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Frank Brennan is Adjunct Fellow of the Research School of Sciences at the Australian National University; an Honorary Visiting Fellow in the Law Faculty of the University of NSW; and Director ofUniya, the Jesuit Social Justice Centre in Sydney, NSW. This book draws fromhis experience in Washington, D.C., where as a Fulbright Scholar in 1995-96 he studied at the Center for Australian and New Zealand Studies at Georgetown University, and observed the Su­ preme Court and theUnited Nations in session. His first book, Too Much Order with Too Little Law was a study of civil liberties in Queensland. He has written extensively on Aboriginal self-determination, land rights and social justice in arti­ cles published worldwide, He is the author of several books in the area including: One Land, One Nation; Sharing the Country; Land Rights Queensland Style; and is co-author of" Finding Common Ground and Reconciling Our Differences. . In 19lt9.Frank Brennan won the United Nations Association of r. • • ' • • • -: Australia Media Peace Award for articles written in support of Aboriginal rights; and in 1994 he was named by the National Australia Day Council as an Achiever of the Year for his contribution to the Aboriginal Community. He was made an Officer of the Order of A4s�alia (AO) in 1995 for services to Aboriginal Australians; and in 1997 was listed by the National Trust as a Living National Treasl:lre. Frank Brennan joined the Jesuits in 1975, was admitted to the Queensland Bar in 1977 and ordained a Catholic priest in 1985. He has had a longstanding interest in the contributionChristian churches can make throughout the world to the formulation of public policy and the recognition of the human rights of marginalised groups, especially indigenous peoples and refugees. Otherbooks by Frank Brennan

Too Much Order with Too Little Law LandRights Queensland Style Sharing the Country One Land, One Nation

Co-author of: Finding Common Ground: An Assessment of the Bases ofAboriginal Land Rights Reconciling Our Differences A Bill of Rights for Australia?

A provocative and timely proposal to balance the public good with individual freedom

FRANK BRENNAN SJ

University of Queensland Press ss&H

L- 5544 • 0 1·=·9

J (Monogr--aphs 1998

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@ FrankBrennan 1998

This book is copyright. Apartfrom any fair dealing for the purposes of private study, research, criticism or review, as permitted under the Copyright Act, no partmay be reproduced by any process without written permission. Enquiries should be made to the publisher.

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Cataloguing in PublicationData National Libraryof Australia

Brennan, Frank, 1954- Legislating liberty.

Includes index.

1. Civil rights - Australia. 2. Human rights - Australia. I. Title.

342.94085

ISBN 0 7022 3011 1 To the late Justice William J. Brennan Jr (1906-1997), (US Supreme Court Justice 1956-1990) � who inspired me in his judicial espousal of human rights without altogether converting me to the constitutional entrenchment of such rights

Contents

... Acknowledgments Vlll

. Foreword by Tony Fitzgerald AC QC lX

Introduction 1

1. Public discourse about right and wrong, rights and freedoms /3

2. Australian proposals for a bill of rights 2/

3. The United States Supreme Court: determining what is right for the United States 47

4. The quandary: Australia, the United States and gay rights - different process, surprising outcome 56

5. The past: Australia, the United States and abortion - different process, similar outcome 73

6. The present: Australia, the United States and euthanasia - similar debate, different forum 95

7. The future: free speech - a fundamental right on shifting sands 124

8. Indigenous rights: moving beyond equality as sameness 146

9. Reconstituting Australia without a bill of rights 169

Endnotes 189

Index 195 Acknowledgments

As a Fulbright Scholar in 1995-96 I was privileged to be the first Visiting Research Fellow at the Center for Australian and New Zealand Studies, Georgetown University, Washington DC. I am grateful to the late Justice William J. Brennan and his staff, the Georgetown Law Center, the Jesuit communities at K Street and Georgetown, and the staff at the Australian embassy in Washington and at the Australian mission to the United Nations for their hospitable opening of the doors to the United States and to the world of rights beyond our Australian horizons. Here at home I am grateful to the Research School of Social Sciences at the Australian National University and the Australian Institute of Jesuit Studies for providing me with the opportunity to write. I am grateful to the staff at Uniya, the Jesuit Social Justice Centre, for their assistance and support, especially MargaretPress, Lisa Macdonald and Rachel Hutka. I am indebted to Tony Fitzgerald for his foreword evoking his passionate and judicious concern for what is right for Australia. Foreword

Legislating Liberty is an important book by an outstanding Australian. Father Frank Brennan, SJ, AO, D.Univ, is a Catholic priest, lawyer, advocate for Australian Aborigines and Torres Strait Islanders, and expo­ nent of reconciliation between those peoples and the wider Australian community. His book is a timely reminder of important and difficult issues that have been, or are being, resolved in many countries, but have not been widely considered and discussed in Australia. Regrettably, the 1998 Con­ stitutional Convention was confined to issues related to Australia's pro­ gression to a republic (and presumably so too will be the 1999 referendum). By international standards, Australian constitutionalism is severely stunted and its human rights jurisprudence is underdeveloped. Individual and minority rights based on inherent human worth and dignity are widely recognised in international instruments and are protected by the constitu­ tional rights. The rights of Australians are essentially those which they are permitted to retain or are given by their parliaments, which are virtually supreme, with almost total legislative power. That legislative power, which was divided between the Commonwealth and the States when Australia became a single nation at federation, is subject to only a small number of express and implied constitutional restrictions. There is little political enthusiasm for the general adoption of international human rights prin­ ciples into Australian law. Although Australia has made numerous inter­ national commitments to human rights, many have not been implemented by legislation. On the other hand, a Bill to permit Australian officials to ignore international obligations entered by the Australian government which have not been made part of Australia's domestic law has been passed by the House of Representatives and is before the Senate. In countries with constitutionally entrenched individual and minority rights, legislative and executive powers are subject to broad, judicially enforced constraints, and a dynamic judiciary is routinely involved in decisions concerning the nature and extent of government power. Austra­ lian courts exercise a narrower, more conservative role. The High Court's cautious identification of implied constitutional restrictions on legislative power in the text and structure of the Commonwealth Constitution, more or less contemporaneously with its use of international standards in recognising the ·native title' of indigenous Australians and extending the obligations of administrative decision-makers, provoked political hostility X Foreword towards the judiciary which is unprecedented in recent Australian history. Debate on the appropriate power spheres of legislature, executive govern­ ment and judiciary is sure to continue, and is almost certain to increasingly include argument on whether there should be an Australian bill of rights, and if so, what its status and contents should be.

A number of factors are likely to complicate that debate. Much of the discussion is likely to involve the rhetorical use of ambiguous concepts. For example, democracy is often erroneously spoken of as if it requires or permits majority decisions to be given effect on all issues in all circumstances, and as though government decisions neces­ sarily reflect majority will. A majority of seats in the lower house (in Queensland the only house) of a parliament does not necessarily depend on the support of a majority of voters. And, even if a government is elected by a majority of voters, usually the only choice which voters had was between the sets of policies of rival parties. Economic issues commonly dominate, often combined with accumulated dissatisfaction with the fail­ ings of the government that was in power prior to the election. While executive governments are formally responsible to parliaments, factional­ ism and tight party discipline enable oligarchies to control the political process. In such circumstances, electoral success is a flimsy foundation for a claim to majority support for a law which derogates from individual or minority rights. In any event, a government which perceives political advantage in unjust laws plainly cannot be deterred by an improbable prospect of electoral defeat. Aphorisms which are favoured in the often confused discussion of democracy, human rights and the functions of the legislative, executive and judicial branches of government includethe rule of law, equality under the law and justice according to law. All are importantprinciples, although equality, for example, is an extremely complex and elusive concept. Justice is a fundamental human right and vital in any democracy. If a law unjustly derogates from the human rights of individuals or minorities, the equal application of that law will produce injustice, and the rule of law is reduced to a slogan to justify that injustice. Another complicating factor is that the federal compact, the basis on which the former Colonies became States and united into a single nation, is distorteo and incomplete. No provision is made for the representation of each of the· States in the Commonwealth executive government and judicature. Those branches of government have always been dominated by the two most populous States, New South Wales and Victoria, which elect most members to the lower house of the Commonwealth parliament, .. . Foreword Xl

the House of Representatives. And. decisions of the High Court have facilitated a substantial expansion of Commonwealth legislative power, with a consequential decrease, actual and potential, in the power of the States. As the need for internationalcooperation and participation expands, that s�ift in power to the national government might have important advantages. But there will also be increased pressure for conformity with internationalhuman rights standards. The failure of the Australian govern­ ment to translate international human rights principles which it has en­ dorsed into Australian law must seem curious to other countries. There are matters upon which a majority is entitled to have its way, matters for determination by reference to community standards, and matters in which competing claims are appropriate for resolution by the political process. But political considerations cannot justify unjust laws. In a constitutional democracy, even in Australia's current limited consti- " tutional system, neither the government nor the majority is always entitled to impose its will. The fundamental human rights of individuals and minorities, for example life, liberty, equality and justice, should not be denied or diminished, at least in the absence of genuine necessity. This is not the occasion to discuss whether it might be permissible to distinguish between citizens and non-citizens in some circumstances, or whether some issues stand outside the realm of appropriate governmentdecision-making and should be left to individual consciences because of the division of community opinion and the difficulty, if not impossibility, of deciding which, if any, view is correct. Arguments for and against a constitutional bill of rights are considered in detail by Father Brennan� The adoption of a bill of rights would transfer power from elected parliaments to unelected courts and diminish flexi­ bility in law-making, and might encourage self-interest at the expense of community welfare and formalise social conflict. In his book, Father · Brennan discusses objections to a constitutional bill of rights by reference to the United States of America, which is the nation in which individual and minority rights are most frequently asserted and the home of funda­ mentalist capitalism. Although now racially and culturally diverse, Aus­ tralia is much smaller and less complex than the United States and unlikely to embrace the most egocentric elements of American society. A nation of ordered l�berty is theoretically possible in Australia without a constitu­ tional bill of rights through political changes and the mutual cooperation of the component groups in the Australian community. Father Brennan makes some innovative suggestions for reform of the current political process, a process which enables political parties to give preference to Xll Foreword

members and supporters, special interest groups and organisations and people who are capable of exerting influence. If this system fails to provide justice and equality for other individuals and minorities, experience in many other countries suggests that constitutional guarantees of human rights which restrict government power are the best solution. Public and official recognition and endorsement of human rights in Australia's basic laws would imprint the legitimate freedom and entitlements of individuals and minorities onto the nation 's·collectiveconscience, and the legal system is intended to provide an arena in which individuals and minorities are able to confront even the most powerful and obtain impartial decisions protect­ ing them against the misuse of power. At the beginning of this century a bill of rights was omitted from the racist Constitution by which the Australian nation was established. Aus­ tralian Aborigines were not even counted in the population. As we ap­ proach the end of the century and a new millennium, many Australians are fatigued by social change and sceptical of even fundamental social insti­ tutions. Racism and bigotry are again plainly visible in Australia, and the nation is deeply divided over Aboriginal ·native title', the remnants of the rights to this country which the original inhabitants possessed at the time of its British settlement and colonisation. A truly just society would not further oppress its most downtrodden and powerless members. It is vital that the absence of a constitutional bill of rights does not provide the opportunity and means for injustice. It will be a fitting complement to Father Brennan's other work if this book is a catalyst for the rational discussion and debate of human rights issues, which are of profound importance to present and future Australians, and helps to achieve justice for indigenous Australians and their reconcili­ ation with the wider community.

Tony Fitzgerald Introduction

Does Australia need a bill of rights? If we continue to do without one, are there still things we need to do to protect individ�al rights? Would a bill of rights which transfers some power from the politicians to the judges provide us with a better way of setting limits on government interference in people's lives? Would a bill of rights give us some clearer guideposts in public debate about controversial issues as we try to set the limits beyond which the law should not stray? Law can enhance or restrict liberty and can build or destroy moral consensus. Law-making about individual rights is a sensitive commu­ nity-building enterprise. Lawmakers, whether they be elected politi­ cians or unelected judges, must enjoy the confidence of the state's ultimate sovereign - the people. Proposals for a redistribution of power between politicians and judges and for a new statement of rights and responsibilities need to be understood and endorse4 by the people if any new legal regime for ordered liberty is to guarantee both order and liberty. This book is an attempt to explain the first tentative step towards a bill of rights for Australia. I will argue against a constitutional bill of rights, which always leaves the fmal word to the judges, and argue for a statutory bill of rights which sets up a delicate power balance between politicians and judges. Judges can make decisions but the parliament remains free to override them. In the Australian tradition of parliamen­ tary sovereignty, where there is widespread public ignorance of the Constitution and misunderstandings about the role of courts, I will argue for an interim step at the federal level before the adoption of a statutory bill of rights. It is time for the Commonwealth parliament to lead by example urging State and Territory parliaments to follow. I will propose consti­ tutional safeguards against discrimination on the grounds of race, gender or sexual orientation, thereby limiting even the Commonwealth parliament in its power to discriminate against citizens on those grounds. I think it is too early for a statutory bill of rights, but in time politicians on both sides of parliament will appreciate the need for it. I will propose a Senate Charter of Espoused Rights and Freedoms which will be a benchmark for all future Commonwealth legislation. 2 Legislating Liberty

Once our politicians adapt to the language of rights and freedoms, the time will then be ripe to legislate a bill of rights - a bill which will not .be a United States import but a home grown bill drawing on overseas experience and delivering what is right for Australia. Given that Australia cannot walk away from the International Covenant on Civil and Political Rights to which it is a party, I will propose a means for integrating this covenant into the Australian political machinery, ensuring closer scrutiny of any proposed legislation which would interfere with the rights spelt out in the covenant. While justifying my opposition to a constitutional bill of rights, I will make the case for a distinctively Australian approach to the protection of rights which maintains an appropriate balance of power between parliaments and courts, ideally making our parliaments more accountable whenever an interference with individual rights is pro­ posed and enhancing the public's understanding of the role of courts in defending unpopular minorities from the excesses of politicians seeking re-election. The time has come to recognise the central place of indigenous Australians in the life of the nation and to set in consti­ tutional stone the guarantee for all citzens that they will not be discrimi­ nated against on the grounds of race, gender or sexual orientation. It is also time to ensure that our politicians are imbued with a bipartisan commitment to protect individual rights and to limit those rights only in the public interest (which should not be confused with popular demand).

Ordered liberty amidst disorder and flux

Gay rights, abortion, euthanasia, free speech, land rights and gender equality are among the topics confronting any Australian committed to liberty for the individual, protection of the vulnerable or different, and enhancement of the quality of life for all. In confronting each of these contemporary issues, limits must be set to the law in striking a balance between liberty and order. What are those limits? Who ought to set them? How can we discuss the limits? What is right for Australia? ·A person living on a desert island or living only with like-minded others in a voluntary association might enjoy freedom to do as she or he pleased and freedom from unwelcome interference by others doing as they please. The rest of us have to accommodate difference, accept­ ing the behaviour of others that does not affect us, and tolerating their Introduction 3

behaviour, within limits, when it does affect us. Acceptance of the person and tolerance of behaviour does not necessarily imply endorse­ ment. We can tolerate others while still disapproving of their particular actions. If everyone living in a society is to enjoy freedom, there must be some restraints on all. If the society is to guarantee ordered liberty to all, there will be laws and policies which coerce. The limits of law and individual freedom in a pluralistic, democratic, multicultural soci­ ety such as contemporary Australia are contested issues which are not the sole preserve of lawyers and policy makers. All citizens need to consider the role of the state in accepting, tolerating and endorsing behaviour which affects not only the actors. We Australians need to find a better way in the public forum of discussing right and wrong, rights and freedoms. Drawing on our different cultures, religions, beliefs and world views, we need to improve our ways of talking about and deciding the role of the state, the liberty of the individual and the restrictions and obligations rightly imposed on all citizens. Life in community is not unlicensed freedom for the isolated individual. Neither is it unfettered subjection to the power of the state drawing its legitimacy only from the will of the majority. It is the opportunity to enjoy and participate in a society of ordered liberty. Law and politics are essential if the good life is to be enjoyed by all. It is time for people other than lawyers and politicians to consider whether Australia needs a bill of rights. This is not just a legal question for consideration by a social elite. It is a question for the people as we approach the centenary of Australian federation, as we question the need for a monarchy and the desirability of a republic, and as we approach a new millennium displaying ourselves to the world at the Sydney Olympics. This book is an attempt to move beyond the legal language and political intrigue to consider how we can better talkabout rights in the public forum and ensure their protectionfor all Australians and for those visiting our shores.

Apersonaljourney

I am a Catholic priest and lawyer who has participatedin public debate about right and wrong, rights and freedoms for the last fifteen years. I am concerned that social groups such as churches are being marginal­ ised and are even marginalising themselves from public debate and that 4 Legislating Liberty

economically rationalist governmentsrun by strong political parties are becoming less accountable in their treatment of citizens. Ordered liberty is giving way to individual licence, corporate demand and state oppression. The plea for tolerance is often a disguised demand for endorsement and a political stopgap on the way to legal endorsement. Individual moral judgment and prudential decision-making in the political process (such as deciding when to leave well alone) are often accorded no place by those who confuse liberty with licence. I commenced my study of law in Australia in 1971. During my first year at the University of Queensland, the then premier, J oh Bjelke­ Petersen (later Sir Job), proclaimed a state of emergency in order to allow the playing of a football game during the Springbok rugby tour. He also had an eye on a law and order campaign for two forthcoming state by-elections. The vice-chancellor of the University of Queens­ land, Sir Zelman Cowen, walked the fine line between respecting the elected premier and questioning such an abuse of the rule of law. During that year the NorthernTer ritory Supreme Courtgave the first court decision ever in Australian history relating to Aboriginal land rights. Sir Richard Blackburn said that Aborigines did not have rights to land which survived the assertion of sovereignty by the British Crown. In his opinion, the common law of England recognised only individual rights to land. Meanwhile, Aborigines from the Queensland Aboriginal reserves appeared on the university campus demonstrating about their rights to land and self-determination. These reserves were off-limits to ordinary citizens unless they had a permit from a public servant. Students like myself were horrified to learn that the lives of these people were still dictated by white public servants. In September 1977 Bjelke-Petersen proclaimed that the day of the political street march was over and that students need not bother applying for a permit. Once again he trumpeted the cause of law and order. He also wanted to be able to reduce public protest against the shipment of uranium. Thirteen years later I served as a consultant to the Queensland Electoral and Administrative Review Commission for the drafting of a Public Assembly Act which guaranteed the right to protest. In 1995 I celebrated mass at Soweto in South Africa and rejoiced with an all-black congregation that South Africa and Australia had been able to meet again on the rugby field, the Springboks having just won the Rugby World Cup. Introduction 5

Since 1982 I have campaigned for Aboriginal rights. I have wit­ nessed rapid progress in the cause of land rights and self-determination. I make no pretence to speaking for Aborigines. Neither have I always acted and spoken to the satisfaction of the Aboriginal leadership. For example, during the 1997 Wik debate, GeoffClarke, the commissioner from the Aboriginal and Torres Strait Islander Commission (ATSIC) responsible for native title, told the press, 'We just wish he would shut his mouth. He confuses his Christian principles with our political aspirations: I have insisted that political action and legal change for indigenous rights require answers to four discrete questions:

• What do Aborigines want? Only they can answer that question. A united stand and unanimous viewpoint are unlikely. • Which Aboriginal aspirations are morally justified? An answer can come only from dialogue across racial boundaries.

• Which morally justified aspirations are politically achievable? Dis­ possessed, disadvantaged, marginalised individuals may not be those best situated to answer this' question.

• To which of these aspirations will I dedicate my energies? That is a matter for personal resolution.

I have also been involved in debates over euthanasia, the rights of refugees and asylum seekers and the desirability of racial vilification laws. I chaired the committee commissioned by the Media Entertain­ ment and Arts Alliance to review the journalists' code of ethics. I have found much of the public discussion of rights dissatisfying and the legal devices for protection of rights patchy. I see a place both for Christian principles and for acknowledgment of the political aspirations and world views of others. In Australia, it is difficult to find a public forum in which the interrelationship of principles and aspirations can be discussed.

Liberty and equality

The inherent dignity of human beings is the starting point for any consideration of rights and duties which are said to exist independently from the municipal law of the state or from international law expressed in agreements between nations. No longer do we derive these rights only from the characteristics of human nature; rather we reflect on the needs of the person as an individual living in relationship with others, 6 Legislating Liberty in a cultural context, and as part of the environment. There is a growing interdependence of each to the other. The wants and needs of the individual do not automatically translate into rights. Priority must be given to eq .ality or liberty. An individual's assertionof a right does not u " � . . � .. necessarily establish a duty for another to provide. The municipal law of the state grants rights to and imposes duties on its citizens. A citizen granted a right can seek redress through instruments of the state if the right is being infringed by other citizens or even by the state itself. A citizen failing to perform certain duties can be punished by the law and forced to comply with the requirements of the obligation. Some rights are said to be so fundamental that they are not granted by the state but rather are simply recognised by the law, or ought to be. A legal regime which failed to recognise such rights would be defec­ tive, perhaps inviting conscientious refusal to comply with its laws, civil disobedience and even revolution. Some duties are to be per­ formed by the individual even if they are not imposed by the state. The liberal capitalist takes seriously the freedom of the individual, believing that the individual's wants and needs should not be deter­ mined by others. Being able to transcend enlightened self-interest and class interest, the individual is able to seek the good for self and others, contributing to the common good which is the sum of requirements for all individuals in a community to flourish. The right of economic initiative is important. Individual political rights are emphasised over social and cultural rights and over livelihood. The right to vote, freedom of association and free enterprise are espoused as the way to justice and peace for all. Liberty is more prized than equality. Liberty is restricted only for the sake of liberty. Social and economic inequalities are tolerated because the trickle-down effect ensures that there is benefit for all, even the poorest, in allowing the rich and powerful to produce more which can then be distributed in unequal portions. For the collectivist, there is no magic and little scope in personal choice. The market and advertisers determine many of the individual's wants, needs and aspirations. Freedom or licence for the rich and powerful renders optional the pursuit of cultural and economic rights for the poor. Rights are not the stuff of opportunity and freedom from constraint, but of the provision and equal distribution of the basic Introduction 7

material and cultural elements needed for the survival and fulfilment of all. A pluralist democracy with a system of representative government has to accommodate spirited dialogue between citizens of the individu­ alist and collectivist views. It can survive and even thrive without a bill of rights. But it has to provide some minimal guaranteed protection to citizens, including those who are unpopular or different. Discussion of a bill of rights requires consideration of the content of the stipulated rights, the powers to be vested in judges, the changing role of the judiciary, and the educative function of such a bill of rights.

The United States Bill of Rights

For many years I have wondered whether Australia needs a bill of rights to enhance the freedom of our citizens and to improve our quality of life, which includes so much more than economic growth, job security and isolation from government interference. In 1995-96 I went to the United States thinking that the shortcomings in Australia for the protection of rights could be rectified by some imitation of the United States model. Having had the opportunity to hear informed, spirited debate in the United States, while at the same time watching the United States Supreme Court in action during an exciting term, I returned home convinced that Australia does need to improve its public dis.;. course about right and wrOng; rights and freedoms. Australia needs better techniques for the protection of rights and for public debate about the limits of personal freedom and government intervention in the public interest. We need to change. We need to strengthen our public discourse about rights. But I am convinced that imitation of a United States constitutionally entrenched bill of rights would fail. Even the Ameri­ cans with a strong bill of rights tradition are having difficulty applying their bill of rights to modem moral, political dilemmas such as abortion, euthanasia and gay rights. Australian discussion and resolution of these issues are unlikely to be assisted by leaving the final decision to unelected judges. The policy outcomes in Australia and the United States on abortion and euthanasia have been similar. Perhaps surpris­ ingly, the American law on gay rights remains more restrictive despite constitutional protections. The Americans are even having problems in defining the limits of their most basic right, freedom of speech, with 8 Legislating Liberty the new technologies of cable television and the internet. Free speech is now the mantra of corporations wanting to arrest state attempts to govern the advertising of harmful products. The United States bill of rights has probably given politicians greater licence over time to pass the buck to the judges. It has allowed the legislative process to be more loose and inconsistent. Politicians can pass laws for the display of the Ten Commandments knowing they will be struck down. They can promise to ban abortion even in cases of rape knowing that the courts will not permit it. Meanwhile, they satisfy their more fundamentalist constituents. When it comes to balancing competing rights or interests, the best the United States Supreme Court has been able to do is to ask whether an undue burden or substantial obstacle has been placed in the way of the individual. Having constitutionalised the questions, the court has failed to provide a judicial method for balancing the incommensurable interests of the citizen as an independent individual and of the citizen as a member of a society, each contributing well or adversely to the life of the other and to the common good. v The Americans still have much to teach any Australian committed to liberty in an ordered society. Their public debate and Supreme Court implementation of the bill of rights provide some usefulsignposts. This book puts the case for reform in Australia but without a constitutional bill of rights. The first centenary of federation, 2001, provides the opportunity for an overhaul of the way we talk about our rights and of our machinery for protecting rights. Public· discussion about the free­ doms and restrictions necessary for the good life for all needs to 1mprove. Much discussion of bills of rights covers the sterile ground of protection of rights which are uncontroversial. Most people are agreed that governments should not impose cruel and unusual punishments, but there may be disagreement as to what constitutes a cruel and unusual punishment. The American experience demonstrates that the public forum and the democratic processes of parliamentary election and debate are often sidelined by the expectation that the major controversies of the day will be resolved before the Supreme Court of the United States. The court is very liberal in permitting all sorts of parties to submit briefs on any matter which is of interest to the court. In this way the court is much Introduction 9 more a court for the adjudication of public opinion than any Australian court. But at the end of the process it is up to nine unelected judges to make a determination about the limits of the right to abortion, the right to voluntary euthanasia, the limits of equality and the basic freedoms. Often the judges are set an impossible task. Whenever possible, they design a judicial test to remove themselves from political controversy. But this results in neither the court nor the Congress making an adequate determination of the trade-off between individual rights and the public interest. In Australia we have a system of State and Commonwealth parlia­ ments which make law. These parliaments are less likely than some of their United States counterparts to make laws that grossly offend principles of human rights and the public interest. In the United �tates, with devices such as citizen-initiated referenda, there is a great toler­ ance of populist law-making given the Supreme Court's ultimate capacity to strike down any laws that violate the bill 'of rights. In Australia, in part because of the absence of a bill of rights, our parliaments are more wary about passing such legislation in the first place. Without citizen-initiated referenda, Australians are spared some of the more graphic, populist legislation that is passed in the United States. The contemporary debate about gay rights and the more liberal Australian response highlights that a constitutional bill of rights is not even an assured panacea for those whose principal concernis individual liberty. The complexity of United States jurisprudence on rights, equal protection and due process has led me to the conclusion that a consti­ tutional bill of rights would be more trouble in implementation than any conceivable outcomes would warrant in Australia. Even with a long tradition of political respect for court resolution of moral controversy, the Americans are now rudderless w.henit comes to the search for clear solutions to contemporary problems. When in uncharted waters trying to apply the template of constitutional rights to new social situations, the judges speak constantly of their quest for 'bright line' solutions. One has the image of a supertanker at sea in the darkness with no navigation aids on the horizon. The most pressing moral issues such as euthanasia do not take on any clearer resolution by being forced thr�ugh a constitutional template of due process and equal protection. If the Americans cannot provide clarity about the limits of their most 10 Legislating Liberty cherished right and if the United States Supreme Court cannot satisfy the major parties in dispute about issues such as euthanasia, there is little prospect of the High Court of Australia stilling political debate and public controversy about these issues when this country has no tradition of determinative judicial resolution of moral and political controversies. In this book I give an account of my Damascus experi­ ence which had me returning to A�stralia opposed to a constitutional bill of rights but still anxious to improve the Australian checks and balances needed to protect the rights of unpopular minorities and to enhance the common good for the well-being of all citizens even at some cost to the zone of personal privacy and liberty. This is not an argument against the United States bill of rights for the United States. It is an argument against the adoption of a constitutional bill of rights in Australia. Here we can have the benefit of our politicians and judges voluntarily adopting the good and the workable from the United States jurisprudence on rights while leaving our politicians free to tailor Australian solutions to political problems without our judges being compelled to resolve major social conflicts with judicial reasoning foreign to our tradition.

Australian reform

In the Australian debate on the bill of rights, it has been easy to argue that the Commonwealth parliament should pass a bill of rights thereby binding the state parliaments while leaving the Commonwealth parlia­ ment free to legislate in future as it wishes. If Australia is to make the change to a bill of rights mindset, even if it is not of a constitutionally entrenched variety, it will not occur by setting down one set of rules for the State parliaments and another for the Commonwealth. If we need a bill of rights, it ought to be applicable as a restriction on the activity of all parliaments. There is no way that the Australian people prior to the centenary of federation will vote for a constitutionally entrenched bill of rights. It would be seen as giving too much power to the unelected judges. Politicians would see it as too great a fetter on their legislative competence. And the Australian public would be too suspicious that it could be used by power elites to further their own causes and their model of the ideal society. It is time for the Commonwealth parliament to lead by example. Though the Senate is not a States house, it is an upper house of review Introduction 11 which, when not controlled by the government of the day, can provide a real opportunity for sustained scrutiny of controversial legislation. The Senate Committee system, which has now been operational for twenty years, is a useful device for soliciting public comment on proposed legislation and for alerting Senators to prospective violation of key legislative principles. I favour some minor revision to the Constitution, expanding the existing constitutional rights for the protection of those most likely to suffer adverse discrimination. There should be a constitutional ban on capital punishment, a constitutional prohibition on racial discrimina­ tion, a constitutional prohibition on discrimination based on gender or sexual orientation, and a plenary power for the Commonwealth parlia­ ment to assume responsibility in relation to Aborigines and Torres Strait Islanders. I advocate a Senate Committee for Rights and Free­ doms which could build upon the work of the existing Scrutiny of Bills Committee and the Senate Legal and Constitutional Committee. This new committee should be charged with the task of determining whether any proposed legislation interferes with rights and freedoms set down in a Senate charter based on the International Covenant on Civil and Political Rights. If the Senate committee deems that it does, it should then be required to conduct public hearings and to make a recommen­ dation to the Senate as to whether or not the proposed law ·can be demonstrably justified in a free and democratic society' The Australian Law Reform Commission should be given a standing brief to assist the Senate committee in these inquiries. Over time such a Senate commit­ tee would develop a jurisprudence of Australian human rights. The time might then come when the Commonwealth parliament decided to pass a law setting down the charter of Australian rights and freedoms. State and Territory parliaments could be encouraged to do the same. To some strong proponents of a bill of rights, these proposals will appear too compromised from the outset. But our task is not to legislate some ideal bill of rights to be placed on show internationally. It is to reduce the democratic deficit in Australia so as to ensure the protection of basic rights and freedoms at the least cost possible to the well-being, understanding and social acceptance of the body politic. The United States, even with a robust tradition of a bill of rights jurisprudence, is now confronted by such changes in technology and such division in the community about the applicability of basic constitutional principles 12 Legislating Liberty that there is almost no prospect of broad community endorsement of Supreme Court decisions relating to the most difficultissues of the day. The burden would be even greater on an Australian court trying to operate in a political context in which such notions are so foreign. Our objective in Australia ought to be to maximise the possibility of civic discourse about the trade-off between individual rights and the public interest and to minimise the cost of protection of those rights, especially for those minority groups who enjoy least tolerance from the majority.

In a pluralistic society such as Australia there will always be disagreement about morality and about the role of law and policy in relation to issues such as abortion, euthanasia, gay rights, special rights for indigenous people, and free speech. This diversity is a strength of our democracy, and this book attempts to build some more common ground about the mode of discourse and the means for protecting what people of goodwill hold dear, enhancing the prospects of individual quests for and social acceptance of the good life in contemporary Australia. 1 Public discourse about right and wrong, riglzts and freedoms

Speaking of rights and upholding then1

We Australians have two major problems about rights. First we have

_ difficulty knov;ing how to talk in the public forum about rights and their limits. We often confuse la�.' and moraiity. Discussion which may be appropriate for a like -minded group such as a church community too readily spills over into the public forum where there is little

prospect of shared values or sin1 il ar ways of thinking. We are too ready to leap from personal preference to public policy. When in doubt, we say, 'Let the individual decide'. But often that means giving insufficient

weight to the effect of an individual ' s choice on others. Or when strongly opposed to some individual behaviour, our first instinct is to say, 'There ought to be a law against it'. Our second problem is that we have a patchy legal system for the protection of rights. This does not necessarily 1nean that our rights and freedoms are more abused by goven1ment than, say, in the United States, but it does result in more patchy protection for the citizen and less guarantee of protection for unpopular n1inorities whose only offence may be to see the world differently from the majority control­ ling the government of the day. Any social activist has to wrestle with the relationship between law and morality in plura list Australia. This requires a consideration of the role and lilnits of law in building a better society where the citizen is

assured of basic rights and freedo1ns, including that cone of privacy for individuals in community \Vith like-minded people being free to shape

their own world of meani ng � action and com1nitment. We Australians need to find better ways of talking to each other in public across the barriers of difference about those things that matter. But talk alone will

not improve the situation. There is also a need for a more conlprehen ­ sive iegal and politica l framework for the protection of our rights and freedo1ns. The difficulty is not vv'ith the limits on the individual right 14 Legislating Liberty tq be left alone but with the limits on the right to participate, shaping a world more reflective of our visions of the good life. In 1995-96 while watching the Supreme Court of the United States in action, I had the privilege of getting to know retired Justice William J. Brennan Jr, who during his thirty-four years on that court was one of the great judges of the century, embodying the liberal vision of the United States bill of rights as the means for social and political change. Throughout his long term on the bench, he dexterously manoeuvred the terms 'due process> and ·equal protection' in the United States Constitution to shape a polity more respectful of each citizen's worth. He once said, 'Due process asks whether government has treated someone fairly, whether individual dignity has been honoured, whether the worth of an individual has been acknowledged. If due process values are to be preserved in the bureaucratic state of the late twentieth century, it may be essential that officialspossess passion- the passion that puts us in touch with the dreams and disappointments of those with whom they deal, the passion that understands the pulse of lives beneath the official version of events.' Though not convinced that due process and equal protection are easily or desirably imported into Australia in constitutional form, I am convinced that this passion requires legal and political channels more open to ensuring justice for all Australians, whatever our differences. It also requires a richer public dialogue about human rights, civic duties and the public interest.

Interventions by non-public groups in public debate about rights When discussing rights and what is right, many people simply express personal preferences or prejudices which, untranslated, are not public reasons for law or policy. This problem is particularly acute in Australia with Christian groups who argue, 'We believe this is wrong, and therefore there ought be a law against it.' In the 1996 census 16.5 million of Australia's 18 million people answered the optional question about religious affiliation.Most identify as Christian, the largest group­ ings being five million Catholics and four million Anglicans. The Catholic Church, as well as having the largest membership in Australia, is also the most hierarchical. Though there is no longer such a thing as the Catholic vote (I doubt there ever was), there is still a perception in the public forum that Catholic church leaders speak not only to Catho­ lics but also for Catholics. Public debate about matters of political Public discourse about right and wrong 15 controversy often causes me concern when I hear church statements which seem too simplistic and based on premises unlikely to be shared by the majority of Australians. Churches and other interest groups have to adapt their language and objectives when engaged in the public forum. For example, during the national debate on euthanasia, and following the death of Bob Dent, the firstperson to be administered a lawfullethal injection by Dr Phillip Nitschke, the intervention of Father Gino Concetti, a Vatican moral theologian said to be close to Pope John Paul II, was less than helpful. He said, 'One remains stupefied and horrified by this shocking case of euthanasia that was requested and granted.' It was disheartening to see the variety of officialchurch comment. At one end of the spectrum was Cardinal Edward Clancy who described the euthanasia law as arrogant and irresponsible. He said, 'Euthanasia is an ugly thing. It has two names, either murder or suicide.' In contrast, the Reverend Harry Herbert, the general secretary of the Uniting Church Board for Social Responsibility, said he was disappointed by the reaction of the church leaders who were failing to listen to people. He said, 'I think there may be occasions, when a person is within a few days of death, when a person has quite a deal of pain, when voluntary euthanasia might be an appropriate thing.' Adopting the happy medium was the Primate of the Anglican Church and Archbishop of Melbourne, Dr Keith Rayner. He warned that what was now an act of choice would soon tum to subtle pressure to end life, so people could avoid becoming a burden on family and friends. 'It will not be long before economic factors intervene,' Dr Rayner said. 'It will be a short step to justifying the taking of a life that is no longer productive.' The independently Catholic and internation­ ally acclaimed novelist Morris West wrote, 'The pronouncements of religious leaders will carry more weight, will be seen as more relevant if they are delivered in the visible context of a truly pastoral function, which is the mediation of the mystery of creation; the paradox of the silent godhead and suffering humanity.' But at all times in this public domain we must speak with the voice of public reason. Therein lies the tension. There is a difference between the pulpit and the public domain. Those from the pulpit do best in the public domain when they are seen exemplifying the finest qualities of the pulpit rather than poorly aping the shock-horror,one-minute grab of the politicians in front of the news 16 Legislating Liberty camera. This is no rationale for withdrawing from the public domain. Reflecting on our reactions to each of these church interventions may give us signposts on how best to put ourselves squarely into the public domain. Those influenced by the liberalism of philosophers such as John Rawls hold the view that, in a well-ordered society, there is no place in public debate for religious views. Religion at best is seen as the private wellspring for individual imagination and energy but it has no place in shaping the arguments or positions held in the public domain. Religious views about the common good and the dignity of the poor and dispos­ sessed are sidelined as romantic luxuries for those spared the burden­ some responsibility of public office. JohnRawls postulates a threefold division of public, non-public and private. For him, the public is essentially political, the realm in which determinations are made about the coercive use of state power. The non-public is the sphere of civil society, 'the culture of daily life, of its many associations: churches and universities, learned and scientific societies, and clubs and teams' Church leaders belong in the non-public arena. They lead their flocks, not the public. They are heard in church halls, not on the national airwaves. They are said to be abusing their position in agitating their concernsabout euthanasia, abortion, casinos, 24 hour shopping, drugs, youth unemployment, the dismantling of the welfare net, Aboriginal rights and the rights of minorities. The pulpit is viewed essentially as a place for private discourse among like-minded people who might then emerge from the night of religious practice into the day of public reason and civic activity. Many Christians who see themselves as having a social conscience and social obligations are convinced that they have a vocation to work for the kingdom of God here and now, affirming and nurturing their hope in this kingdom to come, a kingdom of justice and peace for all. If freedomunder the law means anything, it must guarantee such people the liberty to pursue their vision provided they do not interfere unduly with the liberty of others. Restrictions on liberty are always possible in the public interest. Citizens who are Christian see that they have a threefold mission for justice: by direct service and accompaniment of those suffering injustice, by developing awareness of the demands of justice joined to the social responsibility to achieve it, and by partici­ pating in social mobilisation for the creation of a more just social order. Public discourse about right and wrong 17

These Christians need to participate in the political processes of their society in order to pray authentically, 'Thy kingdom come.' They feel impelled to involve themselves in the public domain and to influence public policy especially for the benefit of the poor, the marginalised and the dispossessed. For many non-Christians, the language may be foreign but the aspirations are shared. What they have in common is a commitment to a better society here and now for all citizens and to protect the interests of those who are most readily overlooked. For many Christians, the language may not be foreign but the aspirations may seem unacceptable or irrelevant to their understanding of the Christian life, giving rise to calls such as, 'The Church should keep out of politics' and 'Jesus was not a social activist' Though the thematically Christian language may not be appropriate to the public domain, it is nonetheless relevant for those in the public domain who want to understand the motivation of socially active and politically agitating Christians. In our parliaments and in the public domain, the controversial question is rarely, 'Is this conduct right or wrong?' More often the question is 'What conduct ought be sanctioned by the state- either banned or prescribed?' It is one thing to teach, 'I believe euthanasia is wrong. I would never do it. I would never encourage my family, friends and co-religionists to do it.' It is another to advocate, 'There ought to be a law against it.' In the personal realm, as people of conscience, we debate what is right and wrong. In the non-public arena, we discern what we would want others, for whom we care and with whom we seek community, to be, to do and to profess. In the public domain, we need to be able to discuss with public reason not only the fundamental values we �spouse and the principles we apply but also to debate fundamental rights, the common good* and the needs of the disadvantaged. People of goodwill confronting new social problems are limited as to how far they can impinge on the private realm, whether they be legislators, judges or preachers. The preacher as much as any other citizen is bound by the requirements of public reason in the public domain. Emotive claims aboU;t right and wrong are not appropriate. Rather there is a need to consider four questions:

* By the common good, I mean the social, economic and political conditions which are necessary to assure that the minimum human needs of all will be met and which will make possible social and political participation for all. 18 Legislating Liberty

1. Does what is proposed violate a fundamental value espoused by the majority? 2. If not, does it threaten a fundamental right of any person or group? 3. If not, does it threaten the common good or public interest? 4. If not, does it unduly disadvantage any group (usually the poor)?

Unless at least one of those questions can be answered in the· affirmative, there is no case for a law or government policy. If the fundamental value is espoused only by a minority there will be a need to demonstrate an interference with fundamental rights or the common good. Stepping from the pulpit into the public domain in a pluralistic and increasingly secular society, Christians expect to be publicly slighted and suspected, even more than minority groups. During the euthanasia debate, Professor Peter Baume, chancellor of the Australian National University, discounted Christian arguments about the sanctity of life in these terms:

Voluntary euthanasia is opposed by many who wish to impose their views on others. Sometimes opponents appeal to some higher power, putting great store on their own version of revealed truth and sometimes stressing . ·sanctity of life' in their arguments. Since they are sometimes the same people who support capital punishment and who send clergymen to bless and to serve in armies devoted to killing human beings, or are supporters of those who waged religious wars, or of those who burned and tortured people who disagreed with them, who encourage both sides in Northern Ireland, it is hard to take their arguments about ·sanctity of life' seriously.

Imagine if the argument were to be put: 'Voluntary euthanasia is supported by many who stress the importance of self-autonomy and self-determination. Since they are sometimes the supporters of those who have put down the Palestinians, it is hard to take their arguments about self-autonomy and self determination seriously.' These sorts of ad hominem arguments and group caricatures are commonplace in the public domain in Australia. Churches are easily portrayed as the last ' bastion of irrationality. When Professor Peter Singer was interviewed in the national press about his scientific work and beliefs in the field of bioethics, he expressed regret at the choice· of well-known conservative George Pell as the Roman Catholic Archbishop of Melbourne: Public discourse about right and wrong 19

I think it means we won't have a real debate about these issues. We will just have the exchange of rhetoric and abuse. People like Pell can't really acknowledge the reality of what's happening because if they did they would have to abandon many core doctrines of the church they represent. It's in _ their interest to perpetuate the fiction that we all believe in the sanctity of human life and that it's equally bad to take the life of any child no matter what its condition.

