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Panpa Bulletin : August 2006
30 | PANPA bULLETIN august 2006 MEDIA MATTERS MarK PearSon australia should follow the rest of the world and formalise its right to let the press have its say without political consequences writes Mark Pearson Australia is the only ma- jor democratic country without a national Bill of Rights. New Zealand has had one since 1990, while most of our small Pacific island neighbours have fundamental rights written into their constitutions. The United States has its fa- mous First Amendment to its Constitution protecting freedom of the press, one of 10 amend- ments constituting its Bill of Rights passed in 1791. The English had one more than a century earlier, in 1689. While a free press was neglected in that document, a clause on free speech in parliament formed the basis of parliamentary privilege as we know it today. The British now have two. In 1998 they passed the Human Rights Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights which had been in existence since 1950. At an international level, Aus- tralia is signatory to the Univer- sal Declaration of Human Rights, proclaimed in 1948. But our High Court has ruled this does not be- come legally binding in Australia until enacted by our Parliament, which has not happened to date. At a State and Territory level, the Australian Capital Territory became the first Australian juris- diction to enact a Bill of Rights with its Human Rights Act 2004. Victoria now has one before its Parliament while NSW, Tasmania and Western Australia are all con- sidering their own versions. The Federal Government has opposed the State initiative, claiming a flurry of such docu- ments would cause confusion. Until quite recently I was am- bivalent about the need for a Bill of Rights in a country with a strong democratic tradition like Australia's. I felt the common law offered reasonable protections and was encouraged by our High Court's decision which implied into our Constitution a guarantee of freedom of communication on political matters. Further, I had seen serious in- fringement of media freedoms in some other countries despite their written guarantees of free expression. I was also concerned that free- dom of the press might be com- promised by the enshrining of competing rights such as privacy and reputation. The New Zealand High Court has even formulated a new tort of privacy despite pri- vacy not being mentioned in its Bill of Rights Act. Despite these reservations about the value of a Bill of Rights, two recent experiences have convinced me it is in the media's best interest to have freedom of expression and/or press freedom set in stone in a national Bill of Rights. The first was some research I undertook about anti-terrorism laws. I discovered from the Aus- tralian Parliamentary Library's Terrorism Law Directory (www. aph.gov.au/library/intguide/law/ terrorism.htm#terrchron)that there have been 31 counter-ter- rorism Acts passed by the Austral- ian Parliament since September 2001, with four Bills introduced during 2006 still progressing through the legislative process. As reported in the PANPA Bul- letin over recent issues, many of these laws have seriously eroded press freedom. Perhaps our poli- ticians might have been a little more cautious in voting away such fundamental rights, in the interests of national security, if a Bill of Rights obliged them to gauge their impact first. That is the way the New Zea- land Bill of Rights Act operates. The attorney-general is required to bring to the attention of the Parliament any provision that ap- pears to be inconsistent with any of the rights and freedoms listed in the Bill of Rights. Such a procedure formalises the consideration of key rights such as freedom of expression. I was also influenced by a semi- nar for media law advocates at Oxford University's Program in Comparative Media Law and Policy I was asked to address last month. Many of the participants were from the European Union where a large body of law has developed around the European Convention on Human Rights. Numerous national decisions and legislative measures have been overturned by the European Court of Justice because they have breached fun- damental rights like freedom of expression. Again, a document such as a Bill of Rights serves as a safeguard sadly lacking in Australia at the moment. A further advantage of a Bill of Rights is that it can form a back- ground to civics education in schools, just as it has in the US. A new generation would grow up knowing the value of free expres- sion in society because the Bill of Rights formed part of their sylla- bus. Sadly, many Australians have mistakenly associated support for a Bill of Rights with the political left, perhaps because the notion is opposed by the present con- servative government and many of its proponents have been so- cial reformists, civil libertarians, Australian Democrats and Labor Party politicians. The most recent moves in States and Territories have come from Labor govern- ments. However, rights issues have at- tracted bipartisan support when they have been prepared for fed- eral referenda at various stages over the last century, most of which have been unsuccessful. Given the poor track record of such initiatives as constitutional reforms, the only hope might be a statutory change, as has been achieved in the UK, New Zealand and the ACT. Some of the most senior judges and retired conservative politi- cians have been staunch advo- cates for a Bill of Rights because of their respect for the rule of law and fundamental small 'l' liberal democratic freedoms. The Australian Press Council - far from a radical or politically partisan body - has long been an advocate for a constitutional amendment or a Bill of Rights guaranteeing free expression along the lines of Article 19 of the Universal Declaration of Human Rights. Editors and publishers would do well to educate their read- ers about this issue and this dis- tinction if they wish to see free expression recognised formally in a national document. Editori- als and columns explaining the importance of press freedom as a non-political issue would be a useful start. Further information on bills of rights can be found at a useful website on the topic hosted by the Australian National University at http://acthra.anu.edu.au/ . Professor Mark Pearson is head of Journalism at Bond univsity Qld. Given the poor track record of such initiatives as constitutional reforms, the only hope might be a statutory change, as has been achieved in the UK, New Zealand and the ACT. Free speech not a dirty word