Brian Keon-Cohen

Thank you Chris for that introduction. Ladies and gentlemen, it has been a long day and I am sure you're both exhilarated and exhausted by it, so I promise to keep to my ten minutes time limit. May I commence by expressing my appreciation to the Kulin nation for their very warm welcome and with my recognition that we're conducting this conference on their land. I say that with some heart, since I am currently deeply embroiled in another claim for a Victorian community, being the Yorta-Yorta claim, and I know how precious this country is to Victorian Aboriginal communities.

As Chris mentioned, the question of the Bill of Rights in Australia has been discussed since before Federation, been particularly discussed amongst legal and political and other circles in the last ten years or so. It has been discussed in the context of a long stream of international and domestic instruments that we can point to. We of course have no time to discuss any of them, but may I remind you that we can go back to 1215, the Magna Carta right through the Bill of Rights of 1668, the Act of Settlement of 1701 to find principles of law which are still directly embedded in our common law in Australia. We can then go a little further afield to the French revolution, the Declaration of Rights and Man of 1789, the United States Bill of Rights and the first 14 amendments of 1791, the United Nations Declaration of Human Rights of 1948, and then the very important instruments which guide us today -- the International Covenant on Civil and Political Rights and the International Covenant of Economic, Cultural and Social Rights of 1966. We can proceed on to the optional protocol in 1966, the Convention of the Elimination of all Forms of Racial Discrimination 1969, and so on and so on. There are many more international treaties, for example, to do with refugees, to do with the rights of the child that touch upon the question of Bills of Rights.

In the national arena, we have equally had a history which is worth recording, if only to say that we don't have to reinvent the wheel here, there have been people before us who have tried this, tried to debate and introduce such issues.

Firstly, the constitution has some very limited provisions. There are only five or six of them at the outside and on one view there are even less than that.

Section 80 deals with entitlement to trial by jury in some matters. Section 92 deals with trade and commerce which shall be free. Section 116 talks of freedom of religion; a case in the Supreme Court of South Australia which unfortunately went the wrong way, called the Grace Bible Church Case, which says that in fact this is not a free-standing entitlement to exercise your religion, it is rather in the nature of a protection, not quite the same thing. Section 116, of course, could be important to Aboriginal people. Section 117 speaks about State laws discriminating between citizens, then we come to the most important one, Section 51, Subsection 31 of the Constitution, which talks about just terms for acquiring property. This is one of our constitutional entrenchments which works, and at the moment it is one of the key elements in our structures of government which is inhibiting the current Federal government from passing laws acquiring property rights, that is to say native title rights, because they have to pay the bill.

The other key feature of Commonwealth laws which is restraining the Federal parliament is the existence of the Racial Discrimination Act, coupled with Section 109 of the Constitution. Section 109 says if you have a Commonwealth law which says thou shalt respect equality, and you have a State law such as Richard Court's law in Western Australia, that was the subject of a constitutional challenge which says we won't respect equality, then the two laws conflict and the State law falls. It is rather like pastoralist's and native title, pastoralists rights prevail and native title rights give way. So Section 51-31 is an important human right. And it was a right much debated in South Africa when it was settling its Constitution in terms of reorganisation, redistribution, property, which we heard about yesterday.

There is a more subtle entrenchment of our rights in terms of Chapter 3 of the Constitution. It says the official power of the Commonwealth shall be separate from the legislature. That means that, despite the appalling rhetoric of some senior politicians who should know a lot better, people like Sir Ronald Wilson when he is sitting on the High Court is independent of the other arm of government, being the parliament, and those two arms are equally independent of the third arm of government, the executive.

And so this notion of separation of powers has been the notion that you will remember Joh Bjelke Petersen knew so much about, this notion is an important underpinning of our rights as against government. It means that the High Court sits there, a sacrosanct institution, but not beyond criticism, especially of its judgements, but that is very different from criticising the institution itself. The High Court sits there to interpret the laws and apply the laws. Chapter 3 of the Constitution ensures its independence of parliament and ensures that it can't be undermined, say, with constitutional reform.

