Why I am opposed to an Australian Bill of Rights

There has been a lot of discussion in the Australian media recently about the introduction of an Australian Bill of Rights. Such a bill would, presumably, enshrine into the Constitution freedoms such as freedom of speech, freedom of religion, freedom of association, and other freedoms reminiscent of what appears in bills such as the United States' Bill of Rights. While the aforementioned freedoms are certainly essential in a modern democracy, enshrining them into the Constitution brings with it serious problems.

Under Australian law, the High Court is the sole entity with the right to interpret the Constitution. In other words, whatever is the interpretation of the Constitution by the High Court, is the final word. This represents a significant shift in the balance of power. Take for example the freedom of speech. While this is clearly a fundamental right in any credible democracy, it may have limits. For example, should religious extremists be able to use 'freedom of speech' as an excuse for using their influence to incite followers to conduct extremist actions such as hate crimes or terrorist offenses. While it is debatable whether freedom of speech should allow such actions, the point is that it must remain debatable. In other words, the public should be free to debate this issue, form a consensus, and pressure the elected representatives to pass motions based on this consensus. On the other hand, with a constitutionally enshrined freedom of speech, it becomes no longer a debatable issue which can be influenced by elected representatives or the public, but instead becomes an issue which is decided upon by unelected judges, who are accountable to no one, and whose rulings become the uncontested rule of law.

A good example of the pitfalls of constitutional bills of rights is the 2nd amendment in the United States' Bill of Rights - 'The right to keep and bear arms'. 'Arms' is a rather generic term and can be used to refer to anything from pocket knives to fully automatic assault rifles. Gun laws are a very important political and social issue. However, under the US Bill of Rights the interpretation of this amendment is left solely in the hands of the justices. In other words, debate on this issue in the House or Senate is effectively stifled since neither have the right to influence this - only the Supreme Court does. As a result, it is presently acceptable for individuals to posses fully automatic military assault rifles, and neither the House nor the Senate can do anything about it. In a sensible democracy, issues as important as this need to be debated, and ultimately decided by elected representatives, not by unaccountable justices whose views cannot be overruled by the democratic process.

By far the most striking example of the undeserved shift of power away from elected representatives and into the judiciary, is the Roe vs. Wade decision by the US Supreme Court in 1973. In this ruling the Supreme Court ruled that a woman's right to abortion is protected via the right to privacy of the Fourteenth Amendment. This has become one of the most cited and debated rulings in US history. Abortion is an extremely important, contentious and dividing issue in Western societies, and it needs to be debated and acted upon accordingly. However, as was evident in this case, justices sometimes feel the need to take an activist position and interpret the constitution in ways it was never intended to be. Whether you are for or against abortion is not the issue. The point is that abortion is an extremely important topic that needs to be publicly debated and ultimately decided upon by the Parliament, not by the activist judiciary.

To illustrate the fact that a Bill of Rights is not absolute and is open to interpretation by the judiciary, consider a very good example - once again the US Bill of Rights. In the hands of the judiciary the US Bill of Rights did nothing to prevent slavery, nor did it prevent segregation, nor did it prevent the circumvention of habeus corpus during the War on Terror, despite the fact that under a literal interpretation of this Bill such acts would be outlawed.

A final objection to a Bill of Rights, is that it is not flexible - it cannot evolve with evolving social views. What is enshrined in the Constitution is essentially permanent, unless a referendum takes place, which is very rare. In other words, while the views of society may change, the views of the Parliament may change, but what is enshrined in the Constitution does not.

In summary, a constitutional Bill of Rights, by definition, shifts legislative power away from the Parliament and into the hands of the judiciary, which is not elected, not accountable, and whose rulings cannot be overturned. If a politician implements a bad policy, they can be voted out at the next election. When a judge makes a bad ruling, they cannot be. A Bill of Rights is not flexible, and therefore cannot change as social views change. This is a dangerous situation and represents a complete attack on our democratic process and principles. Australia has an impeccable history of allowing freedom of speech, freedom of religion, freedom of association and protecting the rights and views of minority groups - historically, is the US better in these regards? As such there is no convincing reason to shift power away from Parliament and into the hands of the judiciary. Shifting around the power balance, in a system that has worked so well for a hundred years, is a precarious and pointless thing to do.

