From Magna Carta to the Australian Human Rights Commission

Australian Polity

Volume 5, Issue 3

By

Michael Sukkar, Federal Member for Deakin

&

Richard Harrison, Melbourne-based historical researcher

The current debate over the role of the Australian Human Rights Commission (AHRC) comes as the common-law world prepares to celebrate the 800th anniversary of the signing of Magna Carta. This article will look at the connections between the historical event in Runnymede in 1215 and the contemporary conception of human rights, and perhaps more importantly at the radical change in recent decades in the content, sources and justification for these rights.

The name Magna Carta is widely recognised, but the document’s effect and importance are not as well known. When British Prime Minister David Cameron was quizzed on a US talk show he was unable to provide a translation of ‘Magna Carta’ into English (‘Great Charter’), which brought him scorn. However his critics overlooked the more important response by Cameron, which was to cite the core purpose of the charter: to restrain the Crown in dealing with its subjects.

Magna Carta was not the first great declaration of legal principles – far from it. Yet it was only in 1215 that a king – albeit one under threat from rebellious barons – solemnly agreed that he and not just his subjects would be bound by the law.

Most provisions of Magna Carta are now irrelevant or of only marginal interest, but Clause 29 contains the essential core:

No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.1

While establishing a fundamental principle for  the rule of law, Magna Carta was quite limited in how it protected rights. Nonetheless, it provided the inspiration for subsequent generations who fought against the King domestically (the English Civil War) and overseas (the US War of Independence).

The English Bill of Rights of 1689 built on this foundation. Among other things, it guaranteed that: no taxes should be levied without the authority of Parliament; the right to petition the monarch should be without fear of retribution; excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; the election of members of Parliament should be free; and Parliaments should be held frequently. (A number of these rights are familiar to us through their restatement in the US Bill of Rights a century later.)

In addition to the rights enumerated in the English Bill of Rights, the English common law contains several fundamental rights to protect citizens. These are rights that have been developed by courts over centuries rather than enacted as statute law by Parliament. Among them is the obligation of the prosecution to prove a defendant’s guilt, rather than a defendant having an obligation to establish his innocence (the presumption of innocence). Related to this is the privilege against self-incrimination (also called the right to silence), which not only stops a defendant being compelled to answer a question if the answer may tend to incriminate him, it also forbids a court from drawing an adverse inference from the defendant’s silence.

A weakness of these common-law rights is that they can be overcome by an Act of Parliament. James Madison in the United States recognised this vulnerability and so successfully proposed that a number of these rights be entrenched in that country’s constitution, putting them out of the reach of legislatures. Other common- law countries, including Australia, instead allow their legislatures discretion in this, and so there are some limited circumstances in which the ancient rights are abrogated or at least limited.

Superficially the American approach is the more attractive, as the rights are generally considered so important that they ought not to be suspended in any circumstances. However, the price that Americans pay for this entrenchment of fundamental rights is a highly- politicised judicial system in which policy questions are too often decided in court rather than the legislature. Perhaps the most notorious example is the US Supreme Court case of Roe v Wade,2 where laws concerning abortion, previously worked out in each State according to the sentiments of its people expressed through their elected representatives, were simply overturned by judicial fiat.

Australia’s contrasting experience is instructive. During both world wars, the Commonwealth Parliament gave statutory authority to the executive government which included limitation on some fundamental common-law rights. Censorship was imposed, citizens were effectively conscripted to support the war effort in civilian as well as military capacities, and people’s lives were disrupted in other ways. When the wars ended, so did the extraordinary power of the Government.

Arguably, some of these extraordinary powers were abused. But equally arguably, a nation facing an existential crisis in which its very survival and its people’s freedom are at stake should take any necessary measures to protect itself and its people, even if the measures include the temporary suspension of fundamental rights.3 In our view, the Commonwealth Parliament was the appropriate forum to decide these issues, and it met the challenge to the enduring benefit of the nation.

This brings us to the question of who gets to decide in a competition between competing rights, or in a policy question where individual rights are stacked up against a compelling national interest. In Australia these questions have historically been decided by the parliaments as representative assemblies of the people.

