WEDNESDAY, 9 DECEMBER 1998
SPEECH PRESENTED BY TONY FITZGERALD AC
"This small booklet, "Queenslander's Basic Rights", launched on the eve of the 50th anniversary of the Universal Declaration of Human Rights, is an excellent publication. Queenslanders should regard the fact that such a publication has been produced by a committee of the Queensland Parliament with considerable optimism. The Chairman of the Legal, Constitutional and Administrative Review Committee of the Queensland Legislative Assembly, Mr. Gary Fenlon MLA, his colleagues and their staff and consultants are to be congratulated.
This booklet is informative, almost mistake free (despite the breadth and apparent complexity of the subject), readable and essentially objective. It should form an integral and valuable part of rights' education and information programs in schools, communities, workplaces and non-government organisation throughout the State. It is designed to provide the citizens of Queensland with an up-to-date understanding of their basic rights, information about how to enforce and enhance them, and an awareness of their responsibilities as citizens. Although it perhaps implicitly assumes the orthodox proposition embraced by all politicians and most bureaucrats that their power should be left unfettered because they know what is best for us, it is free of the propaganda and the distortion commonly associated with political publications.
The booklet is a particularly positive development in this State which does not have a history of commitment to the promotion of rights or rights' awareness. In the 1970s, as other jurisdictions in Australia were beginning to take civil liberties seriously, and to improve their administrative laws and other laws concerned with human rights, Queensland was left behind. Queensland law seemed stagnant, and, at times, law enforcement was alarmingly oppressive. By the late 1980s, it was apparent to some of the more thoughtful members of the community that Queensland's administrative law and laws relating to human rights and civil liberties were in dire need of attention.
In 1989, in direct response to this situation, the Electoral and Administrative Review Committee was created. To begin with, EARC undertook urgent reviews of specific areas of law, but a significant part of its charter was to report on "the preservation and enhancement of individuals' rights and freedoms", a task which the Legal, Constitutional and Administrative Review Committee inherited when it took over from EARC in 1996. The Legal, Constitutional and Administrative Review Committee tabled its detailed rights report in November this year. One of its key recommendations was the promotion of rights education and awareness. The publication of "Queenslanders' Basic Rights" is the first step towards the fulfilment of that recommendation.
The only addition to the publication that I would wish for is a small section containing brief, independent arguments for and against the adoption of a constitutional Bill of Rights in Queensland. There is absolutely no reason for this State to maintain a "red neck" reputation, or why it cannot give a lead to the rest of Australia in the constitutional entrenchment of individual and minority rights.
The biggest obstacle now to the development of a human rights culture in Queensland is that, overall, we are a comfortable, complacent community. Our concerns do not usually extend beyond matters which affect us personally. Political parties often promote sectional interests, and sometimes prefer their supporters to the general good. Economic issues dominate election campaigns, and we are encouraged to vote in the manner most beneficial to us individually. There is widespread dissatisfaction with the political system, and indeed increasingly with public institutions. This stems to some extent from the self-interested and adversarial nature of the political process, but more fundamentally from unemployment and other socioeconomic concerns, the rapid pace of change, and a sense of loss of relative advantage in large segments of the dominant white society. Nonetheless, membership of that majority group, which contains the holders of power and influence, generally carries with it a sense of superiority and security in one's rights. Indeed, a significant proportion of the dominant white community majority considers that the major threat to their rights lies in the grant and protection of rights of minorities or individuals who do not conform to the perceived norm.
It is difficult for members of the dominant white community to comprehend the need to entrench individual and minority rights. The general public is easily persuaded by the usual platitudes concerning the desirability of leaving unfettered power with elected politicians - ie., those chosen by the dominant majority to represent their interests. They are also swayed by the ubiquitous "fear of freedom" argument that is effectively founded on the premise that, since some will abuse their rights and fail to carry out their correlative responsibilities, guaranteed rights present too great a risk for a law-abiding, ordered society.
Both the Legal, Constitutional and Administrative Review Committee and its predecessor EARC have engaged in detailed consideration of the question of whether or not Queensland should adopt a Bill of Rights. EARC proposed that it should. The Legal, Constitutional and Administrative Review Committee recommended in its November report that it should not. There is validity in some of the arguments against the Bill of Rights, but, in my opinion, the debate frequently starts at the wrong point and encompasses the wrong perspective. If there is to be a serious discussion on the need for a Bill of Rights, the issues should be looked at from the viewpoint of minorities and individuals who are at the bottom of the social order. The veil of obscurity with which politicians and lawyers, including of course the judiciary, disguise the fundamental issues must be pierced.
We have no requirement of justice in our society. Our politicians are not required to act in the public interest or to enact just laws, and courts are not required to dispense justice but to enforce the law. We hide such fundamental truths by sometimes describing the legal system as "the justice system", and by references to the "rule of law" and "justice according to law" as though law necessarily has some intrinsic relationship to the qualities of fairness and justice. It does not. With few exceptions, our parliaments are free to enact, and our courts are required to enforce, unfair and unjust laws in the same manner as laws which are fair and just. There continue to be significant inequalities and injustices entrenched in our society.
That is not to deny that there have been many great social advances in Australia in the last 20 to 30 years, and in Queensland in the last decade. But much which should have happened has not, and many of the things which have occurred should never have been allowed. Obviously, this is not the occasion for a lengthy discussion of such matters. But it is possible to exemplify the point by reference to the continuing plight of our indigenous people.
