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(The Australian Labor Party in 2009 has once again revived the Bill of Rights on a Federal level for discussion before a possible introduction of an acceptable statutorily Bill of Rights for Australia. There were three Zammit-Dowd Bill of Rights debates. The debate at the University of New South Wales was chaired by Professor Garth Nettheim - but the debate was too technical for the average reader. The one selected below is the 'plain English', easy to understand version which was held at the Humanists of Sydney. Whilst this debate below took place in 1987, all issues raised in the debate are very much relevant to-day and applicable to to-day's circumstances more than ever. Judge for yourselves!)

SHOULD AUSTRALIA HAVE A BILL OF RIGHTS? Victor Zammit v John Dowd

The Hon John Dowd AO, Q.C.

Currently(2009): Chancellor of Southern Cross University, Lismore, NSW; Member of the International Commmission of Jurists, Australian Section.
Formerly: Supreme Court Judge; State Attorney General; Shadow Attorney General; Leader of State Liberal Party, President International Commission of Jurists Aust. Sect

v.

Victor James Zammit
B.A. (Psych.), Dip. Ed. (UTS) LL.B (UNSW), M.A. Ph.D. (Now: Retired: lawyer of the Supreme Court of NSW and the High Court of Australia; Human Rights Campaigner; former United Nations Association of NSW Human Rights committee member and human rights activist).

Presented by the Humanists of New South Wales

INTRODUCING THE DEBATE
(By David Duffield, convener Humanists of Sydney)

(pictured right J.Dowd, left and V Zammit, at the actual debate)

Should Australia have a Bill of Rights? You will recall the fierce debate which took place last year in federal parliament – the Labor Government wanted to introduce a Bill of Rights for Australia which was based on the International Covenants on Civil and Political Rights. The Labor Government claimed that it was technically necessary to strictly adhere to the said Covenants otherwise the Bill would be made invalid. The Labor Government could not out of its own initiative create any other special ‘human rights’ which were not in the treaty of the Covenants. The Labor Government in fact stated the Bill of Rights was an endeavour to consolidate all existing rights in one document.

The Liberal and Country Parties vehemently opposed the Introduction of a Bill of Rights. Those who heard the parliamentary debate would have been shocked by the intensity utilised by the Liberal/Country Opposition in the endeavour to block the Bill from getting through parliament. Essentially, one conservative politician after another from the Lower House and the Senate repeatedly claimed that Common Law is adequate to protect fundamental freedoms in Australia.

Is Common Law adequate to protect fundamental freedoms in Australia?

This is a parliamentary style debate and Victor Zammit will be the Premier. Victor Zammit, a lawyer who specialised in the laws of fundamental freedoms, argues that Common Law, being the weakest law has outlived its usefulness in relation to protecting human rights. Highly articulate, and assertively oratorical, you will see and hear Victor's intense passion for human rights to-night.

The Hon. John Dowd the most astute and brilliant mind in State politics, promoting the Federal and State Liberal Party policy on fundamental freedoms, argues that Common Law is adequate and functional in all endeavours to protect human rights.

Both cannot be right – what is your view?

*************

(The actual debate at the Humanists in Chippendale was most entertaining, lively, witty and provocative. The Humanists’ meeting convenor, Mr David Duffy, said afterwards it was the best debate the Humanists had for 35 years!)

The same motion was debated by the Hon. J. Dowd & V. Zammit at the University of NSW Law School on 24th September 1987 chaired by Professor Nettheim, Dean, Faculty of Law and a third debate on the Bill of Human Rights was held at the Wayside Theatre, Kings Cross, Sydney November 1987 chaired by the flamboyant social reformer the Rev. Ted Noffs.

********************

Victor Zammit:

Thank you Mr Speaker. It is really most inspirational and most evocative to see a packed hall here tonight to debate ‘That Australia should have a Bill of Rights?’ The simple answer is that Australia is the only democratic and constitutional, post-industrialised, ‘Western’ country without a Bill of Rights: Australia is out of step with the rest of Western, Northern and Southern Europe, out of step with the United States and Canada. Australia is even out of step with mother England! The United Kingdom made itself jurisdictionally and jurisprudentially subservient to the European Human Rights Covenants, and this means in practice that the English do have a written Bill of Rights.

Secondly, in Australia there is colossal and ubiquitous ignorance about human rights generally. The politically conservative Fairfax press made the famous report showing that of people between the ages of 17 and 24 only 24% had any knowledge that we have an Australian Constitution! This positively correlates with the Human Rights Group’s findings that only 35% of the people had the knowledge that we do not have a formalised Bill of Rights, that our fundamental rights are not guaranteed. Sixty percent said “of course Australia had a Bill of Rights, the same as the Americans!”

This would have people in Australia the most ignorant people about their rights in the civilised world today. So that for educational purposes, a Bill of Rights would ameliorate the existing colossally inadequate situation.

But my main argument tonight is that the system of Common Law in Australia is not working to protect fundamental freedoms. Common Law may be functional in other fields, but not for fundamental freedoms. Common Law historically was not able to protect the people’s rights, human rights. Common Law might have worked in the first century of civilisation in the convict colonies here, but certainly it is not working today. I will be arguing that in respect of human rights, Common Law is outdated, has been made redundant and utterly otiose. Statutory provisions by way of a specific Bill of Rights are the preferable way, especially in view of the fact that there is an international obligation for Australia to have a legally enforeable specific fundfamental human rights legislation.

