What parliaments cannot do

The enormous expansion of government activities in the past hundred years has made a nineteenth century parliamentary structure inadequate for monitoring wide areas of government performance. Parliaments have simply been unable to extract sufficient timely information from governments.

Inquiries by parliamentary committees into government administration, although often useful, are sometimes inappropriate, whether because of their party political nature or because of lack of expertise or support. MPs have also proved inadequate defenders of the rights of their constituents against increasingly pervasive bureaucracies, and have also often failed to control government actions (or inaction), whether legislative or administrative, which infringe the basic rights and liberties of individuals or minority groups.

These problems are being tackled in all four countries , but most of the solutions inevitably reduce the responsibility of the governments to the parliaments, by setting up outside bodies to perform functions which have proved to be beyond the effective powers of the parliaments.

Freedom of information legislation

A key problem for all parliaments is access to timely and adequate information about government activities. Virtually all senior bureaucrats would like to keep much of this information hidden behind a self-serving screen of secrecy, which must be removed if the government is to be truly responsible to the parliament and the people. The problem was well expressed by the Australian Liberal Prime Minister Malcolm Fraser when he said:

The principle of responsibility-to the electorate and the parliament-is a vital one which must be maintained and strengthened because it is the basis of popular control over the direction of government and the destiny of the nation ... people and parliament must have the knowledge to pass judgement on the government ... Too much secrecy inhibits people’s capacity to judge the government’s performance.[95]

On an earlier occasion he had said: ‘How can any community progress without continuing and informed and intelligent debate? How can there be debate without information?’[96]

This is not at all the way most bureaucrats, and most ministers for that matter, view the issue. Their view seems to be that such information as is released should be at a time and in a form which is acceptable to the government department concerned. The bureaucracy’s handling of Malcolm Fraser’s desire for a Freedom of Information Act is illuminating. A bill was produced, which was riddled with total exemptions and unreviewable ministerial discretions not to release documents. It is indisputable that some information held by the government must be protected, such as material affecting national security or involving the privacy of individuals, but the bill as presented was ridiculous. Nevertheless it would certainly have been passed by the House of Representatives, but fortunately it was introduced in the Senate because the Attorney-General was a senator. Sufficient Liberal senators cross voted to have the bill referred to a Senate committee, and after prolonged hearings the committee recommended substantial improvements to the bill, nearly all of which were adopted.

Although most of the resistance of the bureaucrats to an effective Freedom of Information Act was specious and self-serving, there was one claim which had to be taken seriously by the Senate committee. It was suggested that the concept of freedom of information was incompatible with responsible government. It was argued that four characteristic features of responsible government could be damaged by freedom of information: collective ministerial responsibility; individual ministerial responsibility; a politically-neutral bureaucracy; and the anonymity of individual bureaucrats.

The worry about collective ministerial responsibility can be easily disposed of. Certainly the secrecy of Cabinet discussions must not be breached, for if frank debate in Cabinet became impossible the stability of Cabinet government would be weakened. However, there is no suggestion in any of the freedom of information legislation that records of Cabinet discussions or policy documents prepared for Cabinet consideration should be released. This does not mean that self-serving attempts to protect information which has nothing to do with collective ministerial responsibility should be countenanced. Statistical summaries prepared for Cabinet consideration are an example of information which should not be hidden from the public. Why should the public, on whose behalf the information was collected, and who paid for its collection, not have access to such factual data?

The theory of individual ministerial responsibility differs greatly from the practice, and it is difficult to see how the present practice would be damaged by freedom of information. Certainly the public revelation of actions by a department might result in fierce questioning of the minister in the parliament, but this is surely proper under responsible government.

It is also difficult to see how freedom of information would damage the political neutrality of the bureaucracy. On the contrary, the possibility of the release of a document would surely make a bureaucrat very wary of taking an excessively- partisan political position.

The one area where freedom of information does have a marked impact on the traditional concept of responsible government is the removal of the anonymity of individual bureaucrats. But are bureaucrats still anonymous, and does it matter if they are not? An Australian Attorney-General has said:

the views or supposed views of individual public servants tend more and more to be canvassed in the Press. Individual public servants have more and more direct dealings with the public in the development as well as in the administration of government policies and programs. This process of change needs to be allowed to evolve.[97]

A prominent British civil servant, Sir William Armstrong, wrote that ‘there would be every advantage in the names of the civil servants responsible for such [policy option] studies being known, and their being allowed to join in public debate on their own findings.’[98] Canada has adopted this approach, with the name of the bureaucrat who initiated the policy being attached to such documents as impact analysis statements accompanying new regulations.

Of course many contrary views have been passionately proclaimed. Records would be less formal; more advice would be given orally; written advice would be more cautious and less innovative; civil servants could no longer point out that a policy proposed by a minister had flaws, if the document containing such criticisms were liable to be released to the press or the opposition; and so on. All that can be said about these fears is that, although they were obviously sincere, they have not been borne out by experience. An Australian Senate committee, examining three years of experience of freedom of information, found that the overwhelming opinion among public servants was that the possibility of public release had if anything improved the quality of departmental documents.