He concluded by saying that, to acknowledge reality, Catholics like Archbishop Pell would have to 'throw out a whole lot of doctrines that go back many centuries and that's a difficult thing for a very large and somewhat ossified institution like the Roman Catholic Church to do' Imagine if the Catholic archbishop of Melbourne were to express regret to the national media at the appointment of Professor Singer to a university chair or to suggest that his appointment would result in just the exchange of rhetoric and abuse. It is an unfortunate aspect of the Australian public domain at this time that those with religious beliefs and motivation are fair game for those who think they and their philosophy belong without question in the public domain. Public reason and civil discourse, even in a pluralistic and secular environment like Australia, require that society's intellectuals (who profess no religious faith) in the public domain refrain from gratuitous aspersions such as the description of the Roman Catholic Church as an ossified institution. Unless church people abuse their public trust, they are as entitled as anyone else in the public domain to civic courtesy. When they do abuse their public trust, as in the failure to deal ade­ quately with pastors known to be involved in cases of child sexual abuse, they need to demonstrate afresh the Christian values and civic virtues of honesty, integrity, forgiveness and justice. Anyone stepping from the pulpit into the public domain expects no smooth ride or ready acceptance. There are some basic rules governing public engagement by people motivated by beliefs that are not shared by all participants in the public forum. All participants in public discussion should start with dispas­ sionate analysis of social issues and proposed measures by assessing their impact on individual rights, the common good or public interest, and on how they might assist the poor, the disadvantaged and the dispossessed. With declining religious observance and a more educated public, people are now less concerned with the authority of the speaker. It is no longer a question of 'who's speaking' but ·who's listening' The 20 Legislating Liberty positi.on of authority a person holds in a non-public organisation such as a church is now not so much an issue. Rather the issue is the cogency of the statement. What value does it add to the debate? Critics are more likely to look at the practices of a church rather thanits statements, and are more likely to size up the company in which the speaker is placed than the particular statement. In the public domain people are more likely to be attentive to the church structures and actions rather than the words about rights, liberty and the common good. The less demo­ cratic, inclusive and transparent a church or non-public organisation, the less likely its message is to be heard in the public domain of contemporary Australia. Churches and social groups have a contribution to make to the civil discourse, influencing the public life of society in accord with strongly held convictions about the claims of the poor, the orphan, the widow, the stranger and the dispossessed. There is a need to appreciate the different functions of law and policy which can be not only sanctions but also educative devices and hallmarks of identity. Law and policy can protect individual freedoms and enhance the good life for all, but only if kept within bounds acceptable to the sovereign people. 2 Australian proposals for a bill of rights

Australia now stands alone The first centenary of Australian federation, 1 January 2001, provides an opportunity to consider the desirability of a bill of rights. Under the AustralianConstitution, there are three options. The bill of rights could be included in the Constitution, thereby binding and restricting the Commonwealth parliament as well as the State and Territory parlia­ ments; or it could be an Act of the Commonwealth parliament binding on State and Territory parliaments but able to be overridden by a later Act of the Commonwealth parliament; or, and this would be the least binding bill of rights, it could be one passed by each parliament and able to be overridden by that parliament. By entrenching a bill of rights in the Constitution, the people can place a permanent fetter on their parliaments and governments, creating a secure domain of personal liberty immune from state interference. In the United States the Su­ preme Court judges, though unelected, have the final task of weighing the balance between personal liberty and the public interest. This can place them centre stage in matters of political controversy and leave them the final arbiters on issues where there is no community consen­ sus about public morality and the limits of law. In recent years Canada has taken a halfway step towards a constitu­ tional bill of rights, with a charter of rights and freedoms in the Constitution. But parliament retains the power to override the judges' decision, even when the court decides that the infringement of the right cannot be demonstrably justified in a free and democratic society. New Zealand too has a bill of rights but it does not enjoy constitutional status. It is simply an Act of parliament which can be overridden by later specific legislative ac�ion of the parliament regardless of any decision by the judges. These three countries, which have much in common with Australia by way of legal and political ethos, have seen the need for some listing of rights which can be limited only by judicial reasoning or by parlia­ mentary resolution. Do we Australians now need to list our basic rights? If so, should the limits be set by unelected judges or elected politicians 22 Legislating Liberty or by a combination of both? How can we maximise liberty and equality for all in Australian society, remaining true to our traditions and responsive to the demands of contemporary change? We need answers that are principled and practical, taking account of the pragmatic politics of the moment. Radical change is unwar­ ranted, that being one of the reasons it is also unlikely. We need modest change to the machinery for the protection of rights, which might also enhance discussion in the public forum about the public interest and the appropriate balance between individual freedom and social cohe­ sion, enhancing the country's democratic ethos by guaranteeing some minimal protection of the basic rights of all people no matter what their minority status or public acceptability. Australians are having a good look at themselves in the lead-up to 2001.The preparations for the Sydney Olympics and the new millen­ nium provide further incentive even for the comfortable and relaxed among us to stop and review the situation. We are not as well off as we used to be. There was a time when our income per head placed us fourth in the world. We are now twenty-third. We are having to compete in an increasingly globalised and competitive world. The emergence of Pauline Hanson's 'One Nation·· party in 1996 revealed deep insecurity and anguish in the community. There is a decreasing public tolerance of special government programs for those who are perceived to be different at home (especially Aborigines) and of government policies aimed at opening us up to unavoidable realities abroad. When thousands of steelworkers in Newcastle receive termination notices, their boardroom bosses make a windfall profit overnight on personal shareholdings. the gap between rich and poor, the haves and have nots, is widening. Social cohesion, a sense of inclusion for the marginalised, a fair distribution of opportunities and the maintenance of public services for the good of all are no longer presumed to be legitimate, realistic, shared goals. There is no apparent consensus about the national interest, the public interest or the common good. Nonethe­ less, the air of freedom in Australia is still comparatively clear and unpolluted. Despite our freedom and in the exercise of it, we experience our tensions. We are not very good at talking about controversial matters in the public forum. Civic discourse often gives way to personal invective when discussion turns to questions about the body politic. Australian proposals for a bill of rights 23

The governor-general, Sir William Deane, did us all a service when he opened the 1997 Constitutional Centenary Conference in Adelaide, urging delegates to accept 'that to support retention of the status quo or support change is neither un-Australian nor disloyal and involves nothing more than the legitimate expression of a point of view in the course of democratic debate about what is or is not in the country's best interests' Whenever our gaze turns to constitutional reform, there are sym­ bolic and structural questions about a republic. The next generation of Australians is not going to grow closer to the next generation of the British royal family. Some monarchists and apologists for the status quo, including Sir David Smith and P. P. McGuinness, argue that we already have an Australian head of state in the governor-general. Sir Zelman Cowen has described this assertion as 'dishonest and mischie­ vous' The traditionalists see the British monarchy as the incorruptible gate�eeper who commissions and terminates the Australian head of state, acting always on advice from Australian ministers. Ultimately, every constitutional function in Australia, no matter how minor and including the signing of the commission of the head of state, will have to be performed by an Australian citizen. That much is essential for a free, independent country such as Australia. It is only a matter of time. As the republic debate develops, the substantive issue for decision will be the extent to which we are to maintain a parliamentary rather than a presidential system of government. This modest pro-republican sentiment will be perceived by some as the all too predictable utterance of one with Irish Catholic ancestors. The time has come for us to adopt a new constitutional framework which can beendorsed readily by all Australians of goodwill whatever their racial, cultural or religious background. In September 1997, when announcing his change of heart on the republic, Sir Zelman Cowen said, 'I have come to the conclusion that this symbolic change should be made, and that it is a matter of importance for an independent Australia to state simply and unambiguously our national status in constitutional terms: This will be about more than the identity and place of residence of the person or persons signing letters of appoint­ ment or dismissal. It will involve an assessment of our national insti­ tutions and the way we talk about, agree upon and protect individual concerns and the good of the whole community. 24 Legislating Liberty

There is an urgent need to reduce the strains in our institutions and . in our public discourse, with even political conservatives agreeing on a need for change. There is considerable dissatisfaction and misunder­ standing about the roles of the courts, parliaments and federal system. The short-lived panacea of the National Crime Authority, Queensland's Criminal Justice Commission and the New South Wales Independent Commission Against Corruption is passing. Public mistrust and the abuse of public trust by officials are so high that no institution is presumed to beincorruptible. Few institutions are even accorded public respect by some elected leaders. For example, when the National Party government in Queensland lost the Wik case in the High Court, having formulated the precise questions for answer by the court, Premier Rob Borbidge had no hesitation, and even thought there was political advantage, in describing the decision as 'judicial theft'. When his government lost the case on state excises in the High Court, he wondered aloud if the High Court was "wanting to make Australia ungovernable' If more power were to be vested in the judges, there would need to be more public understanding of the role of courts and more acceptance by politicians of the judicial restraint which would justifiably limit their whims and mandates. When it comes to rights talk, Australians have two major problems. We have lost the art of robust public discourse about the values that underpin the principles we espouse, those principles then informing the standards and rules we set down in legislation. Spirited public debate about values is usually cut offby a stereotypical classification of the participants, a reference to history on the basis that •this is the way we have always done it', or by a simplistic liberty argument that the individual should decide. Second, we have an undeveloped com­ munity consciousness of the role of our national institutions including the courts, the Senate and federal-state relations, in the resolution of conflicts. These institutions are presumed to be anti-democratic when they impede governmentpolicies which have the backing of 50 per cent plus one of the voting public. The result is a populist sentiment that legal protection of rights and the public interest is anti-democratic and contrary to the well-being of the broad mainstream - perceived to be those people who would never want to claim special rights because they do not suffer any special disadvantage in society. Australian proposals for a bill of rights 25

Australia's distinctive history

One need not subscribe to black armband views of history to affirm that the Australian Constitution was founded on racism. Between 189 1 and 1898 there were three sessions of the Australasian Federal Con­ vention at which elected representatives from each of the colonies voted on the clauses of the proposed Constitution. Individual rights, gender equality and racial equality were not pressing issues. The Convention �embers had great faith in the common law, the restraint of politicians and the sovereignty of parliaments. Insofar as ethnic minorities were considered at all, it was to ensure that the Common­ wealth could fulfil the role envisaged for it by the individual colonies which wanted to retain the right to exclude some racial groups from participation in the political process. Indigenous people were even further from their thoughts, at a time when the new Constitution left . the power to legislate for the indigenous people largely within the control of the States. In 1896 a People's Convention was held at Bathurst giving popular impetus to the movement for federation. Many Convention members were opposed to a United States-style bill of rights and the guarantees of due process and equal protection which were inserted in the United States Constitution after the Civil War to protect Negroes in the southernstates. Our founding fathers still wanted to be able to discrimi­ nate against some groups on the basis of race. The issue came to a head at the 1898 Convention in Melbourne. The Western Australians were keen to maintain the power to exclude Asiatic or African aliens from the goldfields. Sir John Forrest told the Convention, 'It is of no use for us to shut our eyes to the fact that there is a great feeling all over Australia against the introduction of coloured persons. It goes without saying that we do not like to talk about it, but it is still so.' He wanted to ensure that Chinese could be prohibited from travelling from one colony to another. A future governor-general, Isaac Isaacs from Vic­ toria, also highlighted that an equal protection clause would not permit the colonies to retain their factories legislation which allowed discrimi­ nation against Chinese. He asked members 'how they can expect to get for this Constitution the support of the workers if they are told that all our factory legislation is to be null and void' The treatment of coloured people was seen as a matter for the States. Members were opposed to the Commonwealth being able to impose 26 Legislating Liberty uniform standards. Dr Cockburnfrom South Australia was particularly hostile to the proposed equal protection clause which he said was introduced in the United States ·simply as a punishment to the Southern States for their attitude during the Civil War'. He thought the insertion of a clause guaranteeing equal protection and due process for all citizens would be an adverse reflection on our civilisation, predicting that people would say, 'Pretty things these states of Australia; they have to be prevented by a provision in the Constitution from doing the grossest injustice.' A future High Court judge,. Richard O'Connor, was valiant in defeat, pointing out:

We are making a Constitution which is to endure, practically speaking, for all time. We do not know when some wave of popular feeling may lead a majority in the parliament of a State to commit an injus�ice by passing a law that would deprive citizens of life, liberty, or property without due process of law. If no state does anything of the kind there will be no harm in this provision, but it is only right that this protection should be given to every citizen of the Commonwealth.

A century later, and revisiting these issues, we need to consider the adequacy of our protections for citizens whose basic entitlements remain at the whim of a government enjoying a popular mandate. In 1973 Lionel Murphy introduced a proposed bill of rights to the' Com­ monwealth parliament. He based it on the International Covenant on Civil and Political Rights. Under the Constitution, the Commonwealth parliament has no general power to pass a bill of rights. Given that the Commonwealth has the power to make laws with respect to external affairs,it does have the power to implement any international covenant to which the Commonwealth is a party in good faith. The Common­ wealth could not enter into a bogus agreement with another country simply in order to attract l�gislative power on the subject of the agreement to the Commonwealth parliament. The Murphy bill lapsed when the parliament was dissolved in 1974. Gareth Evans tried again in 1985. His bill encountered strong opposition not only in the Senate but also from community groups, including the Catholic bishops. One major concern was that there would be broad powers exercisable by the Human Rights Commission so as to permit investigations into government acts and practices which were alleged to breach the pre­ scribed rights and freedoms. Much of the public debate was misin­ formed because the class of people who could be compelled to attend Australian proposals for a bill of rights 27 investigations would be confined to public servants and others acting on behalf of government. However, there was concern that private citizens could be compelled to attend and to give evidence to the Human Rights Commission. In this way the bill was easily parodied as a big brother attempt to interfere with citizens' rights and freedoms rather than to protect them. In 1988 the Constitutional Commission established by the Com­ monwealth government recommended a statutory bill of rights for Australia. Once again it was modelled on the International Covenant for Civil and Political Rights. The Commission recommended that the bill be binding on State parliaments and the Commonwealth parlia­ ment. Three commissioners, Sir Maurice Byers, Sir Rupert Hamer and Mr Gough Whitlam, were strongly of the view that parliaments should not be able to opt out of the requirements of a bill of rights. The only limit that they would countenance to the enumerated rights was similar to that contained in the Canadian Charter of Rights and Freedoms. The rights and freedoms would be guaranteed under the Constitution being ·subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society·· These three commissioners said, 'If governments have good reasons for promoting legislation which limits guaranteed rights and freedoms, they should, we think, be prepared to demonstrate to a court that the limitations are justifiable.'1 They were confident that the courts would give appropri­ ate weight to any legislative assessments of what limitations were necessary or desirable. The two dissenting commissioners were concerned that such a Constitutional Charter of Rights ·would produce a radical change in the effect of allocation of power as between the parliaments and the courts' 2 Professors Enid Campbell and Leslie Zines favoured an override provision similar to that contained in the Canadian Charter of Rights and Freedoms. This would mean that a State parliament or the Commonwealth parliament faced with an unfavourable decision by the High Court could legislate again to override the application of the particular right or freedom to the case in hand. The Hawke Labor Government's handling of the cause for consti- . . tutional reform in 1988 was a disaster. The government did not wait for the final report of the Constitutional Commission. Instead, the government proposed a number of minor amendments to the Constitu- 28 Legislating Liberty tion which predictably were then vigorously opposed by the Coalition parties. No proposal for constitutional entrenchment of further rights and freedoms won any acceptance. The 1988 exercise was a salutary warning� Constitutional entrenchment of rights has no chance of win­ ning acceptance in Australia unless there is support from all major political parties.

Why have a bill of rights? Much of Australia's legal heritage, including the development of the common law, comes from the United Kingdom, which now being part of the European Community has a legal system which is increasingly influenced by the European Charter of Rights and Freedoms. About 20 per cent of the cases taken to the European Commission on Human Rights under the charter have involved the United Kingdom and approximately 7 5 per cent of those cases have resulted in a finding against the British Government. Many of these cases have involved the treatment of prisoners in Northern Ireland. The common law has required some adjustment in order to come into line with the best European instruments and practice. After the fanfare of the introduction of the Canadian Charter of Rights and Freedoms, a number of warning bells have. sounded. By early 1990 there had been over 4,000charter cases in Canada, over a hundred of which were decisions of the Supreme Court of Canada. Prior to the introduction of the charter, the average for a reserved judgment in the Supreme Court of Canada was four months. By 1986 it had ballooned to over ten months. In 1980 and 1981 combined, only two judgments took more than twelve months to deliver, while in 1984 and 1985 combined, thirty-three judgments took twelve months or more to be delivered. The Canadians have found that the charter affects not only relations between citizens and the state but also activities of citizens that can adversely impact on other citizens, especially those who are poorer and enjoy less political power. The Big M case is illustrative. In that case, a corporation was charged with contravention of the Lord's Day Act 1906 which prohibited the conduct of business on Sundays. A law called the Lord's Day Act may well be an anachronism, but there is something to be said fot having one day of the week free of commer­ cialism. The Supreme Court believed that Big M's freedom to peddle Australian proposals for a bill of rights 29

its wares seven days a week was more important. In the National Citizens Coalition case, the court removed the limits on corporate political activity which had been supported in parliament by all three political parties. As one Canadian commentator put it, 'The right of the many- the average non-rich Canadian voter-gave way to the rights of the few - those with pots of money to spend on elections.' The charter has burdened governmentdepartments with the task of predict­ ing the Supreme Court's view of the constitutional limits imposed on government action. When New Zealand was debating the shape of its bill of rights, one Canadian warned the New Zealanders that in the late twentieth century what was needed was not ·nineteenth century small "I" liberalism from a small group of judges' He thought there might be a better way of trying 'to create something that might have some hope of leading to a better balanced, more open and civilised form of government in the 21st century' He recalled Lord Radcliffe's 1954 Reith Lectures: 'Constitutional regimes are all very well but their shapes can be seen to be performing the strangest dances unless those inside them have a very real idea of the purposes to which they were intended to be put.'

Judges and bills of rights In many instances the articulation of rights can serve to set limits on action by the state impinging upon the liberty of the subject. Such limits are unobjectionable. However, there are also cases when the articula­ tion of rights effects a new distribution of power and new incidents of relationships between subjects, or a redistribution of the balance be­ tween private interests and the public interest, between individual exp�ctations and the common good. A child's right to life if enforced by third parties may be said to be interfering with the woman's right to privacy. The enforcement of one's right to privacy may be said to be the defeat of another's right to free speech. The right of peaceful assembly can be an interference with the right of shopkeepers to conduct their business and the rights of shoppers to have access to shops. In these instances a policy decision, a striking of the balance, has to be made. In 1986 Sir Gerard Brennan, when a justice of the High Court of Australia, made the observation:

I am sure that Australians wish the courts to protect important individual rights and freedoms. I am not sure whether Australians would wish judges 30 Legislating Liberty

to be the finalarbiters between the public interest as the legislature perceives it and private interests, if judgment is to turn on individual judges' apprec­ iation of where the balance is to be struck. We have developed neither a jurisprudence of social values nor a calculus of social priorities which might serve to govern the drastic power of judicial review of legislation on the ground that the legislation infringes individual rights. Of course, the common law is permeated by values that are fundamental to our society and effect is given to them, but in the finalresult it is for the parliaments of the Commonwealth, the States and the Northern Territory to say whether the public interest should prevail.3

Recent debates about freedom of religion and abortion highlight the problems which exist in trying to effect the public consultation neces­ sary to redistribute power from th� legislature to the judiciary in order to reshape not only power relationships within the community but also the way we describe ourselves as a community, enshrining those things we hold most dear. The United States heritage prizes the individual, including life, liberty and the pursuit of happiness. The common law tradition prizes the collective good, including peace, order, welfare and good government.For the rich and the powerful, the pursuit of individ­ ual liberty is more likely to enhance their achievements and feelings of well-being. For the poor, the marginalised and the oppressed, a com­ mitment by the state to peace, order and welfare and good government is more likely to maintain their social welfare and well-being than the so-called liberalism of individual pursuit of individual gain under protection of law. In the era of ongoing economic rationalism, talk of individual rights is not all good news for the collective unemployed, disabled, disadvantaged and unborn. In 1988 Sir Anthony Mason, when chief justice of Australia, pub­ lished his support for the concept of a bill of rights for Australia. In a later interview, he said:

The majority of countries in the western world do subscribe to a Bill of Rights on the basis that individual minority rights often need protection and that the only effective protection is by a Bill of Rights. If we don't adopt a Bill of Rights, I am inclined to think that we will stand outside the mainstream of legal development in the western world. These are factors which tend to make me favour a Bill of Rights.4

Since then New Zealand has enacted a bill of rights leaving Australia as the only major Western common law jurisdiction without such an Australian proposalsfor a bill of rights 31 instrument. International human rights law is impinging more on the development of the Australian common law as interpreted and made by judges and on the formulation of legislation so as to ensure state compliance with instruments enjoying Australia's accession. Most recently, Australia has ratified the first Optional Protocol to the Inter­ national Covenant on Civil and Political Rights. This now means that if an Australian citizen has exhausted all domestic remedies and is still aggrieved by an infringement of a civil and political right as defined . by the covenant, the citizen has access to the Human Rights Committee of the United Nations, which can call the offending federal or State government to account. It now makes sense for all levels of government in Australia to ensure the due recognition of civil and political rights so as to avoid the needless expenditure of time and resources by the citizen and the needless exposure to the international community. It would be folly to view the International Covenant itself as a substitute bill of rights for Australia. Since Sir Anthony Mason's endorsement of a bill of rights, the High Court has often commented on the relationship between international law and the development of the common law. In the Mabo case, Justice Brennan (with Chief Justice Mason and Justice McHugh concurring) observed, 'The opening up of international remedies pursuant to Aus­ tralia's accession to the Optional Protocolto the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the covenant and the international standards it , imports. The international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands re-consideration.' 5 This judicial creativity which effects a direct influence by international instruments on the development of common law regarding civil and political rights may lessen the need for statutory domestic recognition of such rights. However, given the bulk of legislation and subordinate legislation enacted in Australian parliaments nowadays and the delay in the development of the common law by the High Court as the second and last appellate procedure to which access is gained only by the grant of special leave, there may be a strong case for an Australia-wide bill of rights which, at least in the New Zealand fashion, ensures that wherever 32 Legislating Liberty

an enactment can be given a meaning that is consistent with the rights and freedoms contained in the bill, that meaning is preferred to any 6 other. meaning. At a Human Rights Conference in 1992 Sir Gerard Brennan raised the question, 'We could introduce a Bill of Rights and have it admin­ istered by our existing courts, but would Australians wish that to be done?'7 He said that as a judge he did not propose to answer the question, the question being ·essentially political and should be an­ swered by reference to the political needs that might be satisfied by an entrenched bill of rights and the burdens which might be imposed by its introduction' .8 Justice Brennan made the observation that an en­ trenched bill of rights would require the development of new judicial skills. He said, 'Once the right is defined, the court must weigh the collective interest against the right of the individual. This is the stuff of politics, but a bill of rights purports to convert political into legal debate, and to judicialise question of politics and morality.'9 An en­ trenched bill of rights would require judges to adduce evidence of how government practices impact upon the exercise of individual rights and the collective interest of other citizens. This could be a time consuming exercise which.undermines the legitimacy of the judiciary. For Justice Brennan, it was ·no light thing to strike down a law or an executive act which one of the political branches of government, armed with infor­ mation and experience much wider than the court can muster, has .10 , · d.eemed to be justifiable' Another concern is the cost of constitutional litigation. Though bills of rights are designed to protect the rights and interests of individuals, few individuals are in a position to afford litigation all the way to the High Court to determine the limit of their rights. Experience in Canada has shown that rights cases can become all absorbing in the Court lists with the result that the ultimate court of appeal is less available to determine ordinary appeals, having then to be more strict in granting special leave to appeal in routines cases. Even before the fallout over the Mabo and Wik decisions, Justice Brennan made the observation:

A new judicial role under a Bill of Rights has attractions not only for those who would challenge the actions of government, but for government itself. There are some issues which, in a pluralist and divided society, are the subject of such controversy that no political party wishes to take the responsibility of solving them. The political process may be paralysed. If Australian proposals for a bill of rights 33

governments can create a situation where such issues are submitted to curial decision, political obloquy �an be avoided by governments, though it is sometimes transferred to the courts, as the continuing controversy over Roe v. Wadel I illustrates.l2

The passage of a bill of rights inevitably requires judges to make political, social and ethical decisions affecting the whole community. This may require different procedures for the training and selection of judges. Meanwhile it is for the people and their elected representatives to answe( the critical question posed by Justice Brennan: 'Whether the arming of the courts with an additional constitutional weapon is desirable to assist in the creation and maintenance of a free and just society' 13

Citizens and bills of rights The innovative 1993 rights survey by Professors Galligan and Fletcher indicates that private citizens are far more likely than members of the political and legal elites to look to judges rather than parliament for the protection of their basic rights and liberties. In answer to the question, 'On the whole, do you think Australians are well protected against unfair government action, or are they not well protected?', 53.6 per cent of citizens surveyed answered that they believed rights were not well protected; 49.7 per cent said they were very concerned that a State government could pass laws limiting basic rights and freedoms; 40.8 per· cent thought that additional safeguards were needed and that putting political pressure on members of parliament was not sufficient to protect adequately their rights. Only half the citizens surveyed had heard of proposals to create a bill of rights for Australia. But 72.6 per cent of citizens were in favour of a Bill of Rights when answering the question, 'As you may know, a bill of rights sets out certain basic rights and freedoms for citizens. It includes the sortsof guarantees we've been talking about, such as freedom of speech and religion, freedom from discrimination, and various legal rights. Generally speaking, are you for or against the idea of a bill of rights for Australia which provides these sorts of guarantees, or don't you have an opinion either way?' Galliga� and Fletcher also surveyed legislators from the major political parties. Between 15 and 24 per cent of legislators thought that rights were not presently protected in Australia. Over 84 per cent of National Party members surveyed thought that rights were well 34 Legislating Liberty protected and only 8.6 per cent of National Party members were concerned about infringement of rights by State governments. Forty per cent of Australian Labor Party members were so concerned, but that was still 10 per cent less than the general population. Though 79.7 per cent of ALP legislators thought that rights were generally well protected in Australia, 89. 1 per cent of them were still in favour of a bill of rights. But on the other side of the chamber, only 13.3 per cent of Liberals were in favour and 14.3 per cent of Nationals. All people surveyed were asked, 'Having a bill of rights would mean that many of the decisions about your basic rights now made by · parliament would be decided by the courts instead. Who do you think should have the final say in deciding upon issues of basic rights and freedoms- parliament or the courts?' Sixty-one per cent of citizens thought the final say should rest with the courts, whereas politicians from the various major political parties varied from 18.6 per cent to 20.6 per cent in thinking that the final say should rest with the courts. The researchers concluded that only 8 per cent of the general population were opposed to any bill of rights, 58 per cent of them being doctrinaire or persuadable entrenchers of such a bill of rights. But 34 per cent of the legislative elite opposed all Bills of Rights and only 19 per cent of them were doctrinaire or persuadable entrenchers. Twenty­ six per cent of the legal elite were opposed to all bills of rights and 27 per cent were persuadable or doctrinaire entrenchers. More needs to be done to listen to citizens rather than to elites in determining the need for and content of any bills of rights. Also we have to expect that once a bill of rights is on the political agenda, it is likely to be strongly supported by ALP legislators and strongly opposed by Liberal and National Party legislators. Such partisan division is unlikely to result in any constitutional referendum entrenching a bill of rights even though the majority of citizens prior to the public debate are of the view that the final say on such rights issues should rest with the courts rather than the parliaments.

Competingjurisprudential bases for a bill of rights

In 1989 Tony Fitzgerald QC produced his report on the Queensland Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct. He said:

The powers needed for ef;fective law enforcement can encroach on Australian proposalsfor a bill of rights 35

individuals' rights and liberties, but it must be remembered that the indi­ vidual also has a right to protection from the state. Civil liberties are available to criminals along with the rest of society, and can be abused by them. Civil liberties are of limited worth if society is so.altered by crime that they cannot be properly exercised or enjoyed. The issue is one of competing public interests, but that tends to be forgotten. To date, debate has been highly emotional with ·both sides claiming the high moral ground. Competing issues must be weighed in the balance.

In the heyday of the post-Fitzgerald reforms in Queensland, the Electoral and Administrative Review Commission (EARC) conducted a wide-ranging public inquiry into the desirability of a bill of rights. The commission then proposed in 1993 the most comprehensive listing of rights ever drafted in Australia. It recommended the passage of a bill of rights which would include enforceable civil and political rights and an affirmed set of economic and social rights, and community and cultural rights. Though the latter rights would not be enforceable, EARC's proposed bill of rights contained a clause stating that 'The parliament urges the Queensland community generally to observe (these) rights ... and encourages persons to assert the rights in ways that do not involve the legal process or proceedings' 14 The rights enunciated in EARC's bill read like the shopping list of present-day interest groups. They included a laudable wish list of rights to an adequate standard of living, the right to gainful work and the right to a safe society, as well as the more fashionable right to personal autonomy over reproductive matters, the right to adequate child care, the right to culture, the right to environmental protection and conservation, and the right to ecologically sustainable development. For example, 'A person has the right to promote ecologically sustainable development in the interests of current and future generations. A person has the right to object to development that is not ecologically sustainable and to expect that government will accept and act on a reasonable objection.' 15 Such a bill of rights can only result from the pressures exerted by various interest groups on the politicians who then are charged with the task of educating the unknowing public. Such a bill is inconsistent with any notion of power and sovereignty moving from the people to the elected representatives and then to government. In contradistinction to the underlying philosophy of the EARC bill of rights in which parliament urges and encourages the people to 36 Legislating Liberty observe and assert rights, we can consider the statements by the High Court of Australia in its cases on implied constitutional rights and free speech. In Australian Capital Television PtyLtd v. The Commonwealth ofAustralia, 16 Chief Justice Mason said, 'The very concept of repre­ sentative government and representative democracy signifies govern­ ment by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives.' 17 He went on, 'The representatives who are members of parliament and Ministers of state are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act.' 18 If this political and constitutional rationale is accepted, it is not a parlia­ ment's role to urge the citizens generally to observe rights or to encourage citizens to assert rights in ways that do not involve the legal process or proceedings. It is rather for parliament to observe those rights and to -provide ways in which those rights may be protected, particularly in the interests of disempowered or minority groups within the community. A bill of rights, if it is to be justified, has to be tailored so that the rights it enunciates are accept�d by the general community, rather than by particular interests groups. The rights must be accepted as so fundamentalthat they may not be overridden by elected representatives seeking a mandate, because in all conceivable circumstances the dis­ charge of their responsibility to take account of the views of the people on whose behalf they act would require that they forbear from legis­ lating in such a way as to interfere with such rights. A parliament exercising the sovereign power vested by the people will act within the constraints set down by the people. Within those constraints, the parliament can legislate for or against particular rights. If parliaments fails to provide a judicial remedy for the protection of a particular right, there is no symbolic, educative or substantive value in the parliament urging the community generally to observe such ·rights' in ways that do not involve the legal process. The value of a bill of rights is in setting limits on the exercise of legislative power by the representatives of the majority so as to protect Australian proposalsfor a bill of rights 37

the interests of minorities. Such constraints can then ann the courts with the power of judicial review. As Justice Brennan said in Nation­ wide News v. Wills: 'The Courts are concerned with the extent of legislative power but not with the wisdom or expediency of its exercise. If the courts asserted a jurisdiction to review the manner of a legislative power, there would be no logical limit to the grounds on which . legislation might be brought down.' 19 In the same case, Justices Deane and To ohey said, 'The constitution reserves to the people of the Commonwealth the ultimate power of governmental control.' It is not appropriate for an elected parliament to urge the people to observe rights which the parliament has failed to protect through judicial revtew. For a bill of rights to be effective, and to be more than a bureaucrat's utopian vision of how the masses should conduct themselves, the rights capable of judicial protection against parliamentary abuse must be sufficiently defined so that courts can perform their function without judges being so pilloried for political decisions that the public could lose faith in the courts. The EARC bill included a person's right 'to obtain and disseminate information' 20 Such an impossibly wide right (though it is replicated from the New Zealand bill of rights) would require the cutting of an enormous swathe through the entire law of defamation. It would provide no guideposts for a judge to strike the appropriate balance between the competing rights and interests of citizens, those wishing to protect their reputation and those wishing to express their views publicly. It would be left to judges to determine the reasonable limits on the right to disseminate information that ·are demonstrably justified in a free and democratic society' ,2 1 Some of the economic and social rights outlined by EARC would have devalued the whole concept of a right entailing a corresponding duty for the person or state obligated to honour the right, for example the person's •right to gainful work' and the ·right to live in a safe society protected by a government that promotes non-violence' The EARC bill was a cobbled amalgam of rights espoused by contemporary interest groups, designed to educate an ignorant public about how to live better lives and shape a better society. It was not the expression of shared aspirations of the sovereign community entrusting legislators with power and delimiting that power within agreed parameters for the well-being of all citizens. There can be no objection to environmental- 38 Legislating Liberty ists espousing ecologically sustainable development. But one stretches the notion of rights to breaking point when the legitimate espousal of a viewpoint is supplemented by the so-called right to expect that government will accept and act on a reasonable objection. The same right ought be available to those agitating the rights of the disabled, the unemployed, the aged, and even those seeking economic development, better transport services and regionalisation. If one State only in the Australian federation were to proceed with a bill of rights, especially one as novel and adventurous as the EARC draft, the High Court would be unlikely to regularly grant special leave to appeal so as to interpret the limits of the right ·of reasonable access to culture' or the right of an author to have the integrity of their work respected or the right of a victim of crime to have reasonable access to the administrative mechanisms of government to remedy the psycho­ logical effects of the crime. The jurisprudence would have to be developed by the State Supreme Court. For this reason alone, it is very unlikely that one State would go it alone on a bill of rights.

Freedom of religion

Even the most innocuous listing of rights and freedoms is likely to occasion suspicion by interest groups which are assured protection by the government of the day and all major political parties. They, seeing nothing to gain and even a slight risk to their own self-interest, can be expected to be wary about any listing of rights which transfers deter­ mination of entitlements from politicians to judges. The 1988 referen­ dum is illustrative. During that campaign, the Catholic bishops of Australia were concerned among other things with the maintenance of state funding of Catholic schools. Their statements and involvement in the debate highlighted how the self-interest of individuals and groups acting for the most worthy of motives can cloud the real issues involved. The Central Commission of Australia�-s Catholic Bishops publicly opposed a constitutional amendment which would have extended the guarantee of freedom of religion such that no government in Australia could establish any religion, impose any religious observance or pro­ hibit the free exercise of religion. Without the amendment, the existing constitutional protection covered only Commonwealth laws and not State laws or Commonwealth or State administrative actions. The Commonwealth Constitution has always contained a provision Australian proposals for a bill of rights 39 which precludes the Commonwealth from legislating in respect of religion. Section 116 provides:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any· religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

The 1988 Constitutional Commission was chaired by Sir Maurice Byers QC who, as solicitor-general for the Commonwealth, had ap­ peared against the DOGS (Defence of Government Schools) group in their 1980 High Court challenge to Commonwealth funding of church schools. He was joined by two professors of law, two retired politicians of opposite political persuasion and a prominent judge. They recom­ mended the alteration of section 116 ·so that the guarantees of freedom of religion therein shall apply to the Commonwealth, States and Territories' .22 They further recommended the omission of the words ·make any law' so as 'to give the provision operation beyond the making of a statute' 23 They gave these reasons fo r the recommen­ dations:

The values that underlie our political tradition demand that every individual be free to hold and to manifest whatever beliefs and opinions that person's conscience dictates. So long as an individual does not transgress the reasonable limits established in a free and democratic society, his or her freedom of religious belief and practice should not be fettered. Religious freedom is the paradigm freedom of conscience. We believe that the guarantee of that freedom should be consistent throughout the federation. The same standards should apply in every place and to every Government. There is no case for variation where such a basic human liberty is concerned. It is pressing States' rights too far to say· that the States should make their own decisions about religious freedom. One purpose of the proposed alteration is to clarify areas of uncertainty under section 116. The omission of the words ·make any law' is required to remove any doubt regarding the section's application to governmental actions of an Executive and administrative kind. The proposed alterations would also remove the uncertainty that has existed regarding the operation of section 116 in the Territories.24

The federal opposition opposed all referendum proposals in 1988. Launching their 'No' campaign, the opposition sought and published an opinion from David Bennett QC on the effect of the proposed 40 Legislating Liberty amendment of section 116. Various Catholic bishops also obtained legal opinions, none of which was published. Catholic papers carried a statement by the Central Commission of the Australian Catholic Bishops' Conference. Regarding section 116, they said:

On the issue of freedom of religion the bishops have obtained specialist advice from a variety of experts. In the light of that advice the bishops place on record their concern that a 'Yes' vote on this question could in fact end up seriously restricting freedom of religion. Experience in the United States of America, where there is a constitu­ tionally enshrined prohibition against establishment of any religion, sug­ gests that the proposed alteration to our Constitution may open the way for unnecessary litigation. Some groups or individuals may challenge the constitutional validity of any State law or administrative action that they consider in some way touches on the subject of religion or religious organisations. In particular the now settled question of government funding of non­ government schools and other educational institutions may be reopened since the legal basis of the decision in Attorney-General (Victoria) v. The Commonwealth (the so-called DOGS case) may be affected by the removal of the significant words ·make any law for establishing' The long tradition of freedom of religion which our country has enjoyed is ·best protected through the democratic process in the Federal parliament and each State and Territory legislature. If the Constitution is altered then issues are removed to the High Court for decision. The legitimate right of the electorate to ·overturn' a High Court decision would then depend on a further referendum or on constitutional amendment. Voters need to be particularly cautious in assessing the proposal to provide a constitutional guarantee of freedom of religion. The proposal is vague, its meaning uncertain and its outcome unpredictable. There is no widespread discontent among ordinary Australians with the present religious freedoms that exist. This proposal, however, raises serious concerns for the future and deserves to be treated warily.

The government then sought and published Sir Maurice Byers' opinion on the Constitutional Commission's proposal for alteration of section 116 which had been adopted without change by the government and submitted to referendum. The referendum question on rights and freedoms was rejected by 69 per cent to 31 per cent, failing to attract a majority in any State. It was the least popular question. Other questions attracted 67, 62 and 66 per cent negative votes. It is probable that the bishops' statement increased the negative vote; it was intended so. The Australian proposals for a bill of rights 41

statement raises several issues. The major concern of the bishops was that changes to section 116 could reopen for determination the issues agitated in the 1980 DOGS litigation.25 In that case, the plaintiffs challenged the constitutional validity of arrangements for state aid to church schools. The court ruled six to one that the arrangements were valid. The proposed amendment to section 116 was:

The Commonwealth, a State or a Territory shall not establish any religion, impose any religious observance or prohibit the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth, a State or a Territory.

The key legal question was: Did the proposed amendment to section 116 render the DOGS challenge any more likely to succeed? The answer was 'No', In the DOGS case, all six members of the majority were agreed that the words ·establishing any religion' had a clear and �on finedmeaning which could not possibly include providing financial assistance to schools that happened to be conducted by churches. A broad reading of the phrase, whether or not by reference to the Ameri­ can separationist doctrine and line of authorities, was precluded by the specificity of the three phrases which followed in s. 116 and which could not be rendered ineffective. Though all members of the majority were confirmed in this view by the preceding purposive words ·make any law for', these words were not determinative in their consideration of the meaning of ·establishing any religion' 26 The absence of these. words would not have upset the reasoning or reversed the judgment of any of the majority. The omission of the words ·make any law for' would not, on the reasoning of the majority, change the meaning of the establishment phrase. All six judges found the phrase to have a special­ ised meaning in 1900 which remained the same in 1980. For the DOGS challenge to succeed, the High Court would have to reverse its interpretation of 'establishing any religion�. If a majority of the High Court was minded to follow the dissenting Murphy view, they would be no more constrained by the existing provision than by the 1988 proposal. But, apart from that unlikely event (against which there could be no absolute guarantee), the clear, specialised meaning of ·establishing any religion' in a constitutional provision which specifies discrete incidents of freedom of religion would be determinative, whether or not the words were re-enacted in 1988, and whether or not the constitutional provision were confined to laws enacted for that 42 Legislating Liberty purpose or expanded to cover executive or administrative acts author­ ised by laws enacted for any purpose. The bishops' anxiety about the United States experience opening the way for unnecessary litigation was based on what they thought to be �a constitutionally enshrined prohibition against establishment of any religion" . The Australian judicial observations make a clear dis­ tinction between establishment of any religion and establishment of religion. It is only a prohibition couched in the latter form which could be creative of the wall of separation providing freedomfrom religion as well as freedom of religion. Such a wall could find no foundation in Australia except from a bench a majority of whom adopted the Murphy line. But such a bench could equally and with the same arguments erect the wall of separation on the existing section 116. The bishops' reason­ ing, insofar as it was correct, pointed to the desirability of abolishing all constitutional protection of freedom of religion so as to ayoid unnecessary litigation and to minimise uncertainty. If freedom of religion is worthy of constitutional protection, that protection should not be forgone simply because there is a minuscule risk that a radical view espoused by one judge will, in time, be espoused by a majority of judges. To argue, as the bishops did, that 'freedom· of religion ... is best protected through the democratic process in the . Federal parliament' is to state a preference for no constitutional protec­ tion for freedom of religion. While this approach may spare a majority .1 religion or religious practitioners who enjoy support from the govern­ ment of the day the vagaries of constitutional litigation, it does nothing to protect the freedom of religious practice by minorities who may not enjoy any favour from the government of the day.

Conclusion

Given the failures in the past in our national conversation about a bill of rights and given the ongoing commitment of some groups to a consideration of a bill of rights as part of a revised constitution by 2001, there is no point in one State or Territory going .it alone unless it were deliberately embarking on a pilot study clarifying not only the content but the process for implementation of any such bill of rights at a national level. As Commonwealth attorney-general, Senator Gareth Evans, being of the Lionel Murphy tradition, was very committed to a bill of rights Australian proposalsfor a bill of rights 43

which would be enforceable primarily by the courts. His successor, Lionel Bowen, had a very different view on the development of policy in the human rights area. In 1985 he said:

I believe that we need to have a mechanism which can advise government of any areas where there is need for legislative and/or administrativereform. In my view the best way is to establish an effective Human Rights Com­ mission which could then monitor the obligations under the International Covenant on Civil and Political Rights. My opinion is that if you adopt the wording used in the International Covenant, it can have a number of meanings and this leaves the interpretation to judicial decision. A more effective mechanism for compliance with the principles of the Covenant would be for the Human Rights Commission to indicate where there is· non-compliance and then for the government to consider the need for legislation in that area. 27

-f· The 1985 bill did occasion some concern to groups which thought the Human Rights Commission at that time was to be armed with powers which themselves would be contrary to the maintenance of human rights. The Commission was to have the power to compel a person to attend investigations of complaints .. Such a person would have no right not to give answers without reasonable cause, no right to know the identity of the accusers, and in some cases no right to legal representation· except with the consent of the Commission. The Law Council of Australia was one of the groups opposed to these provisions. However, the broad powers to be exercised by the Commission were to be limited to investigations into acts and practices. of the Common­ wealth, and, in special circumstances, of state governments, public servants and those acting on behalf of government. Usually, the class of persons who could have been compelled to attend investigations would be confined to public servants and others acting on behalf of government. If a private citizen had been compelled to attend, it would have been for the purpose only of adducing evidence of a government act or practice. It would always have been a rectifiable abuse of power if the Commission were to use those powers to investigate the actions of private citizens when such actions were not acts or practices of government. Whether it was the courts or some .specially established commis­ sion, there would have to be some adjudicative body dedicating its time and energies to developing a jurisprudence of, and the limits of, the 44 Legislating Liberty rights enunciated. Gov�rnments will countenance the entrenchrnent of rights only if the rights are made subject to such restrictions as are necessary and reasonable in a den1ocratic society in the interests of public safety, public order, or the protection of the rights and freedoms of others. So an individual rjght is trumps except when another citizen claims another right also called tntn1ps though it be of a different suit. Rights \Vhich are so qualified are not universally enforceable legal entitlements. They are claims, the limits of \vhich await determination in tilnes of conflict. The Canadians have spent much time considering the limits of what 'can be den1onstrably justified in a free and democratic society'. In the end we have to decide whether that n1atter is best resolved in individual cases by unelccted judges or officials of a Hun1an :Rights Commission or in the generality of cases by elected politicians, police and public servants. Legislative protection and pron1otion of civil and political rights is possible through discrete pieces of legislation which deal with the relevant issues. It n1ay even be desirable to have a bill of rights Act by which other future legislation is assessed for compliance with those rights. However, a bill of rights with civil and political rights univer­ sally enforceable in the courts, as EARC proposed in Queensland, would at this stage create more problems than it solved, and being restricted to one State jurisdiction would be unlikely to develop the jutisprudence necessary to win public confidence in the redistribution of roles fron1 the parlia1nent to the courts or from parliamentary subcom1nittees to unelected conunissions which are too readily paro­ died as the thought police. As the 1988 referendum taught us, rights talk in the political forum is tnistrusted by those \vho think they have something to lose in changes to the status quo, knowing that they have no guaranteed control over the outcomes of the new processes being conte1nplated. If a bill of rights is not to be an exhaustive statement of rights especial1y for those who are the poorest, rr1ost disempowered and least enfranchised, it will be only a selective pjece of window-dressing which does nothing to effect greater protection for those who most need it. Any bill of rights transfers power from parlian1ents to judges. It also politicises the role of the judiciary. In tin1es of economic rationalism, recession and increasing bureaucratisation, the advocates of individual liberty need to have concern for the protection of the poor and the weak Australian proposals for a bill of rights 45 who suffer not only at the hands of the increasingly impersonal state but also at the hands of those whose individual wealth, power and avarice gives them unequal access to the goods of life and society. Little will be gained from a bill of rights which on the one hand grants equality of suffrage on the basis of 'one vote, one value' while on the other conceding that such a right is to be restricted because 'in certain remote areas good governmentwould be prejudiced under equal suffrage because the electors in those areas would have insufficient access to their members' .28 Under EARC's proposals, such a weighting provision would have been permissible as a reasonable limitation on the right because it could be demonstrably justified in a free and democratic society. Even less would have been gained by EARC's bill which failed to warrant universal and equal suffrage because such a provision would have left parliament free to regulate the electoral system provided that each vote carried the same weight. The complex law of defamation which effects the trade-off and dividing line between the publisher's right of free speech and the other citizen's right to privacy and reputation will not be any more felicitously determined by a one-line entry articulating each right in a bill of rights. Freedom of conscience and religion ought to be better protected under the Australian constitutional machinery. But surprisingly one does not even expect leaders of the major churches to agitate for the protection of this right for minorities when their church membership, representing the majority of the community, are guaranteed satisfactory and beneficial relations with the state. This is especially the case when there may be fears, even though ungrounded, that the recognition of the right would undermine arrangements of convenience such as state aid to church schools. Until we have a uniform bill of rights at the Commonwealth level, there is no point in one State jurisdiction triumphing the cause, particu­ larly when the government is not seeking to agitate reform of contro­ versial laws and practices relating to issues such as abortion and euthanasia. The formal enactment and legislative recognition of rights effecting new relationships between citizens as well as the relationship between citizen and state ought to be the subject of discrete legislation for each right or left as fertile ground for courts to develop the common l�w in sympathy with developments in the international law's articula­ tion of human rights. 46 Legislating Liberty

The rights of the poor, the powerless and the marginalised are the only universal dghts. The benefits that others enjoy are not universal rights but liberties, privileges or abuses. These universal rights are realisable only to the extent that there is a monilly binding duty on all to provide for the least advantaged. Rights are exercised only to the extent that the correlative duties are performed under coercion from the state, under encouragement from others, or under the guidance of the individual citizen's conscience. A bill of rights may have an educative function but it is no guarantee of a better citizen or a better society. Its only guarantee is restrictive power for elected legislators and increased power for unelected judges for the benefit, if sought, of people whose rights are most likely to collide with the interests of the majority. 3 ThJ United States Supreme Court: determining what is right for the United States