Now there is even a more subtle right of free speech which has emerged in the Constitution in recent years; this is the series of cases ending in what's known as a theogonists case. This is a protection which has been discovered by the High Court in the Constitution; it says that the parliament is restrained in the sorts of laws that it may make inhibiting free speech. Again, it is not a free standing positive entitlement to free speech, as we have in the 14^th Amendment in the US, but it is nevertheless a very important constitutional principle and of course the principle is now under attack in the nature of Ron Leavey's litigation, which we argued in Canberra last March, and another New South Wales case.

These are the only elements of the Constitution which help us and it is clear that they are very inadequate. We should also recall a number of attempts in Australia in recent years to address this problem. In 1973, there was the Australia Human Rights Bill introduced by then Senator Lionel Murphy. In 1983, ten years later, there was a similar Bill which was never actually tabled, but introduced by then Senator Gareth Evans. In 1985, there was an Australia Bill of Rights Bill, it was introduced in the House with the Human Rights and Equal Opportunity Commission Bill in 1986, that similarly fell away. In 1988, there was a Federal Constitution Reform Commission; it had a number of sub-committees which produced very learned reports and the Sub-committee on Civil and Political Rights recommended a Bill of Rights. The final Commission's report did not recommend taking up that option. Of course, in 1994, there has been renewed debate about all this and so, for example, the laws due to Victoria has issued a document called the Australian Charter of Rights and Freedoms. The Cain government, in 1988, introduced the Bill which was, very minor attempt and it failed in the parliament. Around the world in recent decades we have seen a number of these, for example in Canada, there is a New Zealand Bill of Rights and so forth.

Now perhaps could I briefly outline some of the arguments for and against Bills of Rights in Australia. Bear in mind that our founding fathers, in the conventions of the 1890s, looked at various models around the world and decided not to introduce a Bill of Rights in Australia; they opted for the Westminster Parliamentary System as a means of protecting the rights of citizens as against government.

Firstly, it is said that the Bill of Rights is not the Australian tradition involving parliamentary sovereignty. That we have a tradition of parliament, question time, private members bills, a house of review which ought to be sufficient. Of course, as parliament is now managed with the discipline of the party system, with the intense pressure of parliamentary legislative time and with the serious decline of the Senate and upper houses in the States as a genuine house of review, rather than a party house, in my view we have to conclude that the traditional reliance on the Westminster system is inadequate.

Secondly, it is said, with an eye on America, that if you introduce a Bill of Rights you politicise the Courts and thus reduce their effectiveness, their integrity, their independence. It is said that a Bill of Rights will transfer the power to an unelected male middle class elite who know nothing about the men and women in the street, and that you are engaging in a form of judicial imperialism. I think that also will not, can not be sustained; law is a political beast anyway, the Courts are a third arm of Government, they are inevitably involved in value judgements in so far as the application of legal doctrine and policy involved values.

Thirdly, it is said, to introduce a Bill of Rights which is uniform across the country ignores differences, particularly differences in a country as big as ours, and in a country which rejoices still in being a multi-cultural society. This I think, has some force, but let us remember that a Bill of Rights couched in general terms is also a flexible instrument that can be interpreted by the Courts on particular facts and in particular situations. That notion, however, touches on a very important topic for this conference and that is how to introduce a Bill of Rights which reflects Aboriginal and Torres Strait Islander values and which properly introduces either into the Constitution or a free standing Act of parliament the rights they wish to see enshrined. Remember also, the western tradition of rights tends to be individualistic, tends to focus on the individual, his or her rights and obligations primarily against the Government, and sometimes against other sectors of society.

