The Apparel Oft Proclaims the Man

Most of us, I suspect, in the course of some after-dinner debate or disagreement, enjoy having the last word. It’s not always good manners, and prudence points against succumbing to this temptation very often. But when the editor of Quadrant offers a sort of last word in a dialogue on the current process initiated by the Attorney-General to look at whether Australia ought to enact a statutory bill of rights, then it’s a better man than I who can resist the invitation.

In the March Quadrant I laid out a short account of why I am strongly opposed to a statutory bill of rights. I have written more lengthy arguments in academic law journals here and overseas, in the proceedings of the Samuel Griffith Society, in a “Papers on Parliament” address at Parliament House, and in a number of other journals, magazines and newspapers. But in the March Quadrant I set out the basics of the case against these instruments, not least that even the statutory versions transfer too much decision-making power on highly contestable issues to unelected judges, to committees of ex-lawyers (who, ironically enough, resolve differences amongst themselves when disagreeing about what is the rights-respecting outcome or what is a reasonable limit on rights by voting and letting the numbers count). Statutory and constitutional bills of rights are undemocratic, however much most proponents of them pretend otherwise or focus on obfuscating pleas such as “Don’t you want your rights protected?”—the unspoken premise being that legally trained judges have more insight on rights-related issues such as abortion, gay marriage and immigration than you, or I, or plumbers or secretaries do.

I began that March paper by claiming that the Consultation Committee chosen by the Attorney-General looked in no way to be even-handed: “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.” Yes, I conceded that “views can change … as submissions are heard and other points of view considered”. But my point was that the Attorney-General had struck what any impartial person would consider a blatantly one-sided committee.

In the May Quadrant, the chair of that Consultation Committee, Father Frank Brennan, offered something of a reply to my March piece. I say “something of a reply” because Professor Brennan’s paper is a revised version of an earlier paper, and is not really an argued defence of bills of rights. In fact it doesn’t directly deal with substantive criticisms, mine or anyone else’s. It is an account of how the sort of statutory bill of rights that Victoria recently enacted has failed its first real test—“failed spectacularly” in Professor Brennan’s words. But indirectly it can all the same be read as defending the Attorney-General’s consultative committee process.

I find many of Professor’s Brennan’s claims highly persuasive. Much of his May paper is a strong attack on the Victorian legislation as regards what he describes as “compulsory referral clauses placed in laws dealing with the delivery of medical services in morally contested fields”. Think of doctors who believe abortion to be morally wrong and a legal requirement that these conscientious objectors be forced to provide a referral and you’ll get the general idea. As Father Frank makes plain, there are big issues of freedom of conscience here.

He takes Liberty Victoria to task, as well as its president, Julian Burnside QC, the Equal Opportunity and Human Rights Commission, and indeed Victoria’s newly enacted statutory bill of rights—its Orwellian proper name being the Victorian Charter of Human Rights and Responsibilities despite the dearth of enumerated instances of the latter actually being present anywhere in the document. And he does so in powerful and convincing terms:

We need to do better if faith communities and minorities are to be assured that a Victorian-style charter of rights is anything but a piece of legislative window dressing which rarely changes legislative or policy outcomes, being perceived as 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 temptation is to nod in agreement; but there is a possible implication in that passage that a stronger bill of rights might deliver different, non-soft-Left outcomes. Frankly, the sorts of judges in most developed common law jurisdictions here and around the world make it considerably more likely that legislation covering such issues as gay marriage or precluding voting by rapists while in prison will be second-guessed, not legislation dealing with hate speech or religiously motivated freedom of conscience (at least not if the religion is Christianity). And that’s true whether the judges are empowered by a statutory bill of rights to read down legislation (which amounts in the UK to a licence to rewrite it according to their own vision of what is rights-respecting) or whether they are empowered to strike it down (using a constitutionalised US or Canadian-style bill of rights). Whether the bill of rights is a statutory one or not does not matter here. Indeed statutory ones in my view have been shown clearly to give judges loads of new powers, as most proponents of such bills know while pretending otherwise. What matters is if the judges wish to use that power to gainsay the legislature. And Father Frank is spot on here in his analysis of the sorts of issues on which that is likely to happen.

In his May paper the chairman of our Consultation Committee goes some way to convincing the reader that the state with the least respect for rights is none other than Victoria, the one with the new-fangled statutory bill of rights. There is much to agree with in the Brennan paper. But be careful. Father Frank’s implicit point seems in part to be the suggestion that my initial claim as to the biased nature of the Consultation Committee is mistaken. “Just look at my criticisms of the Victorian Charter of Rights”, goes this unspoken suggestion. Alas, the argument does not wash. I stand my ground on my earlier claim that this Consultation Committee looks biased. Indeed, given that there was no defence of bills of rights per se offered by Father Frank (and perhaps we can understand why in the circumstances), the bulk of what follows will be focused on the appearance of the make-up of this committee.