Proper access to information held by the government is critical to the responsibility of that government to the parliament and the people. Yet progress has been slow, and bureaucracies and some ministers are fighting to delay new acts and make existing acts more restrictive. Of the parliaments we are considering, the first to introduce freedom of information legislation was Nova Scotia in 1977 followed by Canada federally in 1982. Both Australia and New Zealand passed such acts in the same year, and by 1999 eighteen of the twenty parliaments had passed freedom of information legislation. The only major holdout was the UK, where the bureaucracy successfully exploited an obsolete concept of ministerial responsibility to frustrate liberalising moves, but the Blair Government finally introduced a Freedom of Information Bill in 1999. The other holdout was the Canadian province of Prince Edward Island.

Royal commissions and commissions of inquiry

It is one thing to have information, quite another to do something effective with it. Parliaments are often ineffective in investigating serious allegations of government mismanagement or corruption. Governments would usually resist such inquiries, and their resistance would almost always be effective in the lower houses. In any case the usual partisan nature of a parliamentary committee of inquiry on such a matter would tend to discredit the report, though if the government members voted for the criticisms the effect would be dramatic, but not at all what the government wanted. Faced with serious allegations which cannot be shrugged off, a government may set up a commission of inquiry. If the government so wishes the commission of inquiry may be called a royal commission, but this is usually reserved for commissions whose subject matter is of outstanding public importance. A judge or former judge usually presides over a royal commission, but this is not mandatory. The name ‘royal commission’ is sometimes improperly used. In Canada, for instance, ‘a royal commission is a commission issued under the Great Seal of Canada.’ But the description ‘royal’ is much abused, with some commissions technically entitled to its use not employing it, and others appropriating it when they have no business doing so.

Setting up a commission of inquiry can be a dangerous solution for the government. It is often said that such an inquiry should never be set up unless the answer is known, but in fact a commission of inquiry is very difficult for a government to control. The subject is usually dramatic and the evidence widely reported, so if the commission asks for an extension of time, or a widening of the terms of reference, it is politically very difficult for the government to refuse. A dramatic example of the potential problems in such an inquiry is one held in Queensland between 1987 and 1989. The government set up the inquiry with the intention of it having brief hearings and laying to rest allegations of police corruption. In fact the inquiry, called the Fitzgerald Inquiry after its chairman, lasted for more than two years and revealed widespread corruption in both the police force and the government. The premier was forced to resign, three ministers were sentenced to imprisonment, as was the Commissioner of Police, and the long-serving National Party government was defeated. This was certainly not what that government had in mind.

As a result of the inquiry, Queensland set up what were in effect two continuing commissions of inquiry, called the Criminal Justice Commission and the Electoral and Administrative Law Commission. These two commissions were to report to all party parliamentary committees, but the commissions had great political power, at least while the corruption revelations remained vivid. Indeed, the parliamentary committee concluded that the Parliament had politically, if not legally, delegated its law-making powers over the electoral system to the Electoral and Administrative Law Commission, and that therefore the parliamentary committee was ‘honour bound’ to accept its recommendations. Of course this could not last, and the commission was abolished in 1993.

The Criminal Justice Commission has survived, although its power to investigate organised crime was removed in 1997. Its purpose now is to ensure that corruption in the public sector does not return. In its dual roles of ‘watchdog’ and ‘educator/reformer’, it aims to detect and reduce corruption and misconduct in official places.

Such bodies can cause other problems for politicians. New South Wales has had a long history of corruption in government, in the police force and in parts of the judiciary. In 1988 the incoming Liberal-National coalition government established an Independent Commission Against Corruption, but four years later the premier who set it up became a victim of it. He was by then leading a minority government and had offered a senior public service post to an Independent MP, confident that the government would win the resultant by-election. It did, but the premier was forced to resign following an adverse report by the Commission. Two months later the New South Wales Supreme Court overturned the decision, but it was too late for the premier, who had by then resigned from the Parliament.

Between 1970 and 1999 there were ten royal commissions in Britain, on subjects such as gambling, the National Health Service, reform of the House of Lords and standards of conduct in government. None were initiated between 1979 and 1990, because Mrs Thatcher resolutely refused to countenance them: few prime ministers have had her resolution. In Canada there have been 44 federal royal commissions in the past 30 years, covering a wide range of matters such as pollution, the allowances of MPs, parliamentary accommodation, steel profits, Canadian unity and the deployment of Canadian forces to Somalia. In Australia there have been 22 federal royal commissions, on subjects as diverse as the after-effects of the atomic tests at Maralinga, transport charges to Tasmania, and Aboriginal deaths in police custody. In New Zealand there were seventeen royal commissions, but the rate has declined markedly in recent years, for there have been only three such inquiries since 1983.

