The will of the people?

The enactment of the Victorian Charter of Human Rights and Responsibilities Act 2006 has focused attention on the campaign by civil rights activists for the adoption of bills of rights in all States and Territories and at the Commonwealth level.

High-profile activists are seeking to have these bills introduced (initially) in the form of non-entrenched acts of Parliament that could be repealed or amended through standard legislative procedures.

They claim that because these would be “ordinary acts of Parliament”, there is no need to seek the people’s consent by referendum for any bill of rights in this form.

That claim is false. Whether entrenched or not, statutory bills of rights are not “ordinary acts”. This is evident from the following words of Chief Justice Spigelman of the New South Wales Supreme Court:

… this [new judicial approach to interpreting legislation in the UK] suggests a significant change in the traditional relationship between Parliament and the courts. It is similar to what has occurred in Canada with an entrenched Bill of Rights. The change is justified in the United Kingdom on the basis that Parliament has specifically conferred authority on the courts to modify, by means of interpretation, the effect of legislation, even when the result is that the intention of Parliament in other legislation is not implemented. The Human Rights Act has been given a quasi constitutional status. This should come as no surprise.

The history of the British Constitution, which has never been a written Constitution, is that various Acts of Parliament have, in effect, been given constitutional status, primarily by means of the law of statutory interpretation. The circumstances in which an Act is passed and/or the passage of time often make it clear that it is politically impossible to repeal or amend the Act. Where such a statute affects the distribution of political power or the rights and liberties of citizens, it is appropriate that the constitutional status of the statute should be recognised. As a matter of substance, that statute is as entrenched as a constitutional provision.

Even in a nation with a written Constitution, like Australia and most nations represented at this conference, statutes can acquire quasi constitutional status when the possibility that they may be amended by Parliament is entirely theoretical.

Consulting with the community, as occurred during the development of the Victorian Charter, is not the same as obtaining the consent of the people. Consultation committees do not adequately hear the voice of the silent majority. Submissions to these committees usually come from highly motivated individuals and special interest groups whose views are not necessarily indicative of those of the broader community.

Moreover, committees dominated by individuals with set agendas are unlikely to give sincere consideration to views that are contrary to those agendas. For example, the inclusion of the word “responsibilities” in the title of the Victorian Charter of Human Rights and Responsibilities was a tokenistic and disingenuous response to submissions emphasising the need to balance rights and responsibilities.

Despite its title, the Victorian Charter of Human Rights and Responsibilities doesn’t include a charter of responsibilities. Indeed, apart from appearances in the preamble and title, the word “responsibilities” appears only once in the Charter, which has 10 pages of rights definitions but doesn’t identify any responsibility.

Rights activists like to point out that Australia is the only Western democracy without a national bill of rights.

This means that Australia is also the only Western democracy where the people (at the national level) retain the power to ensure that their moral and social values are reflected in the laws that govern them. Although this power is not always effective in preventing unpopular federal laws, it remains a potent force in the ultimate determination of public policy outcomes.