Freedom is not only a product of legislation. It is inherited through laws and institutions developed since Magna Carta. Here we examine whether we really have gaps in the protected freedoms that exist in Australia. However, we must make use of those freedoms we do have.

Introduction

In two previous articles, State of Freedom? and Christian Marriage: Update #2, I highlighted a widespread perception of gaps in the realm of protected freedoms in Australia. Subsequently, as a result of a conversation with a friend, I have been pointed in the direction of a Queensland Parliamentary Inquiry into the issues associated with a Bill of Rights, conducted in 2016. So I have read more deeply into the history and status of our current legal and institutional environment.

My earlier conclusion, that legislation could positively protect freedoms, has turned out to be a little hasty. I will take a look at the arguments of others who have made claims such gaps exist, and then outline the source of protections we already have. This does have practical implications for the topic currently the subject of much debate in Australia.

Do the gaps really exist?

One advocate for the idea that gaps exist is Father Frank Brennan, who claims that, in Australia, “federal protection of rights such as freedom of religion is more piecemeal than in other countries.” He makes this claim on the basis that we have not enacted a Bill of Rights . While his observation turns out to be partially accurate, the basis stated cannot logically be the cause.

He then makes a statement that aligns with the intuitions and perceptions of many religious adherents, that freedom of religion appears to be “treated as a second order right.” This is contrasted with the observation that international law, which by implication is the Universal Declaration of Human Rights and associated Covenants, treats freedom of religion as a fundamental freedom. Historically, churches have mounted arguments against legislating to establish or define rights, even though legislation is necessary to enact our treaty ratification. Fr Brennan infers that such arguments from the church might now be less persuasive, perhaps because of the public exposure by the Royal Commission of evil within church institutions supposed to be a bulwark against evil. Without in any sense understating the harm that has been inflicted on people betrayed by trusted organisations, and notwithstanding the need for internal reflection and reform on the part of the churches, one might still ask the following question about the public voice of the church. Should Fr Brennan, as a religious adherent, be persuasive in observing our treatment under law, yet other religious adherents be less persuasive when highlighting flaws with proposed remedies?

Paradoxically, some of the legal rulings that create the perception that freedom of religion is treated dismissively, are arising in the State of Victoria, which has enacted a Charter of Human Rights and Responsibilities Act. Furthermore, as we will see in this article, it is not only churches who argue that fundamental freedoms are best handled by mechanisms that are already in place in Australian and State law. Some of the nation’s most esteemed legal practitioners and judges make the same argument.

Before we look to existing protections, let us turn to other parties who have asserted that gaps exist in Commonwealth and State law in regard to protections of freedoms. In its submission to the Queensland Parliamentary Inquiry into a Human Rights Act, the Australian Lawyers Alliance states that “neither Commonwealth nor Queensland laws protect basic human rights.” As evidence, it refers to the absence of legislation implementing ratified treaties, just as Fr Brennan argued. While this may be of some comfort to those who feel that their rights are not being addressed or protected by the current state of the legal system, as we will see, it is not entirely accurate. In point of fact, this argument presupposes the absence of the answer it wishes to propose as justification for its proposal. Furthermore, as Haydon J points out politely, cited in , the “primary economic beneficiaries of rights policies are rights experts!”

Interestingly, the submission by the Anglican Archdiocese of Sydney to the Commonwealth Inquiry into the Status of the Human Right to Freedom of Religion or Belief, to which I referred in my previous articles, has similar logic. Reading it again in hindsight, suffers from the same logical flaw.

The Queensland Council for Civil Liberties’submission begins with the traditional view by outlining how the common law serves to protect human rights, even without further legislation to enact Human Rights treaties. It highlights the interpretive principle of legality: “unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the Courts will not construe a statute as having that operation“. Ironically, in advocating for a Human Rights Act, they also require the inclusion of a “reading down” provision altering interpretive certainty by requiring the court to “construe” legislation to mean something other than its plain meaning. Unfortunately, such an argument for a Bill of Rights is not “irrefutable;” it is in fact logically flawed. The proposed solution is what creates the very conditions which would undermine the status quo and render the solution necessary in the first place.