A problem with commissions of inquiry, apart from the potential for government embarrassment and their very great cost, is the effect on the judiciary. Many ministers like to have a judge presiding over a commission, feeling that this will give prestige and at least some prospect of restraint. Besides, judges are inexpensive. A judge would be expected to conduct a royal commission as part of his duties, whereas if a QC were employed the fee is likely to be at the daily court-appearance level, and for a prolonged inquiry may run into millions. Some judges seem to like the drama and publicity, or perhaps the release from more boring cases, though by accepting they place an increased load on their colleagues and inevitably increase the delays before cases are heard in court. The downside is that a royal commission is often involved in highly controversial political affairs, and there is a real danger that the public perception of the independence of the judiciary will be damaged. A Chief Justice of Canada has pointed out that ‘judges may not have the necessary qualifications to determine socio-economic questions ... As one commentator has put it-our courts are held in high regard because judges usually stay within their area of competence.’[99]

The involvement of judges in royal commissions has been criticised in many jurisdictions, but the only ones to take formal action are the Australian High Court and the Victorian Supreme Court which will not permit their judges to sit on any non-judicial government body. Nevertheless commissions of inquiry could still be effective without a judge presiding, and these commissions do perform a role in investigating government actions and their consequences, which the parliament to which the government is responsible might in theory deal with, but in practice rarely can.

Ombudsmen

The vastly increased scope and complexity of government administration and its impact on the public have meant that MPs cannot possibly resolve all the conflicts between their constituents and the bureaucracy. MPs have traditionally been seen as the protectors of the rights of their constituents, to see that they receive their entitlements and are not unfairly treated. MPs in all the four national parliaments are now provided with staff to assist with political research and the problems of constituents, but the task has grown far beyond the capacity of the old system. In Britain an MP is given an allowance to provide for a secretary and a part-time research assistant, though whether the allowance is spent in this way is up to the MP. In Canada and Australia an MP has a staff of three and in New Zealand two. For comparison, a typical member of the United States House of Representatives has a staff of fifteen.

One answer to the problem is to appoint an ombudsman, who investigates complaints from individuals about administrative actions of the bureaucracies, but not (except in the UK) ministerial decisions. The office of Ombudsman was first created in Sweden in 1809, to be copied by Finland in 1919, Denmark in 1953 and Norway in 1962. New Zealand was the first of our four countries to make such an appointment, to be followed by the province of Alberta in 1967. The office has many titles: Ombudsman; Parliamentary Commissioner (Ombudsman); Parliamentary Commissioner for Administration; and (in Quebec) Public Protector. An ombudsman’s investigations are informal and in private, and their aim is conciliation. He can make recommendations to government departments and ministers, and can report the problem to parliament if he considers the response inadequate.

Eighteen of the twenty parliaments we are considering now have ombudsmen to whom citizens or groups may make complaints. The two exceptions are the UK and Canada. In the former there is a parliamentary ombudsman, but he has no power to initiate his own investigations, as all complaints must come through an MP. This is perhaps consistent with the theory of responsible government, but it does not work very well. MPs do not generally avail themselves of the services of the ombudsman and the number of complaints dealt with, in relation to population, is about one-tenth that of the ombudsmen in the other countries. There is also a Northern Ireland Ombudsman, and separate local government ombudsmen for Scotland, England and Wales. In Canada the idea of a federal ombudsman has never been really popular. Prime Minister Trudeau said in 1968, when the idea was first being discussed, that in his opinion the Minister of Justice functioned as an ombudsman. Various government agencies do have ombudsmen or public complaint commissions, but the federal government has held out.

Although the Australian Ombudsman does make annual reports to Parliament, they are rarely debated in the House of Representatives, despite containing many instances of official administrative shortcomings and sometimes raising important questions. One would have thought that the opposition would welcome the opportunity to initiate debates on such matters, but so far nothing has happened. The Ombudsman also has the power to make a report to Parliament on a specific matter if he is not satisfied with the handling of his report by the government, but neither house showed any interest, and the power has not been used since 1986.

The Senate, as usual in such matters, does rather better than the House of Representatives. The Standing Committee on Legal and Constitutional Affairs is showing increasing interest in the Ombudsman’s activities, but the investigations are not nearly as systematic and thorough as they should be.

In addition to an ombudsman, Australia has another elaborate system for dealing with complaints from persons affected by government decisions. An Administrative Appeals Tribunal was set up in 1975 to hear such complaints. It can review administrative decisions made by federal ministers, authorities and officials, other tribunals, and some non-government bodies. It can affirm the decision, substitute its own decision, or send one back for further consideration with any recommendations it may care to make. The Tribunal derives its power from specific provisions in various acts, but its jurisdiction is rapidly extending. It now has jurisdiction in more than 300 separate areas, covering such matters as deportation, employees’ compensation, and customs. In 1998 it was announced that the Administrative Appeals Tribunal over the next few years would take over appeals in the areas of social security, immigration and refugees and would be renamed the Administrative Review Tribunal, but the arrangements may have difficulty getting through the Senate, which is not controlled by the government.

