Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.


 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate

Subscribe!
Subscribe





On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.
___________

Syndicate
RSS/XML


RSS 2.0

The judicialisation of public policy

By Jim South - posted Wednesday, 12 July 2006


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.

Advertisement

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.

Advertisement

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.

The fact judges are not democratically accountable assists them in performing their traditional judicial functions in an independent and impartial manner. But this absence of accountability to the public is an important reason why judges should not perform a public policy role (other than as part of their constitutionally limited common law role).

Judges are eminently suited for the role of protecting the rights of individuals within the framework of the common law and existing legislation. However, giving content to legislation by way of judicial interpretation (as occurs with bills of rights) is an entirely different proposition. Applying legislation is one thing. Creating its content is another. In the interests of democracy, public policies having the force of legislation should be made only by democratically accountable authorities.

Whether entrenched or not, a national bill of rights would skew our system of government heavily in favour of special interest groups, particularly the lawyer class. The political consequences of being stigmatised as rights violators would deter governments from legislatively restricting judicially sanctioned rights. Our adversarial political system would be a further impediment to such legislation, especially at times when minorities hold the balance of power in the Senate.

As a result, public policies would be determined by a small group of judges who would be unrepresentative of, and unanswerable to, the public. A bill of rights would thus contribute to the “judicialization of public policy” (Tate and Vallinder, The Global Expansion of Judicial Power (1995)).

Some rights advocates contend that a bill of rights is needed to maintain an appropriate balance between the rights of the individual and those of the community. This dual classification of rights is based on a false dichotomy which artificially creates a hierarchy of rights with those relating to the individual at the top. In truth, all human rights relate to the individual - including collective rights such as the right of a people to self-determination which is shared among individuals in the group.

The fact that some rights are supported by a majority of individuals in the community is not a valid reason to regard those rights as not being among the rights of the individual. For example, the right to be protected from being blown up in a terrorist attack is just as much a right of the individual as is the right to not be arbitrarily searched or detained.

Rights advocates also claim that a national bill of rights would reflect the shared values of our society. That claim is probably correct. Like a Trojan horse, a national bill of rights would be an attractive-looking beast. However, appearances can be deceiving and there is a big difference between reflecting values and upholding them.

There are a number of reasons to seriously doubt that a national bill of rights would assist in upholding the shared values of our society.

First, it should be noted that our society does not have shared values on many of the issues which typically arise in legal challenges involving bills of rights. Community opinion is often divided on contentious issues such as same-sex marriages, polygamy, euthanasia, the death penalty, conscription, abortion restrictions, anti-terrorism laws and pornography.

In cases where the community does have shared values, it does not follow that the courts would necessarily uphold those values. With a bill of rights, the only majority that matters is the majority of the presiding judges. The courts, not the people or their elected representatives, would be responsible for interpreting and balancing the protected rights and deciding what limits can be justified in a free and democratic society.

In addition, judges tend to see themselves as being protectors of the individual against the will of the majority, especially when interpreting bills of rights. This tendency is exemplified by the following words of Chief Justice Beverley McLachlin of the Canadian Supreme Court: “The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion.”

This willingness of judges to disregard the opinions, and thus the values, of the public is appropriate when the courts are performing their traditional role of settling controversies between litigants and adjudicating criminal guilt through the application of objective legal criteria.

However, a bill of rights would require the courts to perform a public policy role. Disregarding the values of the public in this context would be questionable in terms of democratic principles. Moreover, instead of impartially interpreting the bill of rights using objective legal criteria, judges would be forced to make value judgments on a wide range of social, moral, policy and other political issues. Some rights advocates argue that this would not be a problem as judges have been making value judgments for hundreds of years when developing the common law.

That argument overlooks important differences between the common law and the laws made by parliament. When judges make the common law, they defer to the higher authority of any applicable laws made by parliament (provided those laws comply with constitutional requirements). This hierarchical relationship between the two types of laws is based on the democratic legitimacy of the laws made by the people’s representatives in parliament - a legitimacy which the common law lacks.

In contrast with the way the common law is developed, judges applying a bill of rights would not defer to the laws made by the people’s representatives. Instead, they would pass judgment on those laws. Such judgments would reflect judges’ values, rather than those of the people or their representatives. Governments would be loath to risk the political consequences of ignoring or overriding court rulings on laws deemed to violate fundamental rights.

This powerful new role of the courts in judging and shaping public policy would significantly reduce the capacity of the people’s elected representatives to give effect to the people’s wishes. This in turn would reduce the capacity of the people to influence political outcomes. The preferences of a minority comprised of judges would be privileged over the preferences of the majority. As a consequence, the people would be denied the fundamental right upon which all other human rights depend - the right of each citizen to political equality.

Removing the right of citizens to an equal opportunity to influence political outcomes could cause them to question the legitimacy of those outcomes. This could have adverse implications for the rule of law, which in part depends on the extent to which people are prepared to abide by political outcomes affecting them.

Intelligent, reasonable people often disagree over contentious political issues. Reason and morality do not lie exclusively on only one side in political debates. Why should the opinions of unelected judges on highly contestable political issues prevail over those of the people and their elected representatives?

Judges should not be given the job of determining essentially political issues. To do so would compromise the independence of the courts and curtail the people’s democratic right to govern themselves through their elected representatives.

In response to the suggestion that man cannot be trusted to govern himself, Thomas Jefferson asked: “[H]ave we found angels in the form of kings to govern him?” Ironically, Jefferson was an initiator of the Bill of Rights included in the US Constitution, but he subsequently had misgivings about the extent of the power given to the judicial branch of government:

Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is “boni judicis est ampliare jurisdictionem” [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.

At the time, Jefferson had no knowledge of the awesome political power that the US Supreme Court would eventually assume in applying the Bill of Rights in the US Constitution.

Two centuries later, it is again suggested that we the people cannot be trusted to govern ourselves. Should judges govern us?

  1. Pages:
  2. 1
  3. 2
  4. 3
  5. All


Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

11 posts so far.

Share this:
reddit this reddit thisbookmark with del.icio.us Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

Jim South is a non-politically aligned Queensland public servant with an interest in analysing and commenting on current political issues.

Other articles by this Author

All articles by Jim South

Creative Commons LicenseThis work is licensed under a Creative Commons License.

Photo of Jim South
Article Tools
Comment 11 comments
Print Printable version
Subscribe Subscribe
Email Email a friend
Advertisement

About Us Search Discuss Feedback Legals Privacy