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