The adjudicators of due process and equal protection It is sometimes said that the United States is the land of freedom, and Australia is the land of the 'fair go' Whereas individual liberty is the hallmark of public argument in the United States, in Australia the discussion is more likely to focus on equality, what is good for everyone. The individualism of the United States produces a sharp divide between the public and the private; it encourages initiative; and rights are trumps. There is a strong sense that there are many things the state cannot and should not do, even in the public interest. It is for individuals to determine for themselves what is the public interest, how they want to contribute to it, and the extent to which they wish to forgo their liberty in the interests of others. Political liberals accept that there can be no useful discussion about the common good. People of good­ will confronting new social problems are limited in how far they can imping� on the private realm, even if they are legislators or judges. Grid lock is accepted as an inevitable cost of the separation of powers. I have sympathy with many of these limits. But I have been surprised at how complex, incomprehensible and unworkable these limits have become in the United States constitutional framework. I cannot imag­ ine the United States without a bill of rights. But it is another question whether other societies, even those committed to freedom and equality, would want to adopt a United States-style bill of rights now that it has become so home-grown and seemingly insufficientto resolve the issues of the age. The present issues of abortion, euthanasia, gay rights, women'Js rights, affirmative action, free speech on cable television and the internet, commercial free speech, and electoral redistricting all require the judges to balance conflicting interests which rest on essen­ tially political, value-laden scales. The present court which is ideologi­ cally very divided has had to wrestle with all these questions. The Supreme Court, which in recent years has delivered written 48 Legislating Liberty judgments in fewer than 1 ?O of the 6,000 applications it receives each year, has many devices available to it when choosing the moment and extent of judicial intervention. In 1996 the Court, under the leadership of Chief Justice Rehnquist, had cut back the number of cases in which there was oral argument and judgment to a mere 75. Justice Brennan, the most liberal and interventionist judge this century, once said, 'High Court judges interpreting a bill of rights may at times lead public opinion; but in a democratic society they cannot do so often, or by very much. Sometimes that means practising the passive virtues, exercising discretion not to hear cases or invoking various jurisdictional principles to postpone resolution of an issue best left undecided or best resolved by public officials.'1 The Court can be very choosy both in determining the issues it will consider and in seizing the moment when a political controversy is ripe for judicial determination. For over forty years the Court has maintained a strong watching brief on racial equality and prejudice. For the last two decades the Court has wrestled with the issue of abortion. It has recently opened its doors to gay rights challenges and gender equality arguments. In 1997 it considered euthanasia for the first time, but decided to leave the matter to state legislatures until a clearer case for a right to physician-assisted suicide could be made out. The court is perplexed about how to apply its free-speech doctrines to new technologies such as the internet and cable television. Next will be same-sex marriages and a general right to die regardless of whether or not the person is mentally competent and in the dying stages of terminal illness. To avoid an overtly political role, the judges try to set up barriers to fence themselves out from the difficult political questions which they as unelected officials trying to apply a transparent judicial process are ill-equipped to resolve. They decide whether there is a fundamental right or 'liberty interest' at stake. They then determine if there is some countervailing ·state interest' which warrants a limit being placed on the liberty interest. Often the answer is determined by the prior decision about how closely the judges will look at the alleged interference with the liberty interest. They can decide to apply strict scrutiny which is a very close look at a legislative proposal. At the other end of the judicial optical scale is rational basis review which is almost a decision by the judges to look the other way and leave it to the legislators. If they apply strict scrutiny, chances are that the state's limitation on the individual Th e United States Supreme Court 49 liberty will be struck down. If they apply ·rational basis' review, almost any limitation can pass muster provided the state legislature is not engaged in some animus or prejudice against the individual or group affected by the legislation. In recent times, gender issues have led the court to adopt what it calls intermediate scrutiny. As well as deciding how closely to look at a challenged law, the judges then have to decide how to weigh up things which are almost incomparable. They design tests such as ·undue burden' to disguise or limit their value judgments. The result is that where there is a need for someone to balance the conflicting claims, the legislators are banned by the judges and the judges proceed to place restrictions on them­ selves. The balancing process is left incomplete and the only result is the vindication by default of individual rights over the interests of all. Countries such as Canada and South Africa, which have only recently constitutionalised a bill of rights, have set down a catalogue of rights but then expressly conceded the power of the elected legisla­ tors to limit the exercise of the rights in a manner which is reasonable and justifiablein an open and democratic society based on freedom and equality. To United States lawyers, these words of qualification seem to take away with one hand what was given with the other. The courts of these other countries have always looked to the United States jurisprudence for guidance in the interpretation of the key rights and their limits. United States judges rarely look elsewhere. Though the United States Constitution does not contain any similar words of permissive limitation on the rights and liberties set down, the Supreme Court has long accepted that the ban on deprivation of life, liberty or property without due process, as set down in the fifth and fo urteenth amendments, requires the judges to strike a balance between individual liberty and the demands of organised society. They say the balance is. struck by having regard for the traditions from which the country developed as well as the traditions from which it broke. The fourteenth amendment also requires states to extend to everyone 'the equal protection of the laws' The equal protection clause was first breathed into life by means of a footnote in the 1938 case United States v. Ca rolene Products Co. 2 in which the Court said that the case was not one where there was a need to inquire

whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political 50 Legislating Liberty

processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. 3

_Professor Ronald Dworkin says:

The essential difference between the two clauses lies in their rationale. The due process clause forbids compromising certain basic rights altogether, except for a particular compelling reason. The equal protection clause is less stringent: it requires only that states not discriminate unfairly in the liberties and other privileges it chooses to allow. But both clauses are exceedingly abstract. How should judges decide which liberties the due process clause treats as basic, and what kinds of discriminations the equal protection clause treats as unfair?4

The due process clause can be invoked when a person is wanting to claim that the liberty interest being invoked is consistent with the traditions of the country. The due process clause has been the primary anchor point for the so-called ·right to privacy' and the interest in personal autonomy which are invoked to prevent state prohibition or regulation of personal activity. The court is asked to define the scope of a liberty by reference to the nation's historically enduring principles rather than its concrete historical practices. It is irrelevant that abortion was banned in the past, or that homosexual activity is still a criminal offence. The judges are invited to look behind the veil of practice, to discern the underlying, abiding values of the nation. While the due process clause is grounded in tradition, the equal protection clause is what one commentator calls "a tradition correcting norm of civic equality' 5 Judges anxious to confine the scope of judicial review on moral and political questions have insisted that the due process clause protects only those rights which if sacrificed would mean that ·neither justice nor liberty would exist' or which are ·deeply rooted in the nation')s history and tradition' On the present Court, this viewpoint is represented by Chief Justice Rehnquist and Justices Scalia and Thomas. Recently Justice Scalia wrote:

I have no problem with a system of abstract tests such as rational-basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). Such formulas are essential to evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with that ·equal protection' our society has always accorded in the past. But in my view the function of this Court is to preserve our societyJs values The United States Supreme Court 51

regarding (among other things) equal protection, not to re vise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees. For that reason it is my view that, whatever abstract tests we may choose to devise, they cannot supersede- and indeed ought to be crafted so as to reflect- those constant and unbroken national traditions that embody the people's understanding of ambiguous constitu­ tional texts. More specifically, it is my view that ·when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down' .6

When we Australians come to consider the desirability of a consti­ tutional bill of rights reserving the ultimate decision to judges, we ought be attentive to the observations of the dissenting judges on the United States bench. Coming from a bill of rights tradition which they think susceptible to abuse by their judicial colleagues, they can sound salutary warnings to jurisdictions without a bill of rights tradition which would be required to constitutionalise many questions for the first time overnight. Even those unattracted to Justice Scalia's political philosophy and social morality have to concede the validity of his observations about the diversity in judicial technique, with his col­ leagues in the majority acting more as legislators and social commen­ tators. Justice Scalia indicated just how divided is the present bench when he went on to say:

It is one of the unhappy incidents of the fe deral system that a self-righteous Supreme Court, acting on its Members' personal view of what would make a 'more perfect Union' (a criterion only slightly more restrictive than a ·more perfect world'), can impose its own favoured social and economic dispositions nationwide. As today's disposition and others this single Term show, this places it beyond the power of a 'single courageous State', not only to introduce novel dispositions that the Court frowns upon, but to reintroduce, or indeed even adhere to, disfavoured dispositions that are centuries old. The sphere of self-government reserved to the people of the Republic is progressively narrowed. 7

Ot�er judges have insisted that the liberty protected 'is not a series of isolated points. It is a rational continuum which, broadly speaking, includes freedom from all substantial arbitrary imposition and purpose­ less restraints' 8 The problem confronting all judges is that most 52 Legislating Liberty legislation classifies people for one purpose or another, with resulting disadvantages to others. As Justice Kennedy has said, 'We have at­ tempted to reconcile the principle with the reality by stating that, if a law neither burdens a fu nda�ental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.' 9 It is then for the judges to decide what is a fundamental right or a suspect class. This has meant that elected legislators have not had the last say in striking the balance. Rather it has been the prerogative of unelected judges choosing to bind them­ selves by precedent or to free themselves in what Dworkin calls a . ·moral reading) of the Constitution. The judges are free to determine the relative weights of entrenched and broken traditions in definingthe national ethos, once they have been chosen by a President and run the gauntlet of Senate confirmation hearings. But what is weighed on the other side of the balance to individual liberty? Political liberalism in contemporary America dictates that there can be no agreement about the common good. The public interest is perceived by some as a figment of the collectivist imagination. For some, society is a myth. The individual is an atom seeking maximum liberty in a social moelcule made up of equally self-seeking atoms.

Equal protection everywhere, even on the rat line Inthe United States, as in Australia, there is ongoing controversy about gender issues and equality. In the United States, the expectation always is that the battle will be fought out by choosing the right test case for resolution in the Supreme Court. It is then a problem for the court to apply the judicial method to matters of contemporary controversy. The latest case on gender equality relates to women gaining access to one of the last state-funded male bastions- the Virginia Military Institute (VMI). The State of Virginia has continued to provide some govern­ ment assistance for the VMI, which was founded in 1839 with the distinctive mission of producing ·citizen-soldiers' who exercised lead­ ership in civilian life and military service. VMI's alumni are exceed­ ingly loyal. The college boasted the largest endowment per student of all undergraduate colleges in the United States. The college authorities were loath to admit women because their presence would affect the ethos of the training when it came to physical training, the absence of privacy and the adversative approach. In 1996 the Supreme Court by The United States Supreme Court 53 majority ruled that the equal protection clause precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. Justice Ruth Bader Ginsburg said that 'the question is whether the State can constitutionally deny to women who have the will and the capacity, the training and attendant opportunity that VMI uniquely affords' 10 As ever, the outcome of this equal-protection litigation depended not on the balancing of individual liberty and public interest or on the rationality of discrimination but on the judges' prior decision as to how closely they would scrutinise thepra ctice. The majority raised the bar of scrutiny on earlier gender cases, presumably rendering women a quasi-suspect class, and proffered a new test: 'Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is "exceedingly persuasive"' 11 The burden of proof lies with the state. The majority could not find any persuasive evidence that VMI's male-only admission policy was in furtherance of a state policy of diversity. During the course of the litigation, Virginia presented a remedial plan for the setting up of the Virginia Wo men's Institute of Learning (VWIL), a women-only college. The State argued that it had an interest in providing diverse educational experiences, including use of the adversative method which would not be a realistic option unless people could choose single-sex education. The majority found that the women students at VWIL ·do not experience the barracks' life crucial to the VMI experience, the Spartan living arrangements designed to foster an "egalitarian ethic"' 12 The lower court found that the most important aspects of the VMI educational experience occurred in the barracks, yet 'Virginia deemed that core experience non-essential, indeed inap­ propriate, for training its female citizen-soldiers' On the majority's reasoning, it was impossible for Virginia to make up the shortfall because even if the course and techniques mirrored those at VMI, the women from VWIL could not ·anticipate the benefits associated with VMI's 157-year history, the school's prestige, and its influential alumni network� .13 The majority implied that the only adequate remedy would be the admission of women to VMI. It would not matter what was provided at VWIL. In other words, single-sex, military-type, charac­ ter-building education is unconstitutional. Justice Scalia was scathing in his dissent. He thought the court's 54 Legislating Liberty conclusion that single-sex education was unconstitutiQnal was •not law, but politics-smuggled-into-law'. He did not spare his judicial colleagues:

Much of the Court's opinion is devoted to deprecating the closed-mindedness of our fo rebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were- as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debat­ able. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the demo­ cratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society;s law-trained elite) into our Basic Law.l4

This genre of judicial invective contributes little to a community consensus about the limits of affirmative action, special treatment and equality as sameness. Australians ought be very wary about setting up a system which increases the risk of its occurrence. In August 1997, seventeen-year-old Beth Ann Hogan became the first woman to enrol as a cadet at the VMI after the six-year legal battle which was fought all the way to the Supreme Court. There were 30 women in the 1997 intake. They were greeted by a dozen dead lab rats and a placard, 'Sav� the males' Like the first-year men, they have to run the gauntlet of the rat line where they are brutalised by the _ �upperclassmen' with all sorts of abuse which is said to be character building. In his opening address the dean warned, 'This is a world that may be unfamiliar to you. It is ritual. It is language. It is symbols. It is customs. It is pomp. It's ferocious nostalgia. It is occasionally brutal.' Usually a quarter of the recruits drop out before they have run the six-month gauntlet of the rat line. The college superintendent who led the charge against the admis­ sion of women has now set up special classes on sexual abuse. The new dispensation at VMI will probably require ongoing judicial supervision given the activities that occur on the rat line. Rats who fail the excruciating physical tests imposed can be harshly punished. Th e Guardian newspaper reported that in 1996 "six Upperclassmen decided The United States Supreme Court 55 to punish a cadet who had been medically excused from an exercise by "flipping" him - turning his bed over while he slept, pinning him down, shaving his head and spraying his testicles with hot balm. They dislocated one of his shoulders while abusing him: These are murky waters for the operation of the equal protection clause. No doubt a complex jurisprudence of rat-line discipline, sexual abuse and equal protection will develop in the years ahead. Women now enjoy consti­ tutional equal protection assuring them their place in the rat line. Though it is still constitutional for some all-black colleges and all­ women's colleges to receive government funding, it is no longer legal for an all-male military college to receive government funding. All parties, includingthe women, are insistent that they do not want the rat line to change because of the presence of women. They want to enjoy equally the benefits of the rigours of this barbaric character building. They will welcome physical abuse without tolerating sexual abuse. The VMI case is seen as another victory for women's liberation - allowing women freely to subject themselves to physical abuse in the same way as men. While on the rat line, the young women will be assured sufficient institutional safeguards that they are being hated and abused equally and not just because they are women, even though the entire VMI establishment has been forced by the judiciary to permit their entry, the admissions officer having admitted, 'They know that everyone is not going to be exactly welcoming: As part of an American elite, these women will be assured equal protection of the laws in gaining access to the rat line, in their treatment on the rat line, and in their beds. Any abuse, other than sexual abuse, will be viewed as character building. Sexual abuse will not be tolerated. If required, the courts will determine the difference. Once access to the rat line is framed as a constitutional question, the courts have no option but to apply fine distinctions even to the most barbaric activity. There is almost no matter in civic life in the United States which cannot be turned into a constitutional question either of due process or equal protection or both. The Supreme Court maintains the widest discretion about when to swoop and take up the question. But when like the eagle it does so choose, it is the unquestioned master of the skies, dispensing justice as it chooses. It is a matter of opinion whether that is justice according to law or what Justice Scalia calls politics­ smuggled-into-law. 4 The quandary: Australia, the.United

States and gay rights � different process, surprising outcome

Introduction

The Australian stereotype of family is still a man and a woman, married, with dependent children. In the 1996 census only 40 per cent of families fitted the model, a drop of 8 percent in just ten years. The nuclear family is no longer the norm. Thirty pe� cent are couples without children, 13 per cent are lone-parent families and 8.4 per cent are couples in de facto relationships. Fifteen per cent of Australians do· not live with any family members. Almost one million Australians have been divorced - a fourfold increase in twenty years. In an era of nondiscrimination, preferential treatment by the state on the grou.nds of marital status or sexual orientation requires justification.The family unit, in all its variety, is still the primary social unit for the bearing, nurturing and educating of children, society"'s most precious resource. Calls for the recognition of 'same sex marriages' and for decriminali­ sation of homosexual activity have focused attention on the role of law and policy in providing social acceptance and even endorsement of human relationships.

The variety of church discourse about gay rights

The Uniting Church in Australia is confronting questions about the categorisation of same-sex unions as •marriages' and the inclusion of gays and lesbians within the ranks of the ordained ministry. At the 1997 National Assembly of the church there was bitter division, with some gay clergy ·coming out' and other clergy and lay people calling for a ban on homosexuals in the ministry. In Roman Catholic circles, the discussion of these issues is against the backdrop of the Vatican endorsed mode of moral reasoning which acknowledges that con­ science is 'the sanctuary of man, where he is alone with God whose voice echoes within him' 1 But then comes the warning against the Th e quandary: Australia, the United States and gay rights 57 creative understanding of moral conscience which allows the classifi­ cation of moral norms as ·not so much a binding objective criterion for judgments of conscience, but a general perspective which helps man tentatively to put order into his personal and social life' 2 Since 1975 the Vatican has acknowledged a distinction 'between homosexuals whose tendency comes from a false education, from a lack of normal sexual development, from habit, from bad example, or from other similar causes, and is transitory or at least not incurable; and homosexuals who are definitively such because of some kind of innate instinct or a pathological constitution judged to be incurable' 3 The Catechism of the Catholic Church says homosexuals ·must be accepted with respect, compassion and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfil God's will in their lives and, if they are Christians, to unite to the sacrifice of the Lord's Cross the difficulties they may 4 encounter from their condition.' In the 1992 version of the catechism, homosexual acts were classed as intrinsically disordered, being closed to the gift of life, and not proceeding from ·a genuine affective and sexual complementarity' .5 Therefore there is only one possibility: 'Homosexual persons are called to chastity.'6 The 1997 revision of the catechism describes homosexuality as a trial rather than a disorder. The catechism notes that 'the number of men and women who have deep-seated homosexual tendencies is not negligible' In 1995 the Vatican issued guidelines for education within the family, noting that homosexuality is spreading in urbanised societies. The Vatican, accept­ ing that the psychological genesis of homosexuality remains largely unexplained, insisted on a distinction between ·a tendency that can be innate and acts of homosexuality that are intrinsically disordered and contrary to Natural Law' 7 In 1992 the Vatican's Congregation for the Doctrine of the Faith had issued Some Considerations Concerning the Response to Legislative Proposals on the Non-Discrimination of Homosexual Persons. The Congregation described homosexual orientation as ·an objective dis­ order' and on this basis claimed that sexual orientation was not a quality comparable to race or ethnic background in respect to non-discrimina­ tion. Cardinal Joseph Bemadin of Chicago was one of the many bishops who expressed regret that the Vatican document resulted in so much pain and confusion. He said, 'While affirming the inviolable 58 Legislating Liberty dignity of a gay or lesbian person and the goodness of their stable, loving, and caring relationships, I cannot endorse homosexual genital expression. Intimate sexual relations are appropriate only in the context of a heterosexual marriage.'8 Archbishop John Quinn of San Francisco outlined his policy:

to affirmand defend the human and civil rights of gay and lesbian persons; to oppose unjust or arbitrary discrimination in housing or employment; to affirm and defend the church's teaching on marriage and the family; to affirm and defend the church's teaching on the distinction between sexual orientation and behaviour, but especially always to remember that 'there are three things that last, faith, hope and charity. And the greatest of these is charity' .(1 Cor 13)9

The traditional Catholic approach has been to insist that the sexual act ought always to be open to the unitive and the procreative. Some critics of this approach point out that even within marriage most sexual acts are not procreative, for purely physical reasons (ovulation, meno­ pause, infertility etc.). These acts, however, retain their unitive capac­ ity. The argument then runs that there is little difference between the loving sexual act of a married couple during the non-procreative time of the woman's cycle and the loving sexual acts of others whatever their sexual orientation. A Catholic homosexual friend of mine prof­ fered this comment on the traditional Catholic position: 'We have some things given to us which cannot change and are part of the essence of who we are . It is the hand we are dealt in life. In other things we have the capacity to construct our world and ourselves. In this we are free. My experience of homosexuality is that it is part of the hand that I have been dealt (my essential self). However, I still have the capacity through my sexuality to construct loving relationships (my existential self). I may not be capable of the procreative side of intercourse, but I am capable of living creatively the unitive aspect of intercourse: Distinguishing the normative teaching and caring pastoral roles of the church, Vatican officials have continued to differentiate between the person and the act - the person being entitled to pastoral solicitude and the act crying out for moral condemnation. This approach works neatly enough in the case of the murderer who killed in the heat of the moment and the thief who was tempted to steal in the cold of the winter night. It is less convincing w�en the act is an act of sexual expression which the person claims in good faith to be the expression of the very Th e quandary: Australia, the United States and gay rights 59 self. The murderer can stand aside from his act as can the thief from hers. The sexual being expresses the very self in the sexual act. In the realm of sexuality, it is no answer to love the person and hate the act. Any sexual act divorced from emotion and love can be caricatured whatever the orientation of the people and whatever the social and canonical status of their relationship. Conceding that there are some homosexuals who are definitively such because of some kind of innate instinct, they must be accepted with respect, compassion and sensitiv­ ity, and in the public domain we must not discriminate against them as people.

Scientific evidence and church responses in the public domain During the 1995-96 term of the United States Supreme Court, the judges heard argument in the gay rights case, Romer v. Evans. This case galvanised the United States on the question. The court received amicus curiae briefs fro m dozens of interested parties arguing their views on the morality and legality of homosexual activity. These briefs provided a rare opportunity in the public forum for the publication of wide-ranging, considered opinions about homosexuality. One brief came from the American Psychological Association, the American Psychiatric Association, the National Association of Social Wo rkers, Inc. and the Colorado Psychological Association. I concede the possi­ bility that these peak professional bodies have been greatly influenced by homosexual members seeking recognition and acceptance. But their message is clear and scientifically documented. They informed the court that homosexuality ·does not constitute a psychiatric disorder· and 'implies no impairment in judgment, stability, reliability, or gen­ eral social or vocational capabilities' According to these groups, the most reputable research ·consistently rejects the widespread assump­ tions that sexual orientation is the same as sexual conduct, that sexual orientation is freely chosen and readily subject to alteration, and that homosexual or bisexual orientation is a mental disorder causing im­ pairment of psycholo�ical or social functioning' They provided details of recent surveys in the United States. Almost 5 per cent of men and 4. 1 per cent of women reported having had sex with a same-sex partner since the age of eighteen; 7.7 per cent of the men and 7.5 per cent of the women reported experiencing attraction to people of their own sex, considering the prospect of sex with a same-sex partner appealing, or 60 Legislating Liberty both; 2.8 per cent of the male respondents and 1.4 per cent of the female respondents identified themselves as 'homosexual' or 'bisexual'. Chi­ cago researchers found a significantly higher prevalence of self-re­ ported homosexual or bisexual identity (9.2 per cent for men, 2.6 per cent for women) among residents of the twelve largest American cities. According to their brief, ·scientificliterature thus strongly indicates that sexual orientation is far from being a voluntary choice' 'There is little evidence that treatment actually changes sexual attractions, as opposed to reducing or eliminating same-sex sexual behaviour.' They noted that homosexual orientation often becomes the predominant social identifier of gay people. Yet many people, whatever their sexual orientation, are uncomfortable with an atmosphere in public discus­ sions which dictates that they identify by sexual preference. The brief noted that 'the experience of being gay, lesbian, [or] bisexual in American society today continues, to a large extent, to be defined by the requirement to cope with the negative effects of prejudice against homosexuality'. Almost 60 per cent of the respondents agreed with the statement 'I think lesbians are disgusting'. Most heterosexuals' nega­ tive attitudes toward lesbians and gay men are not based on personal experience with gay people. Only one in three Americans has a friend, relative or acquaintance who is known by them to be lesbian or gay. Presumably Australia is much the same as the United States in this regard. The brief claimed that, despite stereotypes to the contrary, ·gay men and lesbians often form committed relationships that share principal elements of heterosexual marital relationships, that are based on deep emotional attachments, and that endure for decades. Gay men and lesbians do not appear to differ from heterosexuals in their frequency of sexual intercourse. The stigma and ill treatment that attach merely to acknowledging homosexual orientation lead many gay people to remain in the closet. Concealing one's sexual orientation, or attempting to avoid association with other gay people, commonly tends to com­ pound psychological distress.' The research relied upon found that:

Psychological adjustment appears to be highest among men and women who are committed to their gay identity and do not attempt to hide their homosexuality from others. As with other stigmatised minorities, gay men and lesbians probably maintain self-esteem most effectively when they identify with and are integrated into the larger gay community. Conversely, Th e quandary: Australia, the United States and gay rights 61

people with a homosexual orientation who have not yet come out, who feel compelled to suppress their homoerotic urges, who wish that they could become heterosexual, or who are isolated from the gay community may experience significant psychological distress, including impairment of self-esteem. Chronically hiding one's sexual orientation can create a painful discrepancy between public and private identities, feelings.

In the Supreme Court case, there were opposing Christian coalitions which submitted briefs, translating their religious convictions into legal submissions in the public domain. Those opp�sed to special protection of homosexuals included the Christian Legal Society, the Catholic League for Religious and Civil Rights, the Christian Life Commission of the Southern Baptist Convention, Focus on the Family, the Lutheran Church-Missouri Synod, and the National Association of Evangelicals. They submitted:

When an interpretation of the scriptural canon is understood to warn against homosexual conduct, obviously a church's own employment practices, its schools with their attendant curricula and codes of behaviour, and its social-outreach subsidiary groups, as well as parachurch organisations, do discriminate against those who engage in homosexual practices. Apologia for the discrimination vary widely, but the three purposes that are most often advanced are: (i) correction of the person in error (for his own well-being); (ii) communication within and without the confessional community of the scriptural teaching on homosexuality (that others may not fall into error); and (iii) protection of the traditional family (a foundation stone of civil society). The social agenda of gays, lesbians and bisexuals is moral legitimacy for their sexual practices. They pursue this cause with vigour. Religion, at least orthodox and traditional religions, generally deny them moral legitimacy. This places religion foursquare in their path. Accordingly, religious persons and religious groups - and hence freeexercise and institutional autonomy - are not a mere side issue in this case.

The coalition of Christian groups agitating for non-discrimination included the United Methodists for Gay, Lesbian and Bisexual Con­ cerns; Axios USA, Inc.; The Brethren/Mennonite Council for Lesbian and Gay Concerns; Dignity/USA; Evangelicals Concerned, Inc.; In­ tegrity, Inc.; Lutherans Concerned/North America; Presbyterians for Lesbian/Gay Concerns; and the United Church Coalition for Les­ bian/Gay Concerns. The United Methodists for Gay, Lesbian and Bisexual Concerns 62 Legislating Liberty described themselves as a group of lesbians, bisexuals, gay men and their friends, families and supporters who affirm fullpar ticipation of all people in the United Methodist Church:

We celebrate God's gifts of sexuality and sensuality, with alltheir blessings for intimacy, relationship and personal growth. We have organised to care for one another, to represent our concerns to and with the United Methodist Church, and to speak boldly for the inclusion of all people. We seek to respond positively to God's love to all persons and, in doing so, speak in a prophetic voice to church and society.

Dignity/USA is a national organisation of gay, lesbian and bisexual Catholics, and their families and friends. For twenty-five years they have been ministering to the spiritual needs of the gay, lesbian and bisexual community. They have eighty-five affiliatedchapters through­ out the country:

We live our beliefs by joining with other lay organisations of the Roman Catholic Church in proclaiming our Catholicism and our beliefs in living the Gospel message. Dignity/l)SA seeks to be an instrument through which ·its members may be heard by the institutional church and society. We seek to speak our conviction that we, as gay people, can express our sexuality in a manner consonant with Christ's teaching and that we can express our sexuality physically in a. unitive manner that is loving, life-giving and life-affirming. We encourage our members to work for justice and social acceptance through education and legal reform.

Lutherans Concerned/North America, Inc. ·stands as a community of faith, modelling the gospel within the church and within the lesbian and gay community. We seek to embody the Gospel's principles of inclusiveness and justice, celebrating God's gifts of sexuality and diversity. Our members serve as pastors, officialsand lay leaders within the Lutheran Church. Our· goals are to affirm the God-given nature of sexual orientation, to proclaim the good news of Jesus Christ through inclusive worship and to promote positive changes in all expressions of the Lutheran Church - Missouri Synod, and the Wisconsin Evan­ gelical Lutheran Synod:

In furtherance of these goals, we have adopted as our logo a combination of the fish and a pink triangle, a symbol that visually unites symbols of our Christian faith and courage against sexual discrimination. The fish symbol originated as a secret recognition sign when Christians in the Roman Empire were persecuted for their faith. The pink triangle was used by the Th e quandary: Australia, the United States and gay rights 63

Nazis to identify tens of thousands (no one knows exactly how many) of European homosexuals who were persecuted by, and murdered in the death camps of, the Third Reich. The triangle shape also symbolises the Holy Trinity. Both symbols are now used by our respective communities today as signs of honour and support. We unite them to show that Christian life and human sexuality can be reconciled into one. Through our ministry, we seek to help the hurting and to speak up for those who cannot risk openness.

The United Church Coalition for Lesbian/Gay Concerns affirms, empowers, educates and advocates, providing support and sanctuary to all their lesbian, gay and bisexual sisters and brothers, their families and friends:

We advocate for full civil rights and bring Christ's affirming message of love and justice for all to the Church and society. We affirm the good news that all persons without regard to sexual orientation are loved and empow­ ered by God, and we promote ministries of pastoral care, education, and advocacy within the United Church of Christ and society as a whole. We enjoy a good working relationship with the various instrumentalities and administrative officers of the United Church of Christ.

These groups told the court they had a responsibility to speak 'borne of our fa ith and our commitment to a God of equality and justice' A prominent purpose of their organisations is to claim their rights as equal citizens. They held their loving relationships of companionship to be ·a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred' There are still compelling common good or public interest argu­ ments which can be put to distinguish a traditional marriage from a long-term relationship whether it be homosexual or heterosexual. Sensitivity, compassion and non-discrimination do not necessarily displace arguments which distinguish marriage and same-sex relation­ ships or other relationships where there is not both a lifetime commit­ ment and openness to bearing and nurturing each other's offspring.Any recognition of same-sex relationships should not undervalue the uniqueness of marriage as an ideal union with a profound social purpose. A relationship which is not ·until death us do part' and which is not open to the bearing and nurture of each other's offspring is qualitatively different from a marriage. Espousing the uniqueness and the ideal of marriage does not necessarily entail the undervaluing of 64 Legislating Liberty the worth and dignity of a person involved in another type of relation­ ship. Were a church to depart from the ·celibacy in singleness and faithfulnessin marriage approach·, within its own organisation, it would have no grounds for discriminating between homosexual and hetero­ sexual people outside marriage when it came to consideration of their suitability for participation in church life. Such discrimination ought to have no place in the public fo rum. The same criteria ought to be applied to a determination of an individual's suitability for participa­ tion in church life regardless of whether the individual's extramarital genital activity is homosexual or heterosexual. People like myself need to begin by admitting some uneasiness in broaching the whole topic of homosexuality. Even our discomfort can be a cause of hurt and offence to homosexuals uncertain of their acceptance and acceptability in our midst. I have to confess that I had a brief flush of embarrassment and hesitation as I approached the counter in a bookshop with a batch of books on the subject. I even contemplated the .purchase of additional books to disguise my purpose, or at least to avoid any wrong inference being drawn about my sexual orientation. Though committed to respect and non-discrimination for the homosexual person, I would still wish fo r my friends, even if the world were completely rid of discrimination and all other things were equal (which they never are), a heterosexual rather than a homosexual orientation. So fo r me sexual orientation, even when it be innate and unchangeable, is something altogether different from race or gender. But then again a parent might wish (all other things being equal) that the baby be intelligent rather than not, athletic rather than not, tall rather than short, a girl rather than a boy, heterosexual rather than homosexual. The moral significance of each of these personal preferences requires further articulation. Gone are the days when the law ought to permit discrimination against people in the public forum simply because of their sexual orientation. In September 1997 Justice Michael Kirby, a strong advocate for gay rights and not a Catholic, addressed the Australian Catholic Bishops Conference Bioethics Advisory Panel. He referred to some recent scientific research linking male homosexuality to ·a gene in the region of the X chromosome' and challenged the bishops: 'If it were deter­ mined (as looks increasingly likely) that sexual orientation is indeed a genetic phenomenon - and thus beyond the "wicked" choosing of a Th e quandary: Australia, the United States and gay rights 65

"wilful" individual - prima fac ie to discriminate upon that basis would be as morally impermissible, and even repugnant, as to discrimi­ nate upon any other genetic basis.' Recently I received a letter from a fr iend who wrote, 'I suffer from chronic depression which seems to relate to being gay. Unfortunately being gay and being in the Catholic Church are chalk and cheese. I'm not sure how my crazy mind works, but I think the Church exacerbates my depression.' I hope I would never discriminate against him on the basis of his innate sexual orientation. I hope in our friendship I can display respect, compassion and sensitivity, admiring his integrity and empathising with him in his suffering. Equally, I hope that he would not see my espousal of the ideal of celibacy in singleness and faithful­ ness in marriage as an adverse judgment of his loving relationships. At all tiines in the public domain, whether in dialogue with govern­ ment about social policy or in giving a public account of church policy, we must speak with the voice of public reason. Therein lies the tension. Without trust between those who are so different we will not scale the heights of the silent mystery nor plumb the depths of the suffering of humanity. For a Christian, this mystery is to be embraced in the inner sanctuary of conscience where God's voice echoes within, to be enfleshed in the relationships we share as the people of God, and to be proclaimed in our calls for justice and non-discrimination in the public domain.

The inherent contradictions in United States jurisprudence on gay rights

The 1996 Supreme Court decision in Romer v. Evans10 was the culmi­ nation of a long-term campaign focused on gay rights in Colorado. After three cities in Colorado enacted policies outlawing discrimi­ nation against gays, a statewide referendum was carried in the name of putting an end to special rights for special groups. The amendment provided:

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, 66 Legislating Liberty

quotaprefer ences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

The legal problem was that the citizen-initiated referendum inserted a very broad provision in the State Constitution banning any branch of government' adopting a policy whereby sexual orientation could be the basis for a claim of discrimination. If gays were a ·suspect class' or if 'fundamental rights' were in question, the court would apply ;strict scrutiny) to the State law, which inevitably has fatal consequences for the State law. Colorado argued that gays were not a suspect class and therefore the State need only show that there was a rational basis for the law, such as maintaining uniform statewide laws for the protection of marriage or for discouraging homosexual activity. The gay rights groups argued that the issue was not one of special rights or special protection but the right of every person to be free of arbitrary discrimi­ nation. Ronald Dworkin once again saw the issue as a series of disarmingly simple questions: 'Should adults be freeto make their own decisions about sex when these decisions have no direct impact on · others? If so, how far should others then be free, as private persons, to express their disapproval of those decisions in their own choice of employees, associates or teachers fo r their children?' 11 If only it were so simple. There may be people wanting to exercise a similar degree of freedom in their lives, who have no desire to show disapproval of any person's sexual proclivities, but in the exercise of freedom want to introduce their children in a teaching relationship only to people whose sexual practices they unreservedly approve. Ye s, they may want to do this in order to provide selected role models to their children. Why shouldn't they when these internal family preferences have no direct impact on others? Justice Scalia, in argument, put it as a case of reversing special laws which gave favoured treatment to those engag­ ing in homosexual activity. Given that the Supreme Court in the 1986 case Bowers v. Hard­ wick12 decided that the State could criminalise homosexual activity conducted in private by consenting adults, Scalia asked, 'Why can a State not take a step short of that and say, "We're not going to make it criminal, but on the other hand, we certainly don't want to encourage it, and therefore we will neither have a State law giving special protection, nor will we allow any municipalities to give it special protection."?' Counsel was asked specifically, 'Are you asking us to The quandary: Australia, the Un ited States and gay rights 67

overrule Bowers v. Hardwick?' She replied, 'No, I am not.' This shows just how fickle is the present law of privacy in the United States. A woman exercising her right to privacy can abort a foetus in which the state has an interest, but homosexuals engaged consensually in private sexual behaviour have no similar right to privacy. And in the first gay rights case before the Supreme Court in ten years, the Court, even when it inquired, was not being invited to overrule Bowers v. Hardwick. The majority in that case once again constitutionalised the issue with breathtaking particularity: 'The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.' 13 They found there is 'in constitutional terms, no such thing as a fundamental right to commit homosexual sodomy' �14 There is a constitutional right to abortion but not to consensual sodomy. In his strong dissent Justice Blackmun said the court had refused to recognise 'the fu ndamental interest all individuals have in controlling the nature of their intimate associations with others' 15 For him, the Constitution has sheltered certain rights associated with family ·not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individ­ ual's life' .16 In Romer v. Evans, the Supreme Court struck down the Colorado provision by a vote of six to three. Colorado's principal argument in defence of Amendment 2 was that it put gays and lesbians in the same position as other people. It simply denied them any special rights. Justice Kennedy wrote the majority opinion. He found the State's readingof the amendment implausible. The Court did not classify gays and lesbians as a suspect class. If the challenged law did not relate to a suspect or quasi-suspect class, it would survive a fac ial challenge if there were any rational basis for its existence. Presumably the majority did not want to buy into Justice Scalia.'s ·categorisation of homosexuals as people who 'tend to reside in disproportionate numbers in certain communities' , 'have high disposable income', and who ·care about homosexual-rights issues much more ardently than the public at large', possessing ·political power much greater than their numbers, both locally and statewide' 17 - thereby being hardly suspect at all! Those seeking to uphold the validity of Amendment 2 had given many reasons for it, including: the maintenance of freedom of choice for employers and landlords in matters of personal and familial privacy, 68 Legislating Liberty religion and association; promotion of the integrity of civil rights laws and the contours of social and moral norms; the achievemen� of statewide uniformity; targeting rare resources of anti-discrimination machinery to assist trulysuspect classes. Proponents of the amendment produced evidence that gays on average are wealthier and have higher education. In Aspen, the sexual orientation ordinance required churches to make their facilities open to homosexual organisations if they were open to any community organisation. They submitted that the amendment was a rational means of ensuring that core religious values were protected fro m infringement. The court majority was dismissive of these rationales, saying:

The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of people undertaken for its own sake, something the Equal Protection Clause does not permit. IS

Justice Scalia had great pleasure in his dissent in turning up a 1980 decision of Justice Kennedy before he went to the Supreme Court. The case involved the discharge of homosexuals from the Navy. On that occasion Kennedy said, 'Nearly any statute which classifies people may be irrational as applied in particular cases. Discharge of the particular plaintiffs before us would be rational, under minimal scru­ tiny, not because their particular cases present the dangers which justify Navy policy, but instead because the general policy of discharging all homosexuals is rational.' 19 Sixteen years later, writing for the majority on the Supreme Court, Kennedy said the Colorado amendment was 'born of animosity toward the class of people affected' and quoting a 1973 decision, he confirmed that ·a bare desire to harm a politically unpopular group cannot constitute a legitimate governmentinterest' :20

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of peoplea stranger to its laws.2 1

One judge's rationality is a community's animosity within a gener­ ation. Writing for the minority, Justice Scalia entered a spirited dissent: The quandary: Australia, the United States and gay rights 69

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a ' "bare ... desire to harm" ' homosexuals, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles or righteousness rather than judicial holdings); they have been specifically approved by the Con­ gress of the United States and by this Court. In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that give rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). 22

Justice Scalia was particularly scathing about the majority's failure even to r�fer to Bowers v. Hardwick. He noted that the respondents' brief did not urge the overruling of Bowers and that •counsel expressly disavowed any intent to seek such overruling" 23 He said:

If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. If it is rational to criminalize the conduct, surely it is rational to deny special fa vor and protection to those with a self-avowed tendency or desire to engage in the conduct. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of ·animus' or ·animosity' toward homosexuality, as though that has been established as Unamerican. Or'course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible ­ murder, for example, or polygamy, or cruelty to animals - and could exhibit even ·animus' toward such conduct. Surely that is the only sort of ·animus' at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that 70 Legislating Liberty

enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens.

Justice Scalia concluded:

When the Court takes sides in the culture war, it tends to be with the knights rather than the villeins - and more specifically with the Templars, reflect­ ing the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation js law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womaniser; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member-schools to exact from job interviewers: ·assurance of the employer's willingness' to hire homosexuals. This law-school view of what "prejudices' must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws and which took the pains. to exclude them specifically from the Americans With Disabilities Act of 1990.24

The pragmatic Australian solution via Geneva On Christmas Day 1991 Australia became a signatory to the first optional protocol of the International Covenant on Civil and Political Rights. Under this protocol, citizens of a nation state who have ex­ hausted all domestic remedies in seeking protection of rights and freedoms set down in the Covenant can make a complaint to the Human Rights Committee. This Committee, based in Geneva, is very under­ resourced and responds only to written communications. Australia, unlike the United States, is one of .the 87 signatories to the First Optional Protocol. To date the Committee has dealt with over 700 complaints. One Australian State, Ta smania, was until 1997 intent on retaining anti-sodomy laws similar to those upheld by the United States Supreme Court in Bowers v. Hardwick. The Covenant on Civil and Political The quandary: Australia, the United States and gay rights 71

Rights provides, 'No one shall be subjected to arbitrary or unlawful interference with his privacy·· and 'Everyone has the right to the protection of law against such interference' Immediately on Australia's signature, Nicholas To onen, a gay rights activist from Ta smania, sent a communication to the Committee ob­ jecting to provisions of the Ta smanian Criminal Code which criminal­ ised various fo rms of sexual conduct between men, including all forms of sexual contact between consenting adult homosexual men in private. He said that such laws had not permitted him to .expose openly his sexuality and to publicise his views on reform of the relevant laws on sexual matters. To do so would have been extremely prejudicial to his employment. To onen conceded that no one had been prosecuted under the Ta smanian laws for many years. But he argued that such laws had profound and harmful impacts on many people in Ta smania because such laws fuelled discrimination, violence and harassment towards the homosexual community. To onen argued that the laws worked a discrimination against him on the basis of his sex. He also argued that the law denied him equal protection. Further, he claimed that the law resulted in an arbitrary interference with his privacy. The Committee was obviously very favourable to Mr To onen·s complaint, though their reasoning was a little curious. They were satisfied that discrimination on the grounds of sex included discrimination on the grounds of sexual orientation. Also they were satisfied that there was an arbitrary interference with Mr To onen's privacy on the basis that other jurisdictions in Australia had repealed laws which criminalised homosexuality and 'there is no consensus as to whether the Tasmanian laws should not also be repealed' The Committee also took into account that the Ta smanian law was not currently enforced. They took this to imply that these laws were not deemed essential to the protection of morals in Ta smania. From this proposition they concluded that the provisions did not meet the reasonableness test in the circumstances of the case and that they arbitrarily interfered with Mr To onen's right to privacy. Much of this was very loose reasoning but it provided the interna­ tional pressure for the Commonwealth parliament to pass a law pro­ hibiting any interference with the privacy of homosexuals in Tasmania. Mr To onen then commenced litigation in the High Court of Australia to have the Ta smanian laws struck down. The combination of his 72 Legislating Liberty recourse to the internationalcommittee and the High Court of Australia ultimately resulted in the Ta smanian parliament repealing its own discriminatory law against homosexuals. This was a very contorted path for Mr Toonen to follow, but it achieved the right result. Homosexuals in Australia were fm ally guaranteed their legal pri­ vacy without judges having to constitutionalise the question. Politi­ cians were compelled to weigh notions of individual liberties and public welfare and strike the appropriate balance, abandoning the idea of the Victorian era that criminal law could enforce morality when no community consensus against the activity endured. Though there is considerable dissatisfaction with the adjudication techniques of the UN Human Rights Committee under the firstoptional protocol of the International Covenant on Civil and Political Rights, there can be no going back on Australia's commitment to that Cov­ enant. The basic rights contained in that Covenant are the aspirations of all decent Australians. We need to find a better way in our system of domestic law and politics for upholding these rights and freedoms for all Australian citizens and all visitors to our shores. This case provided a fascinating backdrop for my introduction to the bill of rights capital of the world - Was hington. I arrived in Wa shington mildly attracted to a constitutional bill of rights and greatly impressed with the political effect of American jurisprudence rotating around ideas of equal protection and due process. Six months later I returned home not quite so impressed with the jurisprudence and wondering whether or not it would be worth the trouble in Australia to agitate even for a statutory bill of rights. After all, the Supreme Court has left Bowers v. Hardwick on the books until another day. Yet even the Ta smanian parliament has wiped the slate clean. Given the broad public acceptance of the need to guard against discrimination on the grounds of gender or sexual orientation, it is time to entrench such a guarantee in the Constitution whether or not we ever move towards a more comprehensive bill of rights. The Constitution should provide:

Everyone has the right to freedom from discrimination on the ground of gender or sexual orientation. This right is not infringed by measures taken to overcome disadvantages arising from gender or sexual orientation. 5 The past: Australia, the United States and abortion - different process, similar outcome

Abortion: the meeting point of law and morality Abortion is widely practised in Australia and the United States. In Australia there are at least 80,000 abortions per year. Ninety-five per cent of abortions are performed in the firsttrimester of pregnancy. Most abortionists will perform an abortion without question up to fourteen weeks. Between 14 and 20 weeks they will usually urge some counsel­ ling of the mother. Very few will do terminations after twenty weeks. Queensland's veteran abortionist, Dr Peter Bayliss, says, 'Up to 20 weeks you're pretty sure you're terminating a pregnancy and that you're not killing a viable child.' Only 1-2 per cent of premature babies born under 24 weeks survive. Bayliss's rule of thumb is simple: 'If medical technology gets to salvage a 20-weeker, I'm moving back to 18 weeks; if they save an 18-weeker, I'm back to 16 weeks: Past 20 weeks it is necessary to register the birth and write a death certificate. Dr David Grundmann has come to national prominence for his willingness to perform abortions after 20 weeks using cranio­ centesis. This $4,000technique requires the surgeon to insert a cannula in the back of the cranium to extract the brain tissue so as to permit the head of the foetus to pass through the cervix of the mother. Grundmann says, 'My primary concern is for the woman sitting in the chair opposite. I don't care about the foetus.' Most late mid-trimester abor­ tions are on account of detected foetal abnormality. But Grundmann is still prepared to perform craniocentesis on a perfectly healthy foetus in some social circumstances. In a national interview in July 1997 he said, 'We get sub-mature patients - girls aged 13 or 14 who have been raped, victims of incest or sexual abuse. A father is bringing his daughter in from the country this week. He's suicidally depressed because she's pregnant. I think it's reasonable for us to consider terminations for these girls, even if they'·re past 20 weeks.' There is no moral consensus in the community about abortion. 74 Legislating Liberty

There is not even scientific agreement by the protagonists about when an embryo becomes a distinct entity, let alone philosophical agreement as to when the entity becomes � person. At one end of the spectrum are those who advocate children by choice, maintaining the woman's right to control he.r body and to choose whether to carry a foetus n:ntil it is viable outside the womb. At the other end are those who espouse the right to life of the foetus from what they regard as the identifiable moment of conception, permitting abortion only when there is a real threat to the life of the mother and the foetus. To what extent should the law provide protection for .the foetus thereby limiting the mother's right to choose? I maintain an orthodox Catholic position about the morality of abortion. But that does not provide me with a template of what the law on abortion ought to be in every society at every time in history. It provides no answer to what would be a workable and enforceable abortion law in contemporary Australia. People may share a common belief that murder is wrong, and yet disagree about the circumstances in which the deliberate killing of a person is justified. For example, the pacifist may regard most killing in war as murder. On the other hand, the just-war theorist may be in no doubt about the moral propriety of killing combat troops and even about the moral acceptability of collateral damage including the killing of innocent civilians. The Ca techism of the Catholic Church teaches, 'Human life must be respected and protected absolutely from the moment of conception. From the first moment of existence, a human being must be recognised as having the rights of a person - among which is the inviolable right of every innocent being to life.' Despite the teaching of the Catholic Church, Catholic women avail themselves of abortion as readily as do other Australian women. The moral quandary of abortion first impacted on me as a university student. I believed abortion was the killing of a defenceless human being. I was told in confidence that a friend was to have an abortion. I did nothing because I considered myself bound by the confidence. If I had been told that my friend was planning to murder somebody, I would have taken some action despite the confidential information. My friend had the abortion and later told me she had nightmares about the violent death of another friend's child. Ye ars later, I was teaching in a Catholic school. Another teacher had shown final-yearsecondary school students graphic photos of foetuses Thepast: Australia, the United States and abortion 75 in the womb and ripped apart by abortion. The students were told that abortion was morally equivalent to murder - the wanton killing of a defenceless human being who had done no wrong other than to reside in the womb of the mother who no longer wanted her child. I was uncomfortable with this moral absolutism. Some of the students trav­ elled to school by a route which passed a notorious abortion clinic. Even the students who equated abortion with murder never stopped at the clinic to protest the killings nor did they take any action to stop the procedures; neither did their teachers nor any church leaders. The students and teachers did not even arrange a detour on their way to school. They agreed that if they knew murders were being committed in a building en route to school, they would have taken some action or at least a detour. It was possible rationally to equate abortion with other classes of unjustifiedkilling wbile affectively differentiating abortion, avoiding the need to take any action or responsibility for the defence­ less ones whose lives were at stake. My response to my university fr iend and the students' response to the activities occurring on their school route convinced me that abortion is not the moral equivalent of murder. Judging people by their actions rather than by their utterances, I conclude that very few people view abortion and murder as moral equivalents. Those who do are those who place at risk their lives and those of others in their raids on abortion clinics. Other opponents of abortion see it as a moral wrong, but a lesser moral wrong than murder. To what extent should the law attempt to prevent a woman choosing an abortion? Once we move from the personal to the social, political and legal, the moral nuances become even more complex. There is a need to consider the relationship between individual moral views, social mores and the role of law. The complexity of this relationship is overlooked by those single-issue campaigners at election time who ask candidates to state their view on abortion. Catholic scholars such as Professor John Finnis are very critical of those who claim, 'I am personally opposed to abortion but vote to permit or facilitate it because in a pluralist society or a liberal democracy, no one should impose their religious or moral views on others.' Professor Finnis and those of his persuasion are right to urge church leaders to restrict themselves to teaching moral principles and norms which any policy must meet if it is to be accept­ able to members of the church or to other people of goodwill. But the 76 Legislating Liberty articulation of principles and norms alone provides no answer for those engaged in the difficultlegal and policy work of determining how best to resolve a conflict of principles and norms and deciding how best to maintain a law and order machinery that is broadly supported in the community. Church leaders subscribing to the Finnis approach have little role to play in the political processes when the real and hard decisions have to be made. The problem occurs with people who are identified with a church and who then participate in the political process. Fr Robert Drinan SJ, a former Democrat member of the United States Congress, was pub­ licly supportive of President Bill Clinton in the 1996 presidential campaign for his veto of a congressional bill which would have banned abortions performed in the later stages of pregnancy. Drinan said the bill ·would allow federal power to intrude into the practice of medicine in an unprecedented way and detract from the urgent need to decrease abortions, especially among unwed teenagers' .. Drinan thought the Republican-controlled Congress was using the standoff with Clinton as a means of poisoning the 1996 campaign and inhibiting ·a larger discussion about real strategies to reduce abortion'. After the election Drinan withdrew his support for the presidential veto, reaffirnring his support for the Catholic Church's firm condemnation of abortion. Drinan said that �new information about the true nature and widespread use of partial-birth abortion renders my statements on that issue in 1996 factually incorrect'. Drinan 's critics in the Catholic Church see him as typical of prominent Catholic figures who appeal to a private-public dualism distinguishing between personal choice and constitutional requirement. But even those convinced of the moral wrongness of abortion for themselves may disagree about the appropriateness of criminal sanctions applied to others who do not share the same moral vtews. The statement 'Abortion is wrong' can mean any number of things. For example, the speaker may subscribe to a variety of views:

• I would not have an abortion or perform, counsel, approve or permit an abortion except in defined circumstances such as the prospective death of the mother. • I would vote for a law restricting abortion to defined circumstances. • I would campaign against a law permitting abortion except in defined circumstances. The past: Australia, the United States and abortion 77

• I would not have an abortion or perform, counsel, approve or permit an abortion in any circumstances. • I would not vote for any law permitting abortion. • I would demonstrate against the performance of legally sanctioned abortions. • I would engage in acts of civil disobedience to stop legally sanc­ tioned abortions. • I would refuse to pay taxes or to give my political support to a candidate allowing abortion. • I would treat abortionists as murderers and take all steps necessary to preclude healthy women from becoming accessories to the mur­ der of their children.