Let me make my point in three different ways. First, here is what Professor Brennan had to say in a paper he gave in July 2008, just a few months before this Consultation Committee was announced by the Attorney-General (who, by the way, is also a known supporter of a statutory bill of rights). The man who is described in the press releases as a “fence-sitter” on the issue of whether we need a statutory bill of rights, the man who is chairing this committee, said all of the following in that paper:

I then published Legislating Liberty in which I opposed the introduction of a constitutional bill of rights for Australia. Conceding the shortfall for the protection of rights in our constitutional machinery, I suggested four means for making up the shortfall: The passage of a statutory bill of rights … [emphasis mine, and note that the only question the Consultation Committee is being asked to consider is the one related to statutory bills of rights]

I do favour a limited statutory bill of rights for all Australian jurisdictions …

… a statutory bill of rights will probably be the needed fourth institutional pillar on which will rest an Australian democracy true to Australian values …

I cannot see how someone who has stated those views on the record some few weeks before being appointed, and in those explicit terms, can expect to be taken as an impartial broker on this issue. Yes, I think Professor Brennan is more open-minded on the issue of whether to go for a bill of rights than were those who chaired the consultation committees in Victoria or the ACT. And yes, I think there is a chance he will surprise us all and come out against a bill of rights, a chance that I and almost no one would have mooted in Victoria or the ACT.

But it is a very small chance. And the simple fact is that appearances matter. A man who is clearly on the record as supporting a statutory bill of rights is named to chair a committee on whether to have a statutory bill of rights. How does that look?

I’ve written extensively against bills of rights, including statutory bills of rights. Imagine if former Prime Minister Howard had struck a committee to look at whether we ought to have one and he had made me the chair. What would those presently pushing for a bill of rights have said about that? I suspect we all know what they would have said. And to the extent that they claimed I did not look to be impartial on the issue, they would have been correct. (I in no way support these sorts of consultation committees that are meant, I think, to give political cover for a decision already desired. I just moot this possibility.)

Or how about putting the point this way. Let’s imagine that the Premier of Victoria decided it might be a good idea to have another look at the freedom of conscience issues surrounding mandated referrals by doctors who oppose abortion as morally wrong, the issue Professor Brennan focuses on in his May paper. Maybe the Premier decides to set up a consultation committee to hear the views of Victorians (or more accurately put, I would say, of that small cross-section of the population who were organised by special interest groups to attend). And let’s say he were to name Julian Burnside to chair this committee.

How would that look to Professor Brennan? Would it comfort him that Mr Burnside assured him he had an open mind on the issue? Would it bother him if no one on this committee appeared to come to the job as a sceptic of the government’s position, as a known opponent of the Premier’s stated view? Would there be a case for saying, “Look, appearances matter to some extent and this just doesn’t look right”? The apparel oft proclaims the man.

No one claims the apparel always proclaims the man. Likewise, I do not foreclose the possibility that Father Frank will change his mind on this matter. He is more open-minded than plenty of other supporters of bills of rights. But surely that’s not enough to provide even a fig-leaf of cover to this exercise initiated by the Attorney-General.

No opponent of statutory bills of rights can think this is a fair process. It looks like a stacked committee and a bogus process. I won’t be wasting my time making a submission. If you’re going to set up a committee that appears one-sided—we cannot know what committee members do and do not think or how open-minded they may or may not be, so we judge based on how things look and on what they have stated in the past—then you can hardly expect those on the other side of the debate to treat this as anything other than a cynical exercise in creating political cover for a position that was favoured going in.

Of course we’ll be told that huge numbers of people appeared before this committee from all around Australia. But this is sophistry and casuistry, in at least two ways. First, let’s say 20,000 people were to appear before the committee in person. That’s less than 0.1 per cent of Australia’s population. And of course the people who show up are in no way a balanced sample. It’s largely a self-selecting group. As I said back in March, “proponents of a bill of rights for Australia will be making huge efforts to get their supporters to appear before this committee … 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.” Think of these people in Professor’s Brennan’s own terms, as largely those advocating “the delivery of a soft-Left sectarian agenda”.

There is a possible second ploy. The numbers might be massaged a bit by pointing not just to people who appear before the committee, but also to the entire membership lists of, say, Amnesty International or Liberty Victoria. So a special interest group makes a submission in favour and you count everyone associated with it. But even that ploy can’t deliver legitimacy.

The simple fact is that this process has no chance of getting anywhere near hearing what Australians—you and I and teachers and plumbers and all the voters who make Australia the most democratic country in the world—think on this issue. As I said in the March Quadrant, “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.”

I began this reply by having a bit of fun and suggesting I was getting the last word in this debate. Of course that’s nonsense. Professor Brennan and his government-mandated committee will have something to say after this brief reply appears. And the odds are very strong that they will come out in favour of some sort of statutory bill of rights being enacted.

Then this becomes a political fight. I have no idea what will happen then. I hope the proposal is defeated. Even more than that, I’d prefer that all of us, as voters, actually got a say, rather than just some committee hearing the views of zero-point-whatever percentage of the population. Let’s have an election campaign or a plebiscite specifically on the issue, Mr McClelland.

My view still stands that the best hope for defeating this awful proposal lies with the union wing of the Labor Party, the people who still have a sense of humour on that side of politics and who can see that putting difficult and debatable line-drawing exercises into the hands of unelected judges, rather than elected politicians, is not a good idea. The Coalition, I hope, will hold its nerve on this issue, but I’m less confident about it. We’ll see. In the meantime, get ready for the fun later this year after the Consultation Committee reports.

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