In the 1850s the Australian colonies (except Western Australia) were granted self-government and about the same time the electoral franchise was extended from property owners to practically all European men (and also to  some  indigenous men  in  several  colonies).  From the perspective of the twenty-first century this franchise is unacceptably narrow, but at the time it enabled a larger share of the population to participate in government than was the case in the great majority of countries.

The  following  110  years   saw an expansion of the  franchise, most importantly: (a)  when women gained the vote (1902 for Commonwealth elections), and (b) when the franchise was  extended to the many Aboriginal Australians who were previously  excluded (1962 for the  Commonwealth, and 1965 for the last State to grant the vote, Queensland). As a result, for half a century now, every adult Australian citizen has been entitled to participate in the processes of government as an elector.

So long as women or a racially- defined minority were excluded from  voting,  a  parliament’s  claim to represent ‘the people’ was liable to be seen as at best a half-truth. Conversely, now that voting and all other civil rights are universal for Australian citizens, any challenge to the legitimacy of the parliament as the representative assembly of the people is baseless.

However, the advent of universal rights for Australians, with genuine and healthy representative institutions, has not stopped the claims of some for other sources of ‘rights’ and the superiority of such ‘rights’ over those enjoyed under Australia’s constitutional order.

The claimed source of legitimacy for these new ‘rights’ is the series of declarations and treaties  issued by or under the aegis of the United Nations in the years since the end of the Second World War. Somehow the eight centuries of constitutional development in the common-law world can be brushed aside in an enthusiastic rush to embrace a new system of rights that are seen by some as better, especially because they are not the product of the Australian people.

This universalistic system of rights has become very convenient for a group within our community who find the established, democratically- controlled system already in place an impediment to their visions of the good society.

By a sad irony, it is the Commonwealth Parliament itself, in implementing locally a number of treaties, which has given a voice to this fundamentally anti-democratic tendency. But the Parliament could not have foreseen the extreme and sometimes  perverse  outcomes  of the UN-sponsored treaties. One manifestation of the  new  system is the presence of tyrannical governments in its administration, so that the likes of North Korea, Libya and (formerly) the Soviet bloc are empowered to sit in judgement on the decisions arrived at by Australia’s democratically-elected governments.

Fortunately no Australian government takes too seriously the opinions of such odious regimes. But a home-grown bureaucratic regime, lacking any connection with the community and only minimal accountability, feels free to insert itself into national debates  with its singular and sometimes bizarre viewpoints: the Australian Human Rights Commission (AHRC).

No organisation with real ties  to the community could conceivably have made some of the decisions that have come out of the AHRC. Could anyone with any sensitivity to the community’s values have recommended a massive payout – of $350,000 – to an unreformed wife-killer who is kept in detention (legally) for the community’s protection?

Such lack of judgement, insensitivity and remoteness from the sentiments of ordinary Australians are sadly nothing new for the AHRC. What does look to be new, however, is a partiality that was perhaps always present in embryo but has now been exposed in all its ugliness.

The AHRC has descended  from its lofty heights, above the fray of politics and the inconvenient need to account to the people for its actions. It now sees itself as a player in politics – and it hardly needs to be said that it is not playing on the Coalition side.

In a course of evolution that has lasted eight hundred years, the common-law world has developed a system of rights and institutions of representative government whose legitimacy ultimately stems from the participation of all citizens. In Australia, it is the parliaments – Commonwealth and State – that have the legitimacy to decide the often difficult questions of policy that pit one right against another, and on rare occasions require some limitation on existing rights to protect the whole community. The AHRC, in contrast, is a mere creature of the Commonwealth Parliament, created in a moment of folly. Let the Parliament show that it has learnt wisdom, and put an end to this tired farce.

REFERENCES

1. Re-enacted in 1297 as part of Act 25 Edward the First, chapter 29 (Imp), this is preserved by the Imperial Acts Application Act 1969 (NSW), Sch 2, Part 1 and other Australian laws.

2. 410 US 113 (1973).

3. Compare the pithy comment of Justice Grunis of the Supreme Court of Israel: “Human rights are not a prescription for national suicide”: MK Zahava Gal-On (Meretz-Yahad) et al v Attorney General et al, HCJ 466/07, 11 January 2012. The Justice’s point echoed an earlier decision of his court, which in turn harks back to a dissenting opinion by Justice Jackson of the Supreme Court of the United States: “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact”: Terminiello v City of Chicago, 337 US 1 (1949).

 

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