Initially, let me inform you that although the respect and observance of human rights transcends all political bias, the introduction of a Bill of Rights is political. This makes tonight’s debate a political debate.

However, nobody should here tonight interpret my campaign for the introduction of a Bill of Rights as some sinister endeavour to change the existing political structure.

Nothing could be further from the truth. We are dealing to-night with fundamental freedoms to which Australia pledged itself at the United Nations. In other words, I am strictly adhering to, as I have done ever since I started to promote human rights, those rights Australia ratified in 1981. Nothing more, nothing less.

The debate is political, specifically because the federal Labor Party wants to introduce a Bill of Rights, wants to give us the people, constitutionally entrenched fundamental freedoms whereas the Liberal/National Parties are opposed to a federal parliamentary Bill of Rights –as a matter of fact, there was a vicious and malicious campaign conducted with the ‘blessing’ of the conservative parties against the introduction of a Bill of Rights. The Senate last year spent a record 30 hours debating the first few classes. Of course the Labor Government was forced by the conservatives to withdraw it. I want you to think and ask yourselves “Why can’t we the people be trusted with a simple Bill of Rights?” I want you to ask yourselves “Why should conservative politicians deny us a Bill of Rights which is going to check the excesses of politicians and bureaucracy?”

I do not think that the Liberal and the National Parties have anything to be proud of in the fact they deliberately and knowingly deprived, us the people, from having a Bill of Rights!

It was on the 22nd March 1973 when the then retired Sir Robert Menzies, the founder of the Liberal Party and Prime Minister for 13 years until 1966, wrote an article in the Sydney Morning Herald denouncing a formalised Bill of Rights, saying that Common Law is adequate to protect fundamental freedoms. His argument became the Liberal Party policy on human rights.

What is wrong with Common Law?

Common Law is judge made law; it is the law of precedents. Where there is no written law, a judge makes or follows previous judicial decisions. But Common Law is the weakest law in the land. Even a bureaucrat at the local Municipal level – say the Sydney City Council, by written regulation can make invalid Common Law. Common Law is in fact discretionary power. Because when you give a magistrate, or a lone judge, this kind of discretionary power, it most often works against us, the citizens – never against bureaucrats. Let me give you an example.

When some time ago one of my clients applied to the Sydney City Council for permission to organise a public meeting away from motor traffic, that permission was refused without an explanation. But two weeks later, when the chief resident politician of Sydney Council, the Lord Mayor wanted to make a special speech, a platform was erected with an electric P.A. system so that HE, a politician, could make a speech, a political speech, to express his right to speak – but not my client’s fundamental right to freedom of expression! Why should some people have rights, others not? Why isn’t freedom of expression guaranteed in the Constitution? Common Law did not protect my client’s fundamental freedom! Common Law in fact, discriminated in favour of those who were in power! Something is very wrong indeed!

And if we appealed to some Common Law judge about the blatant unfairness and abuse of discretionary power of the City Council, a Common Law judge will say, as he usually does, “Common Law jurisdiction is not a place for reform. It is parliament’s responsibility not mine to introduce any reforms, I am here to uphold the existing laws”.

So, what is wrong with Common Law? Why is Common Law inadequate to protect fundamental freedoms? Why are the Liberal/National Parties actively campaigning to allow the Common Law to ‘protect’ fundamental freedoms?

As I said earlier, Common Law is the weakest law in the land. Common Law can be made invalid overnight by State Parliament. Common Law can also be invalidated by Federal Law, and of course, by the most powerful law in the land the Australian Constitution.

You see, Common Law does not say we have fundamental freedoms. Common Law does not say we have the right to speak, or to assemble, or to procession, or the right to privacy. Common Law does not tell bureaucracy “You must adhere to the due process”. Common Law does not say that politicians or bureaucrats should not violate fundamental freedoms. No. Common Law says, “you may speak, assemble, or whatever provided there is no written law prohibiting you from doing so!” So that any politician, for electoral advantages could knowingly violate our fundamental freedoms if he knew he was not going to have electoral backlash, if he knew he would in fact increase his electoral support! The situation, as you very well know, exists in Queensland today. A Bill of Rights would take away that kind of political abuse of Common Law! Circumstances here could change and we could find this pernicious situation here in New South Wales!

When the Liberal Party says Common Law stands on its record, no Liberal politician reminds you that last century the Common Law upheld the ‘right’ of factory owners and other employers to contract with children to work 16 hours a day for starvation wages!

The Common Law threw into jail those workers who tried to form a trade union.

The Common Law as interpreted by the High Court denies any general right of privacy.

The Common Law, as confirmed by Sir Garfield Barwick, the former Chief Justice of the High Court and a former Liberal Party federal Attorney-General in the Menzies government of years gone by, says the citizens here do not have the right to legal aid, not even in a serious criminal matter.

The Common Law in fact denies the fundamental rights of equality before the law!

Common Law does not guarantee us the right of due process, a most serious issue which today in Australia is very disturbing in context of the blatant violations of one of the most sacred and fundamental of all rights – the due process or what some lawyers call the rule of law.

Sir Alan Herbert said of our Common Law that the only right we have in a public street is to walk at a moderate pace, by ourselves and breathing quietly!

J.A. La Nauze, in his book, ‘The Making of the Australian Constitution’ said that a Bill of Rights was also rejected because it was feared that any requirement of equal protection laws would rule out discriminatory legislation against the coloured people.

