The Constitution as a protector for fundamental rights – by Michael Kirby

Michael Kirby
Michael Kirby

The Hon. Michael Kirby, AC CMG argues that the Constitution is a mixed story for fundamental human rights, and presents the case for a bill of rights.

The Australian Constitution is one of the very few in the world that does not contain a substantive charter of fundamental human rights.  This defect came about by decision of the founding fathers (there were no mothers) in the 19th century.  They rejected a bill of rights as an American intrusion into notions of parliamentary sovereignty.  That decision was taken at a time of Aboriginal disempowerment, the White Australia Policy, imperial rule and a largely monochrome population of British settlers.

Australia is now a very different place:  cosmopolitan, multicultural, multi-religious, with assertive Aboriginal, ethnic, gay and other minorities playing their part in the nation’s society and culture.  Unlike in most countries, these minorities do not have a constitutional principle of equality or basic guaranteed rights to appeal to when (as sometimes happens) the majority in Parliament ignore, or override, their dignity and rights.

In most other countries, there is an ongoing conversation between the courts (which protect basic civic rights) and the legislature and executive government (which tend to reflect majoritarian opinions and wishes).  A contemporary democracy is not a place of brute majoratarianism.  This we have learned from the errors of Nazi Germany, where the Nazis came to power and wielded their tyranny with apparently strong majoritarian support.  But they ignored basic rights and trampled on minorities.  If this could happen in civilised Germany, we cannot pretend that Australia is immune.

Australia’s Constitution contains a lot of provisions about elected democracy.  And in many (perhaps most) disputes over civil rights, parliamentary democracy does ultimately address the rights of minorities.  Sometimes, by reference to particular provisions in the Constitution, the High Court and other courts have upheld basic constitutional rights in Australia.  A few examples include the right to hold property free from governmental seizure without just compensation, as in the Banking Case of 1948; the right to hold and express unpopular political views, as in the Communist Party Case of 1951; and the right of Aboriginal Australians to enjoy native title to their land (the Mabo decision of 1992 and Wik decision of 1996).  The right to free expression on matters of political and economic concern so as to sharpen political debates was upheld in the Lange Case of 1997. Other examples of rights upheld include the notion of Australian nationality, in the face of constitutional provisions referring to the status of ‘British subjects’ (Sue v Hill in 1999); and the right of prisoners not to suffer a blanket disenfranchisement from voting (the Roach Case of 2007).

Despite these important decisions of Australia’s highest court, which sustained significant values against attitudes of discrimination, inequality and prejudice, there are many other cases that show the present incapacity of Australia’s courts when faced with important constitutional challenges. The Stuart Case of 1959, for example,  demonstrated the unavailability of a remedy for an Aboriginal prisoner, sentenced to death, despite serious disquiet about the safety of his conviction for murder. The Darcy Dugan Case of 1978 preserved the antique notion that prisoners, convicted of felonies, suffered ‘corruption of the blood’ and lost the protection by the courts for their civil rights.  Other examples include the suggested inability of the courts to remedy the permanent detention of a refugee applicant, based on parliamentary law rather than judicial orders (Al-Kateb v Godwin, 2004); the failure of the democratic principle to uphold effective parliamentary scrutiny of governmental spending on political advertising, despite the important appropriation power (Combet Case of 2005). The failure of the Constitution to provide remedies against detention orders under anti-terrorism legislation despite the vagueness and over-breadth of such orders was demonstrated in the Jack Thomas Case of 2007, and its failure to provide effective remedies to Aboriginal Australians against the legislative deprivation of basic rights in the Northern Territory intervention was displayed in the Wurridjal Case of 2009.

A review of some of the key decisions of the High Court of Australia concerned with the basic rights of Australians in recent times will disclose admirable occasions where the judges have found enough in the constitutional text and doctrine to protect the basic rights of the individual.  But in other cases (sometimes by majority) the court has felt unable to respond to complaints about serious departures from universal principles of human rights.