The Tribunal is not always the first body to review an administrative decision. In some cases it may not review decisions until after an internal review by the body which made the initial decision, and in other cases there has first to be a review by a specialist tribunal. The president is a judge of the Federal Court, and all the senior members are lawyers. The Tribunal does useful work but it has been criticised as being more formal than the High Court, and the concept is totally outside the theory of responsible government. The minister is made responsible for his administrative decisions and those of his subordinates, not to Parliament but to a non-elected extra-parliamentary body.

Of the states, only New South Wales and Victoria have similar tribunals.

The audit function

If the government is to be truly responsible to the parliament, it is essential that there should be an effective audit of the government’s accounts to ensure that the money provided by the parliament is spent on the agreed purposes and that the agreed programs are executed efficiently.

There is no way these audit functions could be carried out by parliamentary committees. The audit function requires unrestricted access to government accounts and records (including, where necessary, Cabinet records), and no government would allow a parliamentary committee such access, for the committee would inevitably contain members of the opposition. Parliamentary committees sometimes examine the efficiency of government programs, but this is not normally systematic. Even when the government cannot prevent such an inquiry being set up, it still has another possible line of defence. It can claim executive privilege, and its witnesses may refuse to answer questions or sometimes even to appear at all. There is nothing effective a parliamentary committee can do about it, though the committee members will undoubtedly make a lot of noise. All the government has to worry about is how its uncooperative attitude will be reported in the media and viewed by the voters.

The solution to these problems has been the appointment of an independent auditor, usually called the Auditor-General, to report to the parliament (not the government)[100] in most of the countries. But although reports by an auditor-general, particularly ones critical of government administration, can gain media publicity and force the government to take action, only parliament, if it has the will, can force the government to be financially accountable.

Auditors-general are increasingly looking at the efficiency of government administration and programs, known in Canada as value-for-money auditing. To avoid an auditor-general becoming embroiled in party politics, it is important that the purpose of the government program be accepted, and the assessment limited to the efficiency with which the objective is being achieved. Nevertheless the Auditor-General must make choices. Some programs, such as foreign policy, are too broad and too nebulous for efficiency auditing to be useful, though some auditors-general have fallen into the trap of trying to audit the unauditable. Even when the programs are suitable for efficiency audits, the choice the Auditor-General makes as to which programs should be subject to efficiency audits may involve him in political controversy.

Even with the proper structure in place, there are many other aspects which must be watched. The key figures are of course the auditors-general. If they are to be effective, they must be independent of the governments they are auditing. (There have been dark suspicions that in at least two Australian states recently the Auditors-General have been selected in the expectation that they would not inquire too deeply into some dubious government activities.) It is therefore important that auditors-general be appointed and if necessary removed by their parliaments, and that the government has no role in this; that they report regularly to their parliaments, and their reports cannot be suppressed by the governments; that they cover the full range of government activities, including non-departmental activities such as business enterprises; and that the parliaments ensure that they have sufficient resources to perform their tasks efficiently.

If Parliament is to follow up the criticisms of the Auditor-General, the Public Accounts Committee (PAC) too must be adequately staffed. As the role of the PAC involves critical scrutiny of the government, the chair should be a member of the opposition. A chair from the government party would have a strong temptation-and some have succumbed-to divert the committee’s attention from matters which might be embarrassing for the government.

Looking at how these matters are dealt with in the twenty parliaments, the audit function is in fact reasonably well handled. Every one of the twenty parliaments has an auditor-general, sometimes with a more high-flown title: Comptroller and Auditor-General in the UK, Controller and Auditor-General in New Zealand. Each of the parliaments has a Public Accounts Committee, though it is sometimes known by a different name-Public Accounts and Audit Committee (PAAC) in Australia for instance.

There are nevertheless some unsatisfactory aspects. In four of the six Australian states the auditor-general is appointed by the government without any involvement by the legislature or formal consultation with the opposition. The exceptions among the states are Queensland, where the PAC is consulted about the process of selection and appointment, and New South Wales, where the PAC has the right of veto over proposed appointments. But giving these powers to a PAC may not be effective if the committee divides on party lines, and it is very regrettable that in Australia and the six states the chair of the PAC is held by a government rather than an opposition member.

The situation is better in the other parliaments. In the UK the Comptroller and Auditor-General is nominated in an address to the Crown, moved by the prime minister with the agreement of the PAC, and passed by the House of Commons. In Canada and the Canadian provinces the appointment of an auditor-general is made by the legislature upon the unanimous recommendation of a committee of the legislature. In Australia federally the Auditor-General is appointed after consultation with the PAAC, and the Auditor-General and the committee exchange lists of the priorities for audit functions. In New Zealand the Controller and Auditor-General is appointed after consultation between the prime minister and the leader of the opposition.

