Who Should Determine the Human Rights of Australians
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It is worth noting that the reconciliation of the conflicting rights of freedom of (political) speech and the rights of those who may be harmed by the exercise of the freedom, has been left to parliament and the courts, and not to majority public opinion..
Freedom of religion in Australia, although not guaranteed by the Constitution, is protected by law. It is important to note that the freedom to exercise religion has always also been subject to the law. However, religious organisations, and in some cases individuals, have been exempt from provisions of anti-discrimination and equal opportunity legislation that were found to be at odds with their religious tenets and beliefs..
The Majority, and Human Rights in our Democracy
The postal survey of public views on same-sex marriage has revealed a widely held view that it is up to the Australian people to indicate if federal parliament should even consider whether the legal concept of marriage should encompass same-sex couples.
In spite of such views, our democracy is not one where laws enacted by parliament necessarily reflect the wishes of the majority of the population. Nor is it one where the rights of citizens and especially of minorities, are determined directly by the majority of citizens entitled to vote. A democracy in which the majority did determine rights, would in effect be a dictatorship by the majority. As Human Rights Commissioner Edward Santow states, in opposing the postal survey on same-sex marriage, the contemporary notion of democracy is ‘rooted in the democratic principle that human rights questions should not be determined by such “majoritarian” methods’.
In a democracy, the rights of the majority are likely to already be protected because majoritarian interests by definition represented in parliament. Consequently, they are unlikely to need to have their rights protected or recognised by law. In seeking to preserve their privileged position, the majority has a vested interest in maintaining the status quo. They do so by opposing and denying recognition to the competing or conflicting rights of minorities. This may explain why the previously dominant and majoritarian views of white Christian and or socially conservative Australians opposed the decriminalisation of homosexuality, legal recognition of same-sex relationships, and currently the legalisation of same-sex marriage.
So, if human rights are not to be determined by the majority, how should the right of same-sex couples be determined?
The Commonwealth Constitution
The main advantage of constitutionally protected rights or freedoms is that they cannot be repealed or amended at the whim of Parliament, but also require the support of the difficult to attain double majority of the electorate – a majority of voters in a majority of states and a majority overall – required in a referendum.
Some of those advocating a ‘No’ vote refer to ‘freedom of religion’ and ‘freedom of speech’ as if they are entrenched constitutional rights. Some of those who advocate a ‘Yes’ vote make a similar claim about ‘equal rights’. In reality, there are very few guarantees of human rights or freedoms in the Australian Constitution. In particular, there is no constitutional guarantee of equal rights, right to marry, and freedom of religion, while freedom of speech confined to political
The drafters of the Australian Constitution did not overlook the inclusion of rights. They considered, and deliberately rejected the inclusion of rights such as those found in the American Constitution and Bill of Rights. They rejected the entrenchment of rights because they noted that countries which had constitutional rights (most notably the United States of America) appeared to be the ones that most infringed such rights. In addition, equal rights in areas such as race and religion, were not included simply because many citizens of the colonies did not want racial or religious minorities to be treated as the equals of caucasian Christians. (With respect to religion at least, this has not not changed significantly)
Section 116 of the Constitution, often cited as a constitutional guarantee of religious freedom, is in fact nothing of the kind. It merely restrains the federal parliament from making laws ‘for establishing any religion’, or ‘for imposing any religious observance’, or ‘for prohibiting the free exercise of any religion’, and states that ‘no religious test shall be required, as a qualification for any office or public trust under the Commonwealth’. The operation of s 116 is confined to Commonwealth laws and consequently does not restrict State laws. The scope of the section has been further constrained by the High Court’s narrow interpretation. The Court has consistently held that the section’s use of the word ‘for’ requires any breaching law to be enacted with one of the offending object in mind. Commonwealth laws having the same effect but not having been enacted for that purpose, have been held not to be in breach of the section. Not surprisingly, no law has ever been found to be in breach of s 116.
The High Court has also determined that by virtue of the Constitution’s provisions relating to direct parliamentary representation of citizens, the Constitution contains an implied freedom of political speech. This implied freedom guarantees freedom of speech on political issues but is subject to reasonable restraints imposed by parliament. It will be the ‘freedom’ behind some of the most adversarial campaigning of the postal survey.
Commonwealth Laws
The implied freedom of political speech is not absolute, and has been regulated by the federal government legislation targeting, for example, misleading and deceptive advertising.Whether parliament passes such laws before census returns close remains to be seen.
With respect to to the regulation of freedom of political speech and even the ‘freedom of speech’ that we take for granted, the current commonwealth government appears to hold the view that it doesn’t make sense to limit the scope of freedom of speech to speech that is acceptable and doesn’t offend others, as such speech does not need to be legally protected.
It is worth noting that the reconciliation of the conflicting rights of freedom of (political) speech and the rights of those who may be harmed by the exercise of the freedom, has been left to parliament and the courts, and not to majority public opinion..
While the constitution does not contain a right to marry, the High Court’s interpretation of federal parliament’s constitutional powers with respect to marriage and related matrimonial matters, revealed an evolution which prior to John Howard’s 2004 intervention appeared destined to lead to judicial recognition of marriage as encompassing same-sex marriage
Freedom of religion in Australia, although not guaranteed by the Constitution, is protected by law. It is important to note that the freedom to exercise religion has always also been subject to the law. However, religious organisations, and in some cases individuals, have been exempt from provisions of anti-discrimination and equal opportunity legislation that were found to be at odds with their religious tenets and beliefs..
