The will of