Not all the auditors report to the parliament. In the UK there is a second audit system called the Audit Commission, dealing with local government and health matters, and making reports on their efficiency, but the Audit Commission does not report to Parliament. A further problem is that in the UK, Canada and the Canadian provinces the auditors-general do not audit non-departmental government activities, such as business enterprises, nor do the Canadian PACs have the power to initiate their own inquiries on matters not raised by the Auditor-General.

This may seem a formidable list of problems, but in fact the audit function has on the whole been performed well. The PACs are highly regarded and membership often leads to higher office, though the tendency to give the PACs other expenditure control functions is weakening their attention to audit, particularly as some of the committee, notably those in the states and provinces, are already inadequately supported by specialist staffs.

The parliamentary handling of efficiency reports is generally much less satisfactory. All the auditors-general, except those in the UK and Queensland, make recommendations on how to improve the efficiency or value-for-money of government programs, but the parliamentary follow-up is weak. Logically such reports should be dealt with when the departmental estimates for the next year are being considered, with bureaucrats being closely questioned to ensure that corrective action has been taken where necessary, with the threat that otherwise the estimates would be reduced. Logical this may be in administrative terms, but in political terms it never happens. A reduction in the estimates by the lower house would be regarded as a vote of no confidence in the government, and would be decided on party lines.

The only systematic study of the efficiency reports is by the Public Accounts Committees, but the PACs have neither the time nor the support staff to do the necessary job over the full range of government activities, and in any case their traditional desire for unanimous reports effectively precludes them from investigating highly controversial problems, which are of course the very ones which should be investigated.

The reports could be considered by the ‘departmental’ committees, where such committees have been established, but these committees have their own agendas, and generally do not like to be distracted by efficiency audits. If there is to be any useful outcome from these committee hearings it is important that an auditor-general’s efficiency report contains recommendations rather than merely listing problems. Parliamentary committees are not at all well designed to construct policies and to impose them on governments, and merely to give a committee the facts and to expect it to work out the best solution is a forlorn hope.

This is not to say that efficiency audits serve no useful purpose. They often gain considerable publicity, and it is usually not easy for a government to ignore the findings. As a former president of the Canadian Treasury Board put it: ‘the AG is godlike and, in political terms, it’s almost impossible to take him on.’[101] Besides, despite popular views to the contrary, ministers and their departments are interested in efficiency and value-for-money, if sometimes only to still public criticism, and provided that the solution does not require the minister to venture into a political ‘no-go’ area.

Summing up, governments can usually be expected to react to critical efficiency audits, but parliaments do not really have an effective role in the matter.

A bill of rights

Modern parliaments are by no means always effective defenders of individual rights and liberties; indeed they often actively encroach on them. People may look to the courts for protection, but they may look in vain. Courts certainly do have a role in controlling a government acting without legislative backing. In New Zealand, for instance, the Muldoon National Party Government came to power committed to abolishing Labour’s superannuation scheme. After the election, employers were told by the government that they need no longer make payments to the Superannuation Board (a decision welcomed by the employers), and that the act would be amended when Parliament met in a few months. The government’s action was challenged in the courts, and in 1976 the Chief Justice held that it was contrary to the 1689 Bill of Rights, which prevents the Crown from suspending laws without the consent of Parliament.

In Australia ‘legislation by press release’ is common. But even if the courts could deal with such a breach of the law, they can do nothing if an obnoxious law is valid. The supremacy of statute law ensures that a court can do no more than try to work out its meaning and then apply it as justly as possible. If there is no entrenched constitutional limitation on the power of parliament to enact laws which infringe basic human rights, the only controls are the consciences of the members of parliament and the prospect of a future election at which they may be held to account. These are frail defences for the reasonable rights of minority groups who are unpopular with most voters. The tyranny of the majority, and the ability of a populist government to mount a scare campaign, are ever-present risks. Justice Michael Kirby, of the High Court of Australia, has said that ‘the ballot box can sometimes be an instrument to legitimise oppression by law ... for most of my life, as a homosexual Australian, I have been oppressed by unjust laws.’

What limits are there to a government’s power to propose laws which infringe basic human rights? There will of course be pressure against such laws, from individuals, from government organisations such as a human rights commission, and from voluntary organisations such as Amnesty International. But if the government sees political advantage in a particular bill, there is little doubt that it will pass the lower house. An upper house, if one survives, can present a barrier, but it is sometimes a weak one. The House of Lords can do no more than delay legislation if the government is determined. An example is the passage of the deplorable War Crimes Act, which was twice rejected by the Lords but still became law.

