The judicialisation of public policy

Democratic systems of government can and should include checks and balances to minimise the risk of oppression by governing majorities. Examples of such checks and balances include the separation of legislative, executive and judicial powers; judicial review; accountability of the executive to parliament; bicameral parliaments; and federal division of power.

However, there is a limit to the extent to which checks and balances can be justified in a free and democratic society. In my view that limit is exceeded when in practice the checks and balances prevent the people from having any real influence over important political outcomes.

An Australian national bill of rights would have that effect. It would result in important political outcomes being determined by court decisions without the people having any real influence over those outcomes.

Such a bill would represent a blank cheque for unelected judges who would be required to give content to rights defined in broad and imprecise terms. In other comparable countries, this wide discretion for judges has resulted in interpretations extending rights beyond their originally intended purposes. For example, the US Supreme Court has ruled that “freedom of speech” extends to a right to possess virtual child pornography, and that an entitlement to “due process” extends to a right of abortion. In Canada, the Supreme Court has ruled that an Act restricting tobacco advertising infringed “freedom of expression”.

In contrast with laws made by Parliament, these types of questionable judicial determinations tend to become entrenched because of the effect of judicial precedents.

Civil rights lawyers and activist judges would undoubtedly use a national bill of rights as a vehicle to pursue their own ideological agendas.

As evidence of this risk, some of the (former) justices of our High Court have expressed the view that our Constitution provides an implied right of substantive equality before the law, despite the fact the 1898 Constitutional Convention expressly rejected a proposed clause containing that right. Among other reasons, the Convention rejected the clause because it was considered rights should continue to be determined through the common law and democratic processes. Concern was also expressed that the High Court might interpret the clause in ways unforeseen by the Convention delegates.

As stated by Isaac Isaacs during the lengthy debate on the clause, “[t]he phrase ‘equal protection of the laws’ looks very well, but what does it mean?” The same could be said for many of the rights definitions contained in bills of rights.

It has been claimed that judges merely interpret the law when applying bills of rights. In reality, bills of rights force judges to make the law under the guise of interpretation.

The decision of the US Supreme Court in Roe v Wade powerfully demonstrates this point. That decision was based on the due process clause of the Fourteenth Amendment to the US Constitution. The due process clause states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” The Supreme Court “interpreted” those few words as meaning that:

• a woman and her doctor may freely decide to terminate a pregnancy during the first trimester;
• later in pregnancy, states can restrict abortion access with laws but only if they are intended to protect the woman's health; and
• once the fetus is viable, an abortion must still be available if the woman's health or life is at risk. State governments are free to pass legislation that will allow or prohibit late-term abortions - those on a viable fetus - for other reasons.

Clearly, judicial interpretations of this type involve law-making in effect if not in theory.