In this way schools run by religious organisations have been permitted to discriminate on grounds such as sexual orientation and marital status when hiring teaching staff. Though open to criticism, both anti-discrimination legislation and exemptions from such legislation illustrate how directly elected law-makers have gone about enacting and protecting various, often conflicting, human rights. As I noted earlier, in spite of alarmist advertising, there appears to be no reason why parliament and the courts would not be able to satisfactorily reconcile other rights with legalised same sex marriage.
International Covenants
After world war II, international law became a powerful means for enshrining and enforcing fundamental human rights. While signatory nations found to be in breach of international human rights covenants are not able to be forced to comply, UN declarations of inconsistency with human rights enshrined in International Covenants routinely embarrass governments into rectifying their breaches of obligations. In this way Australia’s last law to treat homosexuality as a criminal offence, came to be repealed. International Conventions have also served to empower the federal parliament to enact legislation such as the Racial Discrimination Act 1975 and Sex Discrimination Act 1984.
Federal parliament is only able to legislate in areas in which the Constitution stipulates that it has power. However, the High Court’s generous interpretation of the federal parliament’s ‘external affairs’ power means that federal parliament is able to enact laws required to fulfil its obligations under ratified international human rights instruments. The two Acts cited above are examples of parliament’s reliance on the external affairs power. However, it must be noted that until such international agreements are incorporated into Australian law through an Act of federal parliament, they do not have the force of law. But an international covenant that has been signed by the government and ratified by parliament, is able to be consulted by courts as an aid to their interpretation of related laws.
Federal parliament is only able to legislate in areas in which the Constitution stipulates that it has power. However, the High Court’s generous interpretation of the federal parliament’s ‘external affairs’ power means that federal parliament is able to enact laws required to fulfil its obligations under ratified international human rights instruments. The two Acts cited above are examples of parliament’s reliance on the external affairs power. However, it must be noted that until such international agreements are incorporated into Australian law through an Act of federal parliament, they do not have the force of law. But an international covenant that has been signed by the government and ratified by parliament, is able to be consulted by courts as an aid to their interpretation of related laws.
Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Right, have been ratified by federal parliament, and enshrine the right to marry. The Declaration and Covenant do not define marriage as being exclusively heterosexual, nor do they mention same-sex marriage. In so doing, it has been suggested that international human rights instruments appear to highligh the lack of equal rights accorded to those who are not currently permitted to marry
Protection preferred by the nation’s founders
The preferred way to protect rights, according to the drafters of the Australian Constitution, was to be found in the British (Westminster) system of government, where people relied on directly elected law m akers and an independent judiciary for the protection of their rights. Parliament provides a means of protecting rights in that it is directly accountable to the people, it has the resources to research the issues and consult, and because the d ecisions of each House of Parliament are subject to review by the differently composed other House. It has also shown itself able to be a buffer against hostile community sentiments directed at unpopular minorities.
The role of Australian Courts is to interpret, determine the validity, and apply parliament’s law. It is also to determine the common law (law developed through precedent by judges) and international law, where appropriate. In this respect our judges are expected to challenge actions by parliament or government where they appear to impinge on human rights.
In this same-sex marriage debate, it is interesting to note that the reason why marriage was not defined in the. was not an oversight but rather a deliberate choice. In the words of Senator, and later Prime Minister John Gorton, it was considered ‘best to leave to the common law the definition or the evolution of the meaning of marriage.’
Excluding the Two Most Approprite Means of Determining Human Rights in Australia
In 2004 Prime Minister John Howard amended the definition of marriage in the Marriage Act 1961 by inse rting a definition of marriage as a union of a man and a woman. He did so out of fear that the High Court would rule that a same-sex marriage was not unconstitutional. In view of such judicial findings in comparable overseas countries that legalised same-sex marriages, John Howard sought to end to judicial determination of what constituted marriage in Australia.
In 2004 Prime Minister John Howard amended the definition of marriage in the Marriage Act 1961 by inse rting a definition of marriage as a union of a man and a woman. He did so out of fear that the High Court would rule that a same-sex marriage was not unconstitutional. In view of such judicial findings in comparable overseas countries that legalised same-sex marriages, John Howard sought to end to judicial determination of what constituted marriage in Australia.
By insisting on a postal survey of public opinion, Prime Minister Malcolm Turnbull, has declined to give Parliament the opportunity to debate and legislate on the right of same-sex coupes to marry. While we’ve been told that the survey’s findings will not be binding on Parliament, the Prime Minister’s promise to consult the people first, clearly suggests that public opinion is expected to determine whether Parliament grants or at least debates granting same-sex couples the right to marry.
In this way, the two preferred means of recognising the rights of same sex couples to marry have been excluded, and in their place, the populatin has been invited to give their opinions.
To underline the inappropriateness of employing a postal survey to ascertain the opinion of the majority of the population on whether same-sex marriage should be legalised, imagine the outcry if it was similarly proposed that the right to active euthenasia would be determined by the majority view expressed in a postal survey.
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