There have been many attempts to put limits on the power of governments. The Bill of Rights of 1689 was an early attempt, but it is not entrenched, and the UK Parliament is not limited by it. Unentrenched bills of rights have also been enacted in Canada and New Zealand but, being unentrenched, they can always be by-passed by the Parliament. Lord Hailsham said in 1976:

I do not accept that a party government of either colour would hesitate for a moment, with its main programme bills, to insert when it wished to do so, the necessary exempting words: ‘Notwithstanding anything in the Bill of Rights or any other rule of law or statute to the contrary.’ I could almost compose the ministerial speech, of course of the most soothing and conciliatory kind, which would accompany such a section.

Canada enacted a bill of rights in 1960. The act stated that ‘fundamental rights’ were to be protected without discrimination on the grounds of ‘race, national origin, colour, religion, or sex’. The ‘fundamental rights’ included property rights, equality before the law, and freedom of speech, the press, assembly and association, and religion. The act also protected rights such as freedom from cruel punishment or arbitrary arrest, to a fair trial, to be presumed innocent until proved guilty, to legal counsel, to an interpreter, and the right not to testify against oneself. However, the act was not entrenched, and could be amended by the Parliament in the same way as any other act. Parliament was also specifically permitted to pass bills which conflicted with the bill of rights, provided that the bill stated that it was to operate notwithstanding any conflicts with the bill of rights. The bill of rights did not apply to provincial legislation, and could be suspended in a national emergency, a loophole Prime Minister Trudeau used in 1970 during the Quebec troubles. All in all, this bill of rights was a weak document, and it was replaced in 1982 by a more effective charter of rights and freedoms, which was entrenched in the Constitution.

In New Zealand, the incoming 1984 Labour government was committed to a bill of rights, though it was not clear whether it was to be entrenched, and if so, how. After prolonged argument, both in Parliament and in a select committee, the idea of entrenchment was dropped, at least for the time being. The 1989 bill of rights aimed to protect basic rights: the right of life and security of the person; democratic and civil rights; non-discrimination and minority rights; and protection from unreasonable search, arrest and detention. But it is weak in effect. Ordinary parliamentary enactments override the bill of rights whenever there is a conflict. The Attorney-General has a statutory duty to inform the House of Representatives if a bill being considered appears to be inconsistent with the bill of rights, but if the Parliament goes ahead anyway that is the end of the matter. The courts cannot strike down an offending act, though they are required, whenever possible, to give such an act an interpretation that is consistent with the bill of rights. There have been some bizarre cases. There was a claim that an increase in rent for public housing breached the ‘right to life’, and another that freedom of expression gave the right to walk down a street naked.

The ineffectiveness of an unentrenched bill of rights has led various countries to entrench such rights and freedoms, to protect them from a predatory legislature. The First Amendment to the US Constitution, passed in 1791, set out in nine articles the rights and freedoms which were derived from the English Bill of Rights of 1689. It is of course easier for a country with an entrenched constitution to entrench a bill of rights, though the amending of constitutions is by no means easy.

When the Canadian Constitution was ‘patriated’ in 1982, a Charter of Rights and Freedoms was included. The Charter is substantially the same as the 1960 Canadian Bill of Rights, with two crucial differences: it is entrenched (and therefore cannot be simply changed by an act of Parliament) and it applies to both federal and provincial legislation. It makes its rights and freedoms ‘subject only to such reasonable limits as can be demonstrably justified in a free and democratic society.’ But there is a loophole, for the federal or a provincial parliament may pass legislation which operates despite infringing the legal and equality sections of the charter, provided the act concerned declares that it is to operate notwithstanding those sections. Such a declaration may last for five years, and may be re-enacted. This power was immediately used by the province of Quebec.

Cases invoking the Charter are arising at a rate of about 500 a year, but the judges are putting definite limits on attempts to use the Charter to block government programs. On the other hand, they have ‘required the government to assume the burden of demonstrating the reasonableness of legislative limits on rights.’[102] The Supreme Court has struck down provisions in several acts, concerning such matters as unreasonable search of premises, a ‘constructive murder’ provision, and a statutory minimum sentence of seven years for the importation of drugs regardless of the quantity. Procedural steps have been taken by the government to try to adjust draft bills before introduction to the Parliament to ensure that they conform to the Charter, and most court decisions under the Charter have dealt with administrative failures rather than the defects of acts of Parliament.

The idea of a bill of rights evokes more opposition in Australia, which like Canada has an entrenched Constitution. Perhaps Australians are not so influenced by, or informed about, the performance of the US Supreme Court in enforcing the US Bill of Rights. The Australian Constitution, drafted in the 1890s, does include a few rights: trial by jury for indictable offences under Commonwealth law; freedom of religion; and a requirement for the Commonwealth, when it acquires property, to do so on just terms.