Edmund Barton, Australia’s first Prime Minister said in 1901, to quote verbatim, “I do not think that the doctrine of the equality of man was ever really intended to include racial equality”! This principle may have applied then, but not now, in the late 1980’s.

Professors Enid Campbell and Harry Whitmore have said that when Common Law and statute are combined there is little left of the right to hold a meeting procession!

In other words, the fundamental difference between the Labor Government and the Liberal Opposition is that on one hand we will have the introduction of a Bill of Rights and eventually constitutionally guaranteed freedoms as against the Liberal Party’s predilection for Common Law which is, in practice, discretionary power, in some instances with unelected bureaucrats, with the judges and magistrates rather than with the people of this country. Just as an aside, the issue as to whether a tribunal or special judges should adjudicate on human rights is ancillary to the fundamental one of having an enforceable Bill of Rights.

As you can see, the history of Common Law has been a disaster for 90% of the people because discretionary power always favours those with ‘contacts’, favours the bureaucrats, favours the conservatives, favours the elite of society and works against the interests of the majority of the people. Why shouldn’t WE be trusted with fundamental freedoms? Why shouldn’t we determine our rights? Why shouldn’t the decent Australian, irrespective of colour, or anybody who lives here be given guaranteed rights, which should be put above the abuse of politicians, policemen, and whoever? Why shouldn’t we have the same ‘guaranteed’ rights as those people who live in post-industrialised ‘Western’ nations, with similar values and political structures as we have? Why should we be the only post-industrialised country without a Bill of Rights?

And why shouldn’t the Conservatives fulfil the international obligation Australia made under the Fraser Liberal Government in 1981 at the United Nations, pursuant to Article 26 of the International Covenant on Civil and Political Rights, to GUARANTEE specific fundamental freedoms – which means to constitutionally entrench specific freedoms!

I will tell you why the Australian conservatives are against the introduction of a Bill of Rights. As a convict colony, Australia was ruled by the British military and English governors who derived their political powers from Imperial laws and Common Law discretionary power. This meant that for geographic reasons and administrative expediency, the administrators exercised unfettered discretionary powers – dealing with the issues as they arose – like whipping and hanging convicts on many occasions without the due process of law. And unlike mother England during the reign of George III, there was no middle class to police any abuses of fundamental freedoms, as there was in contemporaneous England.

This discretionary power became part of the Australian idiosyncrasy in the administrative hierarchy and is evidenced by the willingness of the uniformed public, even today, to allow discretionary power in the hands of a few rulers. As a matter of fact, the political power of the English military has now been transferred to the Conservative Parties, where there is an over willingness to appoint the military as state governors, all with knighthoods of course, and in positions of power to dominate the political thinking of the conservatives. And because we have 95% of the ownership of the media by just two conservative parties, it is relatively easy to manipulate, control, condition, the minds and the hearts of the uninformed people in Australia.

Having a Bill of Rights will usually remove all discretionary powers from those with enormous political wealth or power or both. Of course, there is no perfect panacea, but we will be certainly and irretrievably be getting closer to a less unjust society, closer to the ideal society.

We are not living in the nineteenth century. We are not living in the age of darkness, or the age of ignorance or the age of tyranny. We are living in the 1980’s where most of the civilised world has learned from bitter experience, has learned that discretionary powers will ALWAYS, sooner or later, be abused.

Why should we forget the lessons of history? There has been and there is in the world today imprisonment without trial, torture, genocide, maiming, murder, mutilation of human flesh, wars and revolution because of abuse of discretionary powers: whenever mankind attained any fundamental rights in any constitution, it was always after a political crisis, such as a war or a coup d’etat or a revolution!

When there was abuse of discretionary political power in the most cultured and civilised world of the eighteenth century in France, it was the enlightened people such as Voltaire, Diderot, Jacourt, Montesquieu and Rousseau and others who eloquently articulated that man was born free, that man had dignity, had respect, and that man was born with inalienable ‘natural’ rights to life, liberty and the pursuit of happiness, as the English empiricist Locke was the first to state.

But even before the Age of the French Enlightenment, it was in England when the Barons forced King John in 1215 to sign the Magna Carta, because he provocatively and blatantly abused the Common Law and the discretionary power he had and provoked the Barons to threaten the king himself to amend his ways or else! The Magna Carta, perhaps can b e seen as the very first English Bill of Rights in a limited form! Remember, this happened over seven centuries ago! The Magna Carta, a document written to limit the power of the King and to prevent the blatant violation of human rights, was to be instrumental in educating the rest of the world about respect for fundamental freedoms!

But King Charles in 1640’s ignored the warnings by parliament and Cromwell about the tremendous monarchical abuse of discretionary powers – like fundamentally violating the due process and dismissing parliament! Of course, we know what happened to Charles the First; the people chopped his head off! This was to lead to the Glorious Revolution (which was in fact, the House of Commons leading a successful coup d’etat against the monarchy, against King James) and the first formalised English Bill of Rights of 1688 – and incidentally, monarchy became established by an ordinary Act of English Parliament, under which the monarch could no longer act on his or her own initiative but by advice from parliament. So that grave political crisis gave birth the first formalised English Bill of Rights!

It was after the American Revolution of 1776 that fundamental freedoms were entrenched in the American Constitution. History records that the framers of the American constitution were fundamentally influenced by the ‘Enlightened’ French and English philosophes, particularly in relation to fundamental freedoms and the separation of powers.

