The will of the people?

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.