Though I believe abortion is a moral evil, I think it would be unwise to pass a law in Australia outlawing abortion in all cases except when the m�ther· s life was in danger. I subscribe only to the first three propositions listed above. Some mothers, not sharing my moral views, will choose not to bear their child. They will go to any lengths to spare themselves the burden of the unwanted pregnancy. What is needed is a law and a policy which espouses the value of the life of the unborn, while accepting the mother's prerogative to control her body. Is the last word on this moral conundrumbest left with the courts or the legisla­ tures?

Abortion law reform and proposals for bills of rights in Australia In its 1993 report on a bill of rights, Queensland's Electoral and Administrative Review Commission (EARC), under the chairmanship of David Solomon, quoted a survey prepared for Children by Choice which 'highlighted that abortion was not as much of a previously divisive issue within the community as thought'. A neat 66 per cent of the Children by Choice survey respondents 'felt that abortion laws should be repealed' 1 The Women's Abortion Campaign also tabled a survey to EARC by AGB McNair that '81 per cent felt that a decision about abortion should be left entirely to the woman and her doctor' On a key controversial social issue such as abortion, the conflicting parties would not be satisfied with a bill of rights being silent on the question. Such silence would leave the resolution of the question to the judges' interpretation of the common law or the Criminal Code and the selective law enforcement by police, who hold off, thereby allowing a 78 Legislating Liberty regime to exist in which a woman can present at an abortion clinic and have the procedure authorised there and then by two medical prac­ titioners whose full-time employment is authorising such procedures. Opp�nents of abortion see a bill of rights as ·anobvious and appropriate vehicle for acknowledging the right of the unbornto life and for giving legal protection to that right' .2 Everyone would concede that a bill of rights ought to enunciate and protect the rights of the weakest. With regard to abortion, the difference of opinion is whether the foetus at . whatever stage of development before birth is a person or being capable of enjoying rights. If it is, there is no doubt that it is classifiableamong the weakest and most defenceless. In the conflict between the government and the Australian Catholic bishops in 1985 over the proposed Commonwealth statutory bill of rights, the government quite rightly was able to plead that it had no constitutional power to legislate definitively in regard to abortion, it being a State issue and the Commonwealth power being restricted to the implementation of the letter and spirit of the InternationalCovenant on Civil and Political Rights. Article 18 of the proposed Australian bill of rights was modelled on Article 6 paragraph 1 of the Covenant. Though Article 6 paragraph 5 extends some protection to the unborn by providing that the death penalty will not be imposed on pregnant women, it does not accord universal protection to the unborn. During the drafting and debate in the United Nations on the Covenant there were proposals that Article 6 should expressly protect the right to life from the moment of conception. This proposal was expressly rejected on the grounds that: (a) it was impossible for the state to determine the moment of conception and therefore to protect life from that moment; and (b) legislation on the subject was based on different principles in different countries and the inclusion of the proposed provision in an international instrument was therefore inappropriate. The Common­ wealth parliament has no general constitutional power to make laws for the protection of the unborn. Nor does it have the power to make laws with respect to abortion which would apply in State jurisdictions. The Commonwealth parliament has undoubted powers to make laws implementing the provisions of international covenants, but there is no such covenant according fu ll legal protection to the unborn. The Australian bill of rights would have been a valid exercise of the external affairs power only in so far as it adhered to the international covenant. Th e past: Australia, the United States and abortion 79

This was not good enough for the bishops who considered that any Australian bill of rights ·should include expressand specific protection for all living human beings, whether born or unborn' .3 The bishops were also concerned thateven a limited right of privacy grarited under a bill of rights could be used by courts to strike down any laws which restricted the availability of abortion. The most an Australian bill of rights could do in protecting the unborn,thereby extending the right to life to all human beings, would be to ensure that it did not derogate from State laws on abortion. This was made clear by the explanatory memorandum to the bill. State governments on the other hand have an unqualified power to legislate with regard to abortion. A failure to deal with the issue in a State bill of rights could not be justified on the basis that the bill should not go beyond what is contained in the InternationalCovenant on Civil and Political Rights. There would be no point in proceeding with a State bill of rights unless it were to contain a definitive position on abortion, whether ,for or against, and with the stipulation of restrictions. If it were not to delimit the most fu ndamental of rjghts (the right to live), a State bill of rights would in the end be little more than a minimal statement of rights the limits of which enjoy universal acknowledgment and respect simply because they are not seriously challenged in the con­ temporary circumstances. No one could object to a State bill of rights which outlawed slavery and servitude, torture, inhuman treatment, and experimentation without consent. But neither would one spend much time talking about it. Once the bill of rights debate is opened, there will be proposals for controversial law reform even if there is a decision against a bill of rights. Queensland's EARC inquiry was used as a means for agitating the decriminalisation of abortion whether or not a bill of rights were enacted. The Commission recommended that any bill of rights omit any reference to euthanasia but that the Queensland government con­ duct a review of voluntary euthanasia with a view to making recom­ mendations for law reform. And it recommended that a Queensland bill of rights not prohibit reintroduction of the death penalty because 'it appears unlikely that reintroduction will occur' EARC accepted the submission put by the Women's Abortion Campaign which recommended:

1. That if the right to life were to be included in any Bill of Rights for 80 Legislating Liberty

Queensland, that provision should be soexpressed as to make clear that it does not extend to a foetus. 2. That any Bill of Rights for Queensland should include a right to privacy. This right to privacy should expressly encompass a woman's right to decide about her own fertility, including whether or not to terminate a pregnancy. Further, it should establish for all women, regardless of age, the right to information about and access to contraception.4

Though EARC thought there was some advantage in not entangling the bill of rights discussion in the abortion debate, it decided not to retain the status quo, leaving abortion as a matter for the ordinary statute law. Even if a bill of rights were not to proceed, EARC wished to stress that abortion law reform needed 'to be considered inde­ pendently of its recommendations in relation to the Bill of Rights' .5 It recommended amendments to the Queensland Criminal Code decrim­ inalising abortion. The Commission simplistically expressed the con­ flict of moral claims: 'That in relation to the abortion issue women should not be required to forfeit existing rights in favour of the potential rights which may be open at a later stage to another group (i.e. the potential rights of the foetus).'6 In relation to the Wo men�s Abortion Campaign's first recommendation, the Commission recommended that a Queensland Bill of Rights include 'A right to life, liberty and security of the person but that right should not be extended explicitly to the fo etus' 7 EARC's proposed bill of rights contained a clause which was based on section 7 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has interpreted that provision such that abortion is no longer a criminal act in Canada. The EARC report stated its conclusion that 'Recent developments in Canada suggest that the legal issue (in a comparable country) has been settled: the foetus is not a person capable of enjoying the rights described in the Bill ofRights.' 8 Implementing the second recommendation of the Women's Abor­ tion Campaign, the EARC bill stipulated that the right to privacy would include the right not to be arbitrarily subjected to interference with one's bodily integrity. The person�s right to freedom of family structure would include a right to personal autonomy over reproductive matters which would include the right of a female to control her own fe rtility and the right to decide freely and responsibly on the number and spacing of the children and to have reasonable access to information, education and means to enable the exercise of this right.9 Presumably The past: Australia, the United States and abortion 81 the effect of the bill of rights would not only be to decriminalise abortion but also to cast a duty on the State to provide the means for people to have access to abortion. Pursuant to Clause 6 of the EARC bill of rights, if a future Act of the Queensland parliament were inconsistent with such a right, the right would prevail and the legislative provision would be invalid to the extent of the inconsistency. If in the future the Queensland parliament were to legislate to deny women reasonable access (including feerelief) to abortion facilities so that they might space their children according to their wishes, the legislative provision would be invalid and the right to reasonable access to such means would be maintained. There were many laudable rights or statements of aspiration in the EARC bill of rights which people of goodwill would want to support. But it was used as a vehicle for espousing abortion law reform at a time of political uncertainty, particularly given the unlikelihood that one State alone would proceed with a bill of rights which required extensive jurisprudential development. This political reality gave more poign­ ancy to the EARC Commissioners wishing to stress that the matter of abortion law reform needed 'to be considered independently of its recommendations in relation to the Bill of Rights' At this stage any State bill of rights will founder on the issue of ab ortion unless a governmentis committed to legislating a bill of rights the cornerstone of which has no guarantee of general community endorsement. If silent on the rights of the foetus, a State bill of rights would inevitably be construed as denying any such rights. The inclu­ sion in or exclusion from the bill would inevitably effect a change in the common law and its mode of administration.

The Australian courts and abortion Between 1965 and 1992 the United States Supreme Court virtually tore itself apart over the question of abortion. It remains one of the most divisive political issues in American society. The court has been seek­ ing a constitutional resolution to the limits of a woman)s right to abortion. No persuasive answer has been found. Meanwhile in Austra­ lia abortion is still in some circumstances a criminal offence. But the courts have played little role in determining the limits. The public debate in Australia has been much less vehement. Abortion rates in the two countries are similar. 82 Legislating Liberty

In South Australia and the Northern Territory there are statutory regimes making clear the circumstances in which a woman may procure an abortion. In other jurisdictions the law has been uncertain. However, since criminal trials conducted in Victoria and new South Wales in 1969 and 1971, abortion has been virtually available on demand. Doctors are rarely prosecuted for the offence of abortion. South Australia and the N orthem Te rritory are the only jurisdictions which collect population-based data on induced abortions. However, statistics relating to medicare claims and state health department records for services provided by hospital doctors to public patients in public hospitals reveal that the abortion rate in Australia is fairly uniform. Approximately one in five of all pregnancies in which early foetal loss does not occur result in abortion. About half of all teenage pregnancies are terminated. In Australia the law basically takes a hands-offappro ach. lt is estimated that up to one-third of all Australian women will have had an abortion at some stage in their lives. Austra­ lia's abortion rate is three to four times that in Holland and Belgium. It is double the rate in similar societies such as New Zealand and Canada and significantly higher than in Britain. In 1969 Dr Davidson in Victoria was acquitted of the charge of unlawfully procuring a miscarriage. Justice Menhennitt said that in order to prove the offence the Crown would have to establish that the doctor did not honestly believe on reasonable grounds that the termi­ nation was necessary to preserve the woman from serious danger to her life or her physical or mental health which the continuance of the pregnancy would entail. Alternatively, the Crown would have to prove that the doctor did not honestly believe on reasonable grounds that the termination was in the circumstances ·proportionate to the need to preserve the woman from a serious danger to her life or her health·, Two years later in New South Wales District Court Judge Levine accepted the approach by Justice Menhennitt and said, 'Inmy view it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe that there would result a serious danger to her physical or mental health.' The question of abortion has only twice been presented before the High Court of Australia. In 1983 a Queensland woman who was six The past: Australia, the United States and abortion 83

weeks pregnant decided to have an abortion. The evidence before the court was that the woman was perfectly healthy. She had made no complaint of difficulty with her present or earlier pregnancy. The only reason she gave for her proposed conduct was that it would be 'best for everybody·· 10 Her boyfriend, Mr Kerr, did not want her to have an abortion. He offered to live with her and maintain her during the period of the pregnancy. He suggested that when the child was born it should be adopted out. The girlfriend was not agreeable. Mr Kerr went to court. In eight days he had been through the Supreme Court of Queensland with an appeal to a full court of Queensland and then an application for special leave to appeal to the High Court of Australia. He also sought an injunction from the High Court to stop his girlfriend from procuring an abortion. Chief Justice Gibbs sat alone and dismissed the application for an injunction as well as the application for special leave to appeal. Though the Queensland Criminal Code made abortion an offence in all but exceptional circumstances, Chief Justice Gibbs said it would be quite unjustifiable to assume that the woman would be convicted by a jury of the offence if she proceeded to have the abortion. Granting the injunction would in his opinion 'interfere in the most serious way with her liberty of action' He also considered an argument from Mr Kerr's lawyers that the court ought to grant some protection to the unborn child. He concluded that "a foetus has no right of its own until it is born and has a separate existence from its mother' . Purporting to distinguish cases of damages for a person incurring damage or injury while a foetus and cases in which a court constructs a will so as to confer benefits on a person who was unborn at the time of the death of the testator, Chief Justice Gibbs said, 'There are limits to the extent to which the law should intrude upon personal liberty and personal privacy in the pursuit of moral and religious aims. Those limits would be overstepped if an injunction were to be granted in the present case.' The abortion issue was not raised again in the High Court until 1996. In the Superclinics case a woman had sought damages in the Supreme Court of New South Wales from a medical clinic which had failed to diagnose her pregnancy. The unmarried woman, aged 21 and living in a precarious relationship, had made several visits to Superclinics in Sydney after she missed her period in October 1987. On each occasion doctors and staff had failed to diagnose the pregnancy. Eventually 84 Legislating Libertj

pregnancy was confirmed by her family doctor. She told the trial court that she burst out crying and was in absolute shock. By that stage she was more than 19 weeks pregnant and her family doctor advised that an abortion would be unsafe for her. She carried the child to term. The child, Rebecca, was ten years old by the time the case reached the High Court of Australia. Rebecca's mother claimed damages for injuries suffered and economic loss incurred by giving birth to and raising the child. At the initial trial Mr Justice Newman dismissed her claim for damages on the basis that any abortion would have been unlawful. Lawyers for the doctors claimed that she wanted an abortion only for convenience. She had told the judge, 'I regard that as an under­ statement. That is a very limited word "inconvenience" .Itsounds like a minor hiccup. It wasn't but yes it was totally inconvenient.' She described the event as traumatic and life-changing. Hospital records stated that she was smiling when Rebecca was born. She did not want to have her baby adopted. But she felt very ambivalent about her child: 'I felt she was my responsibility once she was in the world. She dido't have to be brought into the world. I didn't go near her. I was just disinterested. I just thought, "Who is that baby?" ' The child's father lived with mother and daughter for two years before returning to Melbourne.He said the mother cried every day. She contracted mastitis and was very depressed. But she grew to love Rebecca very much, telling a national radio audience, 'Now that I have known her, there is no·way that I would want to reverse that.' She appealed to the New South Wales Court of Appeal successfu lly. Justices Kirby and Priestley of the majority accepted that given the state of affairs in New South Wales, she would have been able to acquire an abortion if she had sought it. Justice Kirby for his part went beyond the Levine ruling and said that for the abortion to have been lawful, 'the accused must have had an honest belief on reasonable grounds that what they did was necessary to preserve the woman involved from serious danger to their life or physical or mental health, which the continuance of the pregnancy would entail, not merely the normal dangers of pregnancy and childbirth; and that in the circumstances the danger of the operation was not out of proportion to the danger intended to be averted.' Justice Kirby thought it proper to allow a consideration of 'the economic demands on the pregnant woman and the social circumstances affecting her health when considering the necessity and The past: Australia, the United States and abortion 85 proportionality of a termination·, . He thought there was no logical basis for limiting 'the honest and reasonable expectation of such danger to the mother's psychological health to the period of the currency of the pregnancy alone' On the Kirby approach, a doctor counselling a woman about the possibility of abortion would be required to take into account the likely future scenario of life for the woman not only during the course of pregnancy but·during all those years when the child was likely to be dependent on the mother. When the case reached the High Court, the Australian Catholic Bishops Conference and the Australian Catholic Health Care Association sought leave to be heard as amicus curiae. Basically their argument was that the law as developed, especially by Justice Kirby, may require Catholic health facilities to advise women about the availability of abortion. Should they not advise a woman in circumstances where the birth of a child may have occasioned future psychological, social or economic harm to the woman, the health care facility might be liable for damages. Justice Kirby, having recently arrived on the High Court, was not eligible to sit since he had been a member of the Court of Appeal. The remaining six judges of the High Court were evenly divided as to whether or not the Catholic bishops and the church agency ought to be permitted to appear as amicus curiae. The court gave them leave to file written submissions in relation to questions about the lawfulness of abortion. The written submissions were to be confinedto the question of whether the Menhennitt and Levine rulingswere correct as a matter of law. The court also permitted the Abortion Providers Federation of Australasia to provide written submissions in defence of the rulings. Emotions were runninghigh even in the rarefied atmosphere of the High Court. Counsel for Superclinics argued that the mother had a duty to mitigate her losses once Rebecca was born, for example by giving up the child. He referred to the evidence in the trial that Rebecca's father was now married and living in Melbourne. Though he saw Rebecca only for a long weekend every three or four months, he had told the court that he derived great pleasure from being with her. When asked, 'If it was offered to you, would you be willing to take Rebecca into your new family?' he answered, 'Yes' . Justice Mary Gaudron was horrified that the court could be asked to consider such evidence in mitigation of damages. Counsel argued that there was no option given 86 Legislating Liberty that the mother was claiming damages for economic loss including the costs of raising Rebecca. Justice Gaudron said:

That would be about the cruelest and most inhumane submission I have heard put in this court since I have been here. I must say, it took my breath away when I read the judgments below suggesting that that was a proper form of mitigation.••

Counsel said this was not a case of adoption but simply of the child being giv�n to her father who would be happy to have her and to raise her. Justice Gaudron said:

There is no evidence that the mother does not love the child nor does not want the child or does not like it, that the mother does not like the child. I take back does not want the child. The question is to be determined by reference to other criteria.

Counsel for the doctors argued that a mother with a perfectly healthy child who could be surrendered to a willing father ought not to be eligible for damages for economic loss. He argued that the courts were ill-equipped to get involved in trying to assess damages in such a situation if the law was to respect family and children. He argued that ·allowing litigation to take place about what is said to be damage flowing from the birth of a healthy child is antithetic to the role of the courts in this society� However, he argued that damages could be payable when the child was impaired:

Maybe if you are confronted with a child who is impaired you have a differentsituation because there you are not just saying the introductionof a perfectly normal child into a home is not damage that the law recognises but the introduction of a child who has been impaired, in circumstances where it would have been lawful to bring about a termination, there may well be damage because of that because the parents are put to the source of expense which the advice could legitimately be said to have been directed to preventing in a way that does not destroy family life.

Chief Justice Brennan admitted to being scandalised by such a submission:

To think that the law might grant damages because one child is abnormal and another is normal seems to rrie to put a value on human life which is such that no civilised community could abide it. That is not a proposition surely which has been heard since the 1930s and in another place. Thepast: Australia, the United States and abortion 87

Noting the variety of reactions from the bench, from Gaudron . to Brennan, counsel observed, 'The fact that one can see this range on the Court of reaction to this area is a reason why public policy would say that these things are not really matters for the Court, and the legislature, if it is minded to, could and would be expected to provide a remedy.' Next day, the parties announced that they reached a settlement and there was no need for argument to proceed. Had the case not been settled, the Women's Electoral Lobby was prepared to appear before the court as amicus curiae. According to Jo Wainer, spokesperson for WEL, 'The ending of the High Court case confirms that the judgment of the New South Wales Court of Appeal is the law on abortion in New South Wa les.' She saw this as an important victory for women, con­ firming that the law protects womens� access to necessary abortion services. She thanked the bishops for having brought the case to public attention. In Australia the courts have played almost no role in the determination of the law and policy applicable to abortion. Journalist Kate Legge had an abortion for reasons akin to Rebecca's mother. Writing in the Australian about the Superclinics case, she wrote, 'The pregnancy was unwanted. Not the child she now nurtures. That is the distinction many find hard to accept.7 Early in 1998We stern Australian authorities charged two doctors with the offence of performing an abortion after it was publicised that the woman stored the aborted foetus in her refrigerator, awaiting a ritual burial. The regular provision of abortion services was suspendedafter the Solici­ tor General advised that prosecution was always a possibility except in those rare cases when the mother's life was threatened. The Attorney­ General then met with the Director of Public Prosecutions and the Police Commissioner and tried to assure the medical profession that nothing had changed. Abortion law reform was back on the parliamentary agenda. In the public forumeven the most ardent pro-choice advocates have to admit that a foetus at the stage of viability needs to be accorded some respect.Even the strongest pro-life advocates have to concede that there are circumstances, such as a threat to the life of the mother, when the mother has every entitlement at law to take the necessary precautions to ensure that the pregnancy she carries is one of choice. In between, there is a veritable moral minefield. For example, some pro-life advo­ cates in practice would concede an exception in the case of rape when pregnancy is first detected. Others would permit no such exception on 88 Legislating Liberty

the basis that it would be morally indistinguishable from the case of an unwanted pregnancy resulting from voluntary intercourse. But these moral quandaries are not resolved by recourse to the law. The moral courage demanded of a rape victim to carry to term the child of her assailant is beyond the bounds of what the law could enforce or even espouse before the foetus is viable outside the womb. The morality of abortion is now so contested that the law as implemented rather than the law as declared on the statute books will never be clear. Nor would law reform render any assistance at this time in shaping a new moral consensus in the community. This is borne out by the way the abortion debate has proceeded in the United States.

The United States Supreme Court and abortion In the early 1960s states like Connecticut in the-United States still had laws on their books which prohibited the use and distribution of birth-control devices, even to married couples. In 1961 Estel Griswold, Director of the Planned Parenthood Centre in Connecticut, and Dr Leigh Buxton, the centre's medical director, were arrested and charged with an offence. After a short trial the judge found them guilty as accessories for providing condoms to a married woman. Each was fined $100. The law had been placed on the statute book in 1879. The Catholic Church had been influential in blocking recent attempts to repeal the ban on birth-control measures. Before the Supreme Court, Griswold and Buxton invoked the fourteenth amendment, which pre­ cludes any state from depriving ·any person of life, liberty, or property, without due process of law·, Four years earlier, Dr Buxton had also made his way to the Supreme Court but the Court had refused to rule on the constitutional issue because Buxton had not actually been arrested or threatened with prosecution. The state of Connecticut argued before the Supreme Court that the purpose of the legislation was 'to reduce the chances of immorality', claiming that the legislation would �act as a deterrent to sexual inter­ course outside of the marital relationship� The state also attempted to justify the legislation on the grounds that its repeal would make it �more difficult for the state to control the result of what we call a dissolute action, that is, fo rnication and adultery' . When pressed in the oral argument, the state prosecutor concluded, 'I can only say that married couples do not have freedom to do what they want. This has been the Th e past: Australia, the United States and abortion 89

Connecticut decision, and this is the Connecticut holding. What we're saying is that the state can argue that people cannot go outside their own homes and get things and use them in their own homes: So was born the constitutional right of privacy. Justice Douglas, writing for the majority, said, 'We do not sit as a super legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, and social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physi­ cian's role in one aspect of that relation.' He concluded that the case concerned ·a relationship lying within the zone of privacy created by several fundamental constitutional guarantees' One of the two dissenting judges, Justice Stewart, conceded that

· 'this is an uncommonly silly law' which is obviously unenforceable. 'But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do: He was critical of the majority's creation of a right of privacy which was said to be created by several fundamental constitutional guarantees and which was backed by reference to several amendments of the Constitution. But for his part Justice Stewart could not find such a general right of privacy in the bill of rights. He had no doubt that the law did not conform to current community standards. But he made the point that the function of the court was not to decide whether or not a law complied with community standards but whether it complied with the Constitution and laws of the United States. He thought it more a matter for the people and the legislature of Connecticut than for constitutional resolution by the U�ited States Supreme Court. It was this very right of privacy created. to strike down a stupid law relating to contraceptives that became the peg on which the court hung the jurisprudence of abortion law reform eight years later in Roe v. Wa de. New Yo rk State repealed its law against abortion in 1971. In the first nine months of 1971, 1,600women from Texas had gone to New Yo rk City seeking abortions. In December 1971 the Supreme Court first heard argument in the case Roe v. Wa de. Roe was the pseudonym of one Norma McCorvey who was seeking to terminate her pregnancy in Texas.* Texas defended its law on the basis that the foetus is a human

* In recent years, McCorvey has become a strong advocate of the right to life cause. 90 Legislating Liberty person deserving of protection. Counsel was asked, 'If you �re right that an unborn foetus is a person, then you can't leave it to the legislature to play fast and loose in dealing with that person. In other words, if you·Jre correct in your basic submission that an unborn foetus is a person, then abortion laws such as that which New Yo rk has is grossly unconstitutional, isn't it?' The case was reheard in 1972 and, on this occasion, counsel for Roe relied on the privacy doctrine developed in Griswold. She submitted that there was a series of cases which the court had decided in the areas of marriage, sex, contraception, procreation, childbearing and education of children "which says that there are certain things that are so much a part of theindividual concernthat they should be left to the determination of the individual' Writing for the majority, Justice Blackmon acknowledged the sen­ sitive and emotional nature of the abortion controversy. Aware of the vigorous opposing views, he conceded that a person's philosophy, experiences, exposure to the raw edges of human existence, religious training, attitude towards life and family, and the moral standards one establishes and seeks to observe were all likely to influence and colour a person �s thinking and conclusions about abortion. He thought the problem was furthercomplica ted by issues such as population growth, pollution, poverty and racial overtones. But then he stated, 'Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and a predilection.' Relying on the due process right of the fourteenth amendment, he set down a three-phase constitutional abor­ tion code. Prior to the end of the first trimester of pregnancy, the decision about abortion would be left to the medical judgment of the pregnant woman's attending physician. In the second trimester, he permitted some state regulation of abortion but only if it were in the interests of the health of the mother. So the state could regulate abortion procedures in ways that were reasonably related to maternal health. In the third trimester, he saw the state as also having an interest in the potentiality of human life. In this trimester, when the foetus was presumed to be viable, the state could regulate and even prohibit abortion except where it was necessary for the preservation of the life or health of the mother. Justice Rehnquist in dissent thought all of this 'far more appropriate to a legislative judgement than to a judicial one' Thus began twenty years .ofconstitutional agitation about the limits of abortion rights, and Th e past: Australia, the United States and abortion 91 the matter still lies unresolved. In Australia and the United States abortion rates are similar, but in the United States the public debate is more vitriolic, and much more time is devoted to it in the courts and legislatures. The protests outside abortion clinics in the United States are far more sustained and violent than any experienced in Australia. There is no sense in which the United States Supreme Court is seen as having resolved the moral complexities of abortion. By constitutional­ ising the privacy which is to be bestowed upon the woman making the decision about abortion, the court unwittingly has exposed that private decision to far more public gaze and public controversy than it has ever experienced in Australia. On six occasions during the Reagan-Bush years, the United States as amicus curiae asked the Supreme Court to overruleRoe. In that time, Senate committee deliberations about the approval of presidential nominees for appointment to the Supreme Court were marked by intense scrutiny of the prospective appointee's view of abortion. When the court was reconsidering Roe v. Wa de 12 in 1992, the attorney for Planned Parenthood said the judges had to 'look very generally at whether the nation's history and tradition has respected interests of bodily integrity and autonomy and whether there has been a tradition of respect of equality of women' The attorney insisted that guidance in determining the scope of liberty was not to be obtained by looking at whether or not abortion was lawful at the time of the adoption of the fo urteenth amendment. In scrutinising the abortion code of the various states, the court now attempts to determine if the law places an ·undue burden' on the woman making her decision. There is no agreement among the judges as to what constitutes an undue burden. With a tinge of frustration, the court majority has observed, 'Liberty finds no refuge in a jurisprudence of doubt. Ye t 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, that definition of liberty is still questioned.' While Justice Blackmun, the author of Roe, said, 'Roe's requirement of strict scrutiny as imple­ mented through a trimester framework should not be disturbed', 13 he lost out in Planned Pa renthood v. Casey}4 The plurality of Justices O'Connor, Kennedy and Souter whose thinking is determinative of the outcome of any split decision on the present court, said, 'The trimester framework no doubt was erected to ensure that the woman's right to 92 Legislating Liberty choose not become so subordinate to the State's interest in promoting foetal life that her choice exists in theory but' not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective.' 15 During argument of the case, the attorneyfor Planned Parenthood said that any replacement of the three trimester classifica­ tion and the strict scrutiny approach in Roe with an undue burden test ·would be the same as overruling Roe' No wonder the conservatives on the court led by Chief Justice Rehnquist said, 'Roe continues to exist, but only in the way a store front on a western movie set exists: a mere facade to give the illusion of reality� 16 It is an illusion of reality that the United States Supreme Court can strike a balance between the woman's right to choose and the state interest in promoting foetal life using a judicially applicable criterion of 'undue burden" as if it were not just a political decision or a personal preference of the individual judge. In Planned Parenthood v. Casey the middle votes of the present court thought they were consolidating the Court's task by calling upon 'the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution� 17 And this in a country which remains the most politically polarised over abortion of any country in the world. As a foreigner privileged to sit and watch the Court in action over some months, I have no doubt this was not judicial conceit; it was a humble, failed attempt to discharge a mandate which can never be performed by unelected people in a pluralistic, democratic society. Whatever the rights and wrongs of abortion, its legally permissible limits have been fu rther politicised and rendered unresolvable in the United States precisely because the issue has been constitutionalised. Commencing his epic decision in Roe v. Wa de, Justice Blackmon said, 'Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and predilection' 18 The spectacular failure of this effort is found in Justice Blackmun's last judicial utter­ ance on the matter two decades later: 'A woman's right to reproductive choice is one of those fundamental liberties. Accordingly that liberty need not seek refuge at the ballot box ... I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process of my successor well may focus on the issue before us today.' 19 More than a dose of emotion and predilection in all that. The limits of The past: Australia, the United States and abortion 93 the fu ndamental liberty depend not on the ballot box directly but on the view of the judge chosen and confirmed by those at the ballot box. It is a bold step to assume that by constitutionalising an issue everyone gains: the judges by becoming more important to the national life, the legislators by being able to sidestep the hard decisions, the unpopular and powerless by making gains across the board nationally which could not be achieved locally, and the citizenry generally by being assured that there is. a sphere of personal conduct which cannot be invaded by the state. But there are other ways which can be less costly for all parties. And when the issue impacts on all, it may be too one-dimensional a view of the human person to portray the issue as a conflict between the individual David and the Goliath state. Though anxious to retain some judicial supervision of the limits placed on abortion regardless of Justice Blackmun's artificialtrimester classifications, the majority in Planned Parenthood v. C.asey were adamant that they were not restricting the domain of privacy. In fact, they took the concept from Griswold v. Connecticut and gave it more florid expression with the observation, 'Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child-rearing, and education. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and au tonomy, are central to the liberty protected by the fourteenth amend­ ment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the state.' With this observation the court then, whether wittingly or unwittingly, opened the door to the next constitutional showdown: the right to voluntary assisted suicide. After all, what would be more central to the defining of one's own concept of existence, meaning, the universe, and the mystery of human life - the whole bang lot - than the decision to terminate one's life free from constraint by the state. Whether in the United States or Australia, the protagonists in the abortion debate will never be satisfied with unelected judges, most of whom are male, having the final say on the limits of abortion. Any proposal fo r a bill of rights in Australia will continue to founder on the rock of abortion law reform. Though the Australian law on abortion is 94 Legislating Liberty

a mess, there is little prospect that any parliament will codify it with any greater certainty and consistency, and little chance that the High Court will be apprised of the· issue without significantinterest groups seeking settlement out of court. As this book goes to press, the Western Australian parliament is considering two bills for the decriminalisation of abortion. The settlement in the Superclinics litigation renders it unlikely that the High Court will ever get to deliver a defmitive judgment on this swirling meeting point of law and morality. The United States experience attests that once the courts are involved there can never be one definitive judgment anyway. It becomes a litigation showdown which lasts for decades. There is no right legal answer to the moral mess of abortion on demand. Only by distinguishing mor­ ality, law and social policy will it be possible to determine appropriate limits on state action for the protection of the unborn, acknowledging the mother's prerogative to choose, especially during the early stages of pregnancy. 6 The present: Australia, the United States and euthanasia - similar debate, daferentforum

Introduction The postmodernist moral philosopher Richard Rorty has described security as the ·conditions of life sufficientlyrisk-free as to make one's difference from others inessential to one's self-respect, one's sense of worth'. According to Rorty, we are now less interested in the ahistorical question 'What is man?' and are steeped in sentiment as we confront the question 'What sort of world can we prepare for our great-grand­ children?' The first challenge for participants in the public forum is for them to be secure in their identity, seeing their difference as a real contribution to the common good and their commonality as the oppor­ tunity to identify with those who are marginalised or silent in the public forum. Ironically, it was when Australian Catholics self-identified as a ghetto group that they expected law and social policy to buttress their moral code. Now more at home in the public forum, they realise that just because they might regard something as morally wrong there ought not necessarily be a law against it. And just because one group in society regards something as morally desirable there ought not neces­ sarily be a social policy and a commitment of taxpayers' funds for the achievement of that objective. But this does not mean that the moral code of a re ligious group is irrelevantto the public forum.A moral code founded on reflection on the human experience over the generations in the light of some religious tradition almost certainly has something to contribute to contemporary descriptions and pursuit of the common good or the public interest, as we seek the right balance between individual freedom and social cohesion, what the American jurists call ·ordered liberty' The recent euthanasia debate highlights that it is not good enough for people of a religious disposition to espouse simply that 'X is wrong and therefore there ought to be a law against it' Such people witness 96 Legislating Liberty best for the good by being seen to do it, rather than by urging others to hold back from doing the wrong. Issues such as euthanasia require a public discussion of the appropriate balance between individual free­ dom to end life in the final, painful stages of terminal illness and the pressure then placed on all people to contemplate such an option for the good of others - sparing relatives the inconvenience, saving the inheritance for the grandchildren, and reducing the strain placed on the doctor-patient relationship. Moral absolutes about the wrongfulness of euthanasia are appropriate for like-minded people in voluntary associa­ tions such as churches where members want to urge each other to live the moral life. Such absolutes are not sufficient to resolve the public policy questions in the public forum where many do not share absolutist religious views and do not want such views fo isted upon them.

Euthanasia law reform and political agitation in Australia

The short-lived Northern Territory's Rights of the Te rminally Ill Act J995 Iegalised voluntary euthanasia for the first time in Australia. The decision of the Northern Te rritory parliament was opposed by the Australian Medical Association (AMA) and NorthernTerritory church leaders. Having failed to hold the numbers on the floor of the local parliament, the opponents of euthanasia then turned to the federal parliament and the courts, seeking to delay the implementation of the legislation and claiming it was beyond the scope of the Northern Territory's legislative power. At times of such change, all parties concede that democracy in a pluralistic, developed society is about more than implementing the will of the majority. Australians, unlike Americans, have been more imbued with the sovereignty of parliaments. We have never expected the courts regularly to restrict the activities of parliaments except where there is a conflict over the powers of the Commonwealth parliament against State parliaments. The United States was founded as a reaction to a sovereign parliament and an unelected monarch. It is commonplace for the United States Supreme Court to strike down acts of Congress, not for trespassing on the legislative competence of the states but for infringing the inalienable rights of the citizen. The state legislatures in the United States have often been described as 50 social laboratories in which citizens enjoying maximum liberty are able to participate in the political process, experimenting with laws Th e present: Australia, the United States and euthanasia 97 and policies that can furtherenhance individual liberty and the require­ ments for an organised society. The Supreme Court will intervene if classes of people are being fenced out of full and fair participation in the political processes. Otherwise the court will allow experimentation, provided there is no interference with the fundamental rights set down in the bill of rights. While Americans expect ultimately to resolve the contemporary euthanasia debate in the United States Supreme Court, Australians would be very surprised to think that the courts had any role to play in determining the public policy debate. It would be unimaginable that the United States Congress would dedicate time to considering legis­ lation relating to euthanasia. In particular, the Congress would not take any time in considering an anti-euthanasia bill if a territory or protec­ torate decided to legislate in favour of it. Such issues are seen to be exclusively the concernof local legislatures provided they comply with the constitutional limitations as set down by the Supreme Court. While the United States Supreme Court decided the time was ripe for a couple of test cases relating to physician-assisted suicide, the Australian parliament devoted itself to a private member's bill aimed at overriding the NorthernTe rritory,s Rights of the Te rminally Ill Act 1995. The High Court for its part said it would not buy into the question while the Commonwealth parliament was considering its stand on the legisla­ tion. The private member's bill was subject to a conscience vote. Kevin Andrews who proposed the bill was always confidentthat it would be passed overwhelmingly in the House of Representatives. The Senate was another matter. Eventually it passed the Senate on the second reading by 38 votes to 34. By the third reading the vote was 38-33. The Senate referred the bill to the Senate Legal and Constitutional Legis­ lation Committee. The Committee received a record 12,577 submis­ sions, 93 per cent of which supported the proposed national legislation. Only 6 per cent of submissions were in favour of euthanasia. These statistics stand in stark contrast to the results of the Morgan Gallop poll. Since 1962 Morgan polls have asked, 'If a hopelessly ill patient, in great pain, with absolutely no chance of recovering, asks for a lethal dose, so as not to wake again, should a doctor be allowed to give a lethal dose, or not?' In 1962 that question obtained a 47 per cent affirmative response. In June 1995 the affirmativeresponse was 78 per cent. Only 14 per cent of Australians surveyed said that the doctor 98 Legislating Liberty should not give the lethal dose, and 8 per cent vtere undecided. Here we have a situation where popular sentiment would support a private decision by a doctor and patient to terminate life. The Northem Territory legislation proposed a regime that would provide legal safeguards and certainty. Though some who objected to the N orthem Territory legislation did so because they thought the limitations were not properly drawn, most who objected did so on the fundamental basis that they were opposed to voluntary euthanasia. The Commonwealth parliamentarians had to consider five questions. First, is euthanasia morally right or wrong? In a pluralistic society such as Australia one would expect a diversity of viewpoints. Second, ought there to be a law against euthanasia? Even if one thought that euthanasia was morally wrong and even if convinced that the majority of citizens thought it to be morally wrong, it would not necessarily follow that there ought to be a law against it. Third, given that the Northern Territory had legislated to permit physician-assisted suicide in tightly confined circumstances, does the Commonwealth have the power to make a law overriding what the Northern Territory has done? Fourth, ought the Commonwealth to exercise that power? Fifth, was the Andrews bill a proper exercise of that power expressed with sufficient clarity and absence of doubt? Some Australians think that euthanasia is morally wrong. This means they would not choose it for themselves, and they would not encourage others to choose it. If there were people to whom they fe lt an obligation, they may even try to dissuade them from committing euthanasia. In private discourse and within their own church commu­ nity, they might choose to espouse the virtue of letting life take its natural course rather than making a deliberate decision to terminate it, even in the situation of acute pain and terminal illness. But such people must readily concede that there are other citizens who could take the decision in good conscience to commit a self­ determining act to end life. For them this could even be an ennobling act of freedom. It is immaterial in the public forum whether or not others think their conscience to be misinformed. Undoubtedly some people who opted for euthanasia could make a good conscientious decision to do so. I think euthanasia is morally wrong. I accept for the purposes of the public debate that most Australians would tolerate euthanasia in some The present: Australia, the United States and euthanasia 99

circumstances. Even if they do not think it morally right, they are not convinced that it is morally wrong. Public debate about the morality of euthanasia does not get us very far in determining whether or not there ought to be a law against it. Here in Australia there was no question of the High Court having ultimately to determine the constitutional efficacy of physician­ assisted suicide. At one stage in the national debate, opponents of euthanasia in the Northern Territory did appeal to the High Court from a decision of the Northern Territory Supreme Court which simply upheld the law-making capacity of the Northern Te rritory parliament. But there was no prospect of a constitutional challenge on the basis of any interference with fundamental rights or with the failure to comply with due process or equal protection. Australians in favour of euthan­ asia were upset with senators who voted to overrule the Northern Territory law. They would have been even more upset if the High Court had reached a conclusion that the Northern Territory law was invalid. Presumably those opposed to euthanasia would also be very perturbed if the High Court had the constitutional power to strike down the Andrews bill as an unwarranted interference with the constitutional principles of liberty and privacy. The Australian tradition is to have these matters resolved primarily by legislators who are elected rather than by judges who are not. The overruling of the Northern Territory's euthanasia law raised questions about law, morality and federal-state relations - topics on which there is always a difference of viewpoints, across and within parties. Australian federalism is providing new opportuni�ies for social experimentation and new challenges for our politicians. While the Australian Capital Territory was prepared to trial legalised heroin if it could obtain agreement from some States, the Northern Territory was prepared to go it alone trialing legalised euthanasia. As Leo McLeay said during the House of Representatives debate on euthanasia, 'On an issue such as this I believe there should be a broad national consensus. When we have that legislature that represents the second smallest group of Australians passing a law that can have an effect on all Australians, ·there is not consensus. The ACT parliament sought consensus and, when it could not get it on its heroin trials, it dropped the trials. Surely euthanasia ranks as important as trialing heroin.' 1 Some of our political leaders, such as PremierJeff Kennett, favour 100 Legislating Liberty such out-of-town try-outs, but Prime Minister John Howard is con­ cerned by the adverse effects on the national social fabric. Legislation legalising voluntary euthanasia was rejected by the South Australian parliament, and there has been talk in recent years about similar legislation being introduced in Queensland and Victoria. The New South Wales AIDS Council has drafted a bill for consideration by the New South Wa les parliament wh.ose members by an overwhelming majority have spoken against legalised euthanasia. In times of such change, all parties need to accept some ground rules about democracy, law, morality and federalism. First, democracy in a pluralistic, developed society is not only the will of the 50 per cent plus one; individual rights and the public interest matter. Second, just because something is wrong or thought to be wrong does not mean there should be a law against it. Third, State and Territory rights are not necessarily trumps at the federal card table when an issue affects the national ethos.