It was at the time of the French Revolution of 1789 when the first very comprehensive Bill of Rights was drafted, the Declaration of the Rights of Man, which incidentally, you still can read in today’s French Constitution and many of the Rights clauses found themselves in the United Nations’ International Covenants on Human Rights of today!

It was after World War II, after a staggering figure of 60,000,000 casualties, that the first Universal Declaration of Human Rights became the universal creed for mankind.

Should we then wait for a revolution, or another world war for us to have a Bill of Rights? Because other countries are not prepared to wait! The West Germans, the Dutch, all the Scandinavian countries, France, Italy… all have a Bill of Rights now, all have experienced the bitterness and brutality of a major war and some also experienced the bloodshed of revolution! They entrenched a Bill of Rights in their constitutions because they agreed that there should be a minimal acceptance of human behaviour that the world is prepared to tolerate.

Why then, when Australia pledged in the United Nations that it will honour and respect fundamental freedoms, by way of ratifying the International Covenants on Civil and Political Rights in 1981, are the Conservatives now trying to deny us, the people of Australia a Bill of Rights and entrenched fundamental freedoms? Is it not political dishonesty and hypocrisy to tell the United Nations to guarantee freedoms pursuant to Article 26 then have some unrepresentative element in society dominate the conservative parties to deny us, the people, the right to guaranteed freedoms?

Let me give you, in the time that I have left, some of the objections vociferously articulated by the opponents of a Bill of Rights which the Labor Government endeavoured to get through Canberra last year. These objections I collected from different newspapers and from listening to Parliament and the Senate – and I must warn you that if these objections sound a bit silly….. they are silly and stupid. Judge for yourselves.

‘Abortionists will exploit the Bill of Rights!’ In fact a Bill of Rights says nothing about abortion. An intrinsically controversial issue such as abortion should be dealt by separate legislation.

In The Sydney Morning Herald on the 8th March 1986 it was claimed that if a Bill of Rights was introduced, organised crime would exploit it! Well now, you know as well as I do, organised crime will exploit anything – it will even exploit the law, policemen and judges. Does that mean we should have no law, policemen or judges?

In the same article in the Herald, it was seriously submitted that a Bill of Rights in Australia will promote homosexuality and that homosexual couples would be able to legally adopt children! How scurrilously stupid and ridiculous and malicious this was in the endeavour to denigrate a Bill of Rights!

It was submitted by a clergyman that a Bill of Rights will promote atheism, when in fact a Bill of Rights was going to give some guarantee to freedom of worship, which we technically do not have in Australia today! I wrote to the clergyman informing him of the situation as it is in Australia today: his freedom to worship his own God is not guaranteed! In fact, he was campaigning against his own interests by depriving theists in Australia of guaranteed freedom of worship! And that at least two state governments are on record for reducing the people’s fundamental right to worship in Australia!

Another favourite objection was that the proposed Bill of Rights did not give the right to property, something which nearly every conservative Senator mentioned in parliament during the fiery Human Rights debate last year. What these anti-Human Rights Bill Senators (including one with a knighthood) omitted to say, was that the conservative Liberal Party was in government for twenty-three years, and it never bothered to pass a federal law to give us the people the formalised right to property!

It was seriously proposed that AIDS sufferers will exploit the Bill of Rights not to be put in a quarantine reserve! Obviously, no comment is warranted on this ludicrous objection.

Further, it was stated that the Russians had a Bill of Rights and that it does not work! Of course it will not work in Russia; but I said so many times, and the Labor government said so many times that a Bill of Rights will work in the constitutional-democratic, Western type countries, not the totalitarian Marxist countries! I am talking about a technically enforceable Bill of Rights, not a non-enforceable, cosmetic, declaratory Bill of Rights. Russia’s constitutional rights are made nugatory by the Soviet Criminal Code, especially Articles in the 70’s.

Nor does Russia have a free press, the separation of powers, or the multi-party system – all of which are necessary for a proper Bill of Rights to work!

We are told that a Bill of Rights does not prevent a war! Of course it does not prevent a war or a revolution or a coup d’etat. Common Law did not prevent world war two! A Bill of Rights will not cure your headaches, your backaches, or your colds and flu! A Bill of Rights will work very well, under normal circumstances in context of our existing political and economic conditions.

Sir Harry Gibbs, the former Chief Justice of the High Court, while addressing a public forum – on a conservative political platform in Queensland last November (1986) said that if Australia was a tolerant society, we did not need a Bill of Rights. First of all, it is unfair, unreasonable , unjust and a violation of the principle of the separation of powers for any judge, let alone the Chief judge of the High Court to meddle in politics. The decision to introduce a Bill of Rights was a political decision – why then did a judge, a High Court judge, the Chief Justice of the High Court, try to use his position to influence the debate which was taking place in the Senate, try to interfere in politics? He knew that as a High Court judge he would be quoted in the media – the effect would inexorably be to influence public opinion! What if the Bill went through, and was challenged in the High Court- would he not have to excuse himself for Natural Law says that no man is to sit in judgment of his own cause?

Of course, would not a politician from Queensland, whose party would lose government if the concept of one vote one value – pursuant to the Bill of Rights – was introduced, lobby extensively? I ask you, why would any judge break all the legal ethics, violate ‘Natural Law’ and deliberately violate convention on the separation of powers, to aid and abet in the endeavour to destroy any hope of giving us, the people a Bill of Rights?

