The Verdict on a Bill of Rights is Already Decided

Last December the Commonwealth Attorney-General announced his less than even-handed four-person consultation committee on whether to enact a statutory bill (or charter) of rights. It is chaired by Father Frank Brennan, who is on record as being sympathetic to a statutory bill of rights, though not a constitutionalised one. In the official announcement of the composition of this committee Father Frank is listed as a “fence sitter”, but it might be less disingenuous to say that up until his date of appointment to chair this committee he leaned towards the sort of statutory bill of rights the Attorney-General who appointed him is known to favour.

The other three committee members are Mary Kostakidis, Tammy Williams and Mick Palmer. The first is the well-known former SBS news presenter. The second is from the Aboriginal community, having made an address to the UN Commission on Human Rights. If either of these two committee members came into this task remotely sceptical of the benefits of a bill of rights then I will eat my shirt—and my socks, and any other piece of apparel that happens to be lying around. They are just the sort of well-intentioned people that would be appointed by anyone keen to fashion a committee that would ultimately recommend in favour of a bill of rights. Is it conceivably possible that either of them might surprise us and turn out to think a bill of rights is undemocratic and undesirable? Yes. But then it’s also conceivably possible to imagine members of the Green Party favouring ever greater coal mining or Paul McCartney getting back together with Heather Mills. The test of what is “conceivably possible” is not, after all, an overly taxing one.

The fourth member of the committee is Mick Palmer, a policeman. Actually that’s not quite right. He’s a policeman turned lawyer turned policeman, rising to the heights of Commissioner of the Australian Federal Police for seven years until 2001. Here, at least, there is a hope of someone who might bring a tad of scepticism to the appointed task. If so, and only if so, that is one out of four—not great but better than was the case with the incredibly unbalanced committee that was struck in Victoria to recommend a bill of rights and that delivered as expected. (The Victorian government also used this same less than even-handed consultative committee ploy to avoid a plebiscite or referendum while still giving the impression that it was keen to hear the “people’s view”.)

I will be blunt. This is not a committee where there is any doubt going in about the majority view on the question of whether Australia ought to have a statutory bill of rights. At best, the view going in is three to one that it should. Views can change, of course, as submissions are heard and other points of view considered. But don’t kid yourself. Proponents of a bill of rights for Australia will be making huge efforts to get their supporters to appear before this committee. And supporters of these instruments tend to come from segments of society perfectly at home in thinking about the world in terms of moral abstractions where some are clearly on the side of the angels and others are morally wicked or ignorant or in need of re-education. We can expect the usual suspects, the whole array of NGOs and lawyers’ bodies to line up to tell the committee what the Attorney-General expects them to say. Nothing like a balanced view of submissions can be expected.

If this government really wanted to hear what the majority of Australians thought about a bill of rights, statutory or constitutional, it could easily hold a plebiscite or referendum. It won’t, because the proposal would lose, and lose badly. Everyone knows that, including the Attorney-General and this government. In fact there have been just such constitutional referenda in the past vis-à-vis adopting a bill of rights. All have failed, with the outcome not even close enough to encourage proponents to try again.

That is why this debate about a bill of rights has been so carefully framed as being about a statutory bill of rights. In the past, the new official line being sold to you by the bill-of-rights wing of the Labor Party goes, people were asked about entrenched, constitutionalised bills of rights along the lines of an American model. But we can all agree (this official line continues) that those sorts of instruments are a mistake. You see (their implicit selling shtick continues) we’ve had something of a Damascene conversion and no longer think such constitutionalised bills of rights are a good idea. We agree that they give too much power to unelected judges. We concur that they undermine and enervate democratic decision-making. We’re now all in the camp opposed to such consequences.