10 thoughts on “Why I am opposed to an Australian Bill of Rights”

  1. A really interesting line of thought! I guess you are right about Australia not needing a Bill of Rights. I like your observations, but I would arrive at different conclusions. I agree that judges are not accountable to anyone. Actually, in contrast to elected politicians they are not accountable to anyone but themselves. Politicians depend on majorities, political trends and popularity. If their decisions are not popular, politicians don’t get re-elected. Don’t these circumstances render politicians more susceptible to concessions, corruption and lobbyism than judges? I would rather leave potential Bill of Rights related questions to people who are more or less removed from career matters. Ok, you could still advocate for the general public to determine far-reaching social issues, as in fact you do. But the people are many. They are decidedly more influenced by media coverage and word of mouth than judges are. I am not afraid to leave fundamental decisions in the hands of a little group of judges, because they are professionals and they are capable of taking into account whatever is relevant to such decisions. You don’t need to agree. My only point is, there is no institution more capable of doing so, neither politicians nor the public. Finally, a Bill of Rights addresses very fundamental issues which must of course be interpreted and put in context. I agree that the 14th amendment was never intended the way it was interpreted in your example. I don’t want to defend this particular case, but I think the method is valid. I look at the value system inherent in a Bill of Rights as the ABC from which you can assemble all the judicial vocabulary you need. (Or at least you can check back for spelling.) In other words, a Bill of Rights is open to interpretation by definition and rightfully so. We are not talking about ill design. It all depends on the people who use it, for sure. Therefore consider parliament in the cases you bring to the table. Leave the right to bear arms to the U.S. parliament. They won’t touch it! Talk about the judiciary not preventing slavery. It’s sad but true that Lincoln abolished slavery for military advantage over the Confederate Army. Many Northeners disliked slavery. But they left the South alone until they felt threatened personally. Ethics are often relative where responsibility cannot be traced back individually.

  2. Hi Michael,

    You make some interesting points. You’re quite right that politicians are susceptible to concessions, corruption and lobbyism. However, there is also the issue of how judges are appointed. In the US system, Supreme Court justices are appointed by the President for a fixed term. The President, obviously, appoints these justices on the basis of their ideological persuasions. For example, Reagan appointed extremely conservative judges (e.g. Antonin Scalia), who outlived Reagan in their terms as judges. So indirectly they are as susceptible to lobbyism and corruption as the President who appointed them. In other words, the judges are (1) appointed by the President on the basis of whether they agree with the President, and (2) simultaneously they are not accountable to the public. This is a somewhat dangerous situation.

    A second problem with an ABR, is who writes it. Inevitably it is drafted by politicians who are in the majority at the time of writing. And, invariably, it will be at least a little biased by the ideology of the party at the helm. For example, look at the yet to be ratified EU constitution (which has thus far failed). It includes some very far-reaching and vague clauses, which could be interpreted in numerous ways. For example, how does the judiciary interpret ‘equality for men and women’. Similarly, the draft includes clauses guaranteeing ‘fair working conditions’ for workers. These could be interpreted in very different, and very extreme ways, depending on the social views of the judges in question – this is a recipe for severe judicial activism. I can foresee the EU facing some serious constitutional dramas, should this treaty be ratified. At least the US Bill of Rights enshrines only basic fundamental human rights. The draft EU Constitution could turn to a real mess, and I fear that a similar thing could happen, should an ABR be implemented.

    In summary – No, I don’t think Supreme Court justices are immune to bias, as they were appointed for exactly those reasons. The view that Supreme Court justices are ‘professionals’ and ‘not susceptible to bias’ is, I think, not valid. Second, if an ABR were written today, it would almost inevitably reflect some of the views of the majority party. It would be subsequently very difficult to change this.