Are we not mature, sensible and reasonable enough to be trusted with a Bill of Rights?

“Australia has a good record on human rights” we are told! Perhaps you might believe it if you were not black, or a migrant, or gay or an Asian, or poor or a pensioner or even just an ordinary worker or one of the unemployed. It is on record that genocide against the blacks was committed in Australia; over 100,000 blacks were murdered in Australia so that the white man could settle. Let me be frank about this, without unnecessarily trying to be euphemistic, or diplomatic and to cite a fact as it is (even if I do cite the conservative Fairfax press for this information) even today a commission has been organised to investigate the ‘suicides’ of the blacks in police cells – more than a hundred in the last seven years!

When I first came to Australia as a little boy, I experienced racism, vicious gratuitous hatred based on racial prejudice and some of you here would have experienced racism at one time or another – and we must not deny that we do live in a racially-elitist country! Just have a look at who’s running the country. 94% English-Irish and about 4% Jewish – when in Australia approximately 33% of all people living here come from a non-English background! If Australia wants to bring in migrants, then Australia must implement the promises it made at the United Nations to guarantee fundamental rights to ethnic groups and to actively work towards introducing a Bill of Rights!

Until the introduction of the Anti-Discrimination laws, the Common Law legitimised racism and discrimination against you – if you were black, a Jew, migrant, a woman, gay, Catholic, atheist. It was statutory law which invalidated these heinous violations of fundamental freedoms! It was parliament which said that Common Law is outdated, outmoded, useless, racist and unjust.

We, the people living in Australia, should not go on record at the United Nations as allowing the conservative class in society to use political cynical hypocrisy to deny us guaranteed fundamental freedoms. Let no cynical conservative politician, let no bullying bureaucrat, let no overzealous policeman tell you that Common Law gives you any guarantees. Common Law is discretionary power. Which means power by those in power to violate, oppress and denigrate if some advantage is going to be gained at the expense of legitimate fundamental freedoms.

Listen very carefully to what Australia pledged at the United Nations. Understand the fundamental issue of ‘guarantee’ as against ‘discretionary’ trust of ‘Common Law’ power: Article 26 of the International Covenant on Civil and Political Rights says that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and GUARANTEE to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Why then is the Liberal Party trying to deprive us of these guarantees? Why is the National Party going out of its way to deprive the people of fundamental freedoms? Why are the tiniest but most powerful sections of Australian society in the law enforcement agencies against a Bill of Rights? Why should Queensland’s lobby to destroy the Bill of Rights be given any support? Why were so many untruths told in Parliament in the Senate and in the media against the introduction of a Bill of Rights? Even the Highest Judge in the land lent his status publicly against guaranteed rights as proposed by the Labor Party! The conspiracy against the introduction of a Bill of Rights does not have the backing of the 95% of the people. For the last reason alone, there should be a referendum U.N. externally administered of course, I don’t trust conservative bureaucrats here - to allow the people, those who usually vote for the conservatives, the opportunity to by-pass the party recommendation and vote for fundamental freedoms in next year’s referenda on constitutional changes!

Is it not reasonable to consolidate all existing human rights we have, some at Common Law, some at State and Federal level and a couple in the Australian Constitution in one document so that the average person can identify what rights he or she has?

In fact, when the Secretary of Human Rights of the United Nations in Geneva was here last week, he was shocked to hear that Australia does not have a Bill of Rights!

And as I said earlier, the English Common Law became subservient to the European Covenants which meant that over 100 changes – quite a staggering figure – 100 changes to the English Common Law had to be made so that there would be uniformity in relation to how man on earth was going to be treated by his government, how man’s place in the universe had to be reassessed and reviewed in the light of what became civilised and decent. And what is the use if we continue to progress materially, to increase the size of government and bureaucracy, to build huge skyscrapers in modern cities, to create the miracles of high technology in computers – and deny our people here guaranteed freedoms?

Accordingly, I urge all of you here tonight to stand up for your moral convictions and vote for the introduction of a Bill of Rights!

The Hon. J. Dowd:

(the initial introduction by Mr Dowd on tape could was unable to be deciphered) …..development of the individuality of the human being …. That individual human being be entitled to express him or herself to the maximum of his or her own capacity.

Obviously, that is something of a birthright, it’s something stamped on us when we were born, the right to pursue our individuality. The debate therefore is not about our right to do that. The debate is about the effectiveness of the perceived tool or weapon whereby you can carry that through.

Years ago I fairly unpopularly advocated that when smoking was taken off trains that there should be one carriage per train to cover that very high percentage of the population that does smoke …. They should be able to go there and smoke themselves silly if they want to.

That of course was not fashionable at the time. It still isn’t fashionable. Despite the fact that one quarter or a third of the population smoke – they can’t smoke on a train. But of course, you’ve got the right to ride on those lovely little platforms between the trains in the open air if you wish.

Of course, the very sign under which we debate here, the important understanding: “no smoking people are breathing”.

What that underlines is that no right is absolute! No right in our society is absolute. Once we become members of a society we forfeit certain rights for the benefit of all because the Common Law, which the Premier so scathingly rejects and says is based on series of fundamental principles – as the Latin aphorism goes, “So do your own thing that you don’t do to anybody else!”

That’s not an absolute right …. that’s a right to do it in conjunction with the rights of others. So my right to smoke is not an absolute right. My right to smoke is subject to not polluting the air that others breathe.

