Many are calling for an Australian bill of rights to ensure human rights are duly protected. Is there really a need for such an instrument? Should it be statutory or constitutional? Is it undemocratic in that it transfers power from the elected representatives of the people (Parliament) to an unelected, unaccountable judiciary? What kind of rigths should be included in a bill of rights?

This brilliant article by James Allan, professor of law at the University of Queensland, appeared in The Australian on 17/7/08.

Bill O’Shea, president of the Law Institute of Victora, offers a contrary view in The Age (10/12/03).

Bill O’Shea’s article confirms the view that if a bill of rights is enacted, the power to decide by what laws our country is governed will be taken away from the people and given to unelected, unaccountable judges.

According to O’Shea, “Having human rights means that if you do not share your next-door neighbour’s penchant for listening to Iron Maiden or Eminem in the early hours, you can do something about it.”
So if that’s a human right, what isn’t? If judges will be able to strike down legislation regarding noise disputes, what democratically-passed legislation won’t they be able to override? This means the right to decide will be hijacked from the people and given to judges who will shape our country’s laws based on their own prejudices - not the democratic will of the people. It is an affirmation of Allan’s critique.

O’Shea says “Striking a fair balance between the rights of individuals and the rights of society is a complicated job.” He’s absolutely right. In a democracy, this difficult decision should lie with Parliament which is made up of people that are accountable to the public. This is a decision for the people.

Who do we want to make laws on our behalf? Elected representatives who must represent us to keep their jobs or judges we don’t elect and don’t need to actually represent us to keep their jobs? As James Allan put it above:

“Be clear about this. Having a bill of rights that says “you have the right to free speech” does not mean you will get more scope to express your own views…It simply means that unelected judges, rather than elected politicians, will ultimately decide what you can and cannot say. I know where I’d put my money.”

And what if these unaccountable, unelected people trample upon the rights of the people who aren’t represented? How can we hold to account or get rid of them?

I suspect, with respect, that this system of unaccountability ceases to charm when the unaccountable, unelected people start doing things you disagree with.

That’s why Parliament has to be supreme. If unaccountable, unelected judges can capriciously override the will of the people, we are not a democracy but a judocracy.

irStupid,

I’m afraid I have to disagree with you again.

You claim that “Parliament makes laws, this binds judges.” Not if judges have a wide discretion to strike down the laws parliament makes! This is precisely what a bill of rights will do.

You also claim that judges “can only override legislation on legal grounds, So basically it is subordinate to parliament.” But who decides whether there are legal grounds to override legislation? Why, the judges. What can we do if they’re wrong? Nothing. Furthermore, bills of rights are known to contain extremely broad and ill-defined provisions such as “Every person has the right to liberty and security” (Victorian bill of rights, s 21(1) - see my reference to wide discretion above). Judges will have all the legal grounds they need to abrogate virtually every law passed by the elected representatives of the people. The laws of the nation will be in their hands. That’s what I meant when I said we would live in a judocracy, not a democracy.

The only reason some people support this obvious abrogation of democracy is that they believe the judges will strike down laws THEY don’t like - which apparently makes the abrogation of democracy okay. With all due respect, that’s not how a democracy works. Would you support the abrogation of democracy if the elected representatives of the people tried to let refugees in and the judges kept throwing them out?

Besides, it seems to me you’re contradicting yourself. On the one hand, you’re saying that we need judges to be able to strike down legislation to help the “unrepresented”. On the other hand, you’re also saying that if a bill of rights were adopted laws made by parliament would bind the judges and that the judges would be “subordinate to parliament”. Now if that’s really true, how would judges be able to strike down legislation to help the “unrepresented”? It is only by virtue of striking down or interfering with legislation that judges can do what you what you see as the primary justification for a bill of rights. A bill of rights is thus all about the abrogation of democracy.

You say the people “aren’t always right” and “the majority acts irrationally”. Judges aren’t always right and judges sometimes act irrationally. The difference between politicians being wrong and judges being wrong is that we can do something about the politicians - we can vote them out. Not so with unelected, unaccountable judges: we just have to hope that our judicial overlords have enough patience for our democratic wishes.

Finally, I’m not quite sure what you mean by “those [who] aren’t represented”. If the candidate who supports the policies I like loses the election and I’m therefore “not represented”, that doesn’t mean the system is broken. It would be very unfair if I could have my way anyway (even though 99% of Australians may disagree) by having some judges on my side. Sure, I’d have to bring an action, as you say, but that doesn’t make the outcome any better.