The rejection in April 2010 of a federal statutory Charter of Rights for Australia, and the bipartisan concordat opposing national remedies for that purpose, suggests that effective constitutional protections for fundamental rights are still a long way off.  In part, this conclusion rests on a naive and romantic view of the capacity and interest of elected parliaments to respond to all of the legitimate needs of the people for law reform.  Drawing on long service in institutional law reform and the judiciary I can say, without serious contradiction, that notions that parliament ‘fixes everything up’ are false and misleading.  Parliament did not ‘fix up’ the basic deprivation of title to Aboriginal land during 150 years of representative legislatures.  This was eventually done by the High Court in the Mabocase, which then properly stimulated the democratic parliamentary system.  In 1979, economist and Nobel Prize winner Amartya Sen advocated the ‘capability approach’ to human rights:  to allow people ‘to do and to be’ what they aspire to.  The Australian Constitution safeguards some rights.  But it falls short in protecting minorities, and especially misunderstood and unpopular minorities.  We are a long way from Amartya Sen’s ideal.

One day, Australia – like virtually all other countries – will have a constitutional charter of basic rights.  But it will require political champions who understand the complexity of governance and the weaknesses of the parliamentary system as it operates in an age of media infotainment, party control of members’ voting, and indifference or hostility to minority rights.

Whilst Australians can be proud of the independence of the courts and many of their important decisions under the Constitution, they lose out on the full attainment and protection of their basic rights.  Not only does this mean that individual injustice goes unrepaired – it also means that the education of coming generations about their civil rights and the protection of such rights in administrative practice fall short of what citizens enjoy in other lands.  The price of these realities is a diminution of the potential of the Australian Commonwealth to be a true example to the world of a vibrant modern democracy where the majority is encouraged to respect and protect minorities, stimulated to do so by legal provisions speaking of the universal values of rights belonging to all people that are put beyond electoral deprivation or neglect.

The great Australian philosopher, Peter Singer, in his 1993 book Practical Ethics suggests that ‘ethics carries with it the idea of something bigger than the individual.’  It requires the adoption of a ‘universal point of view’, by which selfish perspectives are tamed by the obligation to respect the interests of everyone else.  This is what a charter of rights would afford.  A look at Australia’s past suggests that our legislators and citizens are occasionally in need of the stimulus of such perspectives.

The Hon. Michael Kirby, AC CMG is a former High Court Justice. At the time of his retirement, he was the Australia’s longest serving judge. He has also served in many international and United Nations positions.

An audio file of this essay is available on ABC Radio National’s Big Ideas website.

4 thoughts on “The Constitution as a protector for fundamental rights – by Michael Kirby”

  1. Dear Michael Kirby,

    A fine, well balanced article. You speak well from much practice. You also seem to listen to your narrative closely, for whose benefit I am not quite sure.

    I rather felt that your view was myopic, limiting yourself the Federal constitution and the absence of a rights bill. On this point I don’t consider that the political scene can be adequately dealt with without bringing on-board the constitutions of the States, as there is a sort symbiosis between those two levels. In the absence of this inclusion, politicians all colours and persuasions are quite capable to working around and through, changes to one that are not reflected in the other.

    Next, your blinked view tends to limit your examination to laws associated with the ‘modern/contempory democracy’ we suffer under.

    Whatever the words used to describe our political system are, it isn’t democracy according to my values. I would describe it more accurately as ‘delegated dictatorship’ where we the plebisite can do only those things that are permitted according to the constitutions, which I consider as akin to playing cards with a stacked deck. Plus, whilst this dictatorship is benign, we the ‘plebs’ don’t enjoy true freedom of determining our own future.

    Kind regards, Ernest Treagus.

  2. Dear Mr. Michael Kirby AC CMG. May this letter find you well and in good spirit.
    Thank you for your Service to People. Your article I found informative, alas constrained by many factors. Not the least ‘space’. Although it gave insight to areas that were ‘turning points’ in the History of Australia, that without the application of Justice based Lex-the (by degrees) ‘Social Nazism’ would be ‘Common place’, though, through ‘these Eyes’ it already ‘won the Peace’.
    ‘De minimus non curat lex’ although just ‘where’ does a ‘trifle’ begin and end. And ‘how’ does one defend oneself ‘against’ vitriolic attacks when (according to Government) “you’re imagining, hallucinating, and or suffering ‘a condition’-the slander isn’t slander against your good name according to them”. Thanks for your insights, efforts and pains, in the unending battle against Injustice. Than you B.M

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