So, you’ve two conflicting rights in that very simply proposition on the banner under which we debate. But of course, the other problem is typified by the very abortion debate that the Premier introduced because the Right to Lifers who have their particular concern, their anti-abortion views, see a Bill of Rights as “ah, this is the way we can stop all those terrible people having those abortions” and they perceive that once you have a Bill of Rights in, that means to protect human life and they by definition say that human life starts at conception.

And having obtained their own definition they then say: “Well, we can stop all these abortions by a Bill of Rights – because they perceive that it is a tool that they can use to protect their particular interest.

And of course on the other hand the right of every woman to choose whether she will or won’t have the child she might or might not want to conceive she says “Oh, but I’ve got the right to terminate that pregnancy”. So the societal right, the right of the unborn child, the right of those who would want to protect the child, the right of those who want to prevent her from having a child. Those rights are in absolute conflict!

And of course, there’s no document that you can write that suddenly will say (points a member of the audience) “you have that right, “ (points to a different person) “you have that right” … because rights are in conflict!

If I can give you the example of a tripartite conflict resolved recently by the Courts of New South Wales under the ‘terrible’ Common Law system you’ve heard disparaged tonight. You see, when the Germanic tribes spread throughout Europe … based in Denmark at the time of the birth of Christ, the Danes, Angles, Saxons, Jutes, the German tribes spread down West, East, South and indeed North from Denmark into Sweden and in the Northern countries. And the Angles and Saxons and Jutes brought with them to the United Kingdom or to England in any event, the Common Law system. And that Common Law system has been taken by those English speaking peoples particularly, and to a lesser extent the German speaking peoples, the Dutch people, into other parts of the world.

Common Law system is not simple, it’s not neat. You cannot read it up there (points to the Humanists Creed framed on the wall) ‘Humanism means moral values without religious dogma’. Common Law is not simple. It is not neat. It is not easy. But it works! But it works!

Because as Victor has heard me say before, when I stood up once on the Decolonisation Committee at the United Nations defending an ‘inconsequential’ people from East Timor because I, as a representative from Australia was asked to go and defend the cause of the people of East Timor who were going to be wiped off the agenda back in 1979 of the Decolonisation Committee because they had been absorbed into Indonesia and the United States and all the other countries did not want to be concerned …” they’re only little and who cares about them and they don’t produce anything and they’re irrelevant”.

But I looked around that vast sea of nations …. 150 to 155 nations – to try to find 20 nations that had a semblance of democracy …. and I couldn’t find 20!

But if I looked around that sea of nations to see how many had a bill of rights or a constitution protecting constitutional rights – half of them WOULD have!

Half of them would have a document that says you have a right to do this and do that and whatever!

The very Soviet Union the Premier tonight talks about has got a Bill of Rights – it’s unenforceable. But you have a Bill of Rights!

So you have to work out: do you have a meaningful Bill of Rights that protects us in absolute terms? Have you got a Bill of Rights that is enforceable? And whose other rights are interfered with in the enforcement of that?

Because the tripartite problem I mentioned earlier …. I refer to a hypothetical case – let’s call it the Davey case where it is alleged that doctors in the United States through negligence killed their patients. The government to compound that, neglected the legal proceedings so that after a period of time the rights of the defendants to have a fair trial, of course, meant that no longer, they no longer had to face a jury at all because the Common Law system says that the principles of Natural Justice which you can’t define precisely, which you can’t set down in three paragraphs and say, “there’s the principles of Natural Justice” – but is enshrined in a thousand decisions over many centuries. The right of those people to have a fair trial meant that they could not have a fair trial after 12 years or whatever and of course, the proceedings were stayed … end!

But of course what about the rights of the victims? What about the rights of the relatives of the victims to have justice? What about the right of the State to have people that commit crimes brought to justice? Brought to face their accusers, brought to answer and if failing to answer to be convicted and to be penalised by a society that does not want people killed in mental homes or hospitals by ‘inappropriate’ means?

There, you have three different rights: the right of the accused to have a fair trial; the right of the victims and the relatives to have justice; the right of society to execute its judgment and penalty upon people who break the law and kill others …. and break that fundamental right … the right to live!

Because a Bill of Rights doesn’t give rights to everybody. It gives rights to somebody and may ignore the rights of others!

The abortion debate therefore – you see a total and absolute competing right in society of the unborn child of the mother of the child and those who want to protect the unborn child. You see the right of the justice system to protect people from unfair trial having to answer something that happened 12 years ago.

But under our Common Law system, a decision was made a few months ago, another decision was made three or four months ago, two more decisions a month ago.

The Court of Appeal, the people, the judges in whom the rights of all of us are enshrined by the charter of justice decided that the fact that there was a two year delay didn’t necessarily mean you didn’t face your accusers, you didn’t face a jury.

And they would modify the law within the space of a few months because the hypothetical case of Davey in the U.S. – if the decision were being misinterpreted by some judges so that if somebody waited two years to go on trial … they wouldn’t have to face the judges at all, or a jury at all because their rights were protected and all of you do not want a society in which because not enough money is being spent on the legal system – all of you don’t want a society in which someone could commit a crime today, tonight and never face trial. You do not want a society in which people could commit crimes against you, your person, your property and get away with it!

And then of course, you may say there shouldn’t be any delays; the society should provide more money to make the court system work so that there are no delays!

But of course, government is a matter of the health system, the roads, the hospital system, the social services system, the education system, the justice system – there is nothing absolute about government.