One would have no expectation that a submission from the International Commission of Jurists (Qld) would recommend anything other than enactment of a Bill of Rights. It is an international NGO dedicated to the primacy, coherence and implementation of international law and principles that advance human rights and the defence of judicial independence through the rule of law . In adopting the UN definition of Rule of Law they are implicitly understating the deep seated divergence between the development of common law in the English legal system since Magna Carta, and the Continental system of codified law upon which International Legal systems are built.

Common law protections

The previous section highlighted a number of logically flawed arguments that our freedom gaps arise from the absence of a Bill of Rights, so we must enact a Bill of Rights to remedy them. The contrasting view is that our freedoms are protected by a suite of institutions, among which are the common law, built up over time from the combination of legislation and court rulings, and the separation of powers, consisting in part of a democratically elected legislature and an independent judiciary.

The Bar Association of Queensland takes a more nuanced approach. It highlights the points it sees as favouring the establishment of a Bill of Rights and includes findings from reviews established under regimes that have already established Bills of Rights, before offering essentially contingent recommendations. It highlights concerns over changes to the interpretive principle of legality by stating any declaratory power ought to be carefully framed to avoid politicising the Courts and squarely to confront the ‘countermajoritarian difficulty’ of placing in the hands of unelected judges a power which has traditionally been the preserve of elected representatives in Parliament. This submission cites favourably Weinberg J’s view that the common law offers much, if not all, of the protections one would expect of a Human Rights and Responsibilities Act. It also makes a statement that might easily be missed at a hasty first reading, “Overall, it is likely that the objectives of such legislation are already satisfied by the existing laws enforced by the courts of Queensland“.

Family Voice Australia quotes Gibbs CJ, “a constitution which brings about a division of power in actual practice, is a more secure protection for basic political freedom than a bill of rights.” They also highlight that it is the reading down provision (which requires the Court to change its historical approach to interpreting legislation) in the Victorian Charter of Human Rights and Responsibilities Act that led to the narrowing of religious freedom exemptions under anti-discrimination legislation .

The submission of Queensland Churches opens by highlighting the paradox (at least in perception) that opposing a human rights act presents. We have a religious duty to ensure a high value is placed on both justice and mercy, particularly for strangers (typically minorities) and the disadvantaged (typically poor, elderly or sick people). This requires valuing human rights. That perception is also the very reason that no Parliament would find it politically acceptable to either repeal or even amend a Bill of Rights once it has been enacted, even if in reality those rights were protected by other instruments.

So how could a human rights act which is established with a purpose to protect those social goods for those categories of people be justly opposed by any institution with integrity? The Queensland Churches submission notes that this opposition is not grounded in opposition to human rights. Rather, the opposition is grounded in the negative practical and philosophical consequences of attempting to protect or promote human rights according to this particular method. This submission goes on to highlight the “fundamental common law assumption that all things are permitted unless expressly prohibited by law” .

Yes, the incremental historical development of the common law does make it harder to encapsulate the freedoms normally covered by Bill of Rights instruments. However, that same incremental development makes those common law freedoms far richer and more detailed in their interactions with other freedoms, because each challenged restriction is embedded into a set of factual circumstances, the legislative environment at the time, and previous case findings. For example, the general right to free speech has already been appropriately constrained to prevent perjury, fraudulent marketing, statements about price fixing, misleading investors, publish libels, or inciting violence all through different common law instruments. That level of detail is simply not possible in the generalities of a Bill of Rights.

An indicative list of broad common law freedoms includes (without attempting to limit the list):

• freedom of association,
• freedom of movement,
• right of assembly,
• freedom of speech,
• freedom of expression,
• equality of religion,
• right of re-entry of a citizen,
• procedural fairness, and
• freedom of individuals to trade as they wish .

