This week, the extraordinary power of Australia’s police and intelligence services to go after the media was on full display. The Australian Federal Police’s raids on the ABC and News Corp journalist Annika Smethurst’s home have exposed the narrowing of press freedom in Australia. They are the outcome of more than a decade spent steadily expanding the national security apparatus, giving agencies greater power to erode our civil liberties.
One of the reasons it is so easy for these powers to expand is Australia’s lack of a bill of rights, or any kind of constitutionally entrenched bulwark against excessive state power. It’s a position that puts us out of step with much of the rest of the world — Australia remains the only Western nation without some kind of bill or charter of freedoms.
The United States Bill of Rights, which comprises the first 10 amendments to the US constitution, was created in 1789 and ratified two days later. The bill enshrines many of the principles Americans now take for granted: the first amendment, which protects free speech; the second amendment, which provides the right to bear firearms; and the fourth amendment, prohibiting unreasonable search and seizure.
For the first hundred or so years of its existence, the bill of rights lay largely dormant. It wasn’t until the 20th century, thanks to the efforts of civil rights organisations, that many of the amendments started being enforced and the rights and freedoms enshrined in the constitution were extended to all Americans, including women and people of colour.
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While the US, like the rest of the Western world, has ratcheted up its restrictions on national security reporting, the first amendment has historically provided important protections in this area. In 1971, The New York Times began publishing details from the Pentagon Papers, which documented 20 years of government lies and misinformation regarding US involvement in Vietnam — a situation reminiscent of the ABC Afghan Files stories, which triggered the AFP’s raid.
The Nixon Administration sought to restrain publication of the papers under espionage laws but the Supreme Court, in a landmark decision, held that the first amendment protected publication.
Britain passed the world’s first bill of rights — The English Bill of Rights — in 1689. It provided a blueprint for the United States’ own version and introduced important concepts, like parliamentary freedom of speech, which still have currency today. In 1998, the United Kingdom introduced its Human Rights Act, which incorporates the European Union Convention on Human Rights into English law. Importantly, the act allowed litigants to get a remedy for breach of the convention in UK courts, rather than at the European Court of Human Rights in Strasbourg.
Article 10 of the convention, contained in the schedule to the UK act, provides a right to freedom of expression, including the right “to receive and impart information without interference by public authority”. Article eight provides the right to privacy.
That legislation had an impact right from the get-go. An early review found that it promoted greater transparency and that public bodies were more likely to conform to human rights obligations. The act effectively provides an additional layer of regulation with which intelligence services must comply.
Following concerns about a dangerous power imbalance in favour of the executive, New Zealand enacted the New Zealand Bill of Rights Act 1990. The act provides protection for a number of freedoms, including freedom to seek, receive and impart information and opinions of any kind.
While the act does not allow individuals to take legal action against the government, it does force courts to consider it when interpreting legislation. It is also less strong than the UK model, as it does not allow courts to make an explicit declaration of incompatibility. However the laws do still influence the development of national security legislation. For example, while New Zealand’s 2017 Intelligence and Security Act expanded the powers of intelligence services, it contained sections integrating elements of the bill of rights act in order to comply with it.
The Canadian Bill of Rights was enacted in 1960. The ineffectiveness of that law led to the creation of a constitutionally entrenched Charter of Rights and Freedoms in 1982, which enshrined freedom of expression and freedom of the press.
Organisations like the Canadian Civil Liberties Association are empowered to challenge laws that violate the charter. For example, in 2014 the CCLA brought a lawsuit against laws giving the government warrantless access to citizen’s data.
Australian States and Territories
Three Australian states have introduced some form of charter or bill of rights. In 2004, the ACT passed the ACT Human Rights Act. This was followed by Victoria’s Charter of Human Rights and Responsibilities Act 2006 two years later. In February this year, Queensland became the third Australian state to follow, passing its own human rights act.
The protection under state legislation is somewhat limited; they generally harmonise existing state human rights laws and provide avenue for complaints. While they don’t allow courts to strike down laws, they ensure that judges should interpret statutes in line with the acts. Those acts are not entirely toothless: in 2017, Melbourne dumped a proposed ban on homeless people sleeping on the streets, after legal advice suggested it would violate the state’s charter.