Governments are matters of priorities and you want more money spent having more policemen, on more judges and more on lawyers – terrific! That might solve that problem – but if it’s at the expense of hospital beds or whatever, if it’s at the expense of the increasing taxes, because there’s a theory that taxes are unlimited and people keep just working and paying.

You see, no right is absolute; no entitlement is absolute in our society.

You’ve heard talk from the Premier in this debate about the right of legal representation – and that ‘terrible, shocking fellow Garfield Barwick – held that people didn’t have a right of representation – why shouldn’t everyone have a right of representation?

Well the fact of the matter is, if everyone who went before the court had an absolutes right to representation, we would multiply a thousandfold the cost of the legal system. Now that’s terrific for the lawyers; it’s terrific for everyone who gets a speeding ticket or whatever because a crime is a crime is a crime!

If everyone had that right the system would break down. Because unless we massively multiply your funds away from health, police, or away from education or from protecting the environment into the legal system, of course, you can see it becomes absurd.

There is no absolute right in our sort of society because the funds are just not unlimited – we can’t suddenly just say we’ll print more money because as you know the currency collapses and everybody loses!

The Common Law system varies in accordance with the mores of society. Some of you will remember that book ‘The Day of the Triffids’ by John Wyndem in which everyone or almost everyone was blinded except some were partly blinded and some that could see – and then came together all the people where the old man got there and explained: “What is good in one society in one century is bad in another”. And what is frowned upon in one era becomes part of that next society. And the fact of the matter is circumstances change.

So that we have laws relating to indecency – and young ladies exposing any more than two inches of their hip on the beach were arrested and put in gaol or fined. Now people are not so quite fussy about such matters to the greater enjoyment of a large group of the society. Males and females don’t have to be obsessed about what they do or don’t wear.

The fact of the matter is societies change. Laws change. And if you’ve got some document called a Bill of Rights which sets up those rights, of course that doesn’t change.

You see, because courts have to interpret those words – because of words a Bill of Rights is not a bill of rights it is a form of expression of those rights.

Remember the Workers’ Compensation Act when it was brought in and they wanted to keep it simple – none of this lawyers’ nonsense. So of course they said anyone injured during or in the course of their employment – simple words, ‘during or in the course of their employment’. But of course the present government has taken away these rights for the large percentage of workers, because it got too expensive. Because the simple fact of the matter is that workers’ compensation premiums got too great and people were not being employed because ‘during and in the course of’ came to mean virtually from the time you got out of bed and you got back into bed at night. It really got out of hand.

Because a right blew out as against other peoples’ rights and became beyond the capacity of the society to pay.

The other important thing about Australia orf course is that we are a federation – a federation in which people say “well that State’s wrong, we’ll get the Commonwealth Government to fix it. Queensland’s out of line – their march laws, which appalling; the right of people to march is fundamental – then if you can’t march then we’ll get the federal government to protect it.

But of course there’s some sort of assumption that the federal government is something holy in terms of protecting people’s rights.

You look at the Customs laws. You look at the incredible draconian powers that the federal Government has got in terms of phone tapping, in terms of the right to seize property, seize your boat if you come in with contraband; seize it and you’ve forfeited the right to own that property is taken away. There’s no magic in the Commonwealth Government or a central government protecting your rights.

Because there seems to be a problem about those march laws and rights of assembly in Queensland. The law in Queensland is no different to the law in NSW. But of course here the government has the sense that if there’s going to be a demo. and the special branch or whoever it is goes to the rent-a-crowd or whoever’s running the demonstration and says “what do you want” you want seven hundred policemen or seven – your choice – what do you want – seven – seven hundred? NSW will say ‘7 thank you’. OK. No problem!

In Queensland because they win votes by bouncing off it – A.S.I.O. automatically brings in 700 cops – there’s a confrontation and the backwoodsman says: “Good on you, stop those people taking to our streets stopping us driving around and so on”.

But the laws are the same. In real terms they’re exactly the same but they are practised differently in Queensland’s case for cynical political purposes – in NSW they are very practical political purposes and practical societal purposes of letting people march as they want to, not absolutely, because other people have to use the street as well – if you had an emergency and you want to go through that street and want to protect somebody’s life. Of course you want the right to go there if there’s a demonstration on. The point is no right is absolute.

But of course in Australia we have a federation; we have the separation of powers. We don’t have an absolute right of the central government to control your lives and if you want to be different – if you want to vote with your feet and move to Western Australia or Queensland – and however much we like knocking it there are more people moving into Queensland than out of it. And there are more people moving into NSW and Victoria, than out of it, so the drift north is there – it’s got something to do with climate rather than anything else!

But the fact of the matter is you have the right to live in a different sort of society in Australia if you choose, because it’s not compulsory to live anywhere. You can move where you choose. Because the essence of democracy which is what the Common Law is about is of course division of power.

And I like Australia – one of the freest countries in the world. And I suggest you to try and run a list of countries that are freer than Australia. It’s that way because we divide power between a central government and the state governments.

And the Commonwealth government does not have overriding powers in certain areas – and it is right that they shouldn’t do so – I don’t want some public servant who lives in Western Australia with the central government deciding my rights here in NSW! My state is different to the other states – that’s how Australians like it.

Because it is a fundamental right of all of us as human beings to be separate. So don’t tell me that suddenly setting up an enforceable document giving you the right to unlimited legal representation whatever its cost, and the cost of course can be horrendous; giving you the right to have an abortion or not to have an abortion, because no right is absolute.