And so, a bill of rights is all about the abrogation of democracy. As I have argued, and as your comments demonstrate, the abrogation of democracy is the very essence of a bill of rights. The bottom line is: who do we want to have the final say on the laws that govern us? The people we elected or the people we don’t elect?

irStupid,

Once again, thanks for your thought-provoking comments.

Let me ask you the following question because I need a straight answer to understand your position. Do you believe that a decision with which 99% of people disagree is democratic?

Another question I’d like to ask you is, when an act of parliament is being reviewed by a court, whose construction of the bill of rights determines the validity of the act, parliament’s or the judges’? So, at any given time, is it the judges’ or the elected representatives’ interpretation of the bill that is decisive?

That’s what I meant when I said, “But who decides whether there are legal grounds to override legislation? Why, the judges.” If parliament and the judges disagree as to the validity of legislation which is being reviewed, the judges win and the legislation is dead. A case in point is Kable v DPP [1996] HCA 24. An American example is Roe v. Wade (1973) 410 U.S. 113 which wholly or partially abrogated the legislation of 46 parliaments in 46 states. An Australian bill of rights will give judges more scope to do just that. We can argue about the most precise description of this situation ad infinitum, but there can be no doubt that a bill of rights will significantly enhance the ability of judges to strike down legislation with which most people agree – hence the abrogation of democracy.

Inasmuch as bills of rights usually contain meaninglessly broad and gaseous clauses like “every person has the right to liberty” (Victorian bill of rights, s 21(1)), the judges’ power of construction becomes all-important. A clause like that is just a carte blanche authority to strike down virtually any piece of legislation because judges now decide what ‘liberty’ is. It’s like saying “Liberty’s good. For now on, you decide what liberty is, not the people.” Acts of Parliament tend to regulate things; very few do not affect ‘liberty’. And this is just one clause.

This is why I oppose a bill of rights. Rather than letting the people decide what liberty is, bills of rights let unelected, unaccountable judges decide. It is completely undemocratic. True, parliament can subsequently realise what a terrible idea that bill of rights was and attempt to amend or repeal it (if it is not constitutional). But since when do we support bad ideas merely because they can be dumped at some future time? Any parliamentary bill can be repealed or amended after it is enacted. Do we support all bills?

Let me reiterate that you are pursuing two contradictory arguments at the same time. You keep assuring us that a bill of rights “is not an abrogation of democracy”, but you also keep saying that democracy should be abrogated (“We need someone to be able to disagree with the majority”) and that a bill of rights is the way to do it. In fact, you unwittingly conceded that under your system judges would have the “final say”. So it is the judges who decide after all! I thought they were “subordinate”… This admission just negates your whole position on the abrogation of democracy. In short, if a bill of rights suppresses majority views in favour of minority views, it’s undemocratic. If it doesn’t, it’s useless. Which is it?

You also argue that it is good that unelected, accountable judges should have so much power because you “want someone who actually understands the law to have the final say.” By the same token, let’s decide that from now on a group of unelected economists have the final say on the economy. They will raise taxes when they want to. They will shape the national budget. They will impose their preferred ideologies on everyone else. Why let these elected representatives interfere with the work of experts? We mustn’t stop there, though. The defence forces should be controlled by generals, not some elected politician who calls himself minister for defence. I’m sure the generals know more than him about things military. They will decide when to wage war and how. The people shouldn’t have the final say on these things. I could go on. It is quite evident that you are no fan of democracy. Naturally, you support a bill of rights to curtail it.

There is one other issue to which I adverted in the past. You keep referring to a situation where the majority is “wrong”. Wrong in whose opinion, though? In every election some people are disappointed because their preferred candidates lose. Naturally, they believe the majority has made the wrong decision. So is the majority wrong every time – always? Or is it just wrong when YOU say so?

Some people are always going to think the majority is wrong. The only sensible way to settle this is to have a vote, which is what democracy is all about. A bill of rights is a mechanism that bypasses the democratic will of the people by giving unelected people the power to flout the democratic will and do what THEY want instead. In my opinion, the only reason people support a bill of rights is because they are convinced the judges will think the majority is wrong when they think the majority is wrong. A bill of rights is just a self-serving, covert way to promote these people’s (generally the Left’s) agenda at the expense of the democratic will of the people.