The 1959 Joint [parliamentary] Committee on Constitutional Review recommended that there should not be an entrenched bill of rights, on the grounds that the absence of constitutional protection ‘had not prevented the rule of law from characterising the Australian way of life.’ All parties agreed with this conclusion, but during the 1960s the Labor Party changed its attitude, and during the 1970s and 1980s the Whitlam and Hawke Governments made three attempts to pass a statutory (that is, not entrenched in the constitution) bill of rights, but were frustrated by the Senate and by inept ministerial handling.

A government bill was introduced into the Senate in 1973, but it met a storm of criticism, was amended by the minister and then quietly dropped. The Hawke Government tried again in 1983 with a bill based on the International Covenant on Civil and Political Rights. It has few provisions for judicial enforcement and was basically a publicity document, but it nevertheless faced political problems. It covered state as well as federal laws, and the premier of Queensland, for one, objected that it omitted all the usual controls on claims of human rights, which he thought should be limited by the needs of public safety, public order and the protection of public health and morals. (The premier in question was vehement on such matters, but at the same time presided over a remarkably corrupt administration.) The bill was dropped. A weaker bill of rights, not covering the states, was introduced in 1985, but was frustrated by a filibuster in the Senate.

An entrenched bill of rights was being pursued at the same time. In 1985 the Labor government set up a non-partisan Constitutional Commission to conduct a review of the Constitution with a view to its revision in 1988, the bicentenary year. Among other things, the Commission was asked to ensure that ‘democratic rights’ were guaranteed. There were extensive public hearings, and in an interim report early in 1988 the Commission submitted recommendations that included ‘one vote, one value’ and the extension to the states of the federal constitutional guarantees on freedom of religion, the right to trial by jury and to just compensation for the acquisition of property. These constitutional amendments, among others, were put to a referendum in September 1988, and suffered the worst defeat in Australian constitutional history. After such a devastating defeat, there was no interest in the final report of the Constitutional Commission, which included extensive and persuasive arguments in favour of a bill of rights.

The question of a bill of rights has aroused passion, and sometimes absurd exaggeration, on both sides of the argument. A former Australian Chief Justice, Sir Anthony Mason, has dispassionately summed up the arguments for and against such a bill. He suggested that the advantages are that it:

deters Parliament from abrogating the rule of law, thereby presenting a constitutional obstacle to the use of parliamentary power as a means of a totalitarian system; it ensures that the power of the majority in parliament cannot be used to override the rights of minorities and individuals; it offers principled and reasoned decision-making on fundamental issues; it reinforces the legal foundation of society, thereby enhancing the role of law in society; it has a major educative role in promoting greater awareness of, and respect for, human rights.

Chief Justice Mason also outlined the objections to a bill of rights. Is the greater protection of human rights worth the price that has to be paid for it? Some claim that the price would be high: the judiciary, given the power to strike down parliamentary legislation that is inconsistent with the bill of rights, would be behaving undemocratically; judges would be turned into law-makers; many controversial matters, which are now expected to be decided by the elected Parliament, would be decided by an unelected judiciary; too much power would be given to judges who, by their background and training, might not be qualified to exercise it; and judges would become politicised.

Other objections have been raised. In Australia a bill of rights is seen by some as an attempt by the federal government to intrude into areas reserved for the states. The populist premier of Queensland, Sir Joh Bjelke-Petersen, claimed a bill of rights would place ‘the citizens of Queensland, the government of Queensland and the Parliament of Queensland, in the hands of Commonwealth-appointed courts and judges’.

These conflicting arguments and passionate disputes seem to have been overtaken by events, and the protagonists are debating the wrong question. No less than 68 international agreements relating to human rights have been accepted. Canada, Australia and New Zealand have ratified the United Nations Covenant on Civil and Political Rights and although the UK has not, it has acceded to the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, which obliges all the countries which have ratified the Convention to ensure that their domestic law is compatible with it. The rights in the European Convention, which are guaranteed to every individual of whatever nationality, are clearly defined, but are much more limited than those in the UN Covenant. They were in fact based on an earlier draft of the Covenant and, in the words of the preamble to the European Convention, they are only ‘the first steps’ in the enforcement of human rights. Many of the rights are also subject to limitation on grounds such as national security, public safety and order, the prevention of crime and the protection of the rights of others, and most may be ignored in time of war or other public emergency threatening the life of the nation.

The European Convention came into force in 1953, though the UK did not give its citizens the right of individual petition-the crucial component of the system-until 1966. Petitions are received by the European Commission of Human Rights, which rejects most of them, either because national remedies have not been exhausted or on the merits of the case. Those which cannot be settled amicably may be considered by the European Court of Human Rights at Strasbourg, and UK practices which were lawful under British common or statute law have on several occasions been found not to protect human rights adequately, at least by the standards of the European Convention.