No, what we’re selling is a statutory bill of rights (they assure you). This wonderful little device will have all the good consequences we used to push for but none of the nasty side-effects. We’ll all be able to have our cake and eat it too. We can have judges who are delegated to tell all the rest of us what our fundamental human rights are in any and all specific cases or issues (the elected parliament simply having enumerated a list of vague, amorphous and highly indeterminate moral abstractions to which, in such empty terms, virtually everyone can agree). Their view of what the rights-respecting outcome is, the view of these committees of unelected ex-lawyers, will collapse into the correct view. What they say our rights are will, in effect, be equated by all and sundry to what our rights actually are, as though lawyers and judges have some sort of pipeline to God on issues like abortion, gay marriage, euthanasia, the best balance to strike when it comes to criminal procedures, the propriety of Muslim girls wearing headscarves to schools, and so much more.

We can have all that, all that input from judges, and yet—mirabile dictu—we will retain parliamentary sovereignty and majoritarian democracy and the fundamental equality that comes when plumbers and secretaries and teachers and taxi drivers have the same input as lawyers and judges when it comes to resolving the above sorts of issues. The latter will have no more input that the former.

That’s the bill of goods being sold to you about a statutory bill of rights. It almost sounds too good to be true. And that’s because it is too good to be true. What you’re being sold is a crock. Bear with me and I’ll elaborate.

Proponents of one of these statutory bill of rights instruments feign incredulity that anyone could be opposed. After all (they assure us), parliament will retain the last word. Judges will not become overly powerful.

Let me explain why that assurance is an out-and-out falsehood. In blunt terms it’s false because all these statutory charters do the same thing. They let unelected judges decide what is, and isn’t, in keeping with your rights. But think about it. These are not legal issues. They’re moral ones. And deciding who should be able to marry, or how catching criminals should be balanced against limits on search powers, or what the limits on free speech should be, are line-drawing calls that committees of ex-lawyers have no more expertise in than you or I or farmers or hairdressers.

Worse, judges also disagree on these matters. And when they disagree they vote. Four votes beat three. Full stop. So a bill of rights hands the power to declare what are and aren’t your fundamental rights to committees of ex-lawyers who, when they disagree amongst themselves, get a vote. Just them. No one else.

After they’ve made that decision, and only after that decision, parliament will be left with the power to say, “We’re going to take away your rights.” Think that’s really a usable power? In the UK (with just such a statutory charter or bill of rights that proponents want to copy here) the judges have made dozens of these declarations, and in every case parliament has backed down.

It’s almost inevitable. Suppose parliament could say, “Your judicial view of these moral line-drawing issues is no better than ours. You haven’t got a pipeline to God. And we disagree with you.” That might be a usable power. Instead, all parliament can say is, “Well, that may be your fundamental right (because the judges have declared it to be so), but we’re taking it away.”

That’s the insidious structure of these statutory instruments. Parliament can be presented as retaining power. But it’s simply untrue. Just look at what has happened in New Zealand and the UK and Canada. In all those places (the first two with statutory bills of rights and the latter with a mechanism that tries to turn a US-style one into a statutory one) the parliament has a nominal power to trump the judges. But it’s a power that’s articulated in terms of “taking away your rights”, not one voiced in terms of “you don’t know any more about this than we do and we say your view of rights is bizarre”.

That means it’s an unusable power. And proponents, including our Commonwealth Attorney-General, know this. They know it’s a power that is never in fact used. In Canada a while back the judges decided legislation prohibiting big tobacco companies from advertising outside schools was a breach of free speech. Canada’s parliament could have overridden them. It didn’t. And it wouldn’t here either because it would be forced into saying, “We’re taking away your rights.” It’s a lie—but it’s how these instruments work.

Let’s be clear. A statutory charter or bill of rights (and the terminology is irrelevant) will make our judges considerably more powerful. That’s the only reason proponents want one. They are not investing all these resources and time to fight for a bill of rights that really will leave the status quo in place. Does anyone, on reflection, really think that’s at all likely?

It gets worse than that, though. Much worse. Because the real power that a statutory bill of rights hands over to the unelected judges is a souped-up power of interpretation—an Alice in Wonderland power to read statutes in a way they, the judges, think the statutes ought to have been written. Again, the form is that parliament is sovereign and has the last word. The substance, though, is that the judges have significantly more power than without a statutory bill of rights.

Think of it this way. Suppose there were a marriage here in Australia and in that marriage decision-making was divided up in the following manner. The wife, and only the wife, gets to write down what the couple will do: how the money will be spent; who is allowed into their home; what their daughter can wear to school; who their son can marry; everything. She writes it down, not the husband.