In practice, the absence of a Bill of Rights at the Commonwealth level is not a gap as much as it rightly places the battleground of contested rights into the realm of the democratic processes by which Parliament is established and periodically re-established. Parliament must make its intentions abundantly clear, both to the public and to the judiciary, that a law is intended to limit any of those existing common law rights and freedoms.

That is also why any proposal that obliges the courts to alter current common law interpretive principles are so damaging and harmful for freedom. It takes policy questions out of the public sphere of Parliament, that has well-defined processes for public inquiry, debate and democratic resolution, and places them into the sphere of the courts, whose expertise and procedures are built to uphold clearly expressed rights, not to decide the content of those rights . Furthermore, the “role of the court is to still controversies, not exacerbate them. It is better that the storms of controversy be not only stirred up, but also weathered, by Parliament“ which is the constitutional purpose for which it was established.

In particular, the courts adopt a ‘principle of legality’ by which they “will not interpret a statute so that it encroaches on, or limits, a fundamental right or common law principle unless Parliament has made it unmistakably clear that it intended the statute to do so” . Even the perceived absence of constitutional protections arose from a deliberate decision to make the constitution about the power “to enact policy” rather than directly including policy. This was not to leave freedoms unprotected, but precisely because the common law protections already existed, and that the democratic process would continue to secure them through the ballot box While there is no settled list of freedoms so protected, a larger list that I had been expecting is identified in the ALRC Report .

What does this mean for the Marriage Postal Plebiscite?

Significantly, not all differentiation of treatment constitutes discrimination, nor ought they be unlawful . Fowler also highlights that International Human Rights organisations claim that defining marriage to be between a biological male and a biological female is not evidence of a human rights breach, nor evidence of an inequality requiring remedy . We can in good faith and good conscience both vote “no” and still support with integrity the notion of human rights and equality.

As we look to the public activities occurring in conjunction with the postal plebiscite, it will help to understand what protections do exist for freedom of speech. While this is not intended to be a comprehensive list, a claim of a human right to freedom of speech is not justified if the message is:

• expressing disrespect for the rights and reputations of others,
• urging violence,
• providing false or misleading information or documents,
• inciting the commission of a crime,
• intimidating or harassing based upon political or religious views (as well as sex, orientation or marital status, among others), especially in a workplace, or
• campaigning to encourage others to boycott a third party, where that would cause a loss or damage to that third party business.

In particular, it is worthwhile noting that the common law has never recognised a generalised right not to be offended, and although it is the subject of debate, S18C of the Racial Discrimination Act does provide one limitation on this . Outside of those limitations, however, freedom of speech is permitted for contributions to this public discussion.

In relation to Freedom of Religion, Griffith CJ observed that “a law requiring a [person] to do an act which [their] religion forbids would be objectionable on moral grounds.” The interplay of Freedom of Religion, Belief and Thought with existing laws, and with broad statements of other human rights, is an active arena of debate and contention. Outside the setting of religious worship, liturgy, ceremonies, and teaching, this interplay arises most visibly in the realms of

• parental responsibility,
• conscience objections within employment, business, or commercial service provision,
• associations for natural, educational, charitable, voluntary or commercial purposes,
• religious education,
• exemptions to anti-discrimination laws, and
• the definition and nature of marriage .

Conclusion

It is incumbent upon government to advise its citizens of its plain intention. In the absence of plain statements of intent, citizens are entitled to look to other jurisdictions for examples of how these changes have affected other arenas of life. The plain evidence being presented daily in the course of this debate is that proponents of change in this one arena are quite prepared to overstep legitimate bounds of many other freedoms of people who are not like them. So now is the time to request absolute clarity on the part of our parliamentarians – for without that clarity, it is simply untenable to ignore the evidence of broader consequences of this proposed change.

References