One of the main arguments for the enactment of a national Bill of Rights in Australia is that they are effective mechanisms to protect fundamental human rights.
For example, Craig Kelly, who lost his parliamentary seat in the last federal election, believes that a national Bill of Rights would “protect the rights of all Australians,” including the right to choose their medical treatment and to preserve freedom of speech.
“When elected to government, the first matter on the agenda … will be the enactment of an Australian Bill of Rights,” he said.
His concerns are entirely understandable. As a constitutional law academic, I am appalled to see the governments in Australia often using their powers to excessively coerce, obstruct or otherwise unreasonably interfere with the life, liberty, movement, and property of the citizen.
However, there is a possibility that, despite their superficial attraction, the enactment of a national Bill of Rights could become a decisive factor in depriving people of their most fundamental human rights.
Take, for instance, what happened in the United States in the 19th century. In 1857, the U.S. Supreme Court held in the Dred Scott case, by a substantial 7-2 majority, that Congress was not authorised to prohibit slavery.
Dred Scott, is generally credited with accelerating the American Civil War, which claimed the lives of roughly 620,000 people. This appalling decision opened a Pandora’s Box, which led to numerous other equally controversial judicial rulings.
To give another example, on Jan. 22, 1973, by a substantial 7-2 majority, the U.S. Supreme Court managed in Roe vs Wade to strike down the existing abortion laws across all the American States. To reach such a decision, Justice Rehnquist wrote in his dissent: “the Court necessarily has to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.”
Of course, the more abstract the language of the legislation, the more difficult the task of legal interpretation. Moreover, judges simply do not have the necessary training or skills to engage in wider debates on policy. Above all, the courts are not appropriate institutions to carry out the level of research required for such a role.
That being so, law professor Jeffrey Goldsworthy comments: “The traditional function of the judiciary does not sit altogether comfortably with the enforcement of a bill of rights. In effect, it confers on judges a power to veto legislation retrospectively on the basis of judgements of political morality.”
Because these abstract declarations of rights are always deeply vague, aspirational documents, they give no guidance on what interests rank the highest. There is obvious potential here for a partisan administration of justice.
As correctly noted by law professor Gabriël A. Moens: “The possibility of attributing different meanings to provisions of bills of rights creates the potential for judges to read their own biases and philosophies into such a document, especially if the relevant precedents are themselves mutually inconsistent.”
Naturally, supporters of a national Bill of Rights for Australia may argue that, as it would be enacted by an elected parliament, this makes legislation of this nature then perfectly democratic. However, the enactment of such abstract provisions would simply amount to voting democracy out of existence, at least so far as a wide range of important democratic deliberations are concerned.
As law professor James Allan correctly points out, “What a bill of rights does is to take contentious political issues—issues over which there is a reasonable disagreement between reasonable people—and it turns them into pseudo-legal issues which have to be treated as though there were eternal timeless right answers. Even where the top judges break 5-4 or 4-3 on these issues, the judges’ majority view is treated as the view that is in accord with fundamental rights. The effect, as can easily be observed from glancing at the United States, Canada and now New Zealand and the United Kingdom, is to diminish the politics (over time) to politicise the judiciary.”
Accordingly, the American Founding Fathers believed that our basic human rights are independent of government and by which the justice or property of governmental commands are to be judged.
However, we are living in times of great confusion and profound moral relativism, so the enactment of a national Bill of Rights could lead to the entirely wrong assumption that the Australian government is the ultimate creator of these important rights of the individual. It is really the case of saying: “The state gives, the state takes away; blessed by the name of the state!”
To conclude, there is no good reason why Australians should be enacting a national Bill of Rights. By contrast, there are quite compelling reasons to believe that the enactment of this sort of legislation could potentially compromise the realisation of the rule of law; for example, by providing a small elite of unelected lawyers with a powerful interpretative mechanism by which it could force its own moral (and political) biases on an uninterested or reluctant majority.