Indigenous Communities give great priority to community values and the rights of peoples as a community and not necessarily the rights of individuals. So again, here is another difference that needs to be accommodated. If I could diverge one minute further to remind you that amongst all the instruments I have mentioned there have been numerous attempts to articulate Bills of Rights, treaties, Makarata, international declarations, particularly focusing on Indigenous people. We have already heard mentioned in the Conference today and yesterday of the Draft Declaration of the Rights of Indigenous People, the work of that sub-committee and the finalisation of that draft for 1993, was it, the text I have here, it is a lengthy text, it involves a wide range of rights of concern to Indigenous people. It is well worth studying and well worth remembering in terms of this discussion and the discussion about building in Indigenous rights along with rights focusing on the rest of the community. It does raise a difficult issue: are we here debating two Bills of Rights or one? Equally it raises a difficult issue: are we to attempt to enshrine a Bill of Rights in the Constitution or is it better to have it as an Act of the Federal Parliament or indeed an Act of the several State and Territory Parliaments? Is it further to be an Act with the force of law, with provisions providing for penalties for transgression, with provisions providing for the right of a citizen to go to court and bring an action for a breach of a provision of the Bill of Rights? These are difficult questions and I think reasonable minds can differ on them. For example New Zealand has in recent years introduced a Bill of Rights but it is merely a guide to the legislature and to the judges when they are interpreting other laws. You might think that is rather inadequate, and doesn't contain the sorts of strength you might desire, particularly where administrations change and, as we are seeing now at the Federal level, their policies can have a direct and very serious impact on rights hard won.

Experience, however, in New Zealand has been very positive, we have had people come over in the last year or so to talk about how that particular option is working, and it seems to be working very well. And that Bill without enforcement provisions, if you like, is not one to be disregarded.

On this question of variation, can I just mention the shopping of list of rights that the Committee of Australians, headed up by Dr Margaret Coombs, and Judith Wright and others, developed ten or perhaps fifteen years ago, when they were generating support for a Makarata, for a treaty within Australia . Let me read you the five principles that they highlighted as necessary for such an Aboriginal Bill of Rights, an Aboriginal Treaty if you like.

They suggested the Treaty or covenant, or convention should include the following:

SS Firstly, the protection of Aboriginal identity, language, law and culture, that is an all embracing set of notions. Aboriginal identity, language, law and culture. And in the language of the last day and a half you might read that as self-determination.

SS Secondly, the recognition and restoration of rights to land, and it is interesting to note that at that time they went on to say that "by applying throughout Australia the recommendations of the Woodward Commission" we might today rephrase that by saying by applying the Commonwealth Principles as enunciated in Mabo (No.2).

SS Thirdly, the conditions governing: that there should be principles in this Bill of Rights, concerned with conditions concerning mining and exploitation of other natural resources on Aboriginal Land.

SS Fourthly, compensation to Aboriginal Australians for the loss of traditional lands and for damage to those lands, and their traditional way of life and we might add propositions concerning the Stolen Generation and the like.

SS Fifthly, the right of Aboriginal Australians to control their own affairs and to establish their own associations for this purpose. Again perhaps expressed today in terms of self-determination.

I indicate that in order to emphasise that is it's not necessary to reinvent the wheel here. Also, may I emphasise that the Australian Law Reform Commission did an enormous amount of work, culminating in its report on Aboriginal Customary Law, which was tabled in the Federal Parliament in 1986. It was ten years in the making and I was fortunate to be involved with three years of that, during the late 70s. But that report is a very extensive examination of a range of issues touching upon matters of culture, law, land, language and so forth. That report has not been implemented, it has been a very sorry episode of bureaucratic buck passing between Federal Departments and between the Federal, State and Territory Authorities. I would recommend that, in our deliberations, that report be revived and pressure be brought to bear to include it in a discussion of a Bill of Rights.

Lastly for my own part, and I have not got through my pluses and minuses here, but for my own part I would especially in the light of movement at the political sphere which demonstrate how fragile our Indigenous rights are, against new administrations, particularly administrations which appear to look to the short term only, which appear to be poll driven in terms of policy rather than based on principle that this Bill of Rights be entrenched in the Constitution, and not be anything less than that.

Thank you.