Public policy and the morality of euthanasia I am one of many Australians continue to believe that physician­ assisted suicide is wrong. While prepared to see a machine turnedoff, these people are opposed to the administration of a lethal injection. They would never seek euthanasia for themselves. As health profes­ sionals they would never provide such assistance. Others are worried by the possible abuses, fearing that a lethal injection could be admin­ istered during a down period in a person's life, which need not necessarily be the end. But should there be a law against the admini­ stration of the injection given that many other Australians believe individuals should have a right to choose? Opponents of active eutha­ nasia had to admit that the Northern Territory law made the procedure available only in rare circumstances - where an able-minded adult was facing sure death as the result of incurable disease. Respect for individual choice and self-determination are always to be accorded high priority in setting down public policies about medical decisions. Professor Ronald Dworkin gave evidence to the House of Lords Select Committee on Medical Ethics in 1993 saying, 'I am in favour of choice because people disagree about what kind of death is mean­ ingful for them. I, myself, believe that what sort of death is right for a particular person and gives the best meaning to that person's life, The present: Australia, the United States and euthanasia 1 OJ largely depends on how that life has been lived, and that the person who has lived it is in the best position to make that decision.'2 The British Medical Association conceded that the denial of a right to eu thanasia ran counter to the concepts of autonomy and self-determi­ nation but argued that ·granting the desires of some entails an unac­ ceptable cost for others and therefore is contrary to other ethical imperatives such as the concept ofjustice' 3 The Committee concluded:

Our thinking must also be coloured by the wish of every individual for a peaceful and easy death, without prolonged suffering, and by a reluctance to contemplate the possibility of severe dementia or dependence. We gave much thought too to Professor Dworkin's opinion that, for those without religious belief, the individual is best able to decide what manner of death is fitting to the life which has been lived. Ultimately, however, we do not believe that these arguments are sufficient reason to weaken society's prohibition of intentional killing. That prohi­ bition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal. We do not wish that protection to be diminished and we therefore recommend that there should be no change in the law to permit euthanasia. We acknowledge that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foun­ dation of a policy which would have such serious and widespread reper­ cussions. Moreover dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole. One reason for this conclusion is that we do not think it possible to set secure limits on voluntary euthanasia. Some witnesses told us that to legalise voluntary euthanasia was a discrete step which need have no other consequences. But ... issues of life and death do not lend themselves to clear definition, and without that it would not be possible to frame adequate safeguards against non-voluntary euthanasia if voluntary euthanasia were to be legalised. It would be next to impossible to ensure that all acts of euthanasia were truly voluntary, and that any liberalisation of the law was not abused. Moreover to create an exception to the general prohibition of intentional killing would inevitably open the way to its further erosion whether by design, by inadvertence, or by the human tendency to test the limits of any regulation. These dangers are such that we believe that any decriminalisation of voluntary euthanasia would give rise to more, and more grave, problems than those it sought to address. Fear of what some 102 Legislating Liberty

witnesses referred to as a ·slippery slope' could in itself be damaging. We are also concerned that vulnerable people - the elderly, lonely, sick or distressed·- would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, a request resulting from such pressure or from remedial depressive illness would be identifiedas such by doctors and managed appropriately. Nevertheless we believe that the mes­ sage which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life. The House of Lords Committee reached the same conclusion as the New York State Task Force on Life and the Law, the most comprehen­ sive report on the public policy of euthanasia. True to the United States constitutional tradition, the New York Task Force was anxious to justify any burden which may be placed on individuals like Mr Dent "who make an informed, competent choice to have their lives artificially shortened, and who cannot do so without another person's aid' .4 Finding that ·very few individuals fall into this group', the Task Force was unanimous in its view:

... laws barring suicide assistance and euthanasia serve valuable societal goals: they protect vulnerable individuals who might otherwise seek suicide assistance or euthanasia in response to treatable depression, coercion, or pain; they encourage the active care and treatment of the terminally ill; and they guard against the killing of patients who are incapable of providing knowing consent. In this regard, prohibitions on assisted suicide and euthanasia are distinct from earlier statutes that barred suicide committed without another person's aid. While unassisted suicide is essentially a private, independent act, assisted suicide and euthanasia possess a uniquely social dimension, as they involve one individual participating directly in another person's decision to die. Such participation carries far-reaching risks of mistake and abuse. While proponents of legalized assisted suicide and euthanasia suggest that safeguards could be established to minimize these dangers, the essential prerequisites for such safeguards - an attentive and caring physician-patient relationship, skilled pain management and comfort care, and universal access to effective psychiatric services - represent an idealized version of medical care that society has thus far failed to achieve. Given this reality, any effort to carve out exceptions to the prohibitions on assisted suicide or euthanasia would seriously undermine the state's interest in preventing suicide in the vast majority of cases in which patients seek this option because of pressure, undiagnosed or un­ treated depression, or improperly managed pain. The state's interest in The present: Australia, the United States and euthanasia 103

protecting these patients outweighs any burden on individual autonomy that prohibitions on assisted suicide and euthanasia might entail. 5 The twenty-fourmembers of the New York Task Force held different views about the ethical acceptability of assisted suicide and euthanasia but they were unanimous in their recommendation that the ·existing law should not be changed to permit these practices',6 They fell into three groups: those who thought euthanasia inherently wrong; those concerned that euthanasia would violate values fundamental to the patient-physician relationship; and those who did not see euthanasia as unethical or incompatible with medical practice. But even this third group thought that legalisation would be ·unwise and dangerous public policy' 7 These members regarded 'the number of cases when assisted suicide or euthanasia are medically and ethically appropriate as ex­ tremely rare, and they did not believe that 'the benefitsincur red fo r this small number of patients can justify a major shift in public policy or the serious risks that legalising the practice would entail' . 8 These members believed that in appropriate circumstances, euthanasia ·would manifest a physician�s commitment and duty to his or her patient' but they still believed it would be unwise and dangerous public policy. The report outlined their position:

Several facts played a critical role in the judgment reached by these members. They recognize that in extreme cases when assistance to commit suicide is most compelling, patients may now find a physician willing to provide medication and information. It is highly unlikely that physicians who are thoughtful and responsible in providing this assistance will face criminal sanctions; given the sympathies of juries and the difficulties of proving intention in the private interaction between doctor and patient, prosecutors have not been eager to bring these cases. Although the law barring assisted suicide and euthanasia is rarely en­ forced, these Task Force members believe that this legal prohibition serves important purposes. In addition to regulating and restraining behavior, our laws also serve a highly symbolic function. These members regard the consequences of quietly tolerating assisted suicide as a private act of agreement between two individuals in extreme cases as profoundly differ­ ent from the consequences of legalising the practice. The legal prohibition, while not uniformly honoured, preserves the gravity of conduct to assist suicide. It demands caution and reflection. It maintains the decision by both patient and physician as a solemn, private act and prevents abuse. It also requires a deep commitment by health care professionals who must violate 104 Legislating Liberty

the law to offer this assistance to patients. These Task Force members acknowledge the inherent tension and dis­ comfort of a position that prohibits actions they believe are ethically justifiable. They recognize the problems of a policy that renders relief for patients, albeit in rare cases, contingent on the moral courage of health care professionals and on their willingness to violate the law. Significant too is the fact that some physicians now provide suicide assistance without the benefit of guidelines that would be established if the state and the medical profession sanctioned and regulated the practice. Finally, they recognize the shortcomings of a policy that leaves physicians who act responsibly and with the best of motives subject to possible criminal or professional sanctions for conduct that is legally proscribed but caring and appropriate. On balance, even considering these reasons to legalise assisted suicide, these members unanimously concluded that the prohibition against assisted suicide should not be changed. While not a tidy or perfect resolution, it serves the intere�ts of patients far better than legalising the practice. By curtailing the autonomy of patients in a very small number of cases when assisted suicide is a compelling and justifiable response, it preserves the autonomy and well-being of many others. It also prevents the widespread abuses that would be likely to occur if assisted suicide were legalized.9

The Task Force gave its reasons for recommending that the existing law should not be changed:

Legalising assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable. The Task Force members concluded that the potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved. The risk of harm is greatest for the many individuals in our society whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, advanced age, or membership in a stigmatised social group. The risks of legalising assisted suicide and euthanasia for these individuals, in a health caresystem and society that cannot effectively protect against the impact of inadequate resources and ingrained social disadvantages, would be extraordinary. tO

For purposes of public debate, one can posit 'ideal' cases in which all the recommended safeguards would be satisfied. Ye t the reality of existing medical practice in doctors' surgeries and hospitals cannot match these expectations, however any guidelines or safeguards might be framed. These realities render legislation to legalise assisted suicide and euthanasia vulnerable to error and abuse for all members of society, not only for those who are disadvantaged. Th e present: Australia, the United States and euthanasia 105

Aboriginal concerns about euthanasia The issues surrounding euthanasia are more acute in the Northem Territory than in the States. The Te rritory is notoriously under-resour­ ced in the provision of palliative care. Also, many Aborigines from remote communities with traditional belief systems have a fear of "white fella' medicine and would be even more afraid and confusedby doctors and hospitals if the foreign medical technology was known to be used not just for sustaining life but also for imposing death. There was no doubt about the widespread Aboriginal opposition to the Northern Territory law. There were three Aboriginal members who participated in debate on this topic in the N orthem Te rritory Legislative Assembly. On 24 May 1995 Mr Maurice Rioli (ALP,Arafura) told the Assembly:

I have received nothing but indications of overwhelming opposition to this bill from constituents in my electorate of Arafura which contains 8 major Aboriginal communities and many outstations. Most of these communities have written and spoken to me about their concerns in relation to the bill. Nearly all Aboriginal people have had difficulty in understanding the details of the bill, as have many other people we have heard from in the course of the committee's travels. However, even if Aboriginal people fu lly understood the bill, through all the appropriate cultural means of communication, I believe they would still oppose the principle of euthanasia. Such a situation might result in the possibility of payback or some other form of family fe uding ... I understand my stance here today will beseen to be against the rights of individuals, but I cannot walk away from my beliefs or those of my electorate.

Mr John Ah Kit (ALP, Amhem) spoke in the debate for the repeal of the legislation on 21 August 1996. He said:

I do have a problem with Aboriginal people in my constituency. I have a problem with the way the governmenthas not handled the educational and awareness campaign properly. I have had contact with many Aboriginal leaders who are resident outside my electorate of Arnhem. In my discussions with them, the majority have been dead set against this. They fe el that they have been neglected again, because the so-called consultation process has never really occurred. Later, there was a mad rush to get consultation on the road, but in my book the horse had bolted. 106 Legislating Liberty

Why, with just over 1 per cent of the population in this country, do we have to have this legislation? We have all the headaches in front of us: challenges in the courts, political manoeuvrings in Canberra. I think we need to seriously consider what we really want the Territory to become. I will certainly be supporting the repeal bill.

Even the late Wesley Lanhupuy (ALP, Amhem), who voted for the legislation, said in the original debate:

If this legislation is passed, I wonder whether ... suspicion will be held forever by the fa mily because of the powers given to a doctorby this bill. The people at every Aboriginal outstation that I visited told me to ·give it away'

The Northern Territory government set up an education program about the euthanasia law for Aboriginal communities. The report for 28 June 1996 noted:

The level of fear of and hostility to the legislation is far more widespread than originally envisaged. People are extremely angry that they were not consulted about the legislation in the firstplace. As expected, there has been considerable interest in Palliative Care, which has been seen by all as 'the Aboriginal way' . There is a continuing philosophical problem apparent throughout this process, and that is related to widespread Aboriginal beliefs about cause of death, that is, that there is no such thing as natural death and that deaths are caused by external agencies such as sorcery, payback, transgression of the Law etc. This has the real potential of setting back the work of Territory Health Services and health centres in gaining confidence and trustof their clients by years.

The Report of 9 July 1996 noted:

... the current damage being done is difficult to estimate, but potentially dangerous especially given the general problems and politics of Aboriginal · health in the Northern Territory.

The Report of 23 July 1996 noted:

The greatest fear and reluctance about the legislation would appear to be coming from Aboriginal Health Workers themselves. They are concerned that their position within their own communities has been or might be irreparably damaged by the existence of the legislation ...... the Territory Health Services' successes in developing a more holistic The present: Austrt:Zlia, the United States and euthanasia 107

approach ... [are] compromised by a ·package' that now includes euthan­ asia, with all its differing interpretations.

Even people committed to respect for individual choice and self­ determination and who otherwise would be supportive of tightly regu­ lated euthanasia ought consider the need for Aborigines in the Northern Territory to have greater faith in the health system and to be spared needless anxiety at times of death. These are valid considerations in the political calculus for determining what is the best law. In these cross-cultural situations, consent is never simple nor what it seems. A generation ago, many Aboriginal women had their fallopian tubes tied, and no doubt the doctors and nurses would swear that the procedure was always performed with informed consent. The 'Stolen Children· Inquiry related to Aborigines who in hindsight have no doubt that they were taken without the informed consent of their parents. Som� public servants and missionaries at the time were convinced that they were acting not only with parental consent but in the best interests of the children. As the Royal Commission into Aboriginal Deaths in Custody heard, 'It is likely that those who administered the white law did so with the assurance that they were helping to assimilate these children into the dominant community.' A casual visitor to the Darwin hospital at Casuarina sees Aboriginal patients recuperating outdoors, tentative strangers to the stainless steel and ether behind the air-conditioned concrete walls. Many of those would stay away rather than visit a place of death administered by white hands. The harm to the vulnerable far outweighs the benefit to the few like Bob Dent who want to choose a timely death with physician assistance and state authorisation.

Arguments against euthanasia laws Some advocates for euthanasia argue that the law should simply be expanded within the tight restrictions of existing law to authorise existing practices, withdrawing the uncertainty that doctors acting in good faith may be prosecuted for activity which few regard as criminal. For example, Gareth Evans argued in the debate in the House of Representatives that ·voluntary euthanasia is already an omnipresent reality in our society, with doctors constantly being put in the position of being asked to take steps to hasten the inevitable and to help people escape an existence that has become simply int<>lerable, but without 108 Legislating Liberty having any legal basis to do so and being put in a very difficultposition, very often, as a result.' ll Two points should be noted. First, just because some drivers can drive perfectly safely at 120 kmlh in a 110 kmlh zone with virtual assurance that they will not be apprehended by the police, this is no argument for raising the legal limit to 120 kmlh� The very same drivers will then drive at 130 increasing the risk to the motoring public. Incremental legislation of this sort has to draw a line in the sand. By purporting to cover the grey area, the legislator will inevitably cast another shadow of unce�nty. Second, once the law crosses the moral Rubicon of state authorisa­ tion of administered death, there is no moral or ethical bar to expansion of that authorisation in the future. If the patient is no longer competent, why not allow the relatives to make the decision? If there are no relatives, why not allow the state to make the decision? If the patient is poor and the state under-resourced, why should not the state be able to provide better, cheaper euthanasia services and to spend less on palliative care procedures - rendering the ·choice' of voluntaryeutha­ nasia more attractive to the poor? As Leo McLeay has observed, 'As legislators we all know it is harder to argue for programs for which there are cheaper alternatives. This would surely be the case with euthanasia versus palliative care.' 12 Why should the patient have to be in the terminal stages of a life-threatening disease? Why not allow the 25-year-old just diagnosed with full-blownAIDS to have the option of a peaceful, dignified death now rather than enduring the years of suffering and uncertainty he has witnessed in the deaths of so many of his friends? Why not allow the person who is simply sick of life to have the benefit of state assistance to suicide? A taxi driver who drives from Broken Hill to Darwin seeking euthanasia is not a person incapable of taking his own life. He is seeking more than medical assistance. He wants the company and social support without which he is existentially unable to close the book of life. Why should this social benefit be granted only to those in the terminal stages of a life-threatening disease? Lindsay Tanner was right when he told the House of Representatives, 'I am troubled by euthan­ asia because I think it is virtually impossible to draw safe boundaries, because I think it is virtually impossible to prevent abuses and mistakes and because I think it is virtually impossible to justify offering the The present: Australia, the United States and euthanasia 109

option of assisted suicide to one category of people when you deny it to others. That is the necessary implication of the Territory legisla­ tion.' 13 The Commonwealth parliament may not have the power to overrule a State law legalising the administration of requested lethal injections. It does have the power to overrule a Territory law. Should it have exercised that power? Consistent with the principles of federalism, the Commonwealth is entitled to interfere in Territory affairs only in rare circumstances: where no State has similarly legislated; where the Territory law is a grave departure from the law in all equivalent countries; where the Territory law impacts on the national social fabric outside the Territory; and where the Territory law has been enacted without sufficient regard for the risks and added burdens to its own more vulnerable citizens, especially Aborigines. The Northern Terri­ tory's legislation on euthanasia was such a circumstance. ltf this instance, the freedom for the few should remain restricted ..il5ecause it is not possible to protect others, especially the most vulner­ ab e 1 society, from the risk of abuse. Once the legislature abandons the distinction between passive and active euthanasia, there is no remaining and equally compelling distinction to protect the most vulnerable in society from laws which provide for state-sanctioned killing available on demand. In this case, expanding the right to choose will increase both the risk that a citizen might think that there is no option but to die and the risk that a citizen could be chosen by others to die. Our Commonwealth parliamentarians were right to override the Northern Territory law. In doing so they maximised freedom, choice and security for all Australians at the time of death. Sectarian bitterness is still one dimension of the public forum in Australia. In their report to the Senate Legal and Constitutional Legis­ lation Committee, Senators Bolkus and McKiernan said they were not persuaded 'by some hysterical submissions that sought to draw a parallel between the atrocities that occurred in Nazi Germany prior to and during World War II and the Rights of the Terminally Ill Act of the Northern Territory. It was unfortunatethat some Church leaders sought to influence the Committee by invoking such an analogy.' They concluded:

Having said this, we accept the right of the Catholic Church or any other Church to lobby for support on this, or any other issue. We are aware that 110 Legislating Liberty

the Catholic Church is a very vigorous and enthusiastic supporter of the Andrews Bill. It has been a very active lobbyist in these proceedings and we understand that the Church is quite pleased with its efforts on this

occaston. · We will vote against the Euthanasia Laws Bill so that we do not deny others the right to use the Northern Territory Rights of the Terminally Ill Act.

There will always be some heat in the kitchen. Participation in the public forum demands that one must accord even vociferous and sectarian opponents more respect than they would reciprocate. Six weeks after the Senate voted to override the Northern Territory law on euthanasia, a 74-year-old Melbourneman, Joseph Mohr, walked free from the Supreme Court of Victoria having been charged with the murder of his 71-year-old wife, Ingrid. Ingrid had suffered a severe stroke in August 1994. She was paralysed down one side and could not properly swallow or speak. She was living in a nursing home and was depressed. In April_ 1996 she asked her husband to kill her. He slashed her wrists in what the jury was told was ·a non-comprehending act of love and devotion' She died. He attempted suicide but failed. On acquittal, he thought the law on euthanasia should be changed. Dr Philip Nitschke, the practitioner of the NorthernTe rritory law, thought the Mohr case an ·archetypal example' of why the law needed to be changed. But Ingrid was not terminally ill, and being depressed she would not have qualified for euthanasia under the Northern Territory law. This mercy killing and the response by euthanasia advocates highlights that their vision of the ideal law will be realised only when the law penn its all people to request assistance with their death regard­ less of the characterisation of their illness or psychological disposition. Once euthanasia is permitted in a limited class of cases, there will be emotionally compelling arguments for equality of opportunity, making socially endorsed, medically assisted, painless death available to all who seek it. It is more properly a matter for our parliaments than the courts to decide if and when to open that floodgate of reform. Though the Americans will use the courts to prise it open, Australians would be well advised to leave the courts out of the equation, maintaining the integrity and independence of our judiciary for the resolution of legal issues more susceptible to judicial reasoning than political decision. The present: Australia, the United States and euthanasia 111

The United States courts and euthanasia The Northern Territory has not been alone in its pioneering attempts to legislate for voluntary euthanasia. In 1994 voters in Oregon in the United States narrowly approved a referendum for the passage of a Death with Dignity Act. The Oregon law requires the patient to self-administer the fatal drug. The doctor cannot administer the injec­ tion. The legislation is now being challenged through the United States court system. On 27 February 1997 the United States Court of Appeals Ninth Circuit dismissed a challenge to the Oregon law on the basis that the patients, doctors and nursing homes seeking a review did not have the standing to challenge the law. The United States Supreme Court then heard argument in two appeals relating to physician-assisted suicide. In Wa shington v. Glucksberg* the court considered a challenge to the Washington State law that prohibited physician-assisted suicide. In Va cco v. Quill** the court considered a challenge to the New York State law barring physician-assisted suicide. The Supreme Court had decided the time was ripe to give some consideration to this issue. In each case they received an abundance of amicus curiae briefs. The personal liberty and public policy arguments similar to those presented to the Australian Senate all appeared in these briefs, but the arguments were presented through a template of constitutional terms such as fundamental right, ordered liberty, state interest, equal protection, due process and strict scrutiny. Rather than considering the general issue of physician-assisted suicide, the court was presented with particular instances. The plain­ tiffs had been hand-selected, being people suffering terminal illness who were anxious to end their lives. The Catholic Church, the Southern Baptists, the Lutheran Church and the American Muslim Council in a joint brief warned that unless the court upheld the validity of anti­ euthanasia laws they would ·set in motion profound and ominous changes in how our society will care for people who are old, poor, disabled and vulnerable. Lifting prohibitions against assisted suicide will have a disproportionate and adverse impact upon the poor, the elderly, minorities, women, and those without access to medical care. These are precisely the people whom our Constitution should protect:

* (1997) 138 LEd 2d 772; (1997) US LEXIS 4039

** (1997) 138 L Ed 2d 834; (1997) US LEXIS 4038 112 Legislating Liberty

The argument of these petitioners was that a change in the law would mean a radical departure from American legal traditions which would fundamentally change the nature of relationships at the end of life without any reliable guide as to the consequences. The churches, while conceding a domain of personal liberty and freedom, argued that the decision to end life deliberately impacts on other people in the com­ munity and the provision of this choice would result in disadvantage to those who are already vulnerable in society. In the Washington case, the lower court had struck down the anti-euthanasia law on the basis that it was a violation of the due process clause. In the New York case, the law was struck down as a violation of the equal protection clause. The novel argument adopted by the New Yo rk court was that terminally ill people in the final stages of dying constitute a class of people some of whom are in a position to terminate their own lives and others who cannot do so without the assistance of a physician. The argument ran that all people have a right to hasten death and that there is no rational difference between com­ plying with a person·'s decision to decline medical treatment and providing that person with the least lethal poison to commit suicide. In its constitutional analysis the second circuit court decided that it was irrational to draw a distinction between the withdrawal of treatment and the provision of a death-producing agent. Prior to these decisions in the courts of appeal, it had been accepted that there was a relevant distinction between an act and an omission. A lethal injection was differentmorally and in the eyes of the law from a withdrawal of life-prolonging medical treatment. Also there was a difference between administering an injection for the relief of pain, which would also have the effect of shortening the life of a dying person, and administering an injection aimed at ending life more quickly. The proponents for physician-assisted suicide argued that the law allows the doctor to terminate life-sustaining procedures, including the provision of food and water, when the patient requests it. The grey area is when a doctor prescribes treatment which will render the patient comatose, shortening life but prolonging the agony more than if a lethal injection were administered. This 'terminal sedation· or 'barbiturate coma' is brought about by the doctor administering a continuous infusion of barbiturates, benzodiazepines or other anaesthetics which will keep the patient unconscious, during which time and in accordance The present: Australia, the United States and euthanasia 113 with her prior request she will be refused artificial nutrition and hydration thus hastening death. This course of action is justified on the grounds that it is the only means acceptable to the patient of relieving the pain and anxiety of slowly starving to death or dying of thirst. . The Supreme Court was asked, 'May a State constitutionally crimi- nalize a physician., s prescription of medication requested by a compe­ tent, terminally ill patient in the final stages of dying, who seeks that medication to end her life without intolerable suffering, when the State permits terminally ill patients intentionally to end their lives by having their physicians withdraw or withhold essential medical treatment, including nutrition and hydration?' Ronald Dworkin, who posits a moral rather than a historical reading of the Constitution, claimed that the central question in the assisted suicide cases was 'May a "moral majority" limit the liberty of other citizens on no better ground than that it disapproves of the personal choices they make?' 14 If this were the central question, the matter ought be very simple. I can disagree with individual .Nsmoral decision to end life but still respect it as an authentic self-determining private choice with which the state should not interfere except for good reason. The problem arises when I am convinced there is good reason to limit the liberty of A so that the basic rights and entitlements of others may be protected. I may be concerned that the legal and policy regime that accords the liberty to A to make her self-determining choice inevitably places pressure on the poor and vulnerable B to choose a similar course of action so as to spare others inconvenience, or on the lonely, unloved C who thinks there is no option but to take the quick exit leaving her estate to the grandchildren. It is compounded when the new dispensa­ tion creates a policy imperative that the state not make resources available to B or C to exercise any option except early death. It is further compounded when depressed D who is not in the final stages of terminal illness claims to be entitled to the same liberty. To highlight these complications does not necessarily render one a member of an intolerant moral majority. The Supreme Court was told that the claimed liberty interest of the patients is 'the right of the competent, terminally ill patient to choose whether to endure a death marked by intolerable agony, degradation, and suffering' This right was said to involve a constellation of inter­ ests, including the interest in bodily integrity, the deeply personal 114 Legislating Liberty

interest in freedom from pain and suffering, the interest in personal autonomy, and the liberty to refuse medical treatment including the right to refuse artificial delivery of food and water. Adopting the catchall cone of conscience set down in Planned Parenthood that •matters involving the most intimate and personal choices a person may make in a lifetime ... are central to the liberty protected by the Four­ teenth Amendment', the advocates for constitutionally mandated change to the law and longst�nding social policy invoked the court's declaration: 'At the heart of liberty is the right to define one's own concept of existence, or meaning of the universe, and of the mystery of human life.' 15 Given that this was part of the Supreme Court's new rationale for a woman's right to choose abortion, the trial judge in the Washington State case thought it pointed to a right of a competent dying person to take her own life with state-authorised assistance. Prior to the Supreme Court hearings, Professor Ronald Dworkin published Freedom Js Law: The Moral Reading of the American Constitution, claiming that 'Mak­ ing someone die in a way others approve, but he believes contradicts his own dignity, is a serious, unjustified, unnecessary form of tyranny' Some critics of Dworkin's position have raised the question, if it is a right, why does not the doctor have a duty to comply with the patient's request? The right is said to be circumscribed to 'the right to the help of a willing doctor' . Ronald Dworkin argues for three propositions: 'that a patient's doctor must remove unwanted life support; that he may refuse to prescribe deadly pills if his convictions forbid it; and that the State may not prevent a patient whose doctor has refused him such a prescription from turning to a different doctor' 16 There was an even greater problem for the applicants. There was a need to prescribe the limits of the right's enjoyment. If it were to be available to the mentally competent, terminally ill, then why not to a 30-year-old quadriplegic or the constantly depressed teenage drug addict? When would the constitutional protection of the choice to die come into play? Knowing that the court could never declare an unlim­ ited personal liberty to seek assistance from a doctor to terminate life, the applicants sought to design a minimalist liberty which could e�ist ·only in truly hopeless cases' and only in those cases where the patient faces "solely a choice of how to die, not a choice between death and the myriad possibilities of future life' Th e present: Australia, the United States and euthanasia 115

Aware of the slippery-slope arguments that such a liberty could lead to involuntary euthanasia of the mentally incompetent, as in the Neth­ erland�, the applicants said, ' It would be a profound sacrilege to these rights for a person's life ever to be taken involuntarily by another.' The petitioners in trying to distinguish their case from that of the 30-year­ old quadriplegic, argued that for the terminally ill the choice of how to die is the only choice left to them. Others including the chronically ill and those not in the finalstages of dying ·may yet make many choices, select life paths, and explore possibilities that are beyond the State's authority and ability to control. Thwarted by the State in an attempt to commit suicide, they may yet live to rej oice that no "right to die" had been accorded them. A law preventing suicide in such cases cannot be said to reduce those denied such an option to creatures of the state.' In a strange twist, the petitioners argued that those who are suffering and terminally ill must be permitted the choice while it is properly denied to·others, ·not because their lives are worth less but because -for their dignity, for their very humanity -the decision implies so much more' In oral argument, the respected Laurence Tribe from Harvard, the high priest of American ordered liberty, appeared for the doctors and the patients (all of whom were by then deceased). When asked what the liberty interest was, which people enjoyed it and when, he encoun­ tered considerable opposition from the bench to his answer that the liberty interest came to life at the threshold of the end of life. When asked why the .liberty interest arose only when death was imminent, he fe ll back on Casey and its flowery language about the critical thresh­ olds of life including birth, death and marriage, the moments at which one makes intensely personal decisions. One judge observed, 'You see, this is lovely philosophy. But you want us to frame a constitutional rule on the basis of that?' The best Tribe could do was to describe a special liberty which came to life when the patient was so situated that she wanted to avoid suffering, shape her life by the decision, and avoid being subject to the state's control. No counsel provided a satisfactory response to Justice �calia's question, 'Why shouldn't I have the right to suicide?' Scalia added, 'I hate to tell you, but the dying process of all of us has begun and is under way. It's just a matter of time. And it seems to me that the patient who has ten years of agony to look forward to has a more appealing case than the patient who is at the threshold of death.' The attorney forthe doctors in the Washington case said the 116 Legislating Liberty

right ·only ripens or matures' when the patient is at the stage of a terminal illness such that the only choice left is the choice of how to die, there no longer being a choice between life and death. She saw this as an intensely personal decision. But decisions for others not confront­ ing terminal illness could be classed as equally intense and personal. Washington State was prepared to concede some limited liberty interest to citizens suffering pain and in the final stages of terminal illness. But using the constitutional principle of ordered liberty, the State argued that it was entitled to limit the liberty as it and all other States had for a long time, in the same way that the common law had for centuries, and in the same way that western societies had long banned assisted suicide. The State interest in limiting the liberty interest included the protection of life, the prevention of abuse and undue influence on vulnerable people, and the regulation of the medi­ cal profession. For his part, Chief Justice Rehnquist in oral argument was loath to admit any liberty interest given that its outright prohibition would be ·rather a conundrum' . Justice Scalia displayed his impatience with the modem invention of liberty interests which could then be limited and even prohibited. He postulated a liberty interest in murder­ ing people which would be outweighed by the State's interest in preserving the lives of its citizens. The Acting Solicitor General for the United States who intervened in the case held out for a limited liberty interest whenever the State imposes severe pain and sufferingor adopts a rule preventing the person from the only means of relieving that pain and suffering. The bench referred to Blackstone's Commentaries which did not excuse suicide even when committed 'to avoid those ills which people had not the fortitude to endure' and asked when this liberty interest came to be. The Solicitor General said it existed since the Constitution came to be, 1790. The court was anxious that it not step in where legislatures feared to tread. Several judges hinted that they needed to have access to more evidence of the experience of physician-assisted suicide in Oregon and foreign jurisdictions. The matter was not yet ripe for constitutional adjudication. For the moment, if there be a liberty interest, a State rationally can limit it by prohibiting physician-assisted suicide. One judge observed, 'This is a question of ethics and of morals and of allocation of resources and of our commitment to treat the elderly and infirm. And surely legislators have much more flexibility and a much Th e present: Australia, the United States and euthanasia 117 greater capacity to absorb those kind of arguments and make those decisions than we do. Yo u're asking us in effect to declare unconstitu­ tional the law of fifty states.' Justice Souter surmised that it would be impossible for the court sensibly to assess the countervailing weights of the liberty interest and the state interest for a long time ·until there is more experience out in the wodd with what you claim ought to be the case than there is now' .. If the court were to determine the matter now, it 'would just be guesswork' �.· The laws of �ost sta�es as they were in 1997 may at some stage in the future be struck down for an unwarranted state interference with a liberty interest;: :b�t the_:court will not be in a position to do that until it can look to the experience of the few adventurous states or foreign jurisdictions which change the law, thereby permitting a free exercise of the liberty interest and a fine tuning of the limits on its exercise. The experien�e in those jurisdictions may then give the court some criteria to apply in weighing the different iqterests. The court was also very wary about opening itself to a repeat of the 24-year fiasco over abortion, aware that any decision limiting a state's power to prohibit or regulate physician-assisted suicide could result in the court's having to scrutinise the death codes of all states in future. Though the attorneys for the doctors simply wanted the court to declare the liberty interest without having to set down its limits, Chief Justice Rehnquist was very wary, warning that the next couple of generations of Supreme Court justices would have to be ruling on what regulations were permissible with ·a flow of cases through the court system for heaven knows how long· . The abortion experience . has taught the Americans that the constitutional articulation of these liberty interests and their limits cannot be achieved overnight. It requires a culture of litigation. The bench was aware that there would be a need to scrutinise laws to determine when a condition was terminal and to ensure adequate safeguards about voluntariness on the part of the patient. The 50 states, which are often characterised as laboratories of law and policy, were said by the applicants to have the lights out when it came to addressing these issues. Operating in the dark, they needed to be given some light by the Court. The bench was unimpressed, admitting the judges had no more light available to them than the legislators. The lower court had ruled in favour of the doctors in the New Yo rk case on the basis that the State law denied equal protection of the laws 118 Legislating Liberty to those suffering a terminal illness. Any modern-day constitutional challenge worth its salt will use the twin pincers of due process and equal protection. Even if there is no liberty interest to be accorded substantive due process, the doctors argued that the distinctions drawn by the New Yo rk law between act and omission were irrational and violated the equal protection clause. The problem here is tl}edrawing of the line in the sand. Any distinction between those permitted to die with assistance from a willing doctor and those not permitted to die must be reasonable, not arbitrary. It must rest on some ground of difference having a fair and substantial relation to the object of the legislation. Laurence Tribe argued that the time-honoured distinction endorsed by the American Medical Association between the provision by the doctor of life-ending medication to be administered by the patient and the withdrawal of life-sustaining treatment was irrational. While many amici argued that this distinction was not only rational but right and essential, he argued that the State treats differently and arbitrarily those who are on life-sustaining treatment and those who are not. In their written brief, the petitioners asserted, 'As applied to acts equally intended to facilitate death, the line cannot be defended on the ground of a difference of intent.' On 26 June 1997 the Supreme Court threw out both challenges to the State laws prohibiting assisted suicide. In the New York case, Chief Justice Rehnquist, delivering the opinion of the court, had no hesitation in rejecting the equal protection claim. The law neither targeted a suspect class nor did it burden a fundamental right. Being a law that applied even-handedly to all, it unquestionably complied with the equal protection clause. The court rejectedthe claim that the distinction between refusing lifesaving medical treatment and assisted suicide was arbitrary and irrational. Most states draw a clear line between killing and letting die. The Supreme Court unanimously and simply stated their view: 'We think the distinction between assisting suicide and withdrawing life sustaining treatment, a distinction widely recognised and endorsed in the medical profession and in our legal traditions, is both important and logical; it is certainly rational.' * Concluding the brief judgment, the Chief Justice said: 'By permitting everyone to refuse unwanted medical treatment while prohibiting anyone from

* ( 1997) US LEXIS 4038 at 8 The present: Australia, the United States and euthanasia 119 assisting a suicide, New York law fo llows a longstanding and rational distinction.'* He listed New York 's reasons for recognising and acting on this distinction: ·prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians' role as their patients' heal­ ers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia) . The court had no doubt that these were valid and important public interests which easily �atisfied the constitutional requirement that a legislative classification bear a ra­ tional relation to some legitimate end. In the Washington case, the court decided that the law did not violate the due process clause. In the lead judgment, Chief Justice Rehnquist reviewed the common law's historical treatment of suicide, from Bracton's analysis in the thirteenth century to recent inquiries into euthanasia, including that of the New York Task Force. He provided a stark backdrop of history, tradition and practice against which to assess the constitutional claim, observing, 'Attitudes toward suicide itself have changed since Bracton, but our laws have consistently con­ demned, and continue to prohibit, assisting suicide. Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end of life decision making, we have not retreated fr om this prohibition.' In words which serve as a stark limitation on the constitutionalising of rights, he warned of the dangers of the court expanding the concept of substantive due process because, as the court has previously observed, 'Guideposts for responsible decision making in this uncharted area are scarce and open ended' The Supreme Court was not going to risk a repeat of the abortion experience, setting itself up as the unappealable policy maker of the nation. Rehnquist went on to say, 'By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field lest the liberty protected by the Due Process Clause be subtly trans­ formed into the policy preferences of the members of this Court.'** Unless the claimed right or liberty is deeply rooted in the nation's history and tradition or such a necessary implication from the concept

* (1997) US LEXIS 4038, 13

** (1997) US LEXIS 4039 at 13 120 Legislating Liberty of ordered liberty that neither liberty nor justice would exist if it were sacrificed, it will not attract novel protection from the courtunder the due process clause. The obstacles confronting the social reformers seeking access to the court in this case were insuperable because, as Rehnquist said, 'To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State' * In concluding his judgment, Rehnquist withdrew his court from the political fray and invited the parties to return to the hustings: 'Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.'** All nine justices of the court dismissed the due process claim. Though most justices closed the door forever on assisted suicide being a right or freedom protected by due process, Justice Souter leftthe door slightly aj ar. For him the individual with an interest in bodily autonomy may want medical care and counsel when death is imminent. This individual interest could in some circumstances, at some time, be seen as fundamental. Justice Souter concedes that the state can argue that it has an interest in protecting life and in �discouraging suicide even if knowing and voluntary, and protecting terminally ill patients from involuntary suicide and euthanasia, both voluntary and nonvolun­ tary'' . *** But he found no need to assess the strengths of these state justificationsbecause the state interest in limiting the right or freedom could be made out without any need to make moral judgments contrary to the respondents' decisions about ending their own lives. For Souter what was determinative was that the state had a legitimate interest in protecting ·nonresponsible individuals' who could suffer coercion or abuse at the hands of others including doctors and family members. He conceded there was merit in the slippery-slope argument that over time doctors and others could abuse any limited freedom to assist suicides, ·yielding to the impulse to end another, s suffering under conditions going beyond the narrow limits the respondents propose' t Physicians over time would not be assiduous in preserving the limits. Financial

* (1997) US LEXIS 4039, 15 ** Ibid., 23 ***Ibid, 52 t Ibid. Th e present: Australia, the Un ited States and euthanasia 121 incentives in an age of managed care would play a role. 'The barrier between assisted suicide and euthanasia could become porous.'* As in the Northern Territory experiment, the respondents answered these arguments by asserting that legislation with teeth could police the limits. The ·substantiality of factual disagreement' about the Dutch experience satisfied Souter that this was not the time to bring the freedom under the due process mantle. Like Rehnquist, he thought the legislature better equipped to evaluate these matters in dispute. Though Justice Souter felt less constrained by tradition than his Chief Justice, he was equally convinced that this new frontier of social experimenta­ tion and public morality was no place for the court, and this was no time for a definitive constitutional ruling. He deferred to the superior capacity of the legislatures:

Not only do they have more flexible mechanisms for fact finding than the Judiciary, but their mechanisms include the power to experiment, moving forward and pulling back as facts emerge within their own jurisdictions. There is, indeed, good reason to suppose that in the absence of a judgment for respondents here, just such experimentation will be attempted in some of the States. I do not decide here what the significance might be of legislative foot dragging in ascertaining the facts going to the State's argument that the right in question could not be confinedas claimed. Sometimes a court may be bound to act regardless of the institutional preferability of the political branches as forums for addressing constitutional claims. Now, it is enough to say that our examination of legislative reasonableness should consider the fact that the Legislature of the State of Washington is no more obviously at fault than this Court is in being uncertain about what would happen if respondents prevailed today: We therefore have a clear question about which institution, a legislature or a court, is relatively more competent to deal with an emerging issue as to which facts currently unknown could be dispositive. The answer ·has to be, for the reasons already stated, that the legislative process is to be preferred.There is a closely related further reason as well. One must bear in mind that the nature of the right claimed, if recognised as one constitutionally required, would differ in no essential way fromother constitutional rights guaranteed by enumeration or derived from some more definite textual source than 'due process.' An unenumerated right should not therefore be recognised, with the effect of displacing the legislative

* (1997) US LEXIS 4039, 53 122 Legislating Liberty

ordering of things, without the assurance that its recognition would prove as durable as the recognition of those other rights differently derived. To recognize a right of lesser promise would simply create a constitutional regime too uncertain to bring with it the expectation of finality that is one of this Court's centralobligations in making constitutional decisions. Legislatures, however, are not so constrained.The experimentation that should be out of the question in constitutional adjudication displacing legislative judgments is entirely proper, as well as highly desirable, when the legislative power addresses an emerging issue like assisted suicide. The Court should accordingly stay its hand to allow reasonable legislative consideration. While I do not decide for all time that respondents' claim should not be recognised, I acknowledge the legislative institutional com­ petence as the better one to deal with that claim at this time.*

Justice O'Connor, with support from Justices Ginsburg and Breyer, was anxious to point out that though there was no constitutional right to commit suicide or to be assisted in suicide, there is no legal barrier to terminal patients in great pain ·obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death·, ** For her, this was the sort of case in which the courts would defer to the laboratory of the States in crafting appropriate safeguards to protect the liberty interests of all people. But for the moment, 'There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State's interests in protecting those who might seek to end life mistakenly or under pressure. As the Court recognises, States are presently undertaking extensive and serious evaluation of physician assisted suicide and other related issues.'*** Church leaders, the American Medical Association and many others concerned to maintain the integrity of the doctor-patient healing relationship and the relationship between the dying person and rela­ tives whom they do not wish to burden succeeded in their attempts to limit the options available to the dying person, thus sparing all dying people, doctors and relatives the burden of choice. Some people also espouse a principle of life�s sanctity which they think the state ought

* (1997) US LEXIS 4039, 55-56 ** Ibid., 23

***Ibid, 24 The present: Australia, the United States and euthanasia 123 to uphold. That argument is of little utility in the public forum because there is no agreement about its application to the case of the terminally ill person suffering great pain who simply seeks a quick death with dignity. Such an argument has no place in the American balancing of · ordered liberty. . Those who think any of these factors ought be weighed by the ultimate decision-makers at a time of technological change when there is no community consensus about moral principles and their applica­ tion have to accept that parliaments rather than courts are the better decision-makers. Courts are neither equipped nor mandated to weigh the balance. If Australia, in the wake of the N orthem Te rritory legal experiment with euthanasia, were to seek greater powers for the courts, over time the courts would go down the American path of opting out and handing the matter back to the legislatures. If the courts ultimately had no option, then, as in the United States, the judges would give primacy to arguments about the limits of personal liberty rather than engaging in deliberation about the well-being of all in society. They would scrutinise laws for their enhancement of individual choice, regardless of common good considerations such as the ethos of health care facilities offeringdeath as a service and the quality of relationships between doctor and patient, a dying person and family. The close Senate vote in Australia has been more reflective of the community attitude than the crushing Supreme Court defeats for the pro-euthanasia forces in the United States. The attempted constitution­ alisation of the matter in the United States has ,simply resulted in the courts admitting their unsuitability for the task and lobbing the ball back to the legislature's side of the net. A Senate committee open to all citizens is a more appropriate venue than an ultimate court of appeal which has to put all submissions through an artificial template of due process and equal protection. The Supreme Courtsolved nothing in the abortion controversy by purporting to give the finalword on the limits. Equally, it has solved nothing by opting out of the euthanasia debate. But it has retained its credibility for the times it is needed rather than setting itself up as the future supervisor of death codes. 7 The future: free speech - a fundamental right on shifting sands

Introduction In any democracy citizens prize privacy, reputation and free speech. Codes of ethics, government and media industry _policies, and laws and constitutional guarantees are often invoked to draw the line limiting free speech so as to maintain a zone of privacy and the due protection of reputations. The line is never straight and it is rarely clear. It is often said that free speech is essential for democracy. But if speech is too free and the reputation of public figures too little valued, there is a reduced prospect of attracting good people to political office. And if the repu­ tations of politicians are too closely guarded by the complexity of the law, there can be a chilling effect on the discussion of issues relevant to electors. Although everyone values privacy, public figures must concede that even private details about their lives can be relevant to the discharge of their public duties. In the past there may have been some measure of agreement about the limits on the state's interest in restricting adults from reading and Seeing what they like, but there has always been disagreement as to how far the state should go in restricting adult access in order to ensure that children are not perverted by what they might see and read, especially when they are unsupervised by parents. This has become a very vexed issue with the broad range of materials now available on cable television and the. internet. And the viewing habits of criminals such as Martin Bryant with his fetish for violent movies gives some policy makers pause in their affirmation of the adult population's right to see and hear whatever they like. Countries such as the United States and Canada which have consti­ tutionalised the right to free speech are now finding that the keenest litigants are not the private citizens who want to watch what they like but the corporations who want to advertise harmful products regardless of the limits the state may wish to impose for the welfare of the consumer. Once again the courts in those jurisdictions are being placed The future: free speech - a fu ndamental right 125 in an impossible situation as they try to articulate a rationale for limits on the constitutional right. In Australia we need compelling evidence that there is a need for furtherlegal restraints and that the limits are best set by judges alone rather than by parliaments and the courts acting in tandem. By constitutionalising the right of free speech, we leave the last word to the judges. Even in the United States, judges are having a hard time keeping up with the technology and determining the limits. There is little likelihood that our judges, without the long tradition of constitutional free speech jurisprudence, could add much clarity to the present faltering efforts of the United States Supreme Court. Even the strongest free speech advocates might want to pause before vesting Australian judges with the final word.

Freespeech and privacy in Australia The death of the Princess of Wales in high-speed flight from paparazzi raised fundamental questions about privacy and free speech, law and ethics, even in Australia. Perhaps it is our convict past, but Australians often start with the presumption that if something has gone wrong there ought to be a law against it. The modem gloss is that failing a law to govern the matter, there ought to be an enforceable code of ethics. We have no guaranteed right to privacy and the ethics of journalistsare not enforced by law. The accident led to intense public discussion about the need for legal restraint on journalists and a constitutional right of privacy. A car accident in Paris prompted a review of journalists' behaviour here on the other side of the world, but the discussion did not tum up any solution that provides a more secure cocoon of privacy for all. Journalism is a self-regulating occupation in which most practit­ ioners are not self-employed and the stock-in-trade is free speech practised in a world of revolutionary technological change. In Austra­ lia, this conundrum is further complicated by the fact that half the journalists are not members of the union that formulates the code of ethics. Any code which is workable in this situation has to have appeal; it has to be aspirational; it has to provide signposts for the journalistof goodwill wanting to do the right thing in difficult circumstances. To act ethically, you must beeducated to think ethically and you must find a common discourse of ethics with your peers. A new legal regime, no matter how strict and no matter how 126 Legislating Liberty protective of privacy, would be unlikely to render a high-profile person such as Diana immune from similar pursuit in Australia. But the manner of her death has prompted an assessment of the responsibility of those who exercise their liberty for profit, exposing the most private details of public figures. The union of Australian journalists, the Media Entertainment and Arts Alliance, recently commissioned a review of the journalists'code of ethics. The. committee was unanimous that journalismshould remain essentially a self-regulating occupation given the primacy of free speech in a democracy. It proposed a revised code with three clauses that would impact on the media's treatment of one such as Diana. 'Use fair and honest means to obtain material. Avoid misrepresen­ tation and use of concealed equipment or surveillance devices.' Decep­ tion directly contravenes the values of honesty and truth telling. It requires that journalists exercise special care in deciding whether it is justified in the circumstances. The international celebrity status of Diana rendered her every move reportable if it could be detected by any lens. Those of us who bought the papers and magazines implicitly approved of the behaviour of the media barons who offered fantastic incentives to those armed with the prying lens. They did not distort the images. They simply brought the previously unattainable into our living rooms. 'Accept the right of privacy of every person. Public figures'privacy may be reduced by their public role. Relatives and friends of those in the public eye retain their own right of privacy.' There was no more public figurethan the Princess of Wales. After her divorce, she pleaded for some privacy and received a little. Returning to the international stage with the hallmarks of fashionable beauty, mystical royalty and the independence of the modem woman, her every photographable action was exposed to the world. Her public role reduced her zone of achievable privacy to what her security guards could provide. 'Never knowingly endanger the life or safety of a person without informed consent.' The Mercedes in the Paris tunnel was travelling at such excessive speed presumably in an attempt to get away from the paparazzi. Given the huge payments offered to these people for their captured photographs, they will go to any lengths to win their prize. Stricter laws of privacy would be no more readily enforced than the rules of the road. The fu ture: free speech - a fundamental right 127

We mourn the passing of one who appealed variously to fashion and to conscience, to tradition and to individualism. But we are unlikely to find a better way of protecting other celebrities who come after Diana, unless we were to forfeit the press freedoms which feed our noblest aspirations and basest passions. New laws would be no more enforce­ able than the speed limit. Trusting the discretion of the media proprie­ tors who assess the market and the public appetite will usually work, in the same way as we trust the discretion of the driver in the car and on the motor cycle. When it all goes terribly wrong we have no answers. When driven to excess, we endanger all values including life itself. Confronting the mortal picture in the tunnel, we can only confront the baseness of our appetites and admit we would all buy again. Free speech comes at a price for all in society who want to enjoy it. We can all dream of a better world. But free speech and privacy will not necessarily be enhanced by more laws.

