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 will of the people?

By Jim South - posted Thursday, 21 September 2006


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.

Advertisement

… 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.

Advertisement

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.

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


Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

3 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 3 comments
Print Printable version
Subscribe Subscribe
Email Email a friend
Advertisement

About Us Search Discuss Feedback Legals Privacy