Janet Albrechtsen in The Australian (29/8/08):

“There was once something honourable about human rights. They were limited to the essential rights that most reasonable people can agree on. The right to vote, the right to a fair trial, freedom of speech, the rule of law and so on. But the human rights project started going awry the moment we started drafting up great compendiums purporting to list all the rights of man.

Not getting enough, or any, porn in jail. Scream a breach of human rights. Your son’s school says no to your child attending school with hair dyed red? Threaten to sue for a breach of human rights. Just watch the school back down. Got some gypsy blood in you and have your eye on a prime piece of English countryside? Don’t worry about local planning laws. The right to family life will secure your right to stay. And your local police station won’t be using those “Wanted” posters to chase down criminals anymore because it risks breaching a bandit’s right to privacy.

These are not invented episodes of modern madness. Each has been documented in the United Kingdom, where their own great compendium of human rights is giving genuine human rights a bad name. As a very senior American judge told me recently, the human rights project is out of kilter because Western societies have become “addicted to pretentious statements of principle…I don’t mind the puffery so long as you don’t write it into law,” he told me. “But we have got this crazy practice of putting these grand pronunciamentos into law. Once you do that, it’s up to the courts to decide what they mean.””

Janet Albrechtsen in The Australian, again (10/10/08):

“Having so far lost the democratic debate over the Abortion Law Reform Bill which passed through the Victorian Upper House on Friday, Catholic Health Australia has signaled its intent to head off to the courts to overturn Parliament’s decision…

Whatever your views about abortion, there is a much larger issue at stake. Since its introduction in 2006, this is the first – but it will by no means be the last time - that the Charter of Rights will be used by litigants who ask unelected judges to overturn the democratic decisions of Victorians.”

Read the whole article here.

You can tell my opposition to the bill of rights is sincere because I strongly disagree with the act of parliament it is now invoked to undermine.

The Sydney Morning Herald (3/12/08):

“AUSTRALIA is a step closer to getting a bill of rights, which could enshrine rights to free speech and non-discrimination. The Federal Government is set to begin a consultation process into what the document should look like next week.”

The title of the article is “Bill of rights to rein in Parliament”.

This is somewhat ironic because the original Bill of Rights of 1688 (enacted 1899) was such a celebrated constitutional achievement because it empowered parliament, not because it “reined it in”. It took power away from unelected bodies and conferred it upon elected representatives.

The “reining in” of parliament is the reining in of democracy for parliament is the only branch of government which is democratic.

We have obviously come a long way… and it is almost certain that the Government will have its way.

Janet Albrechtsen argues against an Australian bill of rights in The Australian (14/1/09), using as an example the Canadian bill of rights and its ramifications. The central point is this:

“The fundamental flaw behind a judicially enforced charter of rights is that reasonable people can and do disagree about the limits of so-called human rights. Polygamy is a classic example…With great variances of opinion about where to draw the line on religious freedom, the question is simple: who decides where to draw the line? In Canada, judges do. In real democracies, elected politicians do it on behalf of the people they represent.”

Another important point to remember about statutory bills of rights:

“Now we get to lesson No2: don’t be duped by the fraudulent claims that are made in Australia and Canada that a charter of rights will preserve parliamentary sovereignty. The Canadians have what is called the “notwithstanding clause” in their charter. Parliament can specifically overrule charter rights by following a mechanism laid down in the charter. This provision was the clincher that broke the deadlock over enacting the charter more than two decades ago. It was meant to mollify the sceptics who argued too much power would be irreversibly vested in judges.

It was a complete ruse. The notwithstanding clause has never been used in Canada to protect the democratic right of “right-thinking Canadians” to determine the limits of charter rights. Not once. Politicians have been too timid to enact a law that expressly limits so-called human rights in the charter. And some, like former prime minister and Liberal Party leader Paul Martin, have even called for the abolition of this protection of parliamentary sovereignty.

Australian charter advocates are copying this wily ploy. They say a plain vanilla statutory charter that simply permits courts to make declarations of incompatibility won’t threaten parliamentary sovereignty. But they know it takes a brave politician to snub something defined as a charter right. The Canadian experience is that it has never happened: charters, once enacted, become super statutes.”