  3. I have to admit my surprise, Peter, that you privilege the vagaries of the democratic process above the rule of law! Your post was interesting and enjoyable to read, but I’m afraid you’ve may have missed the point of a constitutional Bill of Rights. Bills of Rights exist to provide a check on the power of government vis a vis the individual. Their purpose is to certainly shift the balance of power out of the hands of (elected) governments and into the hands of the judiciary. The purpose is to improve the function of democracy to ensure that the LEAST powerful individuals in society have their inherent dignity protected. Majority rule is a blunt instrument. Democratic processes tend to fail groups whose public power is limited by social ascriptions and economic marginalisation. The obvious example is women. In Roe and Wade, the population with the most interest in abortion laws–women–are also those with the least power to influence policy. Here the judiciary steps in to protect their interests–their right to control their own bodies.
    If you are concerned that an Australian Bill of Rights will be a reflection of ALP ideology, then you are really arguing the case FOR a BIll of Rights. Where parliamentary processes fail to protect human rights (whether at the extreme of communism or the extreme fascism), an independent judiciary empowered with a Bill of Rights can protect those freedoms.
    Also, it seems to me that worrying about judicial activism while at the same time bemoaning the rigidity of a constitutional bill of rights is a tad paradoxical. If judges are interpreting the constitution in line with evolving social norms, they stand accused of activism. If they don’t take an activist position, the constitution stands accused of inflexibility!
    I think your fears are unfounded. Courts are conservative institutions, but judicial activism has a place if social norms discriminate against certain people in ways that violate their human rights. Racism, sexism, intolerance toward homosexuals and minority groups can be and has been addressed in the courts in ways that have positively increased liberty.
    Australia has an ‘impeccable history’ of protecting the rights of white, english speaking men. A bill of rights would guarantee the rights of everyone else.
    My final thought is this: parliamentary democracy is only one in a bundle of mechanisms that guarantee a free society. Laws that protect the rights and property of the individual are another (in Western traditions). Bias and corruption among those trusted with power is least worrisome when that power is spread effectively between institutions and individuals.

  4. Hi Emily,

    You certainly make some good points. However I disagree with several of them.

    You assert that our parliament only has ever protected the rights of white, English speaking men. A comparison is in order. The US has a Bill of Rights, which explicitly guarantees the basic rights of *all* Americans. Nonetheless, the courts failed to protect the rights of anyone other than white, English speaking men for a large part of America’s history – e.g slavery, segregation, workplace discrimination etc. So I’m not convinced that the courts are any more capable of protecting people’s rights than the Parliament. Thus, the ability of the courts to protect the rights of the least powerful individuals is questionable. Courts are as susceptible to misinterpreting rights (either intentionally or unintentionally) as politicians are. An independent judiciary, contrary to what you claim, is not necessarily going to protect individual’s rights (depending on the social views of the judges in office at the time – who are appointed by politicians precisely on the basis of their social views – see my reply to Michael above).

    You write:

    “Also, it seems to me that worrying about judicial activism while at the same time bemoaning the rigidity of a constitutional bill of rights is a tad paradoxical. If judges are interpreting the constitution in line with evolving social norms, they stand accused of activism. If they don’t take an activist position, the constitution stands accused of inflexibility!”

    Indeed there is a paradox here, which is precisely why I don’t think handing the powers to the judiciary is a good idea. In both cases, whether they be ‘activist’ or ‘rigid’, both of these scenarios are undesirable, which is rather why I’d leave it out of the hands of the judiciary altogether.

  5. It is true that in the US human rights violations occurred despite the Bill of Rights. Obviously, parliaments and courts produce; and are a product of, social-historical circumstances. However, historically, legal challenges on constitutional grounds have often been the catalyst for change eg. Brown v. Board of Education.

    Handing some power to the judiciary is absolutely vital. The constitution is designed to hold governments to account. To stymie a descent into dictatorship or tyranny. Including a bill of rights in the constitution acknowledges that sometimes governments, even democratically elected ones, fail to protect individuals’ rights. It is not a perfect system. We can look to Pakistan for a vivid example ineffective balance of power. In Australia the failure of successive governments to protect the rights of asylum seekers and refugees (in contravention of the Geneva Convention) has created a sense of urgency around a constitutional bill of rights in liberal, legal circles. Especially in those cases involving children.

    The final point to make is that while judges are appointed, legislation is enacted through Parliament. The job of the judge is to interpret and apply popular, government initiated legislation and/or case law precedent. The weight of common law means all courts and judges must defer to the wisdom of those gone before them. The scope for judicial activism is narrow, really. This is why there have been only two cases in Australian history of ‘implied rights’ being read into the constitution. A bill of rights would need to be enacted by popular referendum. It could not but represent the most widely held values and beliefs of the Australian public. If passed, a bill of rights would further reduce the scope for judicial activism because there would be ACTUAL rights in the constitution–clear in intent and finite.

  6. When the US took over California from Mexico (Spain), the considerable rights granted to Indians were taken away (in fact, Indians where fair dinkum game, let’s say). When Indians tried to appeal to the US High Court, their case was not even heard (according to the Santa Barbara Museum, if I remember correctly).

  7. I forgot, on the other hand, of course, Australian aboriginals did not do very well either, at about the same time. One with and the other without a Bill of Rights. What do you conclude from that?

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