Why do we need a bill of rights?

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Introduction

There has been a division of opinion in Australia on the question whether we should adopt a Bill of Rights. Although I favour the adoption of such a Bill of Rights for reasons which I shall state, there are tenable arguments for letting things remain as they are. These arguments need to be considered against the background of recent events here and abroad, events which have thrown a spotlight on deficiencies in Australian protection of individual rights.

The case for a Bill of Rights

Australia now stands alone in the Western World as a jurisdiction without a general Bill of Rights, constitutionally entrenched or statute-based. Guaranteed or declared individual rights are no longer largely a European phenomenon as they were thought to be by English and Australian common lawyers when the Australian Constitution came into operation at the beginning of the 20th century. A Bill of Rights is now a central feature of the constitutional or public law arrangements of other major jurisdictions which share the common law tradition — the United Kingdom itself, the United States, Canada and New Zealand, to name four of them. They are the countries with which we most frequently compare ourselves. They share our legal, historical and cultural heritage and a system of democratic government. Yet they have found it necessary or desirable to temper the will of the majority by providing for additional protection for individual rights for the very reason that neither the common law nor the political process sufficiently protect them.

The emphasis on protection of human rights and fundamental freedoms at the end of World War II arose out of the need to protect minorities and individuals from discrimination and oppression on racial, religious and other grounds and to protect the rights and freedoms of individuals from the overriding exercise and abuse of state power.

Although the threat of terrorism has rightly caused countries to make special and wide-ranging arrangements for security, we have seen how readily the political process has been prepared to compromise basic individual rights and to countenance procedures which are inconsistent with basic elements of the rule of law. Government proposals for lengthy detention of suspects without any or speedy access to the courts and an apparent reluctance to accept meaningful judicial review of the detention of suspects have been features of the so-called War against Terror.

Politicians have a powerful survival instinct. They are anxious to keep on side with popular sentiment, even more so when popular sentiment has been fanned by media-fuelled anxiety about threats to security. No politician wants to be labelled as “soft” on security. So the political process is willing to compromise on basic rights and on the rule of law so as to convey the impression that politicians are seen as tough on terrorism. In the result, statute law may override common law protection of fundamental rights and basic elements of the rule of law. This willingness to compromise on basic rights is not confined to threats to security, where the justification may seem stronger.

Such a situation may happen infrequently but the fact that it can happen was enough to persuade the United Kingdom, the United States, Canada and New Zealand to protect human rights and fundamental freedoms, either by constitutionally-entrenched guarantees or statute.

The main arguments for a Bill of Rights are

– it would bring Australia into line with the rest of the world; and

– it would protect basic individual rights from interference by political (legislative and executive) interference.

Other advantages are

– principled judicial decision-making would replace political compromise; and

– government and administrative decision-making, on policy and other issues, would necessarily have close regard to basic individual rights.

The case against a Bill of Rights

The main arguments against a Bill of Rights are —

– the majority will should prevail, whatever the circumstances;

– there is no need to provide further protection for basic rights;

– a Bill of Rights is foreign to our traditions;

– a Bill of Rights gives too much power to the judges; and

– a Bill of Rights will or may add to costs.

Comment

A constitutionally entrenched Bill would certainly give more power to judges than they have. It would enable the judges to override Parliament. But a statute-based Bill, which I favour, would not have that result; it would leave the judges with their ordinary role of interpreting the laws made by Parliament, but in the light of the Bill of Rights. A Bill of Rights in this form can be changed by Parliament. Parliament also has the capacity, by specific and clear language at any time, to override or qualify statutory rights. But if Parliament takes this course, it must confront the impact of its proposed law on the rights protected by the Bill and deal with that impact specifically. It can’t simply sweep the question under the carpet or exclude or qualify the rights by vague and general words.

The United Kingdom’s experience with the Human Rights Act 1998 does not suggest that it has resulted in any significant increase in litigation. New Zealand’s experience may be different.

The experience in other countries also confirms the lesson of history — that the rights of individuals are better protected by judges than by politicians. Politicians and administrators are primarily concerned with the exercise of government power and policy. Judges are primarily concerned with the rights of individuals. That is what court cases are all about.

Finally, a Bill of Rights should be confined to selected basic civil and political rights, such as freedom of expression, as New Zealand has done. It should not extend to social and economic rights, which are extremely controversial and essentially matters suited to political rather than judicial judgment.

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