Back in 1989, Thomas Sowell wrote an outstanding essay on judicial activism. It’s a bit long so here is the author’s summary:

*note that the words “substantive values” refer to judges’ subjective values as opposed to the objective meaning of the written law.

“The ultimate issue between judicial activism and judicial restraint is the institutional locus of discretion, and no amount of insistence on the desirability of change or morality answers the question as to who is to decide what specific changes or what specific morality is needed. The institutional security of federal judges, appointed for life, may provide temptations for assuming this prerogative, without providing either moral or pragmatic justification. If no authorization is needed for judges to introduce “change,” neither is it needed for generals and admirals to do the same– as in fact happens in a number of countries. Judges can conduct limited coups d’etat surreptitiously, while a military coup is usually overt and sweeping. Nevertheless, the dangers to constitutional government are no less real in the long run from judicial activism– both because of the cumulative effect of small usurpations and because small usurpations both generate pressures and provide the precedents for larger usurpations by others with different social visions.

The claim that judicial activism is necessary to rescue us from bondage to the past– from having the writers of the Constitution “rule us from the grave”– defies both logic and history. There is no contest between the living and the dead. The contest is between those living individuals who wish to see control of change in judicial hands and those who wish to see it in other hands. There has been no argument that either statutory or constitutional laws are not to change. The only meaningful question is: Who is to change them? The reiterated emphasis on change, like the reiterated emphasis on morality, argues what is not at issue and glides over what is crucially at issue: Why are judges the authorized instrument? The original cognitive meaning of laws– constitutional or statutory– is important, not out of deference to the dead, but because that is the agreed‑upon meaning among the living, until they choose to make an open and explicit change– not have one foisted on them by the verbal sleight-of‑hand of judges.

Existing social philosophies and political alignments cannot be presupposed in discussions of long-run questions, such as constitutional interpretation. Even within the judiciary, differences in “substantive values” have been drastic over time, and by no means negligible even at a given time. The belief that a constitutional structure can be maintained while jurists with radically different visions make “substantive choices” within it seems dangerously similar to a belief that one can slide half-way down a slippery slope. The argument for judicial activism must stand or fall in general and enduring terms, not simply on whether some current political or social creed is considered so superior to competing creeds as to justify judges’ decisions in its favor. It is ultimately not a question of the relative merits of particular political or social creeds but of the long-run consequences of opening the floodgates to the generic principle of constitutional decisions based on “substantive values.” Once you have opened the floodgates, you cannot tell the water where to go.

What must be rejected is precisely the general principle that judges’ “substantive values” should govern constitutional decisions. Nor is anything fundamentally changed by saying that judges are only agents of general moral ideas, rather than their own personal inclinations. If the Constitution does not enact Herbert Spencer’s Social Statics, neither does it enact John Stuart Mill’s On Liberty or John Rawls’ A Theory of Justice.”

I recommend reading the essay in full, if you have the time.

The head of the Federal Government’s own bill of rights committee has called the Victorian bill of rights “a device for the delivery of a soft-Left sectarian agenda — a device which will be discarded or misconstrued whenever the rights articulated do not comply with that agenda” (The Australian, 27/2/09).

Paul Kelly in The Australian (27/5/09):

“Brennan’s conclusion is that Victoria’s rights charter “failed spectacularly” to defend a core human right when it conflicted with the progressive-Left political agenda on abortion law and bioethics. He nails the issue: Victoria’s law is not primarily about human rights. It is “a device for the delivery of a soft-Left sectarian agenda” and it will be discarded whenever “the rights articulated do not comply with that agenda”.

In short, the rights debate is an ideological instrument for causes the Left knows the public may not embrace. Brennan sees it and said it. Presumably, this must influence his report to McClelland.

It goes to the real issue in the national debate: the advocates want certain rights to be advanced and other rights to be cut back.”

NSW Attorney-General writing against an Australian bill of rights (The Australian, 18/6/09):

“The politicisation of the judiciary is an uncomfortable reality in the US.

Do the progressive forces advocating a charter of rights in Australia really want to replicate it here? The ideological and political conflicts of the US Supreme Court over gun control, affirmative action and race relations have spread to the selection and confirmation process of other societies that have adopted a charter or bill of rights. For instance, according to McGill University professor Yves-Marie Morissette, following the introduction of a charter of rights in Canada there has been an “inevitable politicisation of the judiciary. Concerns are now expressed about judicial appointments which previously were only heard in the electoral process.”