Don’t tell me that’s going to take away, as the Premier said tonight, your headaches and your backaches and whatever. There’s still going to be ills in our society there are still going to be injustices to cure, but I would rather have a free press – and I know all what you say about there being a free press – nothing is absolute, but in comparative terms, compared with the press of other countries, where I have been defending human rights, our press is not bad. It is, I must say, unusual for me politically to say that – but not bad thank you very much in terms of projecting human rights.

In an open society and a free press and an open democracy – and independent judges – I would rather have them than the sordid human rights documents you get in the Philippines. I went to see the Chief Justice of the Philippines back in 1977. I went there to see Nino Aquinas trial – I met him, a great man – came back to the Philippines to get killed, as he knew he would be. Because he knew that was the only way to overthrow the corrupt Marcos regime. But the corruption hasn’t gone alright in the Philippines – but their Constitution protects it – it’s great! All the protection is there – it’s all there: freedom from this, freedom from that, freedom from whatever.

There’s nothing about freedom of information! But the Chief Justice said to me: But Mr Dowd, you foreigners always come here to criticise us and our system. I said well, I’m sorry, but one of the principles of the rule of law is the independence of the judiciary. You are not independent. You can be removed by President Marcos, therefore the Constitution which you say you uphold breaks the foundation of that Constitution – is flawed and thereby have the right in terms of international law principles.

To criticise because it is not independent – the constitution fails and anyone suggesting you have rights to work, rights to live, rights to pursue the right to life, liberty and the pursuit of happiness is a joke!

And I ask you to judge the countries that have got the Bills of Rights. Whatever may have happened with the United Kingdom – with the European Covenants or Civil and Political Rights – the fact of the matter is that it is the English Common Law which makes England as freer society and the United Kingdom as freer society as you are likely to get. And the English speaking peoples of the world make no bones about being party to this Australian society.

Those protections you get – you get by the Common Law because I’d rather have a Common Law judge sitting up there in the High Court or a State Court determining thousands of decisions to your rights, rather than having some document stating you have right to unlimited representation, you have right to life and so on and have someone interpreting them and we don’t want that sort of document – because it does not give me a free Australia!

While in Australia is a federal system giving you the freedom that other constitutions don’t have, a Bill of Rights doesn’t give anyone absolute rights and if they do – then it’s an invasion of other people’s rights.

The only important thing about the Bill of Rights is that it does set out rights – it does underline for educational purposes the rights of people have – and that is important. There is no question that there is a need to talk about the rights that people should have. And there is no doubt that a Bill of Rights do remind people about rights and there is a plus in that statement.

All I am saying is that there is a negative in that there is no evidence within Australia under our sort of system that we can get any greater protection than we have now.

The French with their Bill of Rights – tremendous – a code system of law laid out – and whose rights do they protect with their nuclear proliferation in the Pacific – our Pacific Ocean.

Where is the protection for the human being?

The Premier talks tonight about the rights coming from the French Revolution – terrific! But where are the French people getting their freedom – freedom from nuclear war? Where are the people of the Pacific getting their rights to be free from nuclear war?

They know not because it’s not there! The protections are not guaranteed by document setting our words – words have to be interpreted by judges because that is so in every civilised country because if politicians judge what words mean, rather than judges, then of course you have no protection at all.

Mr Speaker, I understand the very words ‘human rights’, the very words ‘freedom of expression’ the very words ‘Bill of Rights’ are a song to people who are oppressed, who feel downtrodden, who feel they’re put upon by their society.

There was criticism of Nick Greiner by the Premier about these minorities who don’t have rights. I think as a Hungarian-Czech-Catholic-Jew, Nick Greiner has the right to say that – if anybody has!

The fact of the matter is that I would rather entrust my freedom and my children’s freedom to a Court of Law in a democratic system and a free press than some magic documents listing my rights – in so listing my rights ignore the rights of others.

Of course, it would be great to have non-convicted prisoners kept separate from those convicted prisoners. That’s a right under the International Covenants on Civil and Political Rights – but of course, would you put up the money for more gaols to have them nicely segregated at unlimited cost? Of course you won’t. Because there are limited funds of moneys to do all the whims and the wishes of society.

Society is a contract that we enter into. I come into this society. I was born into it and proud to be a part of it. I had no rights. I had no advantages when I was born except I was born here. My parents had no money as I have n money. The fact is that I am an Australian with an entitlement to live in a democratic free society.

Please don’t think that some magic document is going to make my life freedom. I don’t have to carry identify cards. I don’t have to carry anything. I can walk down the street breathing evenly at a normal pace quietly, and if and when a policeman comes up to me I can say “I’M sorry sir or madam, I haven’t been introduced” and walk to the other side. I have got that right! Not by any constitution, I do have that right. Don’t tell me that those countries in the world which have a Bill of Rights or constitutional protections are as free as my country – because they are not.

Because I have been to those countries protecting human rights defending the rights of people – and those Bills – papers are not worth the paper they are written on! Your common law system, untidy, complicated, written in a thousand judgments gives you a free democratic society that a piece of paper doesn’t give to the billions of people around the world that have got constitutional rights and Bills of Rights. That’s why in your protection of your human rights, I oppose a Bill of Rights.

(Below: John Dowd, former Attorney General for the State of New South Wales, presenting his case against the Bill of Rights in 1987, while Victor Zammit - right, listens to every word by J Dowd.)