The Constitution by which the Australian States were federated into a nation in 1901 not only lacked - and still lacks - a comprehensive Bill of Rights, it was also disgracefully racist. The Aboriginal people were not even included in the population. That Constitution was - and is - based on the proposition that the Kings and Queens of England, not the Australian people, are sovereign. This is a matter of considerable significance when we consider whether or not the Australian community consists of subjects who are ruled or a free, independent people.
In 1967, the Australian people belatedly accepted that Aborigines are Australians. It is now impossible to comprehend how it could have ever have been thought that the most genuine of all Australians, the original inhabitants of this country, could be effectively legally excluded from society, but it must be remembered that not all that long beforehand there had been armed conflict between the indigenous people and white "settlers", and that indigenous people were regarded and treated as savages and sometimes effectively as slaves. It is also easy to overlook the fact that the barbaric treatment of Aborigines continued for many years after federation, including, as we now know but still cannot find it in our national conscience to apologise for, the tragedy of the stolen children.
Regrettably, when we finally accepted in 1967 that our Aboriginal people are Australians, we did not remove racism from the Constitution. Section 51(xxvi) of the Constitution was amended in a manner which the majority of constitutional scholars consider permits racially discriminatory laws which could further disadvantage our indigenous people.
If we move on just a few years to 1971, there was strident opposition in this country, including Queensland, to the South African Football Team, the Springboks, playing here because of apartheid in their country. Australia was a vociferous opponent of that vicious practice and joined sanctions which were intended to force South Africa's white oppressors to end their evil treatment of that country's original peoples.
Today apartheid in South Africa has ended, and the people, whatever their colour, have one of the world's most modern constitutions with an exhaustive Bill of Rights to secure their freedoms. It is painfully ironic that in Australia, where we were once so smug in our condemnation of the situation in South Africa, injustice towards our own indigenous people continues.
When we ask whether we should have a Bill of Rights and whether it would produce a fairer and more just society, we should ask ourselves that question from the perspective of our indigenous people. How different would their position and social condition be today if the 1901 Commonwealth Constitution, or the even earlier Queensland Constitution contained a Bill of Rights which protected them as a minority group of individuals, and ensured the preservation of their land entitlements, spirituality, culture and concept of family?
However, indigenous people are not the only Australians who would benefit from a Bill of Rights. Other minority groups, each of us as an individual, and society as a whole would benefit if Australia joined the great international movement to entrench human rights against the constantly expanding power of governments. This movement can no longer be dismissed as an idiosyncrasy of the United States. Canada and New Zealand have bills of rights, as do the members of the European Community, even the United Kingdom. It is extraordinary that Australia continues to imitate a British system that the United Kingdom is itself discarding.
It is unclear to me whether we are too timid to trust ourselves not to abuse guaranteed freedoms or merely self-satisfied because the dominant white community has never felt sufficiently threatened. The conventional theory that parliamentary majorities reflect community will is patent nonsense in a political system with a unicameral legislature and a political process controlled by political parties. The proposition that a Bill of Rights transfers power f rom elected political representatives to an appointed judiciary is glib obfuscation. As one whose judicial career will end next year, I can speak without any vestige of self-interest. A Bill of Rights does not alter the distribution between politicians and judges, but between politicians and the people.
As will become more apparent when Australia is a republic, the people are sovereign. A Bill of Rights is an expression of the limits which, in the exercise of that sovereignty, the people place on their elected parliaments and derivative executive governments to restrict their exercise of power. This is consistent with the underpinning values of a free, just and democratic society. Obviously, there must be some method of determining whether the prescribed limits have been exceeded, and, since that task patently cannot be committed to biased political parties, courts have been the conventional repository. They are the least dangerous arm of government, lacking, as has been said, both the sword and the purse. With a few outstanding exceptions, Australia has an established tradition of conservative appointments to high judicial office. This would allow politicians, who make judicial appointments, to ensure that a Bill of Rights does not bring about any unworkable restrictions on legislative and executive powers.
The doctrine of the rule of law is based upon an assumption that laws are fair and just. The continued failure to ensure that this is so is not only have an adverse impact on the individuals and minority groups affected, but has also resulted in diminished respect for fundamental social institutions. The implementation of constitutional barriers preventing unfair or unjust laws would also enhance the stature of the political process and improve the reputation of such institutions.
The degree of dissatisfaction which is apparent in the community ought to concern us all. It is a sign that social cohesion is under considerable stress. Social justice, including justice for minorities and the underprivileged and marginalised, is a pre-requisite of a unified community. A Bill of Rights would restrict the ability of those who sow seeds of discontent in order to divide society and thus secure political power to advance their own interests.
Australia's international stature would also be enhanced by a Bill of Rights. Perhaps because of our isolation, we seem unable to see ourselves as others see us. We cannot expect to be taken seriously in the rest of the world, especially Asia, while racism is evident in Australia and we hypocritically subscribe to international human rights treaties and conventions only to deny then any force in our domestic law.
Of course, for most of us this is a free society, as is demonstrated by my being able to express a view tonight which does not accord with the views of the majority of those who are entitled to credit for "Queenslander's Basic Rights". I emphasise that the booklet is an extremely valuable education tool. It should be disseminated as widely as possible. I hope that it will not inculcate a sense of smugness in the white community, but will be a catalyst for serious discussion of Queensland and Commonwealth Bills of Rights. Up to this point, this discussion has only really taken place amongst the elite. Those who are most in need, the marginalised and underprivileged, are, by reason of their position, least likely to be heard in any debate of these issues. I hope that this booklet will assist these voices to enter the debate. It would be wonderful indeed if Queensland were to become renowned as the Australian State which is at the vanguard of human rights and freedoms in this country.