How protected are our rights to free speech? Two rulings of the High Court last week have brought the question into focus.
The court upheld an Adelaide bylaw that bans preaching on a city street and a federal law that forbids offensive material being sent through the post. These rulings can be added to the Gillard government’s anti-discrimination bill (which would make it unlawful to offend someone’s political opinions at work) and the proposed regulation of newspapers and blogs.
All of these laws, existing and proposed, would be quickly slapped down in US courts as laughably unconstitutional. The American bill of rights is very powerful. The First Amendment unambiguously protects free speech, free press and religion.
Yet in Australia, bills of rights haven’t had much support by liberals and conservatives. The reason is simple. The First Amendment was written more than two centuries ago. Modern bills of rights tend to increase government power, rather than limit it. This is because our human rights advocates believe that to protect human rights we simply have to transpose United Nations treaties onto Australian law.
In recent inquiries, those advocates have called for a rights act to guarantee everything from free university to welfare – all because they’re in UN documents. The UN even thinks we have a human right to high speed internet.
Instead of protecting people from the government, these ”rights” are all about obligations – obliging taxpayers to give more money to the government so it can fund more stuff.
The distinction is important. America’s Bill of Rights starts bluntly: “Congress shall make no law” restraining speech or religion. It’s all about protecting people from their government. By contrast, the UN International Covenant on Economic, Social and Cultural Rights says governments must guarantee food, clothing, and housing; that governments have a responsibility “to improve methods of production, conservation and distribution of food”; that governments must ensure an “equitable distribution of world food supplies”.
In other words, governments should control more things, tax more things, redistribute more things.
If the left want to understand the reason their opponents are sceptical about modern human rights, well, there you have it.
What would a conservative or liberal bill of rights look like? It would have to be entrenched within the constitution. It would have to mean something.
Courts would be able to enforce it. Labor attorney-general Rob Hulls was very proud of introducing Victoria’s Charter of Rights in 2006 but the government can – and his government did – ignore that charter whenever convenient with no consequence. Why fill the statute books with motherhood statements? A bill of rights is a radical measure, not a tool for political self-congratulation.
Yet politicians don’t like the idea of a constitutionally entrenched bill of rights. It might prevent them from doing whatever they want. The Rudd government forbade the National Human Rights Consultation report (which received 35,000 submissions) from considering anything that would reduce Parliament’s “sovereignty”. But that’s the point – to stop Parliament from trampling our liberties. Anything less is a waste of time.
In Britain, Tories opposed to Tony Blair’s labyrinth Human Rights Act want to replace it with a minimalist British Bill of Rights. Their proposal would protect ”headline” liberties rather than a mishmash of economic and cultural aspirations. We could introduce something similar.
Such a bill would guarantee freedom of religion and association and protect people against incarceration without trial and all that good stuff. It could also have rigorous protection for property rights, for instance, and it would not dilute its right to free speech with a right not to be offended.
Yes: a bill of rights need not just be a wish list of the left. Let’s haggle.
Many conservatives object that a bill of rights would give unelected and unaccountable judges the ability to dictate public policy. Fair point. But that ship sailed a long time ago.
A century of High Court cases has taken our constitution in directions that would shock the founders. We no longer have any meaningful division of power between state and federal governments. The court has “discovered” rights in the constitution that are “implied” but not written down. Any conservative who believes we can restore a strict interpretation of the constitution is bizarrely optimistic.
So instituting a bill of rights wouldn’t be handing power to judges. They already have it. A bill of rights could take it back – allowing the Australian public to have a say on the fundamental rights with which Parliament may not tamper.