separation of powers at state level. However, it would be so politically unpalatable that it might never be possible in practice. For the foreseeable future, non-judicial tribunals at state level will continue to exercise jurisdiction in some matters that could be assigned only to Chapter III courts at the federal level: e.g. they will have greater power than federal tribunals to dispose of equal opportunity cases. However, they are most unlikely to be assigned the conduct of criminal trials or the power to make orders about preventive detention or restrictions.

I'm not suggesting that Professor Irving's proposals on procedural rights have no merit. For example, it appears that a legislature would have the power to abrogate habeas corpus within its jurisdiction. Perhaps her proposals are worth our support, but I don't see them as the highest priority, given the constitutional and political problems that face governments contemplating the enactment of statutes that require outrageous procedural abuses.

To me, the very highest priority is protection of our fundamental political freedoms, such as freedom of speech. This does not seem to be getting adequate priority in the current debate - worryingly, at a time when free speech is under attack from many sides.

The recent resolutions by the UN General Assembly and the UN's Human Rights Council, condemning "defamation of religion", constitute just one such threat to freedom of speech. To its credit, Australia has consistently voted against such resolutions, but there is no guarantee that future governments will take a similar attitude. Combine this with the recent attempts at the level of the NSW government to "get" Bill Henson on fatuous charges of child pornography, plus some of the more draconian features of the existing censorship regime in this country, plus existing religious vilification laws, PLUS, of course, the Conroy proposals to censor the Internet ... and I submit that the power of governments to abridge freedom of speech must be reined in, one way or another. Ideally, the constitutional limits of government power to abridge freedom of speech should be brought more closely into line with what applies in the United States, where many attempts to abridge free speech have actually been struck down - not least, the outrageous Communications Decency Act (see Reno v. American Civil Liberties Union 521 US 844 (1997)).

This is a proper role for constitutional law and for judicial review: establishing and enforcing the limits within which government power is to be exercised. As long as they stay within those limits, the actions of the legislature and executive are proper matters for everyday political debate, but there should be no presumption that the powers of legislatures should be unlimited in the way traditionally ascribed to the English parliament. Good government is limited government.

It would be unrealistic to think that we can obtain new constitutionally-entrenched limits on government power from the current exercise by the National Human Rights Consultation Committee. The terms of reference of the Review don't allow this as an outcome, and in any event it is inconceivable that a referendum would obtain political support or have any prospect of electoral success.

Nonetheless, issues to do with freedom of speech, fundamental political freedoms in general, and the appropriate limits of government power over citizens should not be forgotten in this debate. I urge that we all make at least some noise about these issues while there is an available forum. At the moment, there's a lot of anger in the Australian community about encroachments on freedom of speech in particular; let's express this wherever we can, and not allow the issue to be marginalised in the current debate over human rights and consitutional arrangements.

With all the above in mind, I've offered an article proposal to ALR, so we'll see what response I get. Whatever comes of that, if anything, I urge all my Australian readers to raise these issues loudly with the Consultation Committee itself.

Remember that Father Frank Brennan, the Jesuit priest who heads up the Committee, has made clear on the public record that he is not a strong supporter of freedom of speech. He is lukewarm about the issue at best; in his 1998 book on a bill of rights for Australia, he is sometimes quite dismissive of this fundamental liberal freedom. Free speech is an issue that is likely to be buried, this time round, unless a lot of noise is made.

If that happens, don't expect your protests to be taken seriously by the government next time it attempts to reduce your fundamental freedoms.