To avoid problems in the courts, the European Convention has been incorporated into UK domestic law, though because of the need for training and other preparations it was not implemented until October 2000. However, several provisions were immediately implemented when the Act received the Royal Assent in November 1998, such as the appointment of a UK judge to the European Court of Human Rights and the abolition of the death penalty for military offences. Until the Act came into force the minister in charge of a bill in the House of Commons was required to make a statement about the bill’s compatibility with the Convention rights, and the devolved parliaments in Scotland and Wales did not have the right to do anything which was incompatible with the Convention rights.

Two human rights covenants were unanimously adopted by the UN General Assembly in 1966, in amplification of the Universal Declaration of Human Rights of 1948. The covenants were split between civil and political rights and economic, social and cultural rights at the insistence of the western powers, who felt that civil and political rights were enforceable and justiciable, whereas the economic, social and cultural rights-the right to work, for instance-were essentially political. The Human Rights Committee supervises the Covenant on Civil and Political Rights and the Committee on Economic, Social and Cultural Rights supervises the other covenant. The covenants were ratified by the UK and Canada in 1976, New Zealand in 1978 and Australia in 1980. The covenants have spawned four other specific conventions, covering the elimination of all forms of racial discrimination, the elimination of all forms of discrimination against women, against torture and other cruel, inhuman or degrading treatment or punishment, and the rights of the child, and each of these conventions has a UN committee watching over the behaviour of member nations.

The UN has spawned some rather unusual agreements. The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies was adopted by the UN General Assembly in 1979. Australia has acceded to this agreement-one of the nine countries to do so-but none of the major countries has acceded.

The provisions in the Civil and Political Rights Covenant are similar to those in the Canadian Charter, which is in fact based on them, though the Canadians express the rights rather more clearly and forcefully. There is nothing in the covenants to oblige countries to pass a bill of rights, provided that adequate remedies are available to a person whose rights or freedoms are violated. The first optional protocol to the International Covenant on Civil and Political Rights permits individuals who claim their rights have been violated, and who have exhausted all available domestic remedies, to appeal to the UN Human Rights Committee. Canada ratified this optional protocol in 1976 and New Zealand acceded to it in 1988 and Australia in 1991.[103] The UK has not ratified this optional protocol, evidently feeling that the European Convention was enough.

The Human Rights Committee has a two-stage process. It first considers whether a particular complaint (known as a ‘communication’) is technically admissible, on issues such as whether the particular complaint involves a right covered by the Covenant, and whether all domestic remedies have been exhausted. If a communication is deemed admissible, the committee will then examine the merits of the claim. The committee is not a judicial body and does not make judicial determinations. It brings relevant material to the attention of the government concerned, which has six months to reply. The committee then considers the matter and sends its conclusions to the complainant (the ‘author’) and the government concerned. The Human Rights Committee has been very wary of dealing with Article 1(1) which says ‘all peoples have the right of self-determination.’ The inclusion of this provision was opposed by the western powers as being vague and undefined, but it was included anyway.

Some of the committees are distinctly odd. The committee set up under the Convention for the Elimination of all Forms of Discrimination against Women has directed Slovenia that children under three should be looked after by day-care establishments rather than their families; it has criticised Belarus for reinstating a national Mothers’ Day; it has said that the Koran should be interpreted in ways that the committee accepts, and has directed the Irish government to eradicate the influence of Catholicism from its culture and its people.

The International Covenant on Civil and Political Rights requires countries ‘to adopt such legislative or other measures as may be required to give effect to the rights in the ... Covenant’, so an adverse ruling from the Human Rights Committee would be almost impossible for a government to ignore, except possibly in the case of Canada, if the Canadian Supreme Court had made a different ruling on the same matter.

The Optional Protocol on Civil and Political Rights had been ratified by 96 countries by 1999. Jamaica withdrew in January 1998, but cases under consideration at that time are still to be considered by the Human Rights Committee. Trinidad and Tobago gave notice of withdrawal, to take effect from June 2000. Canada, with 96 individual appeals to the Human Rights Committee, was second only to Jamaica (177 appeals) and ahead of Australia (34 appeals) and New Zealand (21 appeals) in the number of individual appeals made. Many of the appeals were ruled inadmissible, but some-nine in Canada, two in Australia, but none in New Zealand-were held to have revealed a violation.

So what Australia and New Zealand have to consider is not whether they want to have a bill of rights which would limit the sovereignty of parliament-they already effectively have one-but whether they want their civil and political rights and freedoms interpreted by international organisations, whose members may well have quite different legal traditions.

If the two countries wish to keep such matters under their own control, they will have to pass acts bringing the International Covenant on Civil and Political Rights and any related covenants and conventions into their domestic law, effectively allowing their direct interpretation by their own courts. If they were not prepared to do this, they should not have signed the treaty in the first place. It would not be necessary to entrench these acts, for it is highly unlikely that any government would propose legislation which was in conflict with a UN covenant to which they were a party.

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