Two weeks into a Right to Know campaign, in which the Australian media has put aside differences in an attempt to break down the walls of Jericho around arguably the most secretive democracy in the Western world, one conclusion is clear.
Meaningful progress towards a more open society in which the public’s right to know is respected will not eventuate until and unless the nation enacts a charter of rights that enshrines in statute basic freedoms that are taken for granted in comparable Western democracies.
While the media is at one in its Right to Know campaign to unlock government secrets and protect journalist inquiry, it is divided on what would be the basic building block that would facilitate a better-informed society. This is, and let me put this in capitals: a CHARTER OF RIGHTS.
Space here does not permit a listing of all the freedoms described in a charter of rights document prepared by the National Human Rights Consultation committee established in 2008 by the Kevin Rudd government as part of its 2020 agenda. But in summary the three core freedoms described in that document are the right to freedom of thought, conscience and belief; the right to manifest one’s religious beliefs; and the right to freedom of expression.
Leaving aside for the moment a right to freedom of expression, protections for religious observance and belief in such a charter would obviate the need for legislation to guarantee religious freedom. Australia does not need a separate religious freedom statute. Those freedoms are, in any case, explicitly protected in Section 116 of the Australian Constitution. This guarantees the “free exercise of religion’’. By contrast, the Constitution enshrines no explicit free speech protection beyond a weak implied protection, as interpreted by the High Court, in sections 7, 24, 64 and 128.
Australian journalists campaigning for a Right to Know can only look with envy at the US Constitution and its Bill of Rights, in which the First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for the redress of grievances.’’
In those 45 words, America’s founding fathers inserted into the constitution protections that have shielded American journalists in pursuit of the truth and in defence of their rights in cases such as attempts to stop The New York Times publishing the Pentagon Papers.
These leaked documents exposed the lies and deceit of America’s war in Indo China. In an Australian context the “lies and deceit’’ that accompanied the rush to war in Iraq in 2003 would be unlikely to see the light of day.
It is not the smallest of ironies that Julian Assange, under threat of extradition to America for prosecution under the Espionage Act, could avail himself of First Amendment protection not available to him in his own country. In the absence, therefore, of a constitutional amendment that would guarantee freedom of expression the alternative is a rights charter.
This would align Australia with those Western democracies to which it is closest – the United States, Britain, Canada and New Zealand. All have free speech provisions either embedded in their constitutions or in statute.
Spencer Zifcak, the Allan Myers Professor of Law at the Australian Catholic University and a long-time human rights campaigner, has shared chapters of a book soon to be published on efforts to bring about a federal charter. These chapters make dispiriting reading in light of a timeline missed in 2009 when then prime minister Rudd squibbed an opportunity to put forward a charter of rights that would have provided a “dialogue model’’ for Commonwealth lawmaking.
This is the mechanism that is being applied successfully in Britain, Victoria, the Australian Capital Territory and Queensland in which a parliament’s will would override the courts on issues arising from such a “dialogue model’’ after consultation with the executive.
Notwithstanding this cautious approach, News Limited papers campaigned ferociously against a rights charter on the grounds that, in the words of The Australian, it would be “bad for rights and bad for democracy’’. This would be a revelation to American journalists who take First Amendment protections as a given.
Finally, a panoply of Australian laws relating to national security enacted since the 2001 terrorist attacks on New York and Washington, some 70 in all, need to be reviewed to ensure they do not continue to undermine the democratic process.
As Zifcak puts it: “The greater the incursion upon the rights and entitlements of journalists, the weaker the underpinnings of democracy become.’’
In his defence of national security legislation, under which journalists at the ABC and News are being pursued over stories embarrassing to the government of the day, Prime Minister Scott Morrison’s response is to say “no-one is above the law’’.
Well, of course, no-one should be above the law, but nor should government in one of the world’s most secretive democracies be beyond scrutiny, especially when freedom-of-information rights have been so compromised as to be rendered virtually useless.