On the other hand, the husband is given a statutory bill of rights power to interpret whatever the wife writes down. And it is no ordinary power of interpretation he is given. He is specifically commanded to read all his wife’s directives in accord with this provision found in all statutory charters of rights: “So far as it is possible to do so consistently with their purpose, all of your wife’s directives must be interpreted in a way that you, the husband, think is compatible with human rights. (Oh, and in deciding about this, you may consider what British, Canadian, American and European husbands are doing.)”

Those pushing for a statutory bill of rights want us to believe that the wife will get her way, not the husband. It’s balderdash. Sure, it’s theoretically possible that husbands might be deferential to their wives and think wives should be the ones to make all the difficult, contentious, moral and political line-drawing decisions. It’s possible they might be inclined to give the wifely words used their ordinary meaning.

But that’s not what’s happened with husbands overseas. They’ve been far, far less deferential. They’ve come close to seeing themselves as having a pipeline to God when it comes to any issues that can be remotely characterised as a rights issue—certainly they will be disdainful of the idea that a mere wife could be entrusted to make any rights-related decisions of any sort—and so they will treat the “Is it possible?” test as one that can almost always be answered in the affirmative. “Yes, it is possible,” thinks this sort of husband, “for me to read virtually any of my wife’s provisions or directives—however lacking in ambiguity and however explicitly and bluntly stated they might be, indeed however much her intentions are crystal clear—in a way that I happen to think is a better, more rights-respecting way.”

That’s the undeniable state of affairs in all places that have opted for what proponents characterise as a “harmless little statutory bill of rights that leaves parliament with the last word”. The truth is that it’s the husband who is interpreting his wife’s directives—the ones analogous in a way to statutes about who can marry, who can immigrate, whether abortion is permissible and when, what the correct balance is between preventing drunk driving and having access to a lawyer, indeed all the purportedly sovereign sorts of decision-making that a parliament would undertake—who ends up with an “interpretation on steroids” power. And he knows it.

All those judges and lawyers pushing for a harmless little statutory bill of rights know it too. So does our Attorney-General.

Look, up in the Olympian heights of moral abstractions—of mouthing warm, fuzzy, vague, amorphous rights entitlements—everyone is in favour and the world can be painted in moral blacks and whites. Yet down in the day-to-day quagmire of deciding where to draw real-life lines the simple fact is that there is no consensus at all, only disagreement and dissensus. Smart, reasonable, well-informed, even nice people—people just like our husband and wife and most voters too—simply disagree. And there are no self-evidently correct answers, nor any science-like method for resolving those reasonable disagreements. That’s just the nature of rights.

Despite that, the decision-making rule in our mooted marriage is that the husband—the unelected judge—will decide about rights.

That’s what the bill-of-rights sirens are selling you. They say that our unelected judges under a statutory bill of rights will be no more powerful than before. It’s a patent nonsense. This is just a US-style marriage in disguise, one where the philosopher-king husband can circumvent any of his wife’s directives he happens to feel infringe rights, simply by rewriting them. (Or more accurately put, the top judges—by four-to-three majority vote—can do this.) Could anything be more unattractive than that?

Of course, maybe this hand-picked committee of the Attorney-General’s will see all this when it makes its report at the end of July. Maybe it will come down against a statutory bill of rights. But if you believe that you probably had investment money with Mr Madoff.

Look, the real issue for all of us is how we can oppose this government once this committee does what the Attorney-General always expected it to do and opts to recommend a statutory bill of rights. That won’t be the end of the matter. The Labor Party is not unified on this issue. Significant elements of the party oppose a bill of rights, not least the hard-nosed union side of the party that dislikes dealing in amorphous moral abstractions.

Let us hope, too, that the Coalition will hold its nerve on this issue and remain implacably opposed. Personally I’m more confident that the union side of the Labor Party will hold its nerve, but you never know. Perhaps Mr Turnbull will surprise me.

James Allan is Garrick Professor of Law at the University of Queensland.

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