The wrongs of pushing a bill of rights

The Bracks Government’s plan for a Victorian bill of rights is the latest step in a long-running campaign by activist lawyers and civil libertarians to confer legislative and executive powers on the judiciary. Victoria follows the Australian Capital Territory, with other dominos likely to fall.

Professor George Williams, Australia’s leading bill of rights advocate and chairman of the Bracks Government’s sham inquiry into the topic, has made no secret of the ultimate goal: a binding Australian bill of rights. Simultaneously, we have heard calls from Williams and federal shadow attorney-general Nicola Roxon for reform of the judicial appointment process.

The intention of these campaigners is plain: the implementation by judicial fiat of a policy agenda that runs contrary to the beliefs of most Australians, giving left-wing judges power to condemn from the bench, or even overrule, the policy decisions of elected representatives. It is frustration with the perceived conservatism of the Australian electorate that is the true wellspring of the push for express rights.

Yet even the most uncontroversial rights, such as freedom of speech, are the subject of heated debate, as no right is unqualified. In Victoria, the very government that is now manoeuvring to introduce a bill of rights enacted the Racial and Religious Tolerance Act 2001, which curtails that most basic right in an unprecedented manner.

Other proposed “rights” are similarly, if not more, ambiguous and must obviously be subject to qualifications, the scope of which is controversial. Balancing these competing interests is a task traditionally performed by elected representatives equipped with resources for research and policy development. To empower unaccountable judges to determine such questions, not from the disinterested perspective of the policymaker but in the heat and emotion of individual cases, is to assign them a task for which they are wholly unsuited.

The philosophical basis of our present system provides a more generous and beneficent interpretation of human rights than the most enthusiastic rights activist. I do not derive my rights from a list of specific rights enumerated by government. I possess an inherent and unqualified right to do whatever I please. However, by living in our society, I submit this right to a set of restrictions that are agreed with my fellow citizens through the democratic compact. Rather than having to petition government for particular rights, I hold an absolute, unlimited, general right. Government must petition me, as an elector, for permission to restrict that general right.

This tradition of rights has given rise to contemporary Australian society, in which we enjoy far greater freedom from arbitrary government intervention in our affairs than the members of almost any other society. Certainly, there are isolated instances in which administrative systems fail, causing violations of rights. Yet it is a profoundly adolescent reaction to such individual cases as Cornelia Rau and Vivian Alvarez Solon to suggest, as Williams does, that they reflect a flaw in our entire philosophy of rights. Rather, they reflect the inherent imperfectability of all human systems.

The naive belief that a bill of rights can eliminate abuses of human rights caused by administrative or legislative errors does not bear scrutiny. Even citizens of the former Soviet Union enjoyed the benefit of an extensive bill of rights, which must have been a comforting thought on cold Siberian nights in the Gulag.

The vision of Australian rights activists combines a bill of rights with some sort of judicial appointments commission, ensuring that suitably bien pensant types populate the bench. Roxon recently mooted the establishment of just such a commission. She shares Rob Hulls’ shallow vision of a “representative” judiciary, which extends only to ensuring that the requisite proportions of women, gays and blacks (but not conservatives) sit on the bench.

What if the activists succeed? In the face of a left-wing judiciary empowered with a bill of rights to undermine “populist” policy, the temptation for Australian conservatives would be to call for the direct election of judges. Like its American cousin, Australian conservatism embodies a radical element that differentiates it from its aristocratic European counterparts and overrides its deference to traditional institutions that conservatives perceive as corrupted.

Just as rights are politically difficult to oppose, so is democracy in the context of a politicised judiciary. If judges are to wield the power to halt conservative political agendas, then it is inevitable that political conservatives will seek to colonise the judiciary. In Australia’s political culture, as in the US, they will often succeed.

Rights activists should think again. The road they have embarked upon leads not to their beloved socialist nirvana of Europe, but to America. I suspect that they, like most of us, prefer Australia.

Alan Anderson is a Melbourne lawyer. This comment is based on his article “The Rule of Lawyers” in the summer issue of Policy magazine.