PATRICK KEANE, NOW a Justice of the High Court of Australia, once referred to Australia’s constitution as ‘a small brown bird’. The source for this comparison, he explained, was the constitution of the United States of America – a veritable ‘eagle’ of a document, with its opening preamble expressing national pride and recognition of the individual ownership of government in the phrase ‘We the People of the United States’. This is a powerful statement of the rights of individuals with which citizens identify.
Keane’s description is a great starting point for understanding the Constitution of Australia as a minimalist endeavour against those of other countries in terms of engaging with modern sociopolitical ideas and challenges, most notably around human rights. Those other countries comprise not only the US (or indeed Canada and South Africa), but also the democracies of Western Europe, in relation to which Australia might claim a closer common heritage and historical descent.
Many European nations include within their constitutional armoury statements focused on individual rights. France, for example, opens its 1958 constitution with a reference to the ‘Rights of Man and of the Citizen’ doctrine that underpinned its 1789 revolution, and this language is picked up again in Article 1, which refers to equality of all before the law irrespective of race, nationality or religion. Germany’s constitution, properly known as the Basic Law for the Federal Republic of Germany, is similarly ambitious. Article 1 opens with the state’s duty to respect and protect the inviolability of human dignity. Articles 2–19 continue in the same vein, providing guarantees of and protections for the fundamental rights of individuals against the state, culminating in the assertion in Article 20 that all state authority is derived from the polity. Even the Irish constitution, which contains still the overt theocracy adopted by the 1937 drafters, offers in Article 40 a list of personal rights that citizens hold against the state.
By contrast, the Constitution of Australia begins with a statement about the legislative power of the Commonwealth, continues by discussing the position of the Governor-General and offers only five individual rights, which are interspersed through the document. These rights encompass the right to vote, the right to a jury trial, freedom of religion, protection from discrimination on the basis of state residency and, buried deep in the text of section 51, protection from the acquisition of property on unjust terms. This reference to property acquisition underscores the transactional quality of the Australian political settlement. There was no attempt on the part of the drafters to set out or define a collection of values that represent Australia’s actual or emerging character, nor to paint a picture of a young and free nation. Despite the High Court of Australia’s recognition in the 1990s of an implied right to political expression, this protection has proved to be very limited in scope and effect. Australia’s constitution still reflects the historical context of the 1890s, when the drafters first began work through a series of conventions. They envisaged a federation of existing states that, content to be within the British Empire, needed to effect co-operation in areas such as defence and trade, and to balance fiscal and policy responsibilities between individual states and the resulting Commonwealth. This was not a nation seeking rehabilitation and acceptance (unlike Germany after World War II), nor one emerging from centuries of bitterly contested colonial rule (unlike Ireland) to take its place on the world’s stage.
The preamble of Australia’s constitution looks back to the United Kingdom – which famously has lacked any written constitutional settlement expressed as a single code, relying instead on principles emerging from historical events (the Magna Carta of 1215, the Glorious Revolution of 1688), political conventions, judicial decisions and Acts of Parliament. Perhaps the drafters of the Constitution of Australia assumed that uniquely Australian values and perspectives on individual rights might emerge in the same way. They could never have imagined the changes that would be wrought in the UK in recent decades, especially in terms of the popular discourse around rights generated by the judgments of the European Court of Human Rights. The most significant change came with the UK’s Human Rights Act 1998, which, after some thirty years of mounting pressure, gave direct effect in domestic law to the European Convention on Human Rights (ECHR). What this means is that the state, through its public authorities, must act in accordance with the ECHR when interpreting the position of individuals. If they fail to do so, a claim for breach of those rights can be brought for remedy to a UK court. Those domestic courts are not obliged to apply the decisions of the ECHR, but they do have to take them into account.
What has resulted in the UK – and in other European states with prominent statements of underpinning values embedded in their constitutions (often derived from the Universal Declaration of Human Rights adopted by the United Nations in 1948 after the horrors of World War II, or preceding statements such as the French Declaration of the Rights of Man and of the Citizen) – is that the prevailing societal discourse has gradually become one that focuses on protecting individual rights in relation to the state, articulated in terms of human rights. Articulating grievances against the state in terms of human rights claims has become the norm across Europe, as non-governmental organisations and popular movements have realised the potential of their ECHR rights. For example, looking at what has happened in Europe around Article 2 – the right to life – we see an ongoing debate about personal autonomy and decision-making regarding end-of-life medical care. And deaths in custody and deaths in combat are framed as potential breaches of a state’s duty to protect life, with a consequent duty on the state to investigate and explain how those lives were lost. Narrating these stories in terms of individual rights – as individual tragedies that demand an explanation from a more powerful and monolithic actor – hardwires them into our consciousness. It makes holding the state to account a personal issue that matters to each of us.
FROM THE OUTSIDE, contemporary Australia looks as though it is a state engaged with the human rights project. It is coming to the end of its first term on the United Nations Human Rights Council, and last year spoke out against human rights abuses committed by a fellow council member, Saudi Arabia. Scratch the surface, though, and a different picture emerges. In pushing forward Australia’s credentials for a seat on the council in 2016, the federal government referenced Australia’s ‘quiet diplomacy’ in the Asia-Pacific region in relation to Myanmar and North Korea in particular. This ‘quietness’ has been criticised as the rejection of an opportunity to lead in advocating for human rights protection, both internationally and domestically. Last year, Human Rights Watch condemned Australia for making generic statements of concern about torture, detention and the position of refugees rather than publicly raising human rights issues with foreign leaders to demand scrutiny.
