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All bets are off when a bill of rights comes in

By James Allan - posted Monday, 24 April 2006

The balancing act the Federal Government is performing between liberties and the need for security in response to the terrorist threat has prompted some commentators to renew calls for a bill of rights which would supposedly protect us from intrusive laws.

The Federal Government has rejected a bill of rights but Victoria is pushing full speed ahead to enact one, with NSW now seeking to follow suit, claiming that not having one leaves its citizens out in the cold. I disagree.

Before Christmas, Victoria's Attorney-General Rob Hulls said he was bewildered by negative reaction to the proposed bill of rights. Parliament would continue to have the last word, he reassured people. It's a statutory model, not an entrenched model. What's the big deal?


The big deal is this: no matter which model is adopted, the outcome is effectively the same. Under a US- or Canadian-style bill of rights, judges can strike down statutes they don't like. Under a British- or New Zealand-style one, the kind Victoria seeks to copy, the judges get a power to interpret all other laws in a "bill of rights-friendly manner" - meaning they can read "black" to mean "virtually white" or "men and women" to mean "men and men", or just about any words to mean anything.

Victoria's proposed bill of rights will have a "reading down" section (s.32) that requires courts to interpret all legislation as consistent with it, so far as it is possible to do so. This basically copies what is in the British and New Zealand models.

The leading British case on this sort of direction is called Ghaidan. It held that when you have some other statute to interpret this new bill of rights requirement changes all the rules of the game. Interpretation becomes a sort of Alice in Wonderland exercise.

Listen to what the judges there said: "Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, [the reading down provisions] may nonetheless require the legislation to be given a different meaning. [They] may require the court to depart from the intention of the Parliament which enacted the legislation. It is also apt to require a court to read in words which change the meaning of the enacted legislation."

In other words, the judges can treat all other legislation in any way they want.

All of us who are democrats at heart should worry about a provision that tells the unelected judges to do whatever they can to read any other statute as consistent with their view (not the voters' or parliamentarians') of what some abstract moral list requires.


What about New Zealand? In the case of Pora, three of seven New Zealand judges said that because of their bill of rights, the one Victoria is basically copying, an old statute no longer automatically lost out to a new one when the two were inconsistent. The judges said that they could use the bill of rights to give preference to the earlier statute, if they thought it would be more in keeping with a rights-respecting outcome. This would be a revolutionary change, giving the judges a huge increase in power.

A statutory bill of rights may leave parliament with the last word in name, but it gives judges a steroid-enhanced power of interpretation. They get to use a new "human rights-friendly" method to interpret parliament's words. In effect, they get a blank cheque.

When the then prime minister of New Zealand, Geoffrey Palmer, moved the second reading of its statutory bill of rights 15 years ago he said it would be a parliamentary bill of rights. He said it would provide no new remedies in the courts. In the past 15 years the country's judges have run roughshod over those assurances. They have consistently adopted a "living tree" sort of approach to interpretation. They have created a new bill of rights cause of action, enabling people to sue government, or the police, or some publicly funded body.

Proponents of this bill of rights say that can't happen here. Want to bet your mortgage on that?

So why should any voter worry about Victoria's proposed bill of rights or the one NSW is mooting? Because of what has actually, in real life, happened in Britain and New Zealand - places whose existing bills of rights Victoria and NSW propose to copy.

One last point: in Victoria the voters themselves didn't get a referendum to decide whether they'd have a bill of rights - the government decided that for them. So much for the "right to take part in the conduct of public affairs". Any bets on who would have won that referendum?

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First published in the Sydney Morning Herald on April 18, 2006.

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About the Author

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

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