Freespeech and cable television in the United States There is no more fundamental right under the United States Constitu­ tion than the right to free speech. The first amendment provides that Congress will make no law abridging the freedom of speech or of the press. Any law which restricts speech is subject to strict scrutiny by the courts. If there is a legitimate state interest for limiting the freedom of speech, the law must be narrowly tailored to ensure the least possible interference with the freedotp.The state regulator must be able to show that the law directly and materially advances the legitimate state interest. This much appears simple. But the United States Supreme Court has taken very different approaches to different media. What goes for print does not necessarily apply to broadcast, and no one quite knows what goes for cable, let alone the net. A newspaper, even if it has a monopoly, is not classed as a public forum by the court. Proprietors have their own first amendment rights. They can adopt whatever editorial policy they like. In 1974 the Court struck down a Florida law that required the newspaper proprietor to grant a right of reply to any candidate for political office whose character or record was attacked by the paper. The law required that the reply be given the same prominence as the charge and be published without cost. The Court unanimously struck down the law because it would inescapably dampen the vigour and limit the variety of public 128 Legislating Liberty

debate. Five years earlier the Court had to confront the difficulty of applying the first amendment to radio broadcasters. The proprietors wanted untrammelled editorial freedom. But the court, noting that there was a limit to the number of frequencies available, upheld the Federal Communication Commission,s requirement that broadcasters give fair coverage to all sides of a public issue and guarantee a right of reply to any person whose honesty, integrity or character is attacked. Cable operators have been left somewhere between the free position of the print media barons and the regulation of the broadcasters - in what some of the Court have described as a doctrinal wasteland. In 1992 Senator Jesse Helms introduced a last minute amendment to the Cable Te levision Consumer Protection and Competition Act aimed at restricting the amount of indecent material carried on leased access channels and public access channels. Senator Helms objected specifically to Robin Byrd's leased access talk show in New York in which guests strip in front of the camera and take calls from viewers before being fondled by the bikini-clad Ms Byrd. In February 1996 the Court heard argument against the law which was challenged by some access programmers and viewer organisations. The cable operators were required to ban or block indecent material which could then be unscrambled only on written request from the consumer. The free­ speech petitioners argued that the government's calculus ignored the crucial right of adult cable viewers to receive access to a variety of ideas and experiences. The Court has to weigh up the free-speech rights of cable operators, programmers and viewers. The failure of the judges to agree among the�selves as to which players' free-speech rights enjoy priority, let alone what test was to be applied to determining the limits of those rights, leaves one wondering why the matter is not best left to Congress. The federal law was aimed at regulating the broadcasting of patently offensive sex-related material on cable television. Prior to 1992 cable operators had no editorial control over the content carried on their leased or public-access channels. The Court upheld a provision permit­ ting the cable system owner to decide whether or not to broadcast such programs on channels which had been leased out. In effect the owner whose network usually conveys programs on dozens of channels to subscribers' houses could censor material which the leasing channel was wanting to put to air. But the court struck down a provision The future: free speech -afu ndamental right 129 requiring cable operators to segregate and block such offensive ma­ terial going to air on leased channels. The court also struck down a provision relating to public, educa­ tional and governmental (PEG) access channels. These channels are set aside for the use of government authorities, local school systems and me�bers of the public. As for the leased channels, Congress proposed that the cable owner operator could decide not to broadcast offensive material on the public access channels. When considering the role of the cable system owner, Justice Breyer, speaking for four of the nine-member bench, said that in respect to leased channels on their systems, 'their speech interests are re latively weak because they act less like editors, such as newspapers or television broadcasters, than like common carriers, such as tele­ phone companies' 1 Whose free-speech rights are relevant in this sort of case? Should the cable system owner be free to carry only what he or she wants? Should the people leasing a channel have the right to carry their product without editorial interference by the system owner? Justice Thomas would have it that system owners are like book-store owners who have complete discretion about which books they display on their shelves. They owe nothing to the authors wanting to engage in their free speech. They cannot be forced to communicate any message against their will. Even the requirement that an operator dedicate some channels for lease access and others for educational activities could be argued to be a content-based restriction on the free-speech rights of the operator. At the other end of the spectrum is Justice Kennedy who says that the cable owner is like a common carrier who cannot exercise any censorship function. Kennedy does not see cable owners as exercising any first amendment rights; they are simply conduits for the speech of others whose first amendment rights are to be protected. According to Breyer, in the middle of the spectrum, 'Both categorical approaches suffer from the same flaws: they import law developed in very different contexts into a new and changing environment, and they lack the flexibility necessary to allow government to respond to very serious practical problems without sacrificing the free exchange of ideas the fr rst amendment is designed to protect' .2 Trying to adapt the court's jurisprudence on free speech to new problems thrown up by rapidly changing technology, Breyer thought it unwise and unnecessary to pick 130 Legislating Liberty one analogy or one set of words to resolve the issue. Rather than setting down broad judicial principles and reasoning drawn from analogy, he thought it best simply to weigh up the relevant interests, ensuring that the law did not impose an unnecessarily great restriction on speech. All judges were agreed on the need to protect children from expo­ sure to patently offensive depictions of sex. They noted that the. material presented to the court showed that children "spend astounding amounts of time watching television' But this did not help to resolve the dilemma between the freedom of the programmers and the control of the cable owners. Justice Souter conceded to Justice Kennedy that strict categorical rules 'keeps the starch in the standards for those moments when daily politics cries loudest for limiting what may be said' .. 3 But with the rapid developments in the technology, he thought the time was not ripe to articulate those standards for the new modes of communication. Souter cautioned, 'We should be shy about saying the final word today about what will be accepted as reasonable tomorrow.'4 And he pointed out that it took many cases and sixteen years for the modem obscenity ruleto finally jell. According to Souter, the judges presently 'know too little to risk the finality of precision�. He ended by invoking the good medical maxim, 'First, do no harm� But meanwhile why should not Congress be permitted considerable latitude to experiment for the protection of the children with inattentive parents? The judges are saying that in times of change it is best for no one to act. Congress will be fenced out and the judges will hold back until all is made manifest in the time-honoured judicial method. The provisions of the law which the Court upheld allowed cable system operators to prohibit a program which the operator �reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards' A foreigner to United States law could well wonder why such language appears in a statutory definition of the limits of free speech. The answer is simple. Congress, anxious to protect children from wanton exposure to some materials, has to finely tailor its laws for a compelling state interest working minimal interference with a fundamental right. It has got to the stage that the only way to do this successfullyis to adopt the words used in earlier judgments of the court and incorporate them in the statute. These words were drawn from a The fu ture: free sp eech -afu ndamental right 131

1973 decision. Justice Breyer conceded that these are vague words, but saw them as an earlier attempt by the court to describe the sort of material thought objectionable in earlier cases but which had been described by Justice Stewart in a 1964 case as 'I know it when I see it' This is an enormous problem for the Congress trying to protect children at a time of expanding technology, trying to second guess the approach which the Court will take. And it has now reached the stage that the old analogies do not stack up. In dissent, Justice Kennedy even struck down this provision. But in doing so, he was damning of the majority's method of reasoning, claiming a 'flight from standards' and an ·evasion of any clear legal standard in deciding this case' They replaced the standard firstamend­ ment formula of strict scrutiny whereby state interference with a fundamental right will pass muster only if the law is narrowly tailored to achieve a compelling interest. Kennedy was critical of the majority fudging the formula, replacing ·strict scrutiny• with ·close judicial scrutiny' and ·compelling interest' with ·extremely important prob­ lem'. Only by fudging these distinctions could the majority find their way clear from the court precedents to uphold the cable owner's discretion to refuse to carry some programming despite the common carrier obligations to carry all speech which is legal. Kennedy saw Breyer's approach as ·a legalistic cover for an ad hoc balancing of interests' which will sow confusion in the lower courts bound by the Supreme Court precedents. Kennedy was right. But the majority was right at least to want to permit Congress to give the green light to cable owners not wanting to carry the material they thought objectionable. To reach this result, the majority had to accept that the judicially set standards were too firmand . ill-adapted to contemporary circumstances. Kennedy thought the ma­ jority was wandering in to uncharted areas of the law with no compass other than their own opinions about good policy. But this is the inevitable consequence with a constitutional bill of rights when judges are required to scrutinise the legislature's compromised and faltering attempts to balance individual rights and the public interest in relation to issues subject to rapid change. Sticking to the court's traditional strict scrutiny approach, Kennedy would have struck down the cable owner's choice about whether to carry indec�nt programs on leased channels, even conceding that the protection of children with inattentive parents was 132 Legislating Liberty a compelling interest. He did not see the provision as narrowly tailored, because some operators could choose to carry the indecent material thereby leaving children in those reception localities unprotected. 'Partial service of a compelling interest is not narrow tailoring.' 5 Once a law is subject to strict scrutiny, government has to be able to demonstrate to the Court that it has adopted the least restrictive means. For Kennedy, 'the interest in protecting children from inde­ cency only at the caprice of the cable operator is not compelling' .6 On this rationale, the state cannot force the cable operator to withdraw indecent material which might go straight into living rooms occupied by unattended children. The state cannot even allow the operator a choice. The operator is obliged to carty the lot, leaving any censorship only to parents, because the government 'has no legitimate interest in making access channels pristine' .7 Though the Court was happy enough to permit operators to censor material being carried on their leasedchannels, the Courtstruck down Congress's requirement that the operators actually package the ma­ terial to make it inaccessible to children. The packaging requirement would have provided for limited access being obtained by adults making a request in writing. The majority of judges thought the written notice requirement would unjustifiablyrestrict viewing for those •sub­ scribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the patently offensive channel' . 8 The governmentknew it would have to argue that the "segregate and block, regime was the least restrictive interference with speech for . achieving the compelling state interest ofprot ecting children. Manu­ facturers in the future will be required to manufacture television sets with the magic 'V-chip' which permits automatic identification and blocking of particular programs. Though not deciding whether the V-chip regime was constitutional, the Court noted that it would be less restrictive than the segregate and block regime because it would not require the viewer to sign up for all or none of the patently offensive material being broadcast. As for the protection of children, the petitioners claimed that the decision should lie with parents and not with the state. They claimed strong, uncontroverted evidence that lockboxes offer the cable sub­ scriber an easy method of avoiding unwanted programming. The The future: free speech -afu ndamental right 133 choice being between the state and parents barring child access, the argument was that free speech could be protected by leaving the decision to the parents. There was some questioning from the judges about whether they could presume there was some parental inertia in this regard or whether they would require evidence of a lack of parental supervision. The day after the oral argument in the Denver case, the Montgomery County District Court heard evidence of an 11-year-old boy raping a 5-year-old girl. He had learned about having sex from watching the porno cable channel in his parents' home. But in the United States the parents of both children will be guaranteed the right to watch what they want. In their judgment delivered four months later, the Court noted that attentive parents could already purchase a lockbox which permits them to lock out programs which they do not want their children to see. Not unreasonably, the Federal Communications Commission did not see the lockbox as any solution when dealing with inattentive parents. The court conceded that no provision short of an absolute ban could offer protection to an unattended and determined child. This fact does not permit Congress to reduce the viewing options for adults to what is fit only for children. The Court in striking down these 1992 regulations said that some of the options adopted by Congress in 1996 and which applied to channels other than leased channels would be less restrictive and therefore acceptable. Rather than the cable owner being required to segregate and block, the consumer could be provided with more information and their own blocking equipment in the home. What the Court has done is to consider what is necessary for attentive parents to protect their children, permit Congress to set in place that regime, but limit any further attempt by Congress to deal with the case of the child with absent or inattentive parents. The child most in need of protection has no protection - in the name of free speech. Justice Breyer thought the block and segregate requirement sacrificed important first amendment interests for 6too speculative a gain,

Free speech and the internet in the United States The communications revolution has left the United States Supreme Court stumbling as it tries to adapt its jurisprudenceto cable television and the internet. Even the most ardent supporters of free speech accept 134 Legislating Liberty some state interest in the protection of minors from some forms of speech. But how is this protection to be provided on the internet while still maintaining free speech? Already there are 10 million computers hooked up to the net, with 100,000 web sites providing access for more than 40 million people, the majority of whom are in the United States. There are more than 8,000 sexually explicit sites on the World Wide Web which are easily found by even the youngest surfer. Also some web suppliers anxious to market their product send unsolicited email messages such as the following: Subject: LIVE SEXXXXXXXXXXXXXX Comments: Authenticated sender is @nowhere.com HEY ARE YOU UNDER THE AGE OF 18 YEARS OLD PLEASE DELETE NOW! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! Hey do you want the hottest LIVE females or males on the net? We are broadcasting LIVE from Amsterdam right into YOUR MONITOR We ll we have the sexiest females with fe males and males with females and males with males all you have to do is go to http://www.cumez.com

Once the person in the privacy of their home or office, whether they be ten years of age or 60, clicks on the home page, the following legal notice appears:

This site contains explicit, sexually oriented materials. You must be 18 years of age or older to access this site. Misrepresenting your age in order to enter this web site from a location within the USA, or elsewhere, may be a violation of your nationaJ, state, local, and/or your federal laws. To access this site, you must agree to the following: I am an adult over the age of 18 years old, and I agree that I will not allow any minor, as so defined in my jurisdiction, to view, write o� read the contents of this WEB PAGE. Further, I understand that this web site is devoted to various lifestyles all relating to SEX and SEXUAL ACTIVITY, including but not limited to NUDE MEN and WOMEN, SEXUAL PICTURES and SEXUAL ACTS, SWINGING and its lifestyle, NUDITY and its lifestyle, Gays, Lesbians, Bi-Sexual Ladies, and light B&D. If this is in any way offensive to you, or if you do not agree and/or, if this web site is in violation of YOUR NATIONAL, FEDERAL, STATE, or LOCAL LAWS OF THE JURISDICTION in which you are viewing this web site, YOU MUST NOW EXIT by clicking the EXIT link below. Click Here To Exit NOW! If you failed to exit at the EXIT icon and are determined to proceed, you The fu ture: free sp eech - a fundamental right 135

NOW understand that YOU hereby certify, state and acknowledge to all, that you are familiar with the laws pertaining to the viewing of sexually explicit material in your community and jurisdiction and that you are of legal age to view this type of material and furthermore, that you agree to all the terms as so stated supra. I Agree To All The Above ! I am of legal age to view adult material, know of no laws that viewing this adult site violates in my geographical locale, and furthermore agree to waive all liability against the web master for any materials I view that I may find offensive. Click Here To Enter NOW!

After extensive public inquiry over an eighteen-month period, the United States Congress enacted the Communications Decency Act which immediately had the American Civil Liberties Union (ACLU) up in arms. In Reno v. American Civil Liberties Union9 the Supreme Court was left wrestling with analogies wondering if the net is like a private phone hook up or a public forum. Congress was proposing that an adult, somebody over 18 who wanted to view patently offensive material on a screen site, could, for $5 a year, obtain an adult identification that would give that person ac cess to any adult sites. The Acting Solicitor General for the United States submitted 'that this is a small price to pay, and Congress could legitimately say that this is a narrowly tailored alternative' The ACLU challenged some offencescreated under the Communi­ cations Decency Act. The first made it an offence to transmit an 'indecent' communication 'knowing that the recipient of the commu­ nication is under 18 years of age' The second outlawed communica­ tions on 'interactive computer services' to minors depicting or describing in offensive terms sexual or excretory activities or organs. The government thought these offences would be saved by the defences which were available, including the defence for anyone who 'has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to prohibited communications' The second defence was for anyone who 'has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number' . But none of these defences could be available to online speakers communicating by way of email, mail exploders, list servers or chat rooms. There is just no way of knowing who has access once the 'Send' button has been pressed. Credit card verification would 136 Legislating Liberty be available only for web sites that charge for access. The lower court found that the cost of creating and maintaining an age-screening system would be beyond the reach of many non-commercial organisations and prohibitive even for commercial entities. For example, it would cost the Carnegie Library at least $3 million to separate out indecent materials and to install an adequate screening system. The vast majority of internet users cannot distinguish between adults and children in their audience. If users were to be assured that they were complying with the law, they would have to restrict their speech on the net to discussion suitable for children. Indecent speech unlike obscene speech is constitutionally protected and any interfer­ ence with it must be justified. The ACLU sought to distinguish the internetwhich could be perva­ sive from radio which could be invasive, as the chances of accidentally encountering indecent speech on the net was slight. One would have to go looking for it. And a child can be adequately supervised by an adult to ensure that the child does not go looking for it. In oral argument one of the judges pointed out that ·a parent who allowed his computer, the computer that the parent owned, to be used by his child in viewing offensivemateri al, indecent material, the parent would also go to prison· The bench was worried that not even parents could keep up with what children would be finding on the net. On the one hand, the judges saw the net as something akin to a town common, a telephone party line, and a television. The ACLU presented four arguments against the Communications Decency Act. It bans speech. It will not be effective. There are less restrictive alternatives that would be much more effective. And the combination of an imprecise standard, coupled with the threat of severe criminal sanctions, will chill much speech that would not be indecent. The Supreme Court conceded that the government has an interest in protecting children from potentially harmful materials. But it could not do so by suppressing speech which adults have the right to com­ municate to each other. Chief Justice Rehnquist and Justice O'Connor thought the Communications Decency Act was 'little more than an attempt by Congress to create "adult zones" on the Internet' IO In the main judgment, Justice Stevens quoted the evidence before the court as indicating 'that a reasonably effectivemethod by which parents can prevent their children from accessing sexually explicit and other The future:free speech - a fundamental right 137 material which parents may believe is inappropriate for their children will soon be available' 11 Though the technology is not yet available, the Court thought parents' interests would be sufficiently protected by awaiting the arrival of the new technology. Meanwhile children would have access to adult material on the net. Because the gateway technol­ ogy was not yet available, the Court fe lt constrained because of its first amendment jurisprudence to strike down the key provisions of the legislation, a speaker on cyberspace having no reasonable assurance that his or her speech would reach only adults. This forced silence would reduce the adult population on the internet to reading only what was fit for children. A 1983 decision was quoted: 'The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.' The court invoked analogies including: The CDA is therefore akin to a law that makes it a crime for a book store owner to sell pornographic magazines to anyone once a minor enters his store. Even assuming such a law might be constitutional in the physical world as a reasonable alternative to excluding minors completely fromthe store, the absence of any means of excluding minors from chat rooms in cyberspace restricts the rights of adults to engage in indecent speech in those rooms. The 'indecency transmission' and 'specificperson' provisions share this defect. 12

Justice Stevens distinguished the net from radio and television by pointing out that a person wanting to access information on the net had to engage in ·a series of affirmative steps more deliberate and directed than merely turning a dial' 13 He took some comfort from the thought that an unattended child would require some sophistication and ability to retrieve information on the net. Though the court in the past had approved special regulation of the broadcast media, Stevens distin­ guished the internet for being ·not as invasive as radio or television' This must come as a surprising observation to parents with computer­ addicted children. But Justice Stevens had no difficulty in finding the restrictions on speech overbroad: 'It would confer broad powers of censorship, in the form of a "heckler's veto", upon any opponent of indecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child would be present.' 14 In an earlier free-speech case relating to sexually oriented prerecorded telephone messages being accessible to children, Stevens had characterised the 138 Legislating Liberty restriction as 'burning the house to roast the pig' In this case, he thought the restriction 'threatens to torch a large segment of the Internet community� 15

Commercial free speech Only in the 1970s did the United States Supreme Court decide to extend first-amendment protection to commercial free speech such as adver­ tising. But the Court has not been prepared to accord commercial free speech the same fullprotec tion as non-commercial speech. In setting the limits, the court devised a four-pronged test which, as Justice Scalia said, has "nothing more than policy intuition to support it' First, the speech must not be misleading and it must relate to some lawful activity. Legislatures could still pass laws regulating misleading advertising and banning the promotion of unlawful activity. Second, the governmentin limiting the person.,s right to free commercial speech must be asserting a substantial governmentinterest. Third, the govern­ ment must be able to demonstrate that the regulation of the speech really does advance the asserted governmentinterest. Fourth, the Court will inquire whether the regulation of speech is more extensive than is necessary to serve the government interest. There must be a reasonable fit between the legislature's goal and the means adopted. It does not have to be a perfect fit, nor does the means adopted have to be the single best way the goal could have been achieved. The Court allows the legislature a margin of error, but it does need to be convinced that the regulation of the commercial speech is in proportion to the government interest to be achieved. With non-commercial speech, the Court will adopt a strict scrutiny . approach, insisting that the legislature adopt the least restrictive means. With commercial speech, the Court applies a less stringent test, only that the means be narrowly tailored to address the harm. In 1996 the Court struck down Rhode Island's ban on price advertising for liquor.16 The state interest was the promotion of temperance. It argued that the ban helped to keep liquor prices higher than they would be if advertis­ ing were permitted, thereby contributing to a lesser consumption of alcohol. If the average consumer spends the same amount on alcohol regardless of the price payable, higher prices would mean less con­ sumption. The state also argued that the ban on price advertising would The fu ture: free speech -afu ndamental right 139

cause consumers to spend more time looking for bargains, resulting in a further likely reduction in consumption. The Court held that Rhode Island had fa iled to satisfy the fourth prong of the test because there were other means available to the state which would not interfere with the seller's right to provide truthful non-misleading information about the product. For example, the state could impose a higher sales tax on liquor or set minimum prices. Justice Stevens even proffered the unworldly, paternalistic option of state per-capita limits on purchases as occurs with prescription drugs. He also suggested that the state could spend money providing education campaigns rather than abridging the speech of merchants at no cost to the taxpayer. Strangely Justice Stevens, writing for four members of the bench, suggested that the result could have been different if the state had shown that the price advertising ban significantly reduced alcohol consumption. He was prepared to accept without evidence that the consumption of alcohol would be "somewhat lower whenever a higher, non-competitive price level prevails', but he required the state to prove that 'its speech prohibition will significantly reduce market-wide consumption' According to Stevens; the abusive drinker is unlikely to reduce consumption simply because of the marginal price increase that would result from the merchants' inability to engage in advertised price cutting. He surmised that the true alcoholic may simply reduce his purchases of other necessities. In Stevens' opinion, the state's claim that the elimination of the ban would increase consumption had to be heightened to a claim that it would significantly increase consumption and this would be unacceptable speculation or conjecture. This may all be perfectly true, but why is the Supreme Court any better equipped than the Rhode Island legislature to weigh these matters? Justice Thomas was scathing of this approach. He saw no need to distinguish commercial and non-commercial speech, disagreeing with the Court's presumption that commercial speech is of a lower value than non­ commercial speech and therefore more susceptible to government regulation. Thomas rightly points out that on the Court's approach, 'if the State had been more successful at keeping consumers ignorant and thereby decreasing their consumption, then the restriction might have been upheld' Justice Thomas asserted that the court's approach to the fourth prong 140 Legislating Liberty of the test for re stricting commercial speech may now be a dead letter, because rationing, taxing, restricting sale or price control of products will always be seen to be at least as effective in restricting consumption as speech restriction. For Thomas, 'All attempts to dissuade legal choices by citizens by keeping them ignorant are impermissible' Critical of the Court's incomplete freeing up of commercial speech over the last twenty-five years, Thomas said that the four-pronged test requires the Court 'to weigh up incommensurables - the value of knowledge versus the value of ignorance- and to apply contradictory premises - that informed adults are the best judges of their own interests, and that they are not' So in the name of liberty, we have a situation where a legislature cannot restrict the advertising of a harmful product so as to achieve the legitimate state interest of reducing consumption of the product when the state could simply ban the product, tax it, restrict its availability or educate the public (at the public's expense) about the dangers of the product. It is one thing to prize free speech. It is another to grant it such primacy that legislators are required to limit or taxthe freedom of action of citizens rather than limiting the information to be made available to citizens who will then at least be free to act without a state-imposed limitation or tax. Justice Scalia agrees with his judicial colleagues that it is paternalistic for government to prevent people from hearing facts that might be good for· them. But he finds it equally paternalistic 'to prevent people of the states from enacting laws that we consider paternalistic, unless we have good reason to believe that the Constitu­ tion itself forbids them� The Canadian Charter of Rights and Freedoms also guarantees free expression. The Canadian Supreme Court hasheld that the guarantee extends to commercial speech such as advertising. Under the Canadian charter, the rights and freedoms are broadly stated, but there is specific provision for parliaments to limit the rights and freedoms if the in­ fringement is reasonable and demonstrably .justified in a free and democratic society. There is then a 'Notwithstanding' clause which enables the parliament to re-enact any law that has been struck down by the judges. Departing substantially from the United States model, the Canadians decided to be exp�icit about the role of judges in defining the limits of the prescribed rights and freedoms, and then to ensure that the judges did not have the last word. Presumably parliament, in The fu ture: free speech - a fu ndamental right 141

debating whether to re-enact the offending law, would consider the judicial reasoning of the court, thereby contributing to transparency in the decision-making process that interferes with rights and freedoms. The judges have first to decide if there has been an infringement, which is rarely controversial and almost always answered in the affirmative, and then to determine whether there has been a reasonable and justifiable explanation given by the legislators. Here the judges often disagree among themselves and with the legislators. In 1995 the Supreme Court of Canada decided a major case on tobacco advertising. Parliament had enacted the Tobacco Products Control Act, which prohibited the advertisingof tobacco products by publication or broad­ cast. Given that most Canadians live along the United States· border and receive much advertising information from the United States, the law exempted foreign advertising in foreign publications imported into Canada providing that the advertising was not intended primarily for the purpose of promoting sales in Canada. This meant that 65 per cent of the Canadian magazine market would still have carried tobacco advertising. The law also prohibited the use of any tobacco trademark on any article other than a tobacco product. To bacco trademarks could not be used to advertise other products. There was a specified exemption for the House of Dunhill! The law also required tobacco products to carry health warnings and a list of the toxic contents in the products similar to those in Australia. The warningswere unattributed, differing in this way from the United States equivalents, which inform the consumer that the warning comes courtesy of the Surgeon General. With great ingenuity, the tobacco companies submitted to the Supreme Court that unattributed health warningscould cause some consumers to infer that the tobacco producers themselves were giving the warning. They objected to being forced to say what they did not wish to say in a way that associated them with a mere opinion of anonymous government health officials. They saw this as an impairment of their freedom of expression. All nine judges held that the restrictions infringed the freedom of expression. But they divided 5-4 on whether the restrictions were justified. The judges try to weigh up the importance of the legislation's objective and the extent to which it infringes the right. If convinced that . the good achieved is proportional to the harm done in achieving the 142 Legislating Liberty

good, they find that the infringement is reasonable and demonstrably justified. Presumably legislators also, at least some of the time, address these considerations in making such decisions. When the bench itself splits 5-4,there are grounds for thinking that fair-minded people can differ on this assessment. Why not leave it to the politicians who are elected and who have access to all sorts of policy advice, being lobbied from all quarters, rather than to judges who are outside the political lobby process, do not seek election and do not have access to policy advice except that which is provided in briefs by the parties and the parties who intervene as amici? Against this view is the assertion that no group is able to do a back-room deal with the Court as they could with government. Strangely, in this case the powerful tobacco lobby lost out in the political process but won the day in court, the government being unable to demonstrate that the restrictions were demonstrably justified. The Canadian judicial approach is first to determine that the gov­ ernment obj ective to be achieved by limiting the charter right is of sufficient importance to warrant overriding it. So the judges are imme­ diately into the realm of comparing apples and oranges. The second step for the judges is to decide whether the means chosen to achieve the objective is ·proportional to the objective and the effect of the law -proportionate in short to the good which it may produce. The means adopted must be rationally connected with the end' . The harmful effect of the means must be proportionate to the good results from the end achieved. There must be as little infringement as reasonably possible with the infringed right. The Canadian judges are prepared to show some deference to the legislators and their proposed solutions to social problems. But as Justice McLachlan said in RJR-MacDonald Inc v. AttorneyGeneral of Canada, 'Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demon­ strating that the limits it has imposed on guaranteed rights are reason­ able and justifiable ... To carry judicial deference to the point of accepting parliament's view simply on the basis that the problem is serious and the solution is difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded.' 17 Thus Thefu ture: free sp eech - a fu ndamental right 143 the Court would have to be satisfied on three counts in order for the validity of any ban on cigarette advertising to be upheld. First, the court would have to be satisfiedthat there was a connection between the objective of reducing tobacco consumption and the adver­ tising ban. The trial judge found the connection tenuous and specula­ tive. To succeed, the government must on the balance of probabilities demonstrate the connection. The trial judge found that a New Zealand report relied on by government and which surveyed the effect of advertising restrictions in 33 countries contained serious methodologi­ cal errors and was devoid of any probative value. The trial judge was also unimpressed by the key expert called by the government. On appeal, the government argued that it would be surprising to find otherwise than that advertisingcontributed to consumption. Afterall, why would tobacco companies spend millions of dollars on advertising if not to increase consumption? The tobacco industry argued that its advertising was directed mainly at increasing market share, not to increasing the market, and the Supreme Court accepted this, at least in part. But the ban on· the use of tobacco logos was struck down on the basis that there was no rational connection between the ban and the objective of reducing consumption. Second, the court would have to be satisfied that the law impaired the protected right as little as reasonably possible. At trial there was no evidence that a complete advertising ban would reduce consumption more than a partial ban, nor that unattributed health warnings as in Australia would be any more effective than attributed warnings as in the United States. The Supreme Court pointed out that the total ban, though applying to Canadian tobacco products, did not apply to non­ Canadian products sold in Canada and advertised in United States magazines. Given that smoking is legal, the court was troubled that the ban even precluded advertising of information which may be helpful to consumers, including ·simple reminders of package appearance' and the displaying of the relative tar content of diffe rent brands. Justice McLach lan, though prepared to conclude that lifestyle advertising was designed to increase consumption, was not prepared to conclude that ·purely informational or brand preference advertising' would have this effect. The majority of the court would therefore have upheld a ban on lifestyle advertising but not on brand-preference advertising. Does this mean a ban on featuring the woman in the bikini? the sports car? the 144 Legislating Liberty beach backdrop? If you can show only the packet in the ad, can you feature a lifestyle situation on the packet? As Canadian critics of the decision observed, this amounts to saying that it is all .right to advertise providing it does not work. It was known that the government had commissioned a study of alternatives to a total ban on advertising. It refused to disclose details of the study, leading the court majority to surmise that the results of the study must have undercut the govern­ ment's claim that a less invasive ban could not have produced the same result. Third, the court would need to be satisfiedthat there was a propor­ tionality between the objective of the law and the limits it imposed on constitutional rights. The trial judge thought the legislative ban was an exercise in ·social engineering' and �an extremely serious impairment of the principles inherent in a free and democratic society.,.There was no need for the majority to consider this claim because it had already struck down the offending provisions under the first two limbs of the test. After the judgment, Professor Howard Leeson, a political scientist who had worked on the drafting of the Charter of Rights and Freedoms, pointed out that the drafters back in 1981 were ·worried that at some time in the future a court would render a decision which seemed to make sense in terms of individual rights, but made no social sense'. He had no doubt that the judges were simply wrong in this case, that not even judges were infallible.It was always envisaged that the parliament could substitute its will for that of the Court and this was an appropriate case. One law professor claimed: 'At the heart of the court's decision is a judicial solicitude for corporate arguments about commercial speech.' He saw the decision as a wake-up call to those who put their democratic faith in a judicially managed Constitution. As one letter to the editor put it: Why should the Canadian government be given the almost impossible task of proving that its ban on tobacco advertising has reduced smoking rates? Shouldn't the onus be on tobacco companies to substantiate their absurd claim that they willingly spend hundreds of millions of dollarson advertis­ ing without increasing the overall number of smokers? Your concern that consumers are deprived of information by the ban is a bit hard to swallow. Tobacco ads consist, primarily, of the manip­ ulative and untruthful association of cigarettes with sex, entertainment, athleticism, glamour and freedom. Surely consumers would get more Th e fu ture: free speech -afundamental right 145

reliable information from their local health departments. The more fundamental issue is whether tobacco should be a freely traded commodity. This seems an obvious question, given that smoking will kill offabout one-fifth of the industrialised world's population (according to a 40-year study by SirRichard Doll). Let us keep that horrifying death rate in mind when we talk about the importance of 'commercial free speech'

The recent Canadian and United States experience with the courts trying to enunciate the limits of commercial free speech and the restrictions on speech that may be harmful to children on cable tele­ vision and the internet demonstrates that the advances in technology and the free-speech interests of corporations have left the courts well behind the play. They have been unable to enunciate a consistent, workable set of principles. Australians would be foolish to expect that our courts would be any better equipped than the parliaments to set appropriate ad hoc standards as the new technology develops. Presum­ ably Australian judges would be left even further behind the play - left to follow the reasoning of their American brethren or compelled to justify to offended litigants why the American hazy, crooked line in the sand between free speech, privacy, reputation and public interest is not to be followed. Our judges have better things to do with their time. 8 Indigenous rights: moving beyond equality as sameness

Sovereignty and land rights Nowadays in the United States, cases about Native American rights coming to the Supreme Court are usually about the right of tribes to run casinoson their tribal lands or about the jurisdiction of tribal courts over visitors to reservations. The land rights of the tribes have long been secured under treaty arrangements. In 1995 the Supreme Court heard argument in Seminole Tribe v. State of Florida.1 During argument I had the good fortune to be sitting beside the attorney-general for Alabama who explained the economic significance of the case. The attorney for the Seminole Tribe opened his case: 'Mr Chief Justice and may it please the court. This case relates to three sovereigns: the tribe, the State and the Congress. Should any sovereign not negotiate in good faith, there is recourse to this court for relief.' Not even the attorney-general for Alabama flinched. All members of the bench, including the conser­ vative Chief Justice Rehnquist who has no tolerance for political flourishes from the bar table, found the opening remarks unexception­ able. For an Australian lawyer, such a statement seemed most foreign in a court. In Australia we have been used to such language only from Michael Mansell and members of his Aboriginal Provisional Government. In the United States, talk of aboriginal sovereignty is not seen as any threat to the integrity or legitimacy of the na�ion state. It is accepted that tribes have their own sovereign sphere of activity which permits the tribes to regulate many activities, including commerce, on their lands. Recognition of this indigenous sovereignty is not seen as any violation of the principle that all are equal under the law. In Australia we have been slow to accord Aboriginal communities special rights of this kind. The best we have been able to do is to grant some recognition of land rights and the entitlement of communities to be self-determin­ ing within the legal framework of the Commonwealth, States and Territories. Indigenous rights 147

Prior to 1971 there had never been an Australian court case consid­ ering the rights of Aborigines to their traditional lands. Prior to 1992 no court had recognised such rights. Prior to Mabo, 2 land rights were always seen as the unique province of parliament and the executive which in their own good time and according to their own policy considerations might grant to Aborigines some rights to land. Mabo changed all that. For the first time, the post-colonial legal system on the Australian continent recognised that the indigenous people had their own laws and rights to land prior to colonisation. The High Court decided that some of those rights and some aspects of those laws could survive the assertion of British sovereignty and be recognised by the common law as developed by the courts. Prior to the election of the Howard government and the Wik de­ cision, the Liberal and National parties were able to view native title as the preoccupation of a Labor government led by a prime minister obsessed with the symbolic big picture rather than the practicalities of economic development and social cohesion. After the native title debates of 1993 and 1997, all major political parties have now accepted that native title is here to stay. Te rra nullius is a myth of the past. The property rights of all Australians, including the traditional land rights of Aborigines, have to be treated in a non-discriminatory way. The major differencebetween the political parties is now over the additional statutory rights which ought to be granted by parliament to proven native title holders. In 1993 Prime Minister Keating realised that parliament had to do more than recognise the native title rights upheld by the High Court. Given that common law native title rights were protected by the Racial Discrimination Act, Keating had to design a system for the registration of native title that assured certainty for all players, especially the mining industry which required an efficient system for determining who to deal with when seeking access to land for. exploration and development. The governmentcould not use a stick to lure native title holders into the loop of registration, because the Racial Discrimination Act was in place. It had to design a carrot. Aborigines wanted a statutory veto over mining developments on their native title lands. Justice Woodward in his 1974 royal commission report on Aborig­ inal land rights considered that 'Of all the questions I have had to consider, that of mineral rights has probably caused me the most 148 Legislating Liberty difficulty and concern'. He concluded, 'I believe that to deny Aborigi­ nes the right to prevent mining on their land is to deny the reality of their land rights.' He reached this conclusion after setting out the mining industry's submissions in some detail, 'because while accept­ ing many of the points made, I am unable to accept the main result contended for' 3 Despite the key Woodward recoiilmendation on the control of mining, which is regularly invoked by Aboriginal leaders, Prime Minister Keating refused to grant a veto to native title holders under the Native Ti tle Act 1993. Instead he gave only a right to negotiate at the exploration and development stages. If after six months native title holders did not reach agreement with the miner, there would be recourse to independent arbitration. Should the arbitral body agree with the Aboriginal demand that mining not proceed, the State minister would have the power to override the decision. There has been much public discussion about the problems gener­ ated by the High Court's decisions in Mabo and Wik. The key political and ethical issues arising from these decisions relate to the priority of justice and certainty, and the role of and the relationship between the unelected judiciary and the elected parliament. By oath, the judiciary are committed to administering justice according to law without fear, favour or affection. Parliamentarians are anxious to respond to calls for certainty as the precondition for investor confidence, at the same time being desirous of re-election by addressing the needs and fears of the majority. The court decisions and the parliamentary responses have had to strike the appropriate balance between justice and certainty by providing a cost-effective and culturally appropriate determination of native title rights. Pastoralists have wanted a simple, workable regime permitting the development of their land for primary production. Miners have wanted access to native title land without being con­ strained by a veto in law or in fact. Native title holders have wanted belated recognition of their rights and spiritual attachment to land with the prospect of some share in economic development. Before the Wik decision, John Howard told parliament, 'The pas­ toralists of this country have a legitimate interest in obtaining security, the mining industry has a legitimate interest in obtaining security and the Aboriginal people have a perfect right to see that their common law entitlements are not taken away. In framing our approach, we have regard to all those interests.' The unresolved question before the High Indigenous rights 149

Court's Wik judgment was the extent of common law entitlements of native title holders on pastoral leases. By the slimmest majority, 4 votes to 3, the Court set down two new propositions of law. First, a pastoral lease does not necessarily extinguish native title rights. Second, the termination of a pastoral lease does not necessarily result in the Crown assuming full beneficial ownership of the land. Native title may still survive. It may even expand to the equivalent of a freehold title. These new propositions of law gave native title greater scope for present-day survival than did the judgments in Mabo. In the 1992 Mabo decision the High Court decided that Torres Strait Islanders had rights to their land before the arrival of the colonisers. The content of those native title rights depended on the local laws and customs of the people. Those native title rights could be wiped out (extinguished) at any time by the Crown. This would happen whenever the Crown granted the land to another person who then had the power to exclude native title holders from the land. It would also happen whenever the Crown used the land for some public purpose inconsis­ tent with the native title holders' rights of access and use. Before 1975 state governments could and did wipe out native title rights without consultation, consent or compensation. In 1975 the Commonwealth parliament passed the Racial Discrimination Act which bans state governmentsand state parliaments from discriminat­ ing against property holders on the basis of their race. Since 1975 state governmentsand state parliaments have had to deal with any remaining native title holders in the same way as they would deal with any people holding Crown grants. For example, a person's freehold can only be re sumed by the state after due consultation, for a public purpose and on payment of just compensation. Miners can explore and mine on others' lands only once they compensate for disturbance. In some cases they also have to obtain permission from the land-holders.

· The Native TitleAct 1993 set up a system for working out who had native title rights and for informing all other people, such as miners, who may need to deal with native title holders. The Act cleared up doubts about the validity of land titles granted since 1975. When land had been granted to other people without regard for the possible existence of native title, the processes for granting the new titles may have been contrary to the Racial Discrimination Act. The Act gave native title holders a right to negotiate with miners both at the 150 Legislating Liberty exploration and development phases. If agreement could not be reached, the dispute would be referred to an independent tribunal. But the governmentminister would always have the power to override the tribunal and allow the mining to proceed. Forty-two per cent of Australia is covered by pastoral leases. In the past, even more of Australia was covered by such leases. Did the grant of a pastoral lease extinguish native title? Did a pastoral lease give the pastoralist power to exclude the native title holders from access to the land? These questions were not answered in Mabo because there were no pastoral leases in the Torres Strait. In 1993 pastoralists and miners wanted the parliament to put the matter beyond doubt and extinguish native title on pastoral leases. The parliament properly refused to do so, leaving the matter of determination of common law property rights to the courts. The parliament acted on the stated assumption that the courts would rule that native title was extinguished on pastoral leases. Parliament provided a land fund for the purchase of properties, includ­ ing pastoral leases, by dispossessed Aborigines. Parliament also al­ lowed Aborigines to revive native title on pastoral leases once they had purchased the lease. Parliament guaranteed pastoralists the right to renew their pastoral leases on the existing terms and conditions without ever having to negotiate with native title holders. After Mabo, Aborigines thought that the courts might insist that governmentswhich dealt with their native title lands even before 1975 would be required to take into account their native title rights. In Wi k, Aborigines tested the validity of the leases granted for major mining projects at Weipa and Aurukun in Cape Yo rk before 1975. They claimed that the State had breached its fiduciary duty (a duty of trust) and failed to accord natural justice to the native title holders. All seven judges dismissed this claim of the Aborigines. Two groups of native title claimants, the Wik and Thayorre peoples, also claimed that their native title had not been extinguished merely by the grant of pastoral leases over their land. By 4 votes to 3, the High Courtagre ed. The Court found that pastoral leases did not necessarily give the lessee a right of exclusive possession. Last century the colonial authorities had always insisted that pastoralists should permit continued Aboriginal access to the vast undeveloped pastoral leases. The pastoral lease was a peculiar Australian invention for unique Australian circumstances. It was not a 'lease' in the usual sense understood by lawyers. Indigenous rights 151

In Wik, 4 the High Court decided that a pastoral lease does not necessarily confer rights of exclusive possession on the pastoralist. The rights and obligations of the pastoralist depend on the terms of the lease and the law under which it was granted. The mere grant of a pastoral lease does not necessarily extinguish any remaining native title rights. But if there is any inconsistency between the rights of the native title holders and the rights of the pastoralist, the rights of the native title holders must yield. So if there is a conflict of rights, the native title holders come offsecond best. If there is no conflict,the rights of each co-exist. The outcome of Wik seemed simple enough. But there were some problems in the judicial method adopted by the four members of the Wik majority. One can be a strong supporter of Aboriginal rights and an advocate of the political imperative Wik provides for land justice while still having reservations about the court's judicial method. If ever there was a need for joint judgments, it was in this case. Here we had a 4-3 decision, all four of the majority writing separate judgments. Meanwhile, the minority signed offon one judgment confining judicial inethod to an assessment only of the statute and legal instrument called a 'lease' The majority judges considered a variety of other factors, including a distinctive reading of the history up until 1849 which was taken by three of the justices in the majority to be foundational, despite what Justice Gummow, the fourth member of the majority, described as the lack of an ·established taxonomy to regulate such uses of history in the formulation of legal norms' 5 Justice Gummow was the one member of the majority who placed no reliance on historical records such as the despatches from Earl Grey to GovernorFitzRoy. A consen­ sual majority approach to reasoning as well as outcome would have contributed to certainty. The majority's failure to address the relationship between the Racial Discrimination Act and the coexistence of subsidiary native title rights created doubt about �he effect of the majority's assertion that, in the face of any inconsistency between pastoralists' rights and Aboriginal rights, the latter ·must yield' 6 There was doubt about whether the future development of a pastoral lease (e.g. the building of a dam) which would extinguish native title on the developed part of the land could proceed without negotiation and agreement with native title holders. The confusionbetween the law of extinguishment by a Crown 152 Legislating Liberty grant and the fact of extinguishment by the action of a lessee rendered the Wik decision so uncertain as to be unworkable without complemen­ tary legislation. Fortunately, these matters were susceptible of ready parliamentary resolution restoring certainty and consistency to the law. The judgment provided not just the opportunity but the necessity for the Howard governmentto address the land entitlements of Aborigines on others' pastoral leases. If native title exists on a pastoral lease, a miner may have to identify native title holders and deal with them as well as with the pastoralist. Under the 1993 Native Title Act, Aborigines would then have a right to negotiate even at the exploration phase. The pastoralist would not. The · pastoralist would simply be entitled to compensation for any distur­ bance to the land. The Howard governmentwas committed to removing the right to negotiate from native title holders whose lands were subject to a pastoral lease. But the Senate majority stood firm and insisted that native title holders retain the right to negotiate. Extinguishment of rights, whether the rights of miners, Aborigines or pastoralists, is no longer an option in Australia. As a belated attempt to counter the adverse influence of Pauline Hanson, a bipartisan reso­ lution was carried in the Commonwealth parliament on 30 October 1996 reaffirming the parliament's commitment to the right of all Australians to enjoy equal rights and to be treated with equal respect regardless of race, colour, creed or origin. This solemn commitment restricts the options available to a parliament wanting to balance extra rights for pastoralists, certainty for miners and protection of common law property rights for Aborigines. All political parties now accept that the Racial Discrimination Act should be retained. The principle of non-discrimination is non-negotiable. John Howard said he found Wik ·a very disappointing judgment' That was no justification for taking away the benefits Aborigines gained from their win. Even the three dissenting judges who found against the continuation of native title on pastoral leases said, 'The principles of the law may thus be thought to reveal "a significant moral shortcoming" which can be rectified only by legislation or by the acquisition of an estate which would allow the traditions and customs of the Wik and Thayorre peoples to be preserved and observed' 7 Prior to the Wik judgment, the Howard government could easily parody Keating,s co-operation and negotiations with Aborigines in Indigenous rights 153

1993 as indulgence with the chattering classes and back-room deals with self-selecting indigenous leaders. With a strong electoral mandate, Howard constantly asserted that he harboured ·different and [more] strongly held views than the former government in relation to how that co-operation should occur' . In the wake of Wik, Aborigines were placed in a bargaining position which they did not enjoy before Wik. Their native title rights have to be respected no matter which party is in government. Any governmentchoosing not to negotiate and co-operate with Aboriginal leaders on native title issues will eventually be seen to be arresting economic development and threatening social cohesion for short-term populist electoral appeal. The Mabo and Wik decisions highlight how, even in the absence of constitutional recognition of indigenous rights, the common law can develop at the hands of the judges according respect and recognition to indigenous perspectives of the law. That development can then contribute to a shaping of the political priorities for our politicians. But for Mabo, it is unlikely that the Keating government would have introduced a Native Title Act. In a remarkably short time, the High Court judgment and the subsequent Act of Parliament have changed the mindset and approach of business leaders and opinion �akers. On 14 August 1996 Australia's most senior mining company executive, Mr Leon Davis, the Chief Operating Officerof RTZ-CRA, gave an address to the Australian Business in Europe group. He said: There is no doubt that our current Native Title legislation is complex and parts of it will need to be improved. But, as I have said before, the sentiments behind the Native Title Act are a credit to its architects and its core tenets deserve to stand, even though translating them into workable legislation has been difficult. RTZ-CRA's experience of negotiating with Aboriginal communities has taught us that Aboriginal leaders face a herculean task. It is very difficult to represent others in a society which has for thousands of years practised collective leadership. I understand this difficulty. It is the greatest challenge facing the current generation of Aboriginal leaders. So I urge more acknowledgment of the efforts of those Aboriginal leaders representing the spirit of reconciliation and an understanding of the pressures upon them. Sometimes Aboriginal . leaders have to act outside their traditionalauthority and to speak for others. The difficulties of doing so are immense.

This change of corporate mindset was taken one step furthe� at the 154 Legislating Liberty national conference marking the twentieth anniversary of the Aborigi­ nal Land Rights (Northern Te rritory) Act 1976 in the old parliament House, Canberra. Mr Paul Wand, Vice President of CRA, told Aborigi­ nal Australia:

CRA has three large mining activities in remote parts of Australia.Each of them impinges upon local Aboriginal communities. The mines are, in order of age, the Comalco Weipa bauxite mine on CapeYo rk, the Hamersley Iron mining province in the Pilbara and the Argyle diamond mine in the Kimberley region. At a conference last year I heard a past Director of the Northern Land Council open his talk by saying that a mining company had burnt the homes in Mapoon and another mining company had destroyed a significantsite - he didn't name the companies! From my research of the history I am sure that although the Comalco people did not involve themselves in the burning of Mapoon they did not act to prevent it. For most of the time of iron ore mining and infrastructure developme�tt in the Pilbara the local Aboriginal people were ignored.

There is a large scar on the site of the barramundi dreaming at AJTgyle � there is a similar scar on the spirit of the women of the area. In the light of CRA's present position on Aboriginal relations - a position that I believe �ill endure - I feel that it is appropriate to express regret to Aboriginal people in general and the communities of Cape Yo rk, the Pilbara and the eastern Kimberley region in particular. 8

Though it will be a long time before the High Court hears argument about Aboriginal sovereignty and before Aborigines are lawfully run­ ning their own casinos on their lands, native title rights are here to stay in Australia, providing a groundwork for negotiated settlements about land use and service delivery to the communities living on those lands. 'Different but equal' has replaced outdated notions of ·separate but equal' and ·equal if the same' The next challenge is to entrench the principle of non-discrimination so that it binds the Commonwealth parliament and government as it does the States, ensuring that indige­ nous Australians are subject to ·special treatment' only when they seek it and not when government thinks it is good for them.

Non-discrimination The non-existent Hindmarsh Island Bridge has provided a case study on the principle of non-discrimination and the need to entrench that principle in the Constitution so that not even the Commonwealth Indigenous rights 155 parliament can discriminate against citizens in a racially discriminatory way. In 1994, a group of Ngarindjerri women first sought a Common­ wealth declaration banning the construction of the bridge. The Federal Court found that the original report by Professor Cheryl Sanders and the consideration of it by then Minister for Aboriginal and To rres Strait Islander Affairs, Robert Tickner, were defective. A new report was commissioned from Federal Court judge Jane Mathews. The High Court then ruled that federal judges could not be used for such func­ tions. So the women's valid application was still on foot. None of the delays or mistakes were their fault. Because the women 's application related to restricted women's knowledge, the Keating governmenthad appointed Rosemary Crowley as the minister to review the Mathews report. Mathews submitted a comprehensive and sympathetic report.But the women withdrew their evidence of the restricted knowledge when told that they would be obliged to make the material available to people (including men) whose interests would be affected by the making of a declaration. Jane Mathews thought access to the restricted women's knowledge essential if there were to be any prospect of a report providing grounds for the Minister to make a declaration. She reported that there was insufficient material for the Minister to be satisfied thatthe building of the bridge would desecrate the area according to the traditions. If the High Court had not ruledthe report invalid because of constitutional limits on the use of fe deral judges, the applicant women would have had no further recourse. Given that the women's valid application was still on the books, what should the governmenthave done in the interests of certainty for all parties? The representations received by Mathews could have formed the basis for a valid report. The simplest course would have been for Senator John Herron, the new Minister for Aboriginal and To rres Strait Islander Affairs, to appoint as reporter Lindy Powell QC who assisted Justice Mathews. The High Court said that the reporter could have regard to ministerial instructions, advice and wishes and that the reporter was ·not expressly required to hold a hearing' 9 She could have been provided with copies of all representations received by Mathews. The Minister could then have directed her to advertise that representations already received by Mathews' inquiry would form the basis of her report together with any additional written repre- 156 Legislating Liberty sentations which would be circulated to interested parties. People could have been given 14 days to provide any additional comments in writing. The Minister could then have insisted on delivery of the report within a month. Even in the unlikely event that the applicant women were to con­ template revealing the secret information, they would still have faced the hurdle that, as Mathews found, 'their major concern relates to the protection of Hindmarsh Island itself from injury or desecration. Yet their application does not accommodate this concern,for it has clearly confined the area for which protection is sought to the small rectangle which is described as the bridge corridor.' 10 The Chapman family, who were the Adelaide developers, could simply have relied upon the key items in previous representations which were adopted by Mathews in her report. There was no need for special Commonwealth legislation. If the High Court had not ruled the Mathews report invalid, it would have formed the basis for Minister Herron declining to issue a declaration and any further application by the women would have been vexatious. Rather than commissioning a report fromPowell QC, the government proceeded with the Hindmarsh Island Bridge Act which prohibited the Minister from taking any action on a valid application for heritage protection of Hindmarsh Island. Section 4(2) of the Act provided, 'The Heritage Protection Act does not authorise the Minister to take any action after the commencement of this Act in relation to an application (whether made before or after the commencement of this Act) that relates (wholly or partly)' to the construction,maintenance or use of a bridge at Hindmarsh Island. The Bill twice ran into trouble in the Senate because of its potential overriding of the Racial Discrimination Act. On the third occasion, the ALP rolled over and passed the legislation without an assurance of its compliance with the Racial Discrimination Act. The government believed that the heritage protection legislation had ·proved to be unworkable in this instance, and there is no guarantee that a further reporting process would finally settle the matter· 11 On this reasoning, the government would have to pass a special Act every time Aborigines brought a valid application for heritage protection. In November 1996 the Senate Legal and Constitutional Legislation Committee heard evidence from Senator Herron and officers of the Attorney-General's Department on the Hindmarsh Island Bridge Bill. Indigenous rights 157

At that time, half the Senate . was convinced that the Bill was not consistent with the Racial Discrimination Act except in the sense that it was a later Commonwealth Act and therefore able to prevail over the Racial Discrimination Act to the extent of any inconsistency. The Minister informed the committee on 29 November 1996: I am advised that, as a later enactment, the bill would not be subject to the Racial Discrimination Act and, therefore, could not breach the provisions of that Act. I am further advised that section 8 of the Racial Discrimination Act provides that the substantive provisions of part 2 of the Act do not apply to special measures giving particular benefit to groups on the basis of race in order to remedy present inequality.

The Coalition's 1996 election commitment was to respect the Racial Discrimination Act and the prime minister was on record that he would amend the Native Ti tle Act 'in a manner that completely respects the provisions of the Racial Discrimination Act' 12 So the Hindmarsh Island debate was in part a parliamentary test of the parameters within which the Howard government would roll back the Aboriginal gains in the Native Title Act. The governmentcould have introduced an amend­ ment to the Heritage Protection Act which was non-discriminatory, providing: 1 0(5) Where a court has found defects in the reporting process after the Minister or any previous Minister: (a) has previously received an application (b) has previously commissioned a report, and (c) has received representations in connection with a report; the Minister need commission a new report only where he, in his discretion, thinks there is some prospect of his making a declaration in relation to the area. 1 0(6) In exercising his discretion pursuant to s. 1 0(5), the Minister may have regard to any previously received representations and the findingsof any Commonwealth, Territory or State Commission of Inquiry or Royal Commission.

The Attorney-General's Department conceded, 'A Bill along these lines could be enacted. It is a matter of policy whether such an approach is preferred.' l3 But they claimed that such an amendment would not give sufficient certainty. The Hind marsh Island Bridge Act is inconsis­ tent with the Racial Discrimination Act in that it is not a special measure and it discriminates against the Ngarindjerri. The Ngarindjerri cannot 158 Legislating Liberty have their heritage in the Hindmarsh Island Bridge corridor protected by a valid application for protection being considered by the Minister. The heritage of all other indigenous people can be so protected. According to the Attorney-General's Department, the Hindmarsh Island Bridge Act is consistent with the Racial Discrimination Act in that it is part of a special measure. A special measure is a temporary arrangement which discriminates in favour of a disadvantaged racial minority so its members might more quickly enjoy equality with other members of society. Even if it were not a special measure, the Attor­ ney-General's Department saw the relevant comparison being between those who could bring applications for protection rather than between those whose heritage was being protected. In theory, all Aborigines and Torres Strait Islanders can bring applications for heritage protection over the whole of Australia (except the Hindmarsh Island Bridge corridor) even though the area in question might not be the heritage of the applicant. Though the government accepted the advice of the Attorney­ General's Department, it was not sufficiently confident to insert the Opposition's amendment ensuring the legislation's consistency with the Racial Discrimination Act. The Opposition's amendment was modelled on amendments proposed by the Democrats and the Aborigi­ nal negotiators during debate on the Native Title Bill in 1993. It provided:

2A Racial Discrimination Act to prevail ( 1) For the avoidance of doubt, it is expressly declared to be the intention of the parliament that the terms of the Racial Discrimination Act shall prevail over the provisions of this Act. (2) Nothing in this Act shall be taken to authorise any conduct, whether legislative, executive or judicial, that is inconsistent with the operation of the Racial Discrimination Act. l4

The government was prepared to insert an identical amendment in the Social Security amendments cutting back the availability of welfare benefits to recently arrived migrants. Agreeing to the amendment, Senator Grant Tambling, Parliamentary Secretary to the Minister for Social Security, said, 'The government will not oppose this amend­ ment. In doing so, however, I want to note very particularly that the government does not consider that the amending Act ever was, or is, in Indigenous rights 159

conflict with the Racial Discrimination Act.' 15 So there was a prece ... dent. But Aborigines were not to enjoy the benefit of it. In any event the Attorney-General's Dep�rtment argued that the heritage protection legislation was a special measure for the benefit of Aborigines which could then be rolled back at the discretion of gov­ ernment. For the purposes of argument, let us concede that the heritage protection legislation could be classed as a special measure. That does not serve to characterise the Hindmarsh Island Bridge Act as a special measure or as part of a special measure. According to the International Convention on the Elimination of All Formsof Racial Discrimination, a special measure is 'taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups of individuals equal enjoyment or exercise of human rights and funda­ mental freedoms' The Attorney-General's Department argued that a law is a special measure if it brings the disadvantaged group up to the same level as the general community. But the Department then postulated that the par­ liament could discriminate in a racially adverse way between members of the disadvantaged group. Provided no member of the disadvantaged group was worse off than the general community, all was said to be well. So the argument ran this way: Members of the general community in Australia do not enjoy heritage protection of their land and objects. To date, all Aborigines and Torres Strait Islanders have enjoyed that protection. This protection was a special measure. Under the Hind­ marsh Island Bridge Act, the Ngarindjerri do not enjoy that protection or they enjoy it to a more limited extent. Though on the face of it this is discrimination against the Ngarindjerri when compared with other Aborigines and Torres Strait Islanders, it is not discrimination, because the Ngarindjerri are not worse off than the community generally. Or alternatively, the protection is available to all Aboriginal and Torres Strait Islander applicants whether or not they are Ngarindjerri. They just cannot claim fu ll protection of Ngarindjerri heritage. But heritage protection for indigenous people is not a special measure. It is not a matter of giving temporary special assistance to a disadvantaged group. Rather it is a matter of according substantive equality by treating unlike cases differently, just as respecting the re ligious affiliationsof citizens is not a case of giving special treatment 160 Legislating Liberty to religious people and discriminating against atheists. It is simply a matter of according respect to the religious affiliations of all citizens whoever they may be. Even if heritage protection is classed as a special measure, the measure needs to be designed in such a way that it ensures that affected groups have equal enjoyment or exercise of human rights and funda­ mental freedoms. The heritage protection legislation could be so classed. But if at the outset that legislation discriminated against one group of heritage owners on the basis of their race by singling out their heritage area for adverse treatment while extending special protection to all other heritage areas, it could not be classed as a special measure as it would be entrenching unequal enjoyment or exercise of human rights and fundamental freedoms. It would have to pass scrutiny under the Racial Discrimination Act. Under the guise of being a special measure, the legislation would be a racially discriminatory enactment. So too with the Hindmarsh Island Bridge Act. Parliament can roll back a special measure at any time. But that can be done only by demonstrating the achievement of equal enjoyment or exercise of rights for the individuals who will no longer enjoy the benefit of the special measure, or by rolling back the special measure so as not to discriminate adversely between the beneficiaries· of the special measure on the basis of their race. Unfortunately, that is precisely what the Hindmarsh Island Bridge Act does. It winds back the special measure protection for Ngarindjerri heritage while leaving unaffected all other indigenous heritage and with no demonstration that Ngarindjerri heritage enjoys adequate protection. The Act is contrary to the Racial Discrimination Act.

Laws fo r the benefit of Aborigines and Torres Strait Islanders Without the assurance that the Hindmarsh Bill would be subject to the Racial Discrimination Act, the senators on the cross benches were right to hold firm against it. However, the Bill, having passed unamended, provided a test case in the High Court for the ambit of the race power. As predicted at the time of passage, the Act did not settle the matter of the proposed bridge development at Hindmarsh Island. That could have been done long ago at the federal level without any legislation. The Hindnuzrsh Island Bridge Act in its stark simplicity posed only one Indigenous rights 161 question for the High Court: could the race power be exercised other than for the benefit of Aborigines? It was the intention of neither the Parliament which drew up the 'Case For' in 1967 nor the voters that the Commonwealth Parliament would thereafter exercise power to make laws discriminating adversely against Aborigines and Torres Strait Islanders. The Parliament stated that the purpose of the 1967 amendment was:

... to make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live, if the Commonwealth Parliament considers this desirable or necessary ... This would not mean that the States would automatically lose their existing powers. What is intended is that the National Parliament could make laws, if it thought fit, relating to Aboriginals -as it can about many other matters on which the States also have the power to legislate. The Commonwealth's object will be to co-operate with the States to ensure that together we act in the best interests of the Aboriginal people of Australia.

The 'Yes Case' circulated to voters was authorised by the majority of those Members of both Houses of the Parliament who voted for the proposed law. The proposal to amend s. 51(26) was a change from Sir Robert Menzies' position of 1965 when he argued that the words of exception relating to Aborigines were ·a protection against discrimina­ tion by the Commonwealth Parliament in respect of Aborigines' 16 In 1967, his successor Harold Holt when launching the Yes campaign said s. 51(26) was proposed for amendment because unamended it was ·widely believed to discriminate against Aborigines.' 17 The govern­ ment changed its position from 1965 because, according to Harold Holt, it was 'influenced by the widespread impression which exists' that the words of exception were discriminatory. Holt said, 'We cannot allow it to be said that our Federal Constitution discriminates against some people who live within our shores - the Aborigines. Nor is it, we believe, acceptable to the Australian people as a whole that the National Parliament should not have power to make special laws for the people of the Aboriginal race, where that is in their best interests.' 18 Speaking for the Country Party, Douglas Anthony explained the amendment to s. 51(26) in these terms: 'Words which can be read as discriminating against the Aboriginal race will be removed. This would give the Commonwealth Government,for the firsttime, power to make special laws for the benefit of the Aboriginal people throughout Aus- 162 Legislating Liberty tralia.' 19 The government was joined by the Opposition. Gough Whit­ lam said, 'The welfare of Australian Aboriginals requires that this referendum be carried.' In his opinion, the unamended s. 51(26) pre­ vented 'the National Parliament from making laws for the welfare of those Aboriginals who live in the States.'20 On 26 March 1997, the Howardgovernment informed the House of Representatives that the Hindmarsh Island Bridge Act, even if discrimi­ natory against Aborigines, could be supported under the race power. The Minister, Dr Michael Wooldridge, told the House, 'Further, as to the issue about the race power, the Attorney-General has given us advice that it falls within the race power and we have to operate on that advice, as honourable members would know, having been in govern­ ment themselves.' Ruling out blanket extinguishment of native title on 28 April 1997, Prime Minister Howard said the High Court as ·cur­ rently constituted could well decide that the race power as currently phrased does not support a detrimental act in relation to one particular race within the Australian community.' The Ngarindjerri women who had taken every possibie step to stop the construction of the Hindmarsh bridge decided to take the constitu­ tional point argui.ng before the High Court that the Commonwealth Parliament had no power to pass laws to the detriment of Aborigines. They argued that this was the only head of power under which the Parliament could enact the bridge legislation. They claimed the Bridge Act was detrimental to them because their heritage could no longer be protected under the ordinary heritage protection law while the heritage of all other indigenous groups could be so protected. In Kartinyeri v The Commonwealth21 the High Court considered the scope of the race power. The decision was delivered on the very day that the 1998 Senate debate on amendments to the Native Title Act resumed. It was assumed that Chief Justice Brennan would spell out limits on the race power consistent with his remarks about the primary beneficial object of the power set down in The Ta smanianDam Case:22

No doubt para (26) in its original form was thought to authorise the making of laws discriminating adversely against particular racial groups. The approval of the proposed law for the amendment of par (26) by deleting the words ·other than the aboriginal race' was an affirmation of the will of the Australian people that the odious policies of oppression and neglect were to be at an end, and that the primary object of the power is beneficial. Indigenous rights 163

But the Chief Justice and Justice McHugh saw the Hindmarsh case in very simple terms. Given that the Hindmarsh Island Bridge Act simply operated partially to repeal the Commonwealth heritage protec­ tion legislation, they put the question in these terms: 'Given that the Parliament had power to enact the Heritage Protection Act in exercise of the legislative power conferred by s 51(26) of the Constitution, did the Parliament have power subsequently to restrict the operation, of the Act?23 The validity of the Heritage Protection Act was accepted by all parties to the litigation as legislation passed for the benefit of Aborigi­ nes. For these judges it was simply a case of the parliament's plenary power to make laws including a power to unmake them, either totally or in part. They observed: Once it is accepted that s 51(26) is the power that supports ... the Heritage Protection Act, an examination of the nature of the power conferred by s 51(26) for the purpose of determining the validity of the Bridge Act is, in our respectful opinion, not only unnecessary but misleading. It is mislead­ ing because such an examination must proceed on either of two false assumptions: fr rst, that a power to make a law under s 51 does not extend to the repeal of the law and, second, that a law which does no more than repeal a law may not possess the same character as the law repealed. It is not possible, in our opinion, to state the nature of the power conferred by s 51(26) with judicial authority in a case where such a statement can be made only on an assumption that is false. The Bridge Act exhibits no feature to which it is necessary to apply one of the opposing views of s 51(26) in order to answer the question reserved. The Bridge Act can have no character differentfrom, and must have the same validity as, the Heritage Protection Act.24

All other judges did take the opportunity to express their view on the scope of the race power. Justices Gummow and Hayne were unequivocal. The 1967 referendum armed the Commonwealth Parlia­ ment with the power to make laws detrimental as well as beneficial to Aborigines. They considered a submission that the circumstances of the 1967 referendum favoured a construction of the amended race power being confined to laws which were for the benefit of the indigenous races. Though that may have been the purpose of the Parliament and the electors, they achieved their purpose by including indigenous Australians in the racial classification by which they could be made subject to special laws passed under s. 51(26). For Justices Gummow and Hayne, voter intentions were all very fine but 'it is as 164 Legislating Liberty well to recall that it is the constitutional text which must always be controlling.'25 They were prepared to look at the legislative history of the 1967 referendum but they concluded, 'The circumstances sur­ rounding the enactment of the 1967 Act may indicate an aspiration of the legislature and the electors to provide federal legislative powers to advance the situation of persons of the Aboriginal race. But it does not follow that this was implemented by a change to the constitutional text which was hedged by limitations unexpressed therein.'26 Aw are that the High Court has never had to go down the United States path of designing differing layers of judicial scrutiny, they observed: The omission in the 1967 Act of any limitation, making specific reference to the provision of 'benefits' to persons of the Aboriginal race, upon the operation of the amended s 51(26), is consistent with a wish of the Parliament to avoid later definitional argument in the legislature and the courts as to the scope of its legislative power. That is the effectof what was achieved. 27

In 1992, Justice Gaudron had intimated that the race power should be restricted to laws beneficial to indigenous Australians whatever the scope of the power in relation to other races. In Kartinyeri, she had cause to revise this opinion but was able to reach much the same conclusion by insisting that the court retain some supervisory jurisdic­ tion over parliamenfs decision to legislate with respect of persons of a particular race. According to Justice Gaudron, the court can intervene if there be a ·manifest abuse' of the race power. If there were no rational basis for Parliament meting out differential treatment to persons of different races, there would be a manifest abuse of power. The court would have to be satisfied that a racially targeted law was reasonably capable of being viewed as appropriate and adapted to a relevant difference pertaining to the racial group made subject to the special law. She concluded:

Although the power conferred by s 51 (26) is, in terms, wide enough to authorise laws which operate either to the advantage or disadvantage of the people of a particular race, it is difficult to conceive of circumstances in which a law presently operating to the disadvantage of a racial minority would be valid. It is even more difficultto conceive of a present circum­ stance pertaining to Aboriginal Australians which could support a law operating to their disadvantage. To put the matter another way, prima facie, at least, the circumstances which presently pertain to Aboriginal Australians Indigenous rights 165

are circumstances of serious disadvantage, which disadvantages include their material circumstances and the vulnerability of their culture. And prima facie, at least, only laws directed to remedying their disadvantage could reasonably be viewed as appropriate and adapted to their different circumstances. 28 Justice Kirby was alone in dissent, concluding •the Constitution does not extend to the enactment of laws detrimental to, or discrimina­ tory against, the people of any race (including the Aboriginal race) by reference to their race: He said his reasons were 'in part textual and contextual; in part affected by the inadequacy of the exceptional ·manifest abuse' test; in part influenced by the history of the power which I have outlined and in part affected by the common assumptions against the background of which the Australian Constitution must be read today.'29 The Hindmarsh Island Bridge Act stands as a valid exercise of the race power. But as it stands, s. 51(26) does not give the Commonwealth Parliament carte blanche to make laws discriminating against Aborigi­ nes. This question is sure to be put to the test with constitutional challenges to the Howard government's Native ntle Amendment Bill. Laws which discriminate against Aborigines are not necessarily valid given some of the qualificationsspelt out even by the most conservative justices, Gummow and Hayne, in the Hindmarsh case. When it comes to any parliamentary attempt to interfere with common law native title rights, three of their observations will be relevant:

• As a matter of construction, a legislative intention to interfere with fundamental common law rights, freedoms and immunities must be clearly manifested by unmistakable and unambiguous language. • The occasion has yet to arise for consideration of all that may follow from Justice Dixon's statement that the Constitution 'is an instru­ ment framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functionsof government,others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.'3° • A statute of the Commonwealth or of a State is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rulesof international law. 31 166 Legislating Liberty

Section 51(26) is restricted as a power to make discriminate laws on the grounds of race in relation to persons of a racial group 'for whom it is deemed necessary to make special laws.' Aboriginal leaders plot­ ting their political course in the lead up to the centenary of federation will be aided by the High Court'sbelated judicial revelation that their passport to constitutional equality was a double edged sword. Their case for constitutional reform by 2001 is unassailable. It is time to scrap what was thought to be a real advance for indigenous Australians in 1967, replacing the constitutional provision with one which places beyond doubt what was thought to be its exclusively benign effect.

An indigenous agenda for modest constitutional inclusion by 2001 Next time we consider constitutional amendments, no doubt indige­ nous Australians will urge the adoption of a preamble describing the fu llness of human history in this land and espousing the primacy of continued Aboriginal occupation and use. We ought to beable to make mention of Aboriginal history, culture and place in Australian society. A preamble of the Constitution could provide: Whereas the territory of Australia has long been occupied by Aborigines and Torres Strait Islanders whose ancestors inhabited Australia for thou­ sands of years before British settlement: And Whereas many Aborigines and Torres Strait Islanders suffereddispos­ session and dispersal upon exclusion from their traditional lands by the authority of the Crown: And Whereas the people of Australia nowinclude Aborigines, Torres Strait Islanders, migrants and refugees from many nations, and their descendants seeking peace, freedom, equality and good government for all citizens under the law: And Whereas the people of Australiadrawn from diverse cultures and races have agreed to live in one indissoluble Federal Commonwealth under the Constitution established a century ago and approved with amendment by the will of the people of Australia: Be it therefore enacted:

Aborigines and To rres Strait Islanders are also likely to urge some positive reference to themselves rather than the constitutional silence which was the result of the 1967 referendum deleting the two negative references to them. Many Australians think that the 1967 referendum provided some special recognition of Aborigines. It did no such thing, Indigenous rights 167 though the voters had good reason to think they were voting in favour of Aborigines, and not against Aboriginal interests. Prior to 1967 the Commonwealth parliament had the power to make laws with respect to 'the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws' Aboriginal people in the States were expressly excluded from the legislative power of the Commonwealth parliament. In drafting what became clause 51 (26) the framers of the Constitution were primarily concerned with the need for the Commonwealth to have adequate power to make special laws for groups such as South Sea Islanders labouring in the Queensland canefields and Indian coolies needing special protection or contractual arrangements. Section 51(26) of the Constitution, which now empowers the Com­ monwealth parliament to make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws', is an inappropriate head of power for the exercise of a specific national responsibility to our indigenous peoples. Many Aborigines and Torres Strait Islanders think the Constitution should specify the Common­ wealth)s power and responsibility for Aboriginal Affairs. One option recommended by the Constitutional Commission in 1988 was the omission of section 51(26) and the insertion of a paragraph granting the federal parliament the power to make laws ·with respect to Abor­ igines and Torres Strait Islanders' The more explicit the power, the greater the likely perception of the constitutional mandate of the Commonwealth to legislate for Aboriginal affairs, including Aborigi­ nal lands and governance. Section 51 (26) should be replaced by s. 51A providing:

The Parliament shall, subject to this Constitution, have power to make laws for the benefitof Aborigines and Torres Strait Islanders.

We also need to repeal s. 25, which still permits States to discrimi­ nate against people on the basis of their race. As Justice Gaudron observed in Kruger v. Commonwealth (The 'Stolen Generation' Case), s. 25 ·sanctions discriminatory laws' 32 It ought be replaced with a guarantee of non-discrimination along these lines:

Everyone has the right to freedom from discrimination on the ground of race, colour, ethnic or national origin. This right is not infringed by measures taken to overcome disadvantages arising from race, colour, ethnic 168 Legislating Liberty

or national origin. Neither is it infringed by measures recognising the entitlement to self-determination of Aborigines and Torres Strait Islanders or protecting their sacred sites, native title, land rights, customary law, or cultural traditions.

Such a clause included in the Commonwealth Constitution would permanently fetter the Commonwealth parliament and government, as well as the States, from acting in a racially discriminatory way. Such a constitutional fetter is overdue if Australia is to be seen to be consistent in its resolution of domestic practice and international declarations. The Howard government's 1997 White Paper on foreign policy boldly proclaims the government's ·unqualified commitment to racial equal­ ity and to eliminating racial discrimination·,. It says:

This is a non-negotiable tenet of our own national cohesion, reflected in our racial diversity, and it must remain a guiding principle of our inter­ national behaviour. The rejection of racial discrimination is not only a moral issue, it is fundamental to our acceptance by, and engagement with, the region where our vital secu�ity and economic interests lie. Racial discrimi­ nation is not only morally repugnant; it repudiates Australia's best interests.

Discriminatory legislation should hereafter never be an option. The move .to a republic will be the ideal opportunity to place adverse discrimination against Aborigines and To rres Strait Islanders outside constitutional bounds, ensuring special treatment for indigenous Aus­ tralians only when they seek it. 9 Reconstituting Australia without a bill of rights

The courts as the defenders of rights even without a bill of rights Australians will continue to suffer some lack of protection of their rights while the executive government is insufficiently accountable to parliament and not sufficiently susceptible to review by the courts. Recent High Court decisions have highlighted the shortcomings in the Australian constitutional and legal machinery for the protection of fundamental human rights. The arrogance of executive government • was highlighted by its 1997 appearance before the High Court in relation to the presence of ex-Black Panther Lorenzo Ervin, initially refuting the capacity of the courts to review the legality of actions of the executive. Under the Migration Act, parliament had vested the Federal Court with jurisdiction to review ministerial decisions relating to visa applications while precluding that court from reviewing such decisions on the ground that the applicant had been denied natural justice. Natural justice demands that a person be given a fair hearing before government interferes with the person's rights or liberties. Consider this exchange between the Chief Justice of Australia and Mr Gotterson QC appearing for the Commonwealth government: HIS HONOUR: Does that mean that voidable decisions made by the Executive Government are to be tested in this Court, and in this Court alone?

MR GOITERSON: The more comfortable and conformable - or interpreta­ tion which conforms to reason, in our submission, is that it is intended that decisions of this kind not be reviewable by any court on those grounds.

HIS HONOUR: Not be reviewable by any court?

MR GOTIERSON: Ye s, your Honour, not be reviewable certainly by the Federal Court, because it says it cannot be. The scheme contemplates review only by the Federal Court ...

HIS HONOUR: Let me understand this correctly, Mr Gotterson. Are you making the submission that this Court has no jurisdiction either? MR GOITERSON: Yes, your Honour. It is intended that, in regard to those 170 · Legislating Liberty

grounds, neither the Federal Court nor the High Court have jurisdic­ tion.

HIS HONOUR: How would you square that with the provisions of the Constitution?

MR GOTIERSON: Yo ur Honour, the provisions of the Constitution, of course, grant the High Court in its original jurisdiction the powers to grant the prerogative relief by way of prohibition, by way of mandamus, but that is not to say that there cannot by way of legislation be limiting of grounds on which the relief may be granted. HIS HONOUR: Well, Mr Gotterson, if you wish to maintain that view, no doubt it can be submitted to a Full Bench to consider it. For my part, it is a proposition which I regard as completely inconsistent with the notion of judicial revie-w for it would isolate the Executive from judicial control in respect of acts done which are unlawful, and that cannot be, surely, the intention that one would either attribute to the Constitution or to the parliament. MR GOTTERSON: Yo ur Honour, the position then is that if- HIS HONOUR: If you wish to raise that argument, then by all means do so, but it will be necessary to give a notice under section 78B of the Judiciary Act.

MR GOTTERSON: Your Honour, if that is not then the case, the case is that ­

HIS HONOUR: What submission are you making about it, Mr Gotterson?

MR GOITERSON: Your Honour, I would have to take some instructions directly on that point.

HIS HONOUR: Then I think you should do so. It is a matter of the gravest constitutional importance to think that the proposition would be advanced on behalf of the Minister that this Court does not have the jurisdiction to control unlawful acts coytmitted 15�' a Minister.

MR GOTIERSON: Your Honour, I have instructions o to pursue that argu- ment.

HIS HONOUR: Do you withdraw it?

MR GOITERSON: I withdraw it, yes.

HIS HONOUR: Ve ry well. 1 Even without a bill of rights, Australian courts have done much to expand the realm of individual freedom within a system of ordered liberty by their vigilance with judicial review of administrative action, the development of the common law as in Mabo and Wi k, and the finding of some protections against legislative and executive power in the Constitution. After the High Court's 1992 and 1994 decisions in Reconstituting Australia without a bill of rights 171 the free-speech cases there was some speculation that the Court would find its way clear to discerning a catalogue of personal rights and freedoms necessarily implied in the Constitution.2 That speculation was put to rest by the unanimous decision of the court in Lange v. Australian Broadcasting Corporation,3 when the Court clarified the scope of implied rights and freedoms in the Australian Constitution. Because the Constitution provides for houses of parliament "di­ re ctly chosen by the people', the Constitution by implication protects freedom of communication. But this freedom 'is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution' 4 The Court pointed out that 'Unlike the First Amendment to the United States Constitution, which has been interpreted to confer private rights, our Constitution contains no express right of freedom of communica­ tion or expression. Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution.'5 The sections of the Constitution providing for direct choice of parliamentarians by electors "do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.'6 In the Lange decision, the court demonstrated how it has various swords in its armoury for cutting down the attempts of parliaments to curtail the liberties of citizens. David Lange, former prime minister of New Zealand, was suing the ABC for defamation. The ABC had broadcast a New Zealand documentary on Fo ur Corners which dealt with business dealings by the Lange governmentat the time of the 1987 election. The program suggested that Lange permitted big business donors to dictate governmentpolicy. It asserted that Lange abused the office of prime minister by attempting to arrange the write-off of a Labor Party debt to an advertising agency by the awarding of govern­ ment contracts to the agency. There were also allegations about im­ proper share dealings between Lange and Sir Frank Renouf. The ABC ran a defence that there was a freedom guaranteed by the Constitution to publish material in the course of discussion of government and political matters. The ABC also pleaded that its publication was covered by the common law of qualified privilege. Even though the Constitution does protect a basic core freedom of communication, that freedom does not invalidate a law enacted to satisfy some legitimate 172 Legislating Liberty end provided that the object of the law is consistent with the mainte­ nance of our system of representative and responsible governmentand provided the law is ·reasonably appropriate and adapted to achieving 7 that legitimate object or end' . A defamation law may limit the freedom of communication. But it protects the reputation of people including politicians. Without the guarantee that their reputations would be protected by the law, many citizens would be unwilling to seek public office. People with justifiably good reputations are necessary for the maintenance of our system of government. If there were no defamation law, there would be no restriction on the media destroying the reputa­ tion of politicians and there would be reduced incentive for such people to seek public office. There is nothing to stop parliaments changing the common law and reducing the rights available to defamed people, thereby increasing the available core freedom of communication implied in the Constitution. But parliaments cannot increase the protection available to the de­ famed person in order to reduce the implied freedom of communication to discuss governmentand politics. Laws designed to protect personal reputation must ·not unnecessarily or unreasonably impair the freedom of communication about government and political matters which the Constitution requires'. s The common law and statutory law of defamation are complex, especially in New South Wales where the Langelitigation was fought. There are two principal defences to the publication of this sort of material. The defendant must establish either that the publication is true, fair comment, fair reporting of parliamentary proceedings or qualified privilege. When the defendant has mistakenly but honestly published a statement, the defence of qualified privilege has been available in the past only if the material is published to those having a special interest in the information. For example, if a club were to discipline a member for breach of the rules, a report of the incident to club members would be an occasion of qualified privilege but not a report published to the world at large. In the Langecase, the High Court considered the purpose of the law of qualified privilege in light of contemporary circumstances with the media and democracy and expanded the defence to cover any publica­ tion reasonably made without malice and which contains information, opinions or arguments concerning government and political matters Reconstituting Australia without a bill of rights 173 that affect the people of Australia. Under the heading of reasonable­ ness, a court would consider a number of issues surrounding any widespread publication about matters of political interest which impact on the reputation of a plaintiff who is usually a politician or public official. The media defendant would need to show that it had reason­ able grounds for believing the statement was true and that it took reasonable steps to verify the accuracy of the information. If practica­ ble, the media should also give the defamed person the opportunity to respond. The High Court, by expanding the common law of qualifiedprivi­ lege, has found an appropriate balance for what was described in 1834 in one of the key English cases on qualified privilege as 'the common convenience and welfare of society' If the balance between the repu­ tation of public figures and free expression about politics were to be struck by judges charged with interpreting a constitutional right of free speech, as in the United States, the judges would have the last word. Similarly if the balance were to be struckby Australian judges implying an enhanced freedom of communication into the Constitution, the judges would have the last word. Presently in Australia, we have the best of both worlds. The judges can give the last word on the guaranteed minimum scope afforded the freedom of communication by the Con­ stitution. The judges can then expand it for the common convenience and welfare of society and the parliaments remain free to have the last word on the appropriate balance. After the 1994 free speech cases, some lawyers thought the High Court would be willing to find a whole catalogue of rights and freedoms implied in the Constitution or at least a catalogue of restric­ tions on legislative power which would have carved out an enhanced zone of individual liberty. In Kruger v. Commonwealth (The 'Stolen Generation ' Case),9 lawyers were very creative in formulating a whole raft of implied freedoms for the court to consider. They did not get to first base. Aborigines who had been removed from their parents and communities by welfare authorities were anxious to sue the govern­ ment. The major problem confronting these Aborigines was that any routine common law action they could bring against the government would be statute barred. Usually there is a six-year limit on bringing a case for damages, though the time limit will not start to ·rununtil the person has achieved a majority, which used to be 21 years but is now 174 Legislating Liberty

18 years. The ·stolen generation� members who had suffered most were wanting to claim damages for things done over forty years ago. Their actions would have been statute barred. One possible way around this was to bring a case alleging that Commonwealth actions in the North­ em Territory authorising the removal of children were unconstitutional. Only Justices To ohey and Gaudron were open to implying a freedom of movement and association in the Constitution which could operate as a general fetter on legislative power. The other justices found that no such right has to date been held to be implied in the Constitution and that no textual or structural foundation for the implication could be demonstrated. In this case, the Court was asked to strike down the validity of Ordinances dating from 1918 which were made pursuant to the Territories power (s. 122, Constitution) and which authorised the Protector of Aborigines to take Aboriginal children into care and custody if in his opinion it was necessary or desirable in the interests of the children, and to keep any Aborigine in a reserve or Aboriginal institution other than Aborigines who were employed, married to a European, holding a permit of exemption or 'for whom, in the opinion of the Chief Protector, satisfactory provision is otherwise made' The Chief Justice observed: 'Revelation of the ways in which the powers conferred by the Ordinance were exercised in many cases has pro­ fo undly distressed the nation, but the susceptibility of a power to its misuse is not an indicium of its invalidity.' 10 All justices conceded that these broad powers could be misused, thus giving rise to individual actions in tort. To succeed in such an action, members of the stolen generation face many forensic hurdles. These include proof that they were taken away without informed parental consent and proof that the Protector could not reasonably have been of the opinion that removal was in their best interests. As the Chief Justice observed: 'Reasonableness can bedeter­ mined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention. Therefore, it would be erroneous in point of law to hold that a step taken in purported exercise of a discretionary power was taken unreasonably and therefore without authority if the unreasonableness appears only from a change in community standards that has occurred since the step was taken.' 11 The appendices of Colin McLeod's newly published Patrol in the Dreamtime highlight the polyvalent criteria Reconstituting Australia without a bill of rights 175 considered by Northern Territory patrol officers in the 1950s when making these life-determining decisions. The State or Territory defendant would have to waive the limitation period which would usually be no more than six years after the plaintiff reached a majority. No justice was prepared to find that the Constitution created private rights enforceable directly by an action for damages. As Justice Dawson said:

Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the common law and the supremacy of parliament. Thus the Constitution deals, almost without exception, with the structureand relationship of government rather than with individual rights. The fe tters which are placed upon legislative action are, for the most part, for the purpose of distributing power between the federal government on the one hand and State governments on the other, rather than for the purpose of placing certain matters beyond the reach of any parliament. The Constitution does not contain a Bill of Rights. Indeed, the 1898 Constitutional Convention rejected a proposal to include an express guarantee of individual rights based largely upon the fourteenth Amendment to the United States Constitution and including a right to due process of law and the equal protection of laws. The framers preferred to place their faith in the democratic process for the protection of individual rights and saw constitutional guarantees as restricting that process. Thus the Constitution contains no general guarantee of the due process of law. The few provisions contained in the Constitution which afford protection against governmental action in disregard of individual rights do not amount to such a general guarantee. l2

The Kruger judgment highlights the incapacity of the courts to rectify all injustices, some of which may be more susceptible ofjudicial re solution with a constitutional or statutory bill of rights. The agitation for relief remains in the political realm.

The balancing of interests There can be no getting away from a balancing ·of interests. Who best to do the weighing - the legislators elected by all or the judges nominated by the few? I fear the bill of rights ethos not only quashes any sustained public discussion of the common good; it also inculcates the notion that rights are protected not because they contribute to the general public welfare but only 'because they form so central a part of 176 Legislating Liberty an individual's life', 13 as Justice Blackmun put it. Without a constitu­ tional bill of rights, unelected judges and elected politicians can each play a role in getting the balance right and in imposing the fetters upon the executive. The judges have a role not only in applying the Consti­ tution but in interpreting statutes and in reforming the common law. Chief Justice Brennan once observed, 'In the development of the common law, judicial policy has a role to perform ... In the interpre­ tation of the Constitution, judicial policy has no role to play.' 14 Were the Australian Constitution to contain equal protection and due process clauses, there would be a whole set of controversial policy issues reserved to the exclusive province of the judges. I returned to Australia in 1996 without any passionate desire to see the complex issues of the day constitutionalised, taken out of the hands of politicians, and reserved to judges who will go to great lengths in judicial reasoning to avoid simply having to apply their own values in weighing the conflicting claims. I am delighted that the United States has a robust tradition for debating the issues from an individual rights perspective. InAustralia we do not have capital punishment; the United States does. We do not interfere with the privacy of gays; in the United States some states still retain anti-sodomy laws which have been upheld by the Supreme Court. We accord much the same level of protection to the foetus and the woman's choice. We do not have judges as the final arbiters of abortion codes and redistricting maps. We allow governmentto restrict indecent material on the television, and I do not lose too much sleep over that. Though the High Court of Australia recently has been asked to consider issues relating to gay rights, euthanasia and abortion, it is not the Court alone which finally deter­ mines the law and social policy on these vexed issues. In Australia the gay rights and euthanasia litigation did not have to go to judgment, because in each case a parliament took action. The Commonwealth parliament suspended the operation of the No�hernTe rritory euthana­ sia law and the Ta smanian parliament repealed its anti-sodomy law. In Australia the courts are free to develop a consistent jurisprudence through the application of the judicial method and the parliaments remain free within constitutional restraints to legislate the will of the people. Public debate about fu ndamental rights and the common good may inform the judges' assessment of contemporary values insofar as judicial policy shapes the common law, but it also influences the Reconstituting Australia without a bill of rights 177 politicians who legislate the compromises. In the United States, once the divided bench sets the limits on abortion, the politicians are powerless to do anything. In Australia the High Court may at some time be required to clarify the 25-year-old Levine ruling on abortion, but it is ultimately the politicians who by legislation or inaction will determine the social practice, which is presently government-funded abortion on demand. Presumably a consistent jurisprudence from the Court can assist in the shaping of a coherent law and policy. While elected politicians retain the power to legislate, their silence can be a useful popular endorsement of the judges' articulation of the common law. When under greatest pressure, the United States system, as Justice Blackmun admits, depends on just one vote. So too in Australia-only here the person with the one vote is elected. The United States Supreme Court will continue developing a jurisprudence of individual rights which can be a corrective for those with a parliamentary system which places more trust and accountability in the elected law makers. The robust American ideas on rights and freedom are an antidote to Aus­ tralia'Js populist notions of equality and the common good, all of which are needed for a healthy enjoyment of liberty in an organised society. In South Africa it was the minority whites who insisted on a judicially enforceable bill ofrights as a fetter on the newly enfranchised majority blacks. The 'bill of whites' has been designed to provide judicial protection of those whose rights may be targeted by the majority. The shortfall in Australia's machinery for the protection and enhancement of individual rights could be rectified by the passage of a statutory bill of rights which could be overridden by specific later enactment of the Commonwealth parliament. A Senate Committee on Human Rights could scrutinise any bill proposing a limitation on the stipulated rights. Like the Racial Discrimination Act, the parliamenfs bill of rights would become a comprehensive legislative standard. Departure from the standard would require political argument more compelling than a routine invocation of the popular mandate by the major political parties. This way, the controversial issues would not regularly become the sole preserve ofjudges constitutionalising them; they would be resolved by the legislators and judges playing .their respective roles. 178 Legislating Liberty

Building on the International Covenant on Civil and Political Rights For Australia, a statutory bill of rights similar to that in New Zealand, a constitutional guarantee of non-discrimination, continued access to the First Optional Protocol which provides for equal protection and a ban on arbitrary interference with privacy, and a ·High Court open to the influence of international norms of human rights on statutory interpretation and development of the common law are likely to be sufficientto make up the shortfall in our constitutional machinery. We could avoid the costs and tensions involved in constitutionalising the fullgambit of human rights claims under the rubrics of equal protection and due process. Citizens concerned that our parliaments and judges pay insufficient regard to due process and equal protection in the 15 application of s. 117 of the Constitution, the construction of statutes and the reform of the common law could still utilise the first optional protocol of the International Covenant on Civil and Political Rights, bringing their complaints to Geneva. Those alleging a want of equal protection could design a complaint around Article 26 of the Covenant which provides: All people are equal before the law and are entitled without any discrimi­ nation to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all people 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.

Those who complain of an interference with their liberty without due process could design a complaint around Article 17: l. No one shall besubjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such inter­ ference or attacks.

The procedures of the first optional protocol have now twice been successfully invoked in Australia. In the first case, the use of the international procedure contributed to the Tasmanian parliament's decision to repeal its anti-gay laws. In the second case, the international spotlight was turned on the Port Hedland Detention Centre in which Reconstituting Australia without a bill of rights 179 boat people arriving in Australia seeking asylum without valid travel papers were held in arbitrary detention. The detention regime enjoyed broad support from the major political parties in the Commonwealth parliament. With a series of Immigration Ministers from the ALP Left, increasingly draconian measures were introduced with no effective opposition in the parliament. In part the measures were designed to keep the boat people out of the public eye and away from the courts. In June 1993 Mr A, a Cambodian boat person who had arrived in Australia in November 1989, made a communication to the UN Human Rights Committee. The Committee processes took almost four years. Mr A was one of the second wave of boat people to arrive in Australia. The first wave of 52 boats came after the fall of Saigon in 1975 and lasted until 1981. The people on these boats were recognised as refugees. Mr A was on one of the first boats in the second wave, and these people came from Cambodia, China and Vietnam. The Australian governmentdecided on a policy of humane deterrence with this second wave. With bipartisan support in the parliament, the government de­ cided that boat people would be locked up so as to send a signal and deter others from setting out for Australia. The policy was justifiedon the grounds that these boats often landed on other shores such as Indonesia, where they were refuelled and repaired and encouraged to move on to Australia. The government conceded that some of these people may have been refugees but was adamant that the majority were economic migrants and queue jumpers. The government saw only one way of maintaining a fair and ordered immigration program. It was essential to make an example of the queue jumpers and make it clear that a boat trip to Australia without papers was no way to gain entry. Australian politicians deliberately fuelled the public anxiety that un­ controllable boatloads of people were arriving on our shores from Asia and that it was difficult to maintain the sovereignty of our borders. Despite the floodgates perception, during the course of this second wave on average one person a day has arrivedin Australia. In the early stages of the second wave, new arrivals were flown the length and breadth of the country by the government, partly in an attempt to keep them away from lawyers and do-gooders. Mr A spent time in detention centres at Villawood near Sydney, a bush camp south of Darwin, and fi nally at Port Hedland 1500 kilometres north of Perth. By May 1992 the Commonwealth parliament had changed the law so that courts had 180 Legislating Liberty little power to review immigration decisions and the circumstances of detention. Basically, once a boat person was classed as a ·designated person' the door was closed and the judges could do nothing. When the High Court found that some detentions were unlawful, the parliament retrospectively legislated to limit damages claims to $1 a day. The government described the boat people's entitlement to damages as a ·windfall' Then when doubts were raised about the constitutionality of a law retrospectively taking away the right to common law damages, the governmentlawyers drafted another measure retrospectively mak­ ing the detention lawful. The legislative process had gone mad. The government-controlled House of Representatives had no problem with any of these legislative measures. But they ·ran into trouble with the usually toothless Senate Standing Committee for the Scrutiny of Bills which reviews legislation that might trespass unduly on personal rights and liberties. The UN Human Rights Committee found that in Mr A's case, Australia was in breach of Article 9( I) of the International Covenant on Civil and Political Rights which provides that no one shall be subjected to arbitrary detention. The Committee observed that ·every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be as­ sessed' . Imprisonment for four years because of illegal entry would be arbitrary unless the state could demonstrate some justification,such as the need to conduct inquiries, the likelihood of absconding or the lack of co-operation. The Committee also found Australia in breach of Article 9( 4) which entitles anyone in detention 'to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention' The parliament, by setting up a legal regime of ·designated persons', had attempted to emasculate this power of judicial review. The Committee ruled that the court review had to be ·real and not merely formal' . The Committee ruled that Australia should provide Mr A with adequate compensation for his arbitrary detention. Australia has no significant problem with the integrity of its borders, being the only nation which is one nation, one continent. The Australian government's treatment of asylum seekers arriving by boat has been a gross violation of human rights, endorsed by a parliament buoyed by populist prejudice against boat people and quarantined from effective judicial review. Though all major political Reconstituting Australia without a bill of rights 181 parties have downplayed the significance of the UN Committee's adverse communication, Mr A' s victory has caused the government to wind down the Port Hedland facility. On 2 September 1997 Mr Philip Ruddock, Minister for Immigration, told parliament: 'It is remarkable that we now have only 55 people in our Port Hedland detention centre. Very much larger numbers of people were held in recent years. The centre has accommodation for more than 700 occupants.' Australia should no longer arbitrarily detain people in remote holding centres, when such people have committed no offence but to arrive on our shores without the requisite documentation (and when some are later proved to be refugees fleeing persecution). To date, the Australian Government's dismissive classification of the UN Committee's com­ tnunication simply as a foreign body's view or opinion highlights the need for a bipartisan commitment to honouring the UN processes. I would be happy to see non-discrimination clauses included in the Commonwealth Constitution which would permanently fetter the Commonwealth parliament and government from discriminating against people on the basis of race, gender or sexual orientation. I am opposed to a comprehensive constitutional bill of rights that reserves the determination of the most pressing legal, moral and political questions to the judges, who shy away from controversial balancing of interests, informed only by their personal values and preferences. The only way the United States Supreme Court has been able to perform the task with any credibility is by designing hurdles which keep the judges from scrutinising laws too closely unless the affected party is a member of a suspect class or is invoking a fundamental right or liberty. Given the creativity of our judges in the shaping of the common law, the vigilance of the Senate in scrutinising legislation, and the access of our citizens to the first optional protocol procedure in Geneva, I think we could have the best of both worlds were we immediately to legislate a Commonwealth Charter of Espoused Rights ·and Freedoms. This charter could be a precursor to a statutory bill of rights. It could be the benchmark against which a Senate Committee for Rights and Free­ doms could scrutinise proposed legislation. The Committee could complement or incorporate the existing Scrutiny of Bills Committee, the Regulations and Ordinance Committee and the Legal and Consti­ tutional Committee. The Charter should faithfully reflect the key provisions of the 182 Legislating Liberty

International Covenant on Civil and Political Rights. I suggest the following, which is a variant on some of the recommendations made by the 1988 Constitutional Commission:

COMMONWEALTH CHARTER OF ESPOUSED RIGHTS AND FREEDOMS

Espousal 1. This charter espouses the rights and freedoms mentioned in it against acts done: (a) by the legislative, executive or judicial arms of the Common­ wealth, or (b) in the performance of any public function, power or duty conferred or imposed on any person or body by a law of the Commonwealth.

Remedies 2. A person whose rights or freedoms, as espoused by this Charter, could be infringed or denied by a proposed law of the parliament may petition the Senate Committee for Rights and Freedoms to institute an inquiry.

Limits 3. The rights and freedoms espoused by this Charter ought be subject only to such reasonable limits prescribed by law as can be demonstra­ bly justified in a free and democratic society.

Other rights and freedoms 4. The rights and freedoms espoused by this Charter ought not to abrogate or restrict any other right or freedom that a person may have.

Freedom of conscience, etc. 5. Everyone ought to have the right to: (a) freedom of conscience and religion; (b) freedom of thought, belief and opinion; (c) freedom of expression; (d) freedom of peaceful assembly; and (e) freedom of association.

Freedom of movement 6. ( 1) Every Australian citizen ought to have the right to enter, remain in and leave Australia. (2) Everyone lawfully in Australia ought to have freedom of move­ ment and residence in Australia. (3) Sub-sections (I) and (2) of this section are not relevant to any consideration of proposed laws made by the parliament with respect to entry into and residence in a Territory that is not on the mainland of Australia. Reconstituting Australia without a bill of rights 183

Equality rights 7. ( 1) Everyone ought to have the right to freedom from discrimination on the grounds of race, colour, ethnic or national origin, gender, sexual orientation, marital status, or political, religious or ethical belief. (2) Sub-section ( 1) is not violated by measures taken to overcome disadvantages arising from race, colour, ethnic or national origin, gender, sexual orientation, maritalstatus, or political, religious or ethical belief.

No cruel or inhuman punishment, etc. 8. ( 1) Everyone ought to f:tave the right not to be subjected to cruel, degrading or inhuman treatment or punishment. (2) Everyone ought to have the right not to be subjected to medical or scientific experimentation without that person's consent.

Search and seizure 9. Everyone ought to have the right to be secure against unreasonable search or seizure.

Liberty of the person 10. ( 1) Everyone ought to have the right not to be arbitrarily arrested or detained. (2) Everyone who is arrested or detained ought to have the right: (a) to be informed, at the time of the arrest or detention, of the reason for it; (b) to consult and instruct a lawyer without delay and to be informed of that right; (c) to have the lawfulness of the arrest or detention determined without delay; (d) to be released if the detention or continued detention is not lawful.

Rights of people arrested 11. Everyone who is arrested for an offence ought to have the right: (a) to be released if not promptly charged; (b) not to make any statement, and to be informed of that right; (c) to be brought without delay before a court or competent tribunal; (d) to be released on reasonable terms and conditions unless there is reasonable cause for the continued detention.

Rights of people charged 12. (1) Everyone who is charged with an offenceought to have the right: (a) to be informed without delay, and in detail, of the nature of the charge; (b) to have adequate time and facilities to prepare a defence; (c) to consult and instruct a lawyer; 184 Legislating Liberty

(d) to receive legal assistance if the interests of justice so require and, if the person does not have sufficient means to provide for that assistance, to receive it without cost; (e) to be tried without delay; (f) to a fair and public hearing by a court; (g) to be present at the trial and to present a defence; (h) to have the assistance, without cost, of an inteq)reter if the person cannot understand or speak the language used in the court; (i) to be presumed innocent until proved guilty according to law; (j) to examine witnesses for the prosecution and to obtain the atten­ dance of and examine witnesses for the defence under the same conditions as the prosecution; (k) not to be compelled to be a witness again himself or to confess guilt; (I) if finallyacquitted of the offenceor pardoned for it, not to be tried for it again; (m) if finally found guilty of the offence and punished for it, not to be tried or punished for it again. (2) Everyone convicted of an offenceought to have the right to appeal according to the law against the conviction and any sentence.

No retrospective offences 13. No one ought to be liable to be convicted of an offenceon account of any act or omission which did not constitute an offence when it occurred.

The Senate Committee could initially be modelled on the Scrutiny of Bills Committee. Under the existing Standing Orders of the Senate, at the commencement of each parliament a Standing Committee for the Scrutiny of Bills is appointed to report on whether proposed legislation:

(a) tresp·asses unduly on personal rights and liberties; (b) makes rights, liberties or obligations unduly dependent on insuf­ ficientlydefined administrative powers; (c) makes rights, liberties or obligations unduly dependent on non­ reviewable decisions; (d) inappropriately delegates legislative powers; or (e) insufficiently subjects the exercise of legislative power to parlia­ mentary scrutiny.

Even if there were a Senate Committee for Rights and Freedoms, there would still be some people, including the boat people at Port Reconstituting Australia without a bill of rights 185

Hedland, who would be denied some basic rights. But there would be a step in the legislative process which would give human rights advocates an enhanced opportunity to draw the parliament's attention to the key provisions of the International Covenant on Civil and Political Rights against �hich all Australian laws could ultimately be scrutinised. Bipartisan intransigence by our federal politicians con­ fronted with violations against unpopular, powerless minorities would remain a problem. That intransigence presents an even greater obstacle to a more entrenched proposal such as a statutory bill of rights or a constitutional bill of rights.

Maintaining the balance without jumping the hurdle of constitutional reform

Bearing in mind that only eight of the forty-two constitutional refer­ endums proposed since 1901 have been passed, one becomes even more sanguine when it is appreciated that only one of those eight successful referendums was a Labor initiative. And that was the provi­ sion empowering the C_ommonwealth to provide social service pay­ ments after the High Court had struck down the pharmaceutical benefits scheme. Any enthusiasm I have had for more wide-ranging constitutional reform has been stilled and my energies redirected in light of the present prime minister's remarks at the time of the 1988 referendum.16 Launching the Coalition's 'No' campaign, Mr Howard said, 'Proposals to change Australia's Constitution should only be put to a referendum when there is a clear, widespread and compelling public demand for, and public interest in, the proposed changes.' 17 According to Mr Howard:

The Constitution was never intended to be a document spelling out the chapter and verse of individual human rights and freedoms. In our system these have always been guaranteed by the free and effective functioning of institutions such as parliament, the courts, the common law and a free press. The Founding Fathers carefully considered and deliberately rejected the American Bill of Rights model. I have long held a strong personal view that the common law approach to basic human freedoms is the most effectiveone.

No doubt the High Court in its development of the common law, interpretation of statutes and definitive reading of the Constitution, including its necessary implications, will contribute to the ongoing 186 Legislating Liberty resolution of conflicting claims about the most desirable laws and policies on the vexed issues confronting Australian society. These will include abortion, euthanasia, discrimination, gay rights, gender issues and free speech. But the Court will continue to play its limited role, being spared the burden of always being the final arbiter. At the height of the 1997 Wik controversy, Justice Gummow observed:

Before federation the common law as it applied in the Australiancolonies had been, asthe common law in Australia is now, in continuing development by the courts administering it. In the nature of things, from time to time legislatures perceive the common law as unsatisfactory and as requiring, in a particular aspect, abrogation or modification. Thus the doctrines of common employment and of contributorynegligence propounded in Eng­ lish nineteenth-century decisions and the state of the law before the Married Women's PropertyAct 1882 (UK) invited and received legislative interven­ tion. Other instances might readily be given.18

By constitutionalising conflicts under the rubricsof due process and equal protection, the judiciary is accorded no such luxury of leaving the last word to the legislature should there be widespread discontent about the judicial decision. The contemporary United States experi­ ence is that, by giving judges the last word, you politicise their jurisprudence and heighten the tension on the bench; you do not resolve social conflicts and you let politicians off the hook. By giving judges a participative role through a legislative bill of rights, you improve the accountability of the politicians and you allow disaffected individuals to utilise litigation as one part of a political strategy. Equal protection and due process have become such divisive categorisations, applied with such esoteric distinctions in United States jurisprudence, that their trans-pacific importation to a country bereft of that judicial tradition would make us captive to the American view of fundamental rights and suspect classes. Our jurisprudence would be the poorer and less con­ sistent. Our disadvantaged citizens would be no better off. Our politi­ cians would be less able to respond to community values and concerns. If we continue robustly to shape our common law in the courts, to legislate for the federal protection of basic human rights, to avail ourselves of international instruments, and to constitutionalise the principle of non-discrimination on the basis of race, gender or sexual orientation, our body politic will be in good shape, our citizens being adequately protected from the whim and animosity of even the major- Reconstituting Australia without a bill of rights 187

ity. When there is a shortfall, we will be able to look to the United States and distil the principles of due process and equal protection from that most divided bench which wields political power under the guise of judicial determination. I counsel selective importation of the fruits rather than a transplant of the tree of fundamental rights, suspect classes, due process and equal protection; the tree could kill off the shrubs of the common good and the public interest. The Australian garden of rights and freedoms should continue to be pruned and fertilised by our judges and legislators playing their respec­ tive roles with an eye to outcomes in the United States. I see no benefit in excluding the legislators from the garden and in creating a monopoly for the judges. Judges alone are unlikely to satisfy the people that the right balance is struck in times of rapid change in the multicultural, increasingly globalised garden cross-fertilised by seeds and pollens from every value system on earth. Our elected representatives must remain the custodians of the common good and not simply the readers of the opinion polls lest our judges be cast as philosopher kings of a Platonic bent as they are expected to be in the United States. In Australia, the rights of minorities and unpopular individuals still face threats from the primitive majoritarianism of the major political parties seeking government. But those threats are best countered at the na­ tional level by a Senate in which the balance of power will be held by minor parties whose political niche, in part, is carved from the espousal of individual and minority rights, and by a judiciary shaping the common law while responding to internationaldevelopments in human rights jurisprudence. There is no need for our judges to be the exclusive arbiters of due process and equal protection. Their American brethren, armed with their highly developed jurisprudence and the democratic legitimacy of Senate confirmation hearings, demonstrate time and again that one judge's animosity is simply another's rationality. We can import their rationality second-hand without having to infect our own benches with the animosity inculcated by unelected judges trying to develop a judicial method for anti-majoritarian policy decisions benefiting those whose interests have never known special protection in the past. In Australia, the pace of change and the balancing of rights and the public interest should still lie principally with the people through their elected 188 Legislating Liberty

representatives, while the judges maintain the rule of law and avoid politics-smuggled-into-law. Endnotes

2. Australian proposals for a bill of rights

1. Final Report of the Constitutional Commission, 1988, Volume 1, p. 495. 2. Ibid., 496. 3. F. G. Brennan, 'Judicial qualities of a different kind', Law Institute Journal, July 1986, pp. 654-5. 4. G. Sturgess & P.Chubb, Judging the World: Lawand Politics in the World's Leading Courts, Butterworths, Melbourne, 1988, p. 70. 5. Brennan J, Mabo v. The State of Queensland (1991-2) 175 CLR 1 at 42. 6. Section 6 New Zealand Bill of Rights, 1990. 7. F. G. Brennan, 'The Impact of a Bill of Rights on the Role of the Judiciary: an Australian Response', Human Rights Conference, 16 July 1992, Uni­ versity House, Canberra, ACT, p. 3. 8. Ibid. 9. Ibid., 10. 10. Ibid., 12. 11. Roe v. Wade (1973) 410 US at 113. 12. Ibid., 15-16. 13. Ibid., 22. 14. Clause 52, Bill of Rights, EARC, Report on Review of the Preservation and Enhancement of Individuals' Rights and Freedoms, August 1993, p. A6. 15. Ibid., clause 35. 16. Australian Capital Television Pty Ltd v. The Commonwealth ofAustralia (1992) 108 ALR 577 at 593. 17. Ibid., 593. 18. Ibid., 594. 19. Nationwide News v. Wills (1992) 108 ALR 681 at 701. 20. Clause 23(2), EARC Bill, p. A13. 21. Clause 10, EARC Bill, p. AS. 22. Constitutional Commission, First Report of the Constitutional Commis- sion, Summary, (AGPS, Canberra, 1988), p. 32. 23. Ibid. 24. Ibid., 32-3. 25. Attorney-General(Victoria) v. The Commonwealth (1980-1981) 146 CLR 559. 26. See Barwick CJ at 579, Gibbs J at 594, 598, 604, Stephen J at pp. 607, 609, Mason J at 615 and Wilson J at 653. 27. Letter of L. Bowen to F. Rush, 19 March 1985. 190 Endnotes

28. EARC Report on the Queensland Legislative Assembly Electoral System. 90/R4, para 10.211.

3. The United States Supreme Court

1. W. J. Brennan Jr, 'Why Have a Bill of Rights?' (1989), OxfordJournal of Legal Studies 9, 425, p. 435. 2. United States v. Carolene Products Co. (1938) 82 LEd at 1234. 3. Ibid. 1242, n. 4. 4. R. Dworkin, 'Sex, Death and the Courts', The New York Review of Books, 8 August 1996, p. 44. 5. C. R. Sunstein, 'Leaving Things Undecided' (1996), Harvard LawReview 110, 100. 6. United States v. Virginia (1996) 135 L Ed 2d 735 at 773. 7. Ibid., 793. 8. R. Dworkin, op. cit. 9. Romer v. Evans (1996) 134 LEd 2d 855 at 865. 10. United States v. Virginia (1996) 135 LEd 2d 735 at 757. 11. Ibid., 751. 12. Ibid., 761. 13. Ibid., 762. 14. Ibid., 772.

4. The quandary: Australia, the United States and gay rights

1. Gaudium et Spes 16. 2. Veritatis Splendor, 1993, 55. 3. Sacred Congregation for the Doctrine of the Faith, Declarationon Certain Questions Concerning Sexual Ethics, 1975, 8. 4. Catechism of the Catholic Church, 2358. 5. Ibid., 2357. 6. Ibid., 2359. 7. Pontifical Council for the Family, The Truth and Meaning of Human Sexuality, 1995, p. 45. 8. 'Protecting the Human Rights of All', quoted in Voices of Hope, J. Gramick & R. Nugent (eds), Center for Homophobia Education, New York, 1995, p. 220. 9. 'Civil Rights of Gay and Lesbian Persons' op. cit., 192. 10. Romer v. Evans (1996) 134 LEd 2d 855. 11. R. Dworkin, 'Sex, Death and the Courts', The New York Review of Books, 8 August 1996, p. 44. 12. Bowers v. Hardwick (1984) 92 LEd 2d 140. 13. Ibid., 145. Endnotes 191

14. Ibid., 149. 15. Ibid., 155. 16. Ibid., 154. 17. Romer v. Evans (1996) 134 LEd 2d 855 at 874. 18. Ibid., Kennedy J, at 868. 19. Beller v. Middendorf632 F. 2d 788, 808-9. 20. Romer v. Evans ( 1996) 134 L Ed 2d 855 at 867. 21. Ibid., 868. 22. Ibid., 871. 23. Ibid., 873-4 24. Ibid., 878-9.

5. The past: Australia, the United States and abortion

1. EARC, Report on Review of the Preservation and Enhancement of Indi- viduals' Rights and Freedoms, August 1993, p. 112. 2. Ibid. 3. Press Release, Australian Episcopal Conference, 12 March 1986. 4. EARC, Report on the Review of the Preservation and Enhancement of Individuals' Rights and Freedoms, p. 112. 5. Ibid., 122. 6. Ibid. 7. Ibid. 8. Ibid., 121. 9. Clause 38 (3) EARC Bill of Rights, p. A17. 10. Attorney-Genera/for the State of Queensland (Ex Rel. Kerr) & Another v. T (1983) 57 ALJR 285 at 286. 11. Superclinics v. CES & PA, Transcript of Proceedings, High Court of Australia, 11 September 1997, pp. 64-5 (later quotes from transcript, pp. 65-72). 12. Roe v. Wade (1973) 35 LEd 2d 147. 13. Planned Parenthood v. Casey (1992) 120 LEd 2d 674 at 752. 14. Ibid. 15. Ibid., 711. 16. Ibid., 765. 17. Ibid., 708. 18. Roe v. Wade (1973) 35 LEd 2d 147 at 156-7. 19. Planned Parenthood v. Casey (1992) 120 LEd 2d 674 at 758.

6. The present: Australia, the United States and euthanasia

1. Hansard, 28 October 1996, p. 5911. 192 Endnotes

2. House of Lords, Report ofthe Select Committee on Medical Ethics, Session 1993-4, Volume 1, p. 23. 3. Ibid., 24. 4. New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the M edical Context, HealthEducation Services, New York, 1994, p. 72. 5. Ibid., 73-4. 6. Ibid., xii. 7. Ibid., xiii. 8. Ibid., 134-5. 9. Ibid., 140-1. 10. Ibid., 120. 11. Hansard, 21 November 1996, p. 7232. 12. Hansard, 28 October 1996, p. 5911. 13. Hansard, 28 October 1996, p. 5917. 14. R. Dworkin, 'Sex, Death and the Courts', The New York Review of Books, 8 August 1996, p. 44. 15. Planned Parenthood v. Casey (1992) 120 LEd 2d 674 at 698. 16. R. Dworkin, 'The Philosophers' Brief: An Exchange', The New York Review of Books, 29 May 1997, p. 46.

7. The future: free speech - a fundamental right on shifting sands

1. Denver Area Educational Telecommunications v. Federal Communica- tions Commission ( 1996) 135 L Ed 2d 888 at 899-900. 2. Ibid., 900. 3. Ibid., 922. 4. Ibid., 924. 5. Ibid., 943. 6. Ibid., 943. 7. Ibid., 943. 8. Ibid., 909. 9. Reno v. American Civil Liberties Union (1997) 138 LEd 2d 874; (1997) US LE XIS 4037. 10. Reno v. American Civil Liberties Union (1 997) US LE XIS 4037 at 31 . 11. Ibid., 10. 12. Ibid., 35-6. 13. Ibid., 9. 14. Ibid., 28. 15. Ibid., 29. 16. 44 Liquormart Inc. v. Rhode Island (1996) 134 LEd 2d 711. 17. RJR- MacDonald Inc. v. Anomey-General of Canada (1995) 127 DLR (4th) I at 92. Endnotes 193

8. Indigenous rights: moving beyond equality as sameness

1. Seminole Tribe v. State of Florida (1996) 134 LEd 2d 252. 2. Mabo v. Queensland (No.2) (1992) 175 CLR 1. 3. A. E. Woodward, Aboriginal Land Rights Commissh1n, Second Report, AGPS, 1974, pp. 103, 108. 4. Wik Peoples v. Queensland (1996) 187 CLR 1. 5. Ibid., 182. 6. Ibid., 133. 7. Ibid., 97-8. 8. Address, Land Rights: Past, Present and Future, Conference Papers, Northern and Central Land Councils, 16-17 August 1996, p. 228. 9. Wilson v. Minister fo r Aboriginal Affairs( 1996) 189 CLR 1 at 19. (Brennan CJ, Dawson, Toohey, McHugh & Gummow JJ). 10. Mathews, J., Commonwealth Hindmarsh Island Report, 21 June 1996, p. 187. 11. C. Miles for M. Wooldridge, Second Reading Speech, Hansard (H of R), 5803, 17 October 1997. 12. Hansard (H of R), 4859, 8 October 1996, an answer to a question without notice from B. Wakelin (Lib, SA). 13. H. Burmester, Opinion, Re: Hindmarsh Island Bridge Bill, 27 November 1996, p. 5. 14. Hansard (H of R), 5 November 1996, 6553, D. Melham. 15. Hansard (Senate), 26 November 1996, 5988. 16. (1965) CPD (H of R), 2638. 17. The Age, 16 May 1967. 18. Smoke Signals, vol. 6, no. 2, 1967, p. 6. 19. Ibid., 8. 20. Ibid., 7. 21. (1 998) HCA 22; I April 1998. 22. (1983) 158 CLR 1 at 242. 23. (1998) HCA 22; 1 April 1998, para 11. 24. Ibid., para 20. 25. Ibid., para 90. 26. Ibid., para 91. 27. Ibid., para 94. 28. Ibid., para 44-5. 29. Ibid., para 152. 30. Ibid., para 89. 31. Ibid., para 97. 32. Kruger v. The Commonwealth (1997) 146 ALR 126 at 195. 194 Endnotes

9. Reconstituting Australia without a bill of rights

1. The Minister fo r Immigration and Multicultural Affairs, Ex parte Ervin, B29/1997 (10 July 1997). 2. Nationwide News v. Wills (1992) 108 ALR 681; Australian Capital Tele­ vision v. The Commonwealth ( 1992) 108 ALR 577; and Theophanous v. Herald and Weekly Times (1994) 124 ALR 1. 3. Lange v. Australian Broadcasting Corporation (1997) 145 ALR 96. 4. Ibid., 107-8. 5. Ibid., 112. 6. Ibid., 107. 7. Ibid., 108. 8. Ibid., 113. 9. Kruger v. Commonwealth (The Stolen Generation Case), ( 1997) 146 ALR 126. 10. Ibid., 134. 11. Ibid., 135. 12. Ibid., 153-4. 13. Bowers v. Hardwick (1984) 92 LEd 2d 140 at 154. 14. Theophanous v. Herald & Weekly Times (1994) 124 ALR 1 at 28. 15. Section 117, which guarantees equal protection to interstate residents, has been given new life in the High Court's decision Street v. Queensland Bar Association (1989) 168 CLR 461. 16. The 1988 referendum proposed four questions: ( 1) four year terms for the houses of parliament; (2) a constitutional guarantee of fair and democratic elections; (3) constitutional recognition of local government;and (4) some expansion of existing rights in the Constitution, in particular trial by jury, freedom of religion, and fair terms for persons whose property is acquired by any government. 17. J. Howard's address to the National Press Club, 'Formal Launch of the Coalition's Referendum Campaign', 23 June 1988, p. 3. 18. Kruger v. Commonwealth (1997) 146 ALR 126 at 227. Index

Abortion, 2, 7, 8, 9, 12, 16, 30, 45, (Associations [U.S.], cont.) 47, 48, 50, 67,73-94, 117, 176, American Psychological 177, 186 Association, 59 choice, 74, 77, 80, 92, 114, 176 American Psychiatric court decisions, 82,83, 85,86, Association, 59 87,88 Association of American Law foetus, 73, 74, 77, 81, 83, 89, Schools, 70 176 Axios, USA, Inc., 61 incest, 73 Brethren/Mennonite Council limits, 73, 74, 78, 81, 90, 91, 93 for Lesbian and Gay morality, 74, 75, 80, 97, 93-94 Concerns, 61 privacy, 67, 90 Catholic League for Civil public opinion, 81, 87, 89 Religious Rights, 61 rape, 73, 87 Christian Legal Society, 61 reasons, 83, 84-86 Christian Life Commission of role of law, 75, 76, 77,79, 81, the Southern Baptist 82,93, 94 Convention, 61 surgical procedures, 73 Colorado Psychological Ah Kit, J., 105-106 Association, 59 Andrews, K.,97 Dignity /USA, 61 Anthony, D., 161 Evangelicals Concerned,Inc., Associations (Australian) 61 Aborition Providers Federation, Focus on the Family, 61 85 Integrity, Inc., 61 AIDS Council NSW, 100 Lutheran Church Missouri Australian Catholic Health Care Synod, 61, 62 Association,85 Lutherans Concerned/North Australian Medical America, 61 Association, 96 National Association of Social Children by Choice, 77 Workers, Inc., 59 Women's Abortion Campaign, National Association of 77, 79-80 Evangelicals, 61 Women'sElectoral Lobby, 87 Presbyterians for Lesbian/Gay Associations (British) Concerns, 61 British Medical Association, United Church Coalition for 101 Lesbian/Gay Concerns, 61, 63 Associations (United States) United Methodists for Gay, American Civil Liberties Lesbian & Bisexual Union, 135, 136 Concerns, 61 American Medical Association, WisconsinEvangelical 118, 122 Lutheran Synod, 62 196 Index

Baume, P., 18 Catholic, 14, 19, 56, 58, 62, 76, Bayliss, P., 73 88, 93, 96, 109, 111 Bennett, D., 89 Australian Catholic Bishops Bernadin, Cardinal J., 57 Conference, 26, 38, 40, Bill of Rights, 2, 7, 21, 30, 31, 32, 41, 42, 64, 78, 79 33, 34, 35, 36, 42,43, 44, 45, 46, Catechism of the Catholic 77, 80, 81, 89, 169-81 Church, 57, 7 4 Australian: constitutional, 1, 9, Congregation for the 10, 175, 176, 185 Doctrine of the Faith, 57 statutory, 1, 27, 78, 177, 178, American Muslim Council, 111 181, 185-86 Lutheran, 62, 111 Canadian, 21, 32, 44, 49 Mennonite, 61 New Zealand, 21, 29, 30, 37, Southern Baptist, 111 178 Uniting, 15, 56 South African, 49, 177 Clancy, Cardinal E., 15 United States, 7, 8, 9, 14, 25, Clarke, G., 5 47, 48, 51, 72, 185 Clinton, W., 76 Bjelke-Petersen, Sir J., 4 Cockburn, Dr J., 26 Blackmun, Justice H., 67, 90, 91, Commissions 92, 93, 176, 177 Aboriginal Deaths in Custody Blackburn, Sir R., 4 Commission, 107 boat people, 179-81, 184 Aboriginal and Torres Strait Bolkus, N., 109 Islanders Commission Borbidge, R., 24 (ATSIC), 5 Bowen, L., 43 Commission of Inquiry into Brennan, Justice Sir G., 29, 31, 32, Possible Illegal Activities and 37, 86--87, 162, 176 Associated Police Miconduct, Brennan, Justice W. J. Jnr, 14 34 Breyer, Justice S., 121, 129, 130, Constitutional Commission, 27, 133 167, 181 Buxton, L., 88 Criminal Justice Commission Byers, Sir M., 27, 39, 40 (Q), 24 Electoral and Administrative Campbell, E., 27 Review Commission (Q) Chapman developers, 156 (EARC), 4, 35, 72, 79, 80, 81 Charters Federal Communication Canadian Charter of Rights and Commission (US), 128, 133 Freedoms, 27, 28, 80, 140, Human Rights Commission 144 Australian, 26, 27, 43, 44 Commonwealth Charter of European, 28, 31 Espoused Rights and United Nations, 31 Freedoms, 181, 182-84 Committee (United European Community Charter Nations), 70-72, 180, 18.1 of Rights and Freedoms, 28 Independent Commission Churches, 20 Against Corruption (NSW) Anglican, 14, 15 (ICAC), 24 Index 197

Committees and Councils Kartinyeri v. The Senate Commonwealth, 162-65 Scrutiny of Bills, 11, 181, Kruger v. The Commonwealth 184 ('Stolen generation'), 164, Rights and Freedoms, 11, 167, 173,175 168, 181,184 Langev. Australian Legal and Constitutional, Broadcasting Corporation, 11, 109 171, 172 Regulations and Ordnance, Mabo v. Queensland, 31, 32, 181 147,148, 149, 150, 153, 170 House of Lords Select NationwideNews v. Wills, 37 Committee on Medical Native TitleAct Case, 162,164 Ethics, 100, 102 Superclinics v. CES & PA, 83, Media, Entertainment and 85,87,94 the Arts Alliance, 5,126 Tasmanian Dams Case, 162, New York State Task Force, 165 102, 103,104, 119 Theophanous v. Herald & common good., 16, 17n,18, 22, 52, Weekly Times, 194 93,100, 123,176, 187 Wik Peoples v. Queensland, 24, Companies and Corporations 32,147, 148, 150, 151, 152, Australian Broadcasting 153,170, 186 Corporation, 171, 172 Court cases (Canada) Comalco, 154 Big M Case, 28 RTZ-CRA, 153, 154 MacDonald Inc. v. Attorney Concetti, G., 15 General of Canada, 142 Constitutions National Citizens Coalition Australian, 21,23, 25,26, 38, Case, 29 39, 40,45,72,154, 161, 163, Court cases (United States) 165, 166,168, 170, 171, 173, Beller v. Middendorf, 190 174,175, 181, 185 Bowers v. Hardwick, 66-61,69, Canadian, 21,27, 124 70, 72 United States, 40,42, 47, 49, Compassion in Dying v. 67,69, 113, 114,116,124, Washington State, 111, 112, 127, 140, 171, 175 114-17, 119 Convention, Constitutional, 25, 39, Griswold v. Connecticut, 90, 93 175 PlannedParenthood v. Casey, International, On Elimination 91, 92, 114 of all Forms of Racial v. Discrimination, 159 Roe Wade, 33,89, 91, 92 v. Court cases (Australia) Reno American Civil Attorney General (Vic) v. The Liberties Union, 135 Commonwealth (DOGS), 39, Romer v. Evans, 59,65, 67 40, 41 Seminole Tribe v. State of Australian Capital Television Florida, 146 PL v. The Commonwealth of United States v. Virginia, 189 Australia, 36 Vacco v. Quill, 111 198 Index

Courts (Australian) choice, 94, 100, 101, 107, 113, High, 10, 27, 29, 31, 36, 38, 115, 120 82-83, 85, 97, 99, 155, 156, examples, 102, 107, 108, 110, 164, 166, 169, 170, 171, 173, 112, 114' 120 176, 178, 179, 185 experimentation, 121, 122 State, 38, 70-71, 83-84, 87, 89, fundamental rights, 101, 104, 110, 147, 148 111' 112, 113, 114, 118 Territory, 4, 99 involuntary, 108, 120 Courts (Canada) limits, 98, 101, 110, 120, 122 Supreme, 28, 29, 32, 80, 140, medical reasons, 97, 100, 102, 141, 142, 143 114 Courts (United States) ·mercy killing', 110 Supreme, 7, 8, 9, 14, 21, 47-55, morality, 94, 98-99, 100,113, 59, 61, 65, 66, 68, 69, 72, 81, 120 88, 89, 90, 92, 97, 111, 113, palliative care, 102, 104, 106, 114, 117, 118, 123, 125, 108, 120 130-33, 136, 138, 146, 177, physician-assisted suicide, 97, 181 98, 99, 100, 103-104, 111, Covenant, International on Civil 112, 113, 118, 119, 120 and Religious Rights, 2, 11, 26, public opinion, 97-98, 113 27, 31, 43, 70, 72, 78, 79, role of courts, 97 177-81, 185 voluntary, 98, 101 Cowen, Sir Z., 4, 23 vulnerable people, 102, 104, 109, 111, 114 Davidson, Dr, 82 Evans, G., 26, 42, 107 Davis, L., 153 Dawson, Justice Sir D., 165, 175 Finnis, J., 75, 76 Deane, Justice Sir W., 23, 87 Fitzgerald, Justice A., ix-xii, 34 Dent, R., 15, 102, 107 Forest, Sir J., 25 detention, 180, 181 freedoms Diana, Princess of Wales, 125, basic, 8, 9, 13, 22 126, 127 conscience, 39, 45 Douglas, Justice, 89 religious, 30, 38, 39, 40. 41, 42, Drinan, R. SJ, 76 45 duty, civic, 14 freedom of speech, 2, 7, 12, 29, 48, Dworkin, R., 50, 52, 66, 100, 101, 124-45, 171, 186 113, 114 advertising, 8, 124, 138-39, 140, 141, 142-45 Ervin, L., 169 cable TV, 8, 47, 48, 124, euthanasia, 2, 5, 7, 9, 10, 12, 15, 128-29, 130, 131, 133, 145 16, 18-19, 45, 47, 48, 49, censorship, 124, 129, 132, 133, 95-123, 176, 186 137, 176 Aboriginal attitude, 105-107 commercial, 138-45 authorisation, 103, 107, 108, constitutional rights, 37, 125, 109 127, 129, 171-72 Index 199

(freedom of speech, cont.) Howard, J., 100, 148, 152, 153, controls, 126, 127, 130, 134, 157, 162, 165, 185 135, 140, 143-45 defamation, 171, 172, 173 indigenous Australians, 2, 12, 16, editorial rights, 127, 128, 129 22, 25, 146-68 internet, 8,47, 48, 124, 133-37 Aboriginal Health Workers, 106 journalism, 125, 126 Aboriginal Provisional newspapers, 127 Government, 146 non-commercial, 135, 138, 139 Arnhem electorate, 105 privacy, 13, 29, 124, 125, 126, Aurukun community, 150 127 Cape York communities, 150, radio, 128, 136 154 constitutional inclusion, 11, Galligan and Fletcher, 33 155, 166 Gaudron, Justice M., 85-87, 164, discrimination, 147, 149, 151, 165, 167, 174 162, 154, 156-57, 158-62, Gay rights, 2, 7, 9, 12, 47, 48, 164-65, 167, 168, 178, 181, 56-72, 186 185 Gender issues, 2, 25, 48, 49, heritage protection, 156-160 52-55, 72, 186 history, 151, 154, 166 Gibbs, Justice H., 83 Hindmarsh Island Bridge, Ginsburg, Justice R., 53, 121 154-65 Gotterson, QC, 169-70 Kimberley communities, 154 Griswold, E., 88 laws, 147,149, 155 Grundmann, D., 73 native title, 147, 148, 149, 150, Gummow, Justice J., 151, 163-64, 152, 153 165, 186 Ngarindjerri women, 155, 157, 159, 160, 162 Hamer, Sir R., 27 Pilbara communities, 154 Hanson, P., 22, 152 Protector, 17 4 Hawke, R., 27 self-determination, 4, 5, 146 Helms, J., 128 'Stolen Generation' Herbert, H., 15 , 107, 173-74 Herron, J., 155-57 Holt, H., 161 Thayorre people, 150, 152 homosexuality Weipa communities, 150, 154 activity, 50, 57, 58, 67 Wik people, 150, 152 1., Christian and church groups, 56 Isaacs, Sir 25 dignity, 58,63 discrimination, 57, 58, 59, 61, John Paul II, Pope, 15 64, 65-69,72, 72 marriage, 56 Keating, P., 147, 148, 152 ordination, 56 Kennedy, Justice A., 52, 67, 68, 91, orientation, 58-60, 64 129, 130, 131-32 relationships, 58, 60, 63, 65 Kennett, J., 99 rights, 58, 71' 176 Kirby, Justice M., 64, 84, 85, 165 200 Index

Land rights, 2, 4, 5, 146-49, 150, Hindmarsh IslandBridge Act 151, 152, 154 1997, 156, 157, 158-60, 162, Land rights (Australian) 163, 165 arbitration, 148, 150 LordsDay Act (Canada) 1906, extinguishment of title, 149, 28 150, 151, 152 Migration Act, 169 mining development, 147-1-9, Native Title Act 1993, 148, 149, 152, 153, 154 152, 153, 157, 158, 164 Northern Land Council, 154 Public Assembly Act (Q) 1990, 4 pastoral leases, 148, 149, 150, Racial Discrimination Act, 147, 151, 152 149, 151, 152, 156, 157-69, sovereignty, 4, 154 160, 177 spiritual attachment, 148 Rights of the Terminally Ill Act terra nullius, 147 (N T) 1995, 96, 98, 105, 109, Torres Strait Islanders, 149, 110 150, 158, 159, 161, 164, Tobacco Products Control Act, 166-68 141 Land rights (United States) McHugh, Justice M., 31, 163 Indian tribes, 146 McRJernan, Senato� 109 sovereignty, 146 McLachlan, Justice, 142, 143 Lange, D., 171 McLeay, L., 99, 108 Lanhupuy, W., 106 McLeod, C., 174 Law Council of Australia, 43 Mansell, M., 146 Leeson, H., 144 Mason, Justice Sir A., 31, 32, 36 Legge, K., 87 Mathews, Justice J., 155-56 Levine, Justice, 82, 84, 85, 177 Menhennit, Justice, 82, 85 Legislation Menzies, Sir R., 161 Aboriginal LandRights migrants, 158, 166, 169, 178-81 (Northern Territory)Act Mohr, J., 110 1976, 154 monarchists, 23 Americans with Disabilities Act 13, 32, 59,65, 69, 93 1990, 10 morality, Murphy, Justice L., 26, 41, 42 Cable & 1VConsumer Protection & Competition Act National Crime Authority, 24 (USA), 128 Newman, Justice, 84 Communications Decency Act Nitschke, P., 15, 110 (US), 135, 136, 137 Death with Dignity Act O'Connor, Justice, 26, 91, 122, 136 (Oregon) 1994, 111 Olympic games, Sydney, 3, 22 Electorate and Administrative Review Commission Qld ( Q), Parliament (Australian) 37, 44-1-5 Commonwealth, 1, 10, 11, 21, Euthanasia Laws Bill, 91, 99, 26, 27, 30, 71-72,78, 97, 110 109, 123, 155, 160-65, Heritage Protection Act, 157, 166-67, 168, 169-70, 176, 159-60 179-80, 181 Index 201

State, 1, 10, 11, 21, 26, 27, 30, 48, 49, 58, 63, 66.67, 70, 74, 78, 71, 79, 80, 81, 82, 100, 167, 79, 80, 94, 96, 99, 100, 105, 109, 168 111 112, 114, 116, 119 127 ' ' ' Territory, 1, 11, 21, 30, 82, 97, 128, 129, 131, 140, 141, 152, 99, 105-106, 109, 123, 160, 161, 165, 167, 169, 170, 174-75, 176 175, 176, 178, 182-84, 186, 187 Parliament (United States Rioli, M., 105 Congress), 9, 69, 76, 97, 127, role of law 131, 133, 135, 136, 146 conunon, 4, 28, 30, 31, 45, 81, Alabama, 146 147, 148-49, 150, 152, 165, Colorado, 65-66, 67, 69, 89 171, 173, 177, 180, 181, 186 Connecticut, 88, 89 statutory, 172 Denver, 133 Rorty, R., 95 Florida, 127 Oregon, 111, 116 Sanders, C., 155 Rhode Island, 138-39 Scalia, Justice A., 50, 51, 53-54, Texas, 89 55, 56, 68, 69, 70, 115, 116, 138, Virginia, 52 140 Washington, 112, 121 Singer, P., 18 Pell, Archbishop, G., 18 Smith, D., 23 Political parties Solomon, D., 77 Coalition, 28, 152, 157 Souter, Justice D., 91, 117, 120, Democrats, 158 130 Labor, 27, 34, 147, 156, 171, Stevens, Justice P., 136-38 179 Stewart, Justice P., 89, 131 Liberal, 34, 147 3 147 National, 4, Tambling, G., 158 'One Nation', 22 Tanner, L., 108 Powell, L., 155 Thomas, Justice C., 50, 129, 139, Priestley, Justice, 84 140 Tickner, R., 155 Quinn, Archbishop, J., 58 Toohey, Justice J., 37, 174 racialequality, 25, 48, 152 Toonen, N., 71 racial prejudice, 48 Tribe, L., 115, 118 Rawls, J., 16 Rayner, Archbishop K., 15· Vrrginia Military Academy, 52 refugees and asylum seekers, 5, 179-81 Wainer, J., 87 Rehnquist, Justice W., 48, 50, 90, Wand, P., 154 92, 116, 117, 118, 119, 120-21, West, M., 15 136, 146 Whittam, G., 27, 162, 164 Renouf, Sir F., 171 women's rights, 47 republic, 3, 23 Woodward, Justice A., 147-48 rights, basic, 6, 13, 14, 17, 18, 21, Wooldridge, M., 162 22, 24, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 40, 44, 45, 46, Zines, L., 27 Prominent lawyer, advocate for Aboriginal land rights and Jesuit priest Frank Brennan recently examined the U.S. Bill of Rights as a Fulbright Visiting Fellow. He returned convinced that imi­ tation of such a constitutionally entrenched bill of rights would fail in Australia.

lnsi:ea\1 he proposes reform through strengthened parliamentary processes as well as constitutioiWI amendment .

.. Frank Brennan here weighs up a possible Australian bill of rights �ainst

U.S. experience, wrestling with the hard issues:

* sovereignty and indigenous land ri9,1its * the protection of individual rights * Aboriginal self-determination * the complexities of free speech * gayrights * euthanasia, abortion, moralityand the law * controlling cable TV and the Internet

Beginning as one man's personal journey, this book wil� stimulate mUCh- · needed public debate on individual and collective rights.

University of Queensland Press

Cover design and artwork by Peter Evans