To this stance of ‘quietness’ outside Australia, we can add ‘reluctance’ to describe its stance inside its various borders. Australia has been slow to enshrine the contents of major human rights treaties in domestic legislation while ratifying them as an international actor. It has mainly ignored specific adverse findings against it from the United Nations Human Rights Committee based in Geneva, preferring to assert a record of general human rights compliance. Three Australian jurisdictions have adopted human rights legislation: the Australian Capital Territory through its Human Rights Act 2004; Victoria through its Charter of Human Rights and Responsibilities Act 2006; and, most recently, Queensland through its Human Rights Act 2019. Although these developments are praiseworthy, they are still a long way from being a catalyst for human rights discussion and promotion at the Commonwealth level, and across Australia.
Within Australia – compared with many European nations – human rights are still not part of the lingua franca or aspirational framework of political and social discourse. Human rights are not widely seen to merit reflection, historical or otherwise. They do not feature as an organising principle of civic or history education on high school curricula, for example. Former prime minister John Howard was widely derided in 1999 for suggesting that ‘mateship’ (with its obviously gendered overtones, and faux ideas of ‘we are all in it together’) was a core Australian value. But it seems true that this idea – along with the constructs of heroism, self-reliance and a ‘fair go’ that were forged through the trauma of the ANZAC experience of World War I, and the harsh conditions endured by early European settlers – plays a much more significant part in Australia’s national consciousness than human rights. This omission or sidelining in popular discussion extends to the human rights of Australia’s Indigenous peoples, whose claims for adequate constitutional protection in the foundational legal document of the Constitution of Australia remain unanswered.
For one pointed illustration of why being able to frame issues as breaches of human rights is important, we need look no further than the lockdown of nine public housing tower blocks in inner-city Melbourne during the first week of July 2020 in response to the threat of COVID-19. The apparent ‘vulnerability’ of residents in those tower blocks saw a severe lockdown imposed without notice and enforced by Victorian police. Non-public housing was locked down without a continuous police presence and with less severe restrictions. The nature and proportionality of what occurred in the public housing should have been articulated as an issue of the human rights of those residents. By contrast, at almost the same time as this lockdown occurred, a judge of the England and Wales High Court was considering whether a range of lockdown provisions – from the prohibition on being away from one’s home overnight to restrictions on public gatherings – breached ECHR rights; and, if they did, whether they were a proportionate response to the threat posed by COVID-19. The actual decision of that UK court was in many ways immaterial, but it is worth noting that the court referenced a ruling it had made earlier in the lockdown period that restrictions on public gatherings affecting Friday prayers at a mosque were a potential breach of the right to freedom of thought, conscience and religion in Article 9 of the ECHR. What is most important in this example is the recognition of the need to frame the problem as one of the rights of the individual in the face of the power of the state.
MORE RECENT EVENTS in Melbourne around COVID-19 further demonstrate why this is not an abstract question. Since the introduction of compulsory face covering in public across that metropolitan region in late July 2020, in the interests of public health (resembling recent restrictions across a range of European nations, including France and the UK, but not yet in Sweden, the Netherlands and Denmark), social media has featured videography of pseudo-legal and misleading arguments advanced to police by fringe political groups, allegedly grounded in coached ‘lines’ around human rights principles and procedural options. The worrying disruption in public discussion arising as a consequence – perhaps deliberately provoked – has been exacerbated by the lack of baseline ‘human rights literacy’ across Australia. Similar concerns arise around responses to the current legal challenge to the border closures in Western Australia, initiated by mining magnate Clive Palmer and, until several days ago, joined by the Commonwealth. The challenge is grounded in section 92 of the Constitution of Australia, which protects the freedom ‘of trade, commerce, and intercourse among the States’. That constitutional provision is not couched in terms of individual rights – but in these stressful times, a more embedded appreciation of the human rights implications of both this challenge and the border closures it targets would certainly be illuminating, along with understanding of the importance of proportionality in imposing restrictions onthe rights of individuals.
Human rights instruments are not necessarily the sharpest tools with which to tackle disadvantage and structural inequalities. But they do offer a lens through which governments can assess competing priorities and differential impacts on vulnerable groups when considering policy choices, and through which those policy choices may be assessed. Much of the European legal landscape shows us how for individuals, articulating issues in terms of human rights opens a discourse for connecting with others in similar and different communities around a set of common values. This is a powerful way to express discontent with injustice and discrimination perpetrated, unresolved and unacknowledged by the state. The potential of this analytical approach is yet to be adequately realised in Australia. We might wonder how long Australians are prepared to wait for the more sophisticated political settlement that the residents of their former colonial power – and its European neighbours – have enjoyed for some time, enlivened in important ways by the justice values and legal levers of the ECHR. Certainly many of us waiting to partake again of an actual exchange between Australia and Europe, rather than simply via Zoom or similar virtual conferencing tool, would welcome more opportunity to debate the rights dimensions and proportionality of continuing border closures – internationally as well as domestically.