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are seeking to have these bills introduced (initially) in the form of non-entrenched acts of Parliament that could be repealed or amended through standard legislative procedures.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

Requiring judges to rule on moral and social questions would remove this democratic power of the Australian people. Unlike politicians, judges can’t be voted into or out of office. A national bill of rights would curtail the ability of the people to influence public policy outcomes. It would empower judges to veto (in effect) the democratically made choices of the people expressed in constitutionally valid laws.

This and other effects of the judicialisation of public policy have been identified in an official report to the Norwegian Government on the findings of a comprehensive study of government and democracy in Norway (Norwegian Study on Power and Democracy, 2003):

The most critical change in power relations in Norway is that democracy - fundamentally understood as representative democracy, a formal decision-making system employing election by a majority and directly-elected bodies - is in decline. The political purchasing power of the voter ballot has been diminished.

… Judicialisation implies that courts and other judicial institutions are being accorded greater power at the expense of elected authorities, and that the distinction between making and applying legislation will grow less visible.

… Judicial categories have become more central in the battles waged over political interests, and at the same time, the legal arena has become more strongly politicised.

The changes that would result from a national bill of rights would be far more substantial than the proposed changes rejected in the 1999 republic referendum.

Changes of this scale to our system of government should not occur without the consent of the Australian people, particularly in light of the people’s rejection at referendums in 1944 and 1988 of proposals to constitutionally enshrine various civil rights.

Rights advocates will no doubt disagree with the suggestion that a national bill of rights would result in judges determining moral and social questions. They have pointed out that under the model adopted in Victoria, the Parliament would have the final word on laws deemed by the courts to be incompatible with protected rights.

However, the Parliament would not be able to overturn any determination of incompatibility by the courts. As a matter of law, the incompatibility would continue until the Parliament acts to remove it. Any government which failed to support that action would be accused of being a violator of fundamental human rights. The continuing legal authority of the judicial determination of incompatibility would make it very difficult for any government to defend itself against that accusation.

As a result, judges’ values would tend to prevail over those of the people and their elected representatives.

That tendency has been demonstrated in other comparable democracies with bills of rights. For example, the federal Parliament in Canada has never invoked the “notwithstanding” clause of the Canadian Charter of Rights and Freedoms enacted in 1982. In the United Kingdom, the Parliament has remedied or intends to remedy every declaration of incompatibility (other than those subject to or overturned on appeal) made to date under the Human Rights Act 1998.

In response to the criticism that bills of rights require judges to rule on moral and social questions, rights activists have pointed out that the court cases which arise under bills of rights typically involve suspects or prisoners pursuing technicalities, or litigants challenging decisions made by bureaucrats. This implies that courts applying bills of rights don’t deal with contentious moral or social questions.

It is true that only a small proportion of the court cases which arise under bills of rights involve contentious moral or social questions. However, a national bill of rights would undoubtedly force judges to deal with moral and social questions when they arise. Chief Justice Gleeson of the High Court has commented on this duty of judges to deal with the issues that come before them:

Judges do not choose the cases that come before them; they are bound to decide the issues which litigants present for decision, and it is not open to them to say that the law provides no solution to the case. There is no judicial too-hard basket. Modern citizens, and lawyers, make aggressive use of litigation to establish all manner of claims, and the courts have to deal with the cases they bring. It is not open to judges, on the basis of a sampling of public opinion, to decide that it is expedient to defer an issue, or to ignore it altogether.

It would also not be open to judges, when applying a national bill of rights, to simply defer to the Parliament on moral and social questions. The courts, not the Parliament, would be responsible for interpreting and balancing the protected rights and deciding what limits can be justified in a free and democratic society. Judges would have a duty to fulfil that responsibility in an independent and impartial manner.

Although judicial determinations on moral and social questions would be infrequent under a national bill of rights, the eventual impact of those determinations on society would be far-reaching. Court cases on contentious issues such as same-sex marriage, polygamy, euthanasia, abortion restrictions, anti-terrorism laws, pornography, religious rights and freedom of speech would be sure to arise over time.

It is acknowledged that, as has occurred in other countries, a national bill of rights of the type adopted in Victoria could legally be introduced without a referendum.

Nevertheless, introducing a national bill of rights in this way would be inconsistent with Australia’s egalitarian values and democratic culture of encouraging the participation of the people in democratic processes.

This culture is manifested in three key features of our system of government which set us apart from other comparable democracies in terms of the extent to which the people can, and do, influence political outcomes. Those three features are:

• the requirement to obtain the people’s consent by referendum for any change to our Constitution;
• “compulsory” voting, which maximises the political influence of the silent majority; and
• the absence of a national bill of rights that, if enacted, would give governmental political power to authorities beyond the elective control and thus reduce the “political purchasing power of the voter ballot”.

Australia’s unique brand of democracy reflects the view that self-rule by the people is a responsibility of all citizens, rather than an optional power that can be surrendered or outsourced.

Encouraging the participation of the people in democratic processes and respecting their sovereignty are also consistent with our democratic traditions. The founders of our nation agreed to submit a draft of our Constitution to the electors in the Australian Colonies. Past Parliaments allowed the people to choose our national anthem in a plebiscite and have enacted legislation providing for referendums to be held for any proposed changes to our flag.

It is time for those advocating the adoption of bills of rights in Australia to explain why they don’t share the commitment to democratic principles displayed by previous generations of Australian law-makers. Why are they opposed to allowing the people to vote on their proposal to alter our system of government? What are they afraid of?