Making a List of Freedoms, Good Idea?

Thursday 6 February 2014 @ 12.28 p.m. | Judiciary, Legal Profession & Procedure | Legal Research | Immigration

The Department of Immigration and Border Protection web page states to new would be citizens that Australia recognises five fundamental freedoms, namely freedom of:

  • speech,
  • association,
  • assembly,
  • religion and
  • movement.

Yet in a recent article available from the the Australian Human Rights Commission (AHRC) web page Professor Gillian Triggs, President of the AHRC, indicates that the reality is not as cut and dry as a short list of five freedoms might appear to indicate.

In reality a debate continues at varying rates of intensity over whether our basic rights should be enshrined in a charter or like form of legislative instrument as they are in other countries or allowed to float in the river of case law and judicial interpretation as they are in Australia.

Unlike Comparable Countries

Australia, though it has a constitution, remains one of the few countries that as Professor Triggs says:

". . . is unique among comparable legal systems - [that] we have few constitutional or legislative protections for the freedoms we take for granted and which, for the most part, are protected in our daily lives".

In her article Professor Triggs argues that:

". . .if we [Australia] are serious about securing these fundamental freedoms in Australian law, we must legislate to protect them, just as we have done to protect us from discrimination".

Certainly there is a point in what Professor Triggs argues given that, for example, as a country with a Federal Constitution, the only item resembling a written right in that document is at Clause 116 where it could be argued that the right to freedom of religion is protected in writing, although one wonders how this might be interpreted in the multi-cultural society of today where not every religion coming within the clause is a Christian and/or western one; an eventuality the original drafters of the clause may not have considered.

Australia's Stance on Human Rights

It is true that Australia has not implemented core human rights principles, such as the International Covenant on Civil and Political Rights of 1966, which includes freedom of speech and freedom from arrest without trial, nor have we taken on other "benchmark international obligations, such as the Convention on the Rights of the Child".  Further, our legal system as a whole lacks explicit protection for basic rights and has no constitutionally based document like a Bill of Rights, as exists in the UK, Canada, New Zealand and the United States.

Attempts were made in the past to make documents like the International Covenant on Civil and Political Rights of 1966 part of our of our explicit laws as far back as the days of the Hawke government but they failed.

About the only areas where freedom has found its way into specific Australian statutes is in the area of discrimination, be it racial, sexual or disability based discrimination. Both at federal and state level, explicit laws have been created to cover these areas and protect the freedoms relating to them.

What's In and What's Out

Like all things, a list of what is considered a freedom is neither static nor as easy as "five basic freedoms" to enumerate. The 1966 convention is probably a starting point but is by no means definitive. The fear of not having a legislated list could be countered by the fear that one may be saying that something not on the list is not worthy of being a recognised freedom or right, due only to its exclusion.

How Easy Should the List be to Change

Anyone who has glimpsed at our constitution knows how difficult such seminal laws are to change or update. Currently our Constitutional Preamble, for example, will require a referendum to make a simple change which recognises indigenous Australians, just as it required a referendum in 1967 to allow them to vote. If a "List of Rights" were also in this order of "enshrinement," it might actually work against us.

So What then to Do

Professor Triggs concludes:

"We live in a country where most people think or assume our freedoms are protected. In fact, our legal system does so only in a piecemeal fashion, leaving many black holes in effective protection. It now seems the planets are aligned for opportunity. There is really only one sensible option If we are truly serious about securing the right to our fundamental freedoms in this country - we must legislate."

Perhaps we must legislate but if we do, we should certainly do it carefully and with a great deal of flexibility built in.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

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