Does Australia need a Bill of Rights? After all, Australia is, it surprises many to learn, the only Western democracy with neither a constitutional nor legislated Bill of Rights. Various attempts over the years to legislate one have failed.

The closest Australia ever got to a Constitutional free speech right was in 1992, when the High Court ruled that the Constitution carried an implied right to free speech — in political matters only. As the Chief Justice observed:

To sustain a representative democracy embodying the principles prescribed by the Constitution, freedom of public discussion of political and economic matters is essential:  it would be a parody of democracy to confer on the people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments.   

If that sounds like a reach, later High Court rulings found that it was. When a public servant who had been sacked for criticising the government on Twitter appealed the sacking on the grounds of such an implied right to political speech, she lost. The court ruled that there is no personal right to free speech, but a restriction on legislative power, which “extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution”.

The Australian government is, very quietly, once again resurrecting the idea of a legislated “Human Rights Act”

If anyone still doubted that Australians’ basic rights are not protected from government overreach, the last five years should have put a brutal end to such illusions.

But Canada has a Bill of Rights, and so does New Zealand, and yet their governments were no less draconian in crushing basic rights, from informed consent, to free assembly, to free speech.

So it looks like a Bill of Rights is worth precisely shit when the government boot comes down.

Or is it?

For all its faults, the United States’ Bill of Rights is holding up reasonably well against sustained assault by the state and its corporate attack dogs.

The difference lies in how a Bill of Rights is framed: to whit, which view of freedom is at its heart.

There are, in essence, two basic conceptual frameworks of freedom, with very different outcomes. These are positive liberty and negative liberty. At first blush, “positive liberty” may seem like the preferred option. It’s “positive”, after all!

In fact, positive liberty is the stomping ground of collectivist ideologies which are almost invariably associated with the worst shackles placed on individual freedom. That’s because positive liberty is better understood as “freedom to”.

That is, the freedom to act only within the constraints set down by law and society. Anti-discrimination laws are an example of positive freedom: citizens are free to act only within the bounds established by the laws enacted by the state. You are free to say only this and not that. You are only as free as the state decides to let you be. You can choose any colour, so long as it’s black.

Negative liberty is very different. Negative liberty is the “freedom from”. Freedom from constraint. Negative liberty establishes what citizens can tell the state it is not allowed to do. It is the type of freedom associated with classical liberalism and libertarianism. The US First Amendment is a negative liberty: Congress shall make no law… The Second Amendment is in the same vein: the peoples’ right shall not be infringed.

The other great difference between the USA’s, and NZ’s and Canada’s, Bills of Rights is that the United States’ is Constitutional; NZ’s and Canada’s are legislative.

A Constitutional law is the absolute bedrock law of the land. No matter what the government of the day may legislate, it must conform to the Constitution.

Legislation can be overturned by a simple vote in parliament. Or, like NZ’s, it can be restricted such that it cannot override any other legislation. Unlike the US Supreme Court, a NZ court cannot strike down or override any act of parliament with reference to the Bill of Rights. Which makes it a moot point as to why it exists at all.

The only way to get a Constitutional Bill of Rights in Australia would be by referendum. Good luck with that. The Australian Constitution was framed such that amending it is extremely difficult: a proposed amendment must secure not only a national majority of voters, but a majority of voters in a majority of states as well. Australians have, by and large, chosen to validate that high hurdle: of 45 referendums since Federation, only eight have ever been passed.

No referendum has ever passed without bipartisan support (and few indeed of those that had bipartisan support). Given that a legislated Bill of Rights has never made it past parliament, the chances of it passing referendum seem almost nil.

A major reason that a Bill of Rights has never passed parliament, let alone been proposed at referendum, is the suspicion voiced by former prime minister John Howard that such a Bill would transfer power from elected representatives to unelected judges and bureaucrats. It’s not hard to see the wisdom of his observation: consider, after all, just how much power health bureaucrats seized during the pandemic.

The closest Australia ever got to a Constitutional free speech right was in 1992

Even the High Court’s “implied right to free speech” decision could be seen as just the sort of judicial overreach Howard warns against. As the US Supreme Court did in 1973 with Roe vs. Wade, the Australian High Court took it on itself to invent a potentially far-reaching decision out of Constitutional thin air. More recent High Court decisions, which affectively affirm the role of magic — a supposed Aboriginal “spiritual connection to the land” — in law show that such unelected judges are the last people to whom we should trust our rights.

As it happens, the Australian government is, very quietly, once again resurrecting the idea of a legislated “Human Rights Act” — and it’s even worse than you might think. 

As should surprise no-one, given its origin in a left-wing government, it’s mired, waist-deep, in a mindset of positive liberty. That is, it’s all about what the state will allow Australians to do — not what Australians can tell the state what it cannot do.

For instance, freedom of religious belief is only allowed at the discretion of a judge. A judge can restrict religious freedom any time he or she considers it “reasonable” and “justified”. Religious freedom may be restricted in order to “protect public safety, order, health, morals or the rights of ­others”.

Who wants to take bets on how politically-appointed judges will interpret that one?

Freedom of speech gets even shorter shrift. Speech may be restricted — again, at a judge’s discretion — “in order to respect the rights and reputations of others or to protect national security, public order or public heath”. Ask Zoe Buhler, the Victorian mum arrested, pregnant, in her pyjamas, and crying, in front of her children, simply for posting the details of an anti-lockdown protest on Facebook, how that one’s likely to play out.

Perhaps the most alarming aspects of the proposed Human Rights Act is that it would include a mechanism that would enable everyone to sue for monetary compensation whenever they decided that their rights had been breached. Again, we only need to look at how aggrieved activists, most notably the “rainbow” lobby, have weaponised the existing “human rights” infrastructure to threaten critics and impose a chilly pall of silence on matters of essential public debate.

While it may be bad enough that Australia lacks any formal Bill of Rights, the threat of an ill-intentioned, badly framed one is infinitely worse.

It all comes down, in the end, to what Tony Abbott so famously asked during Australia’s last referendum campaign: do you really trust politicians?

Anyone who still does, clearly spent the last five years either in a deep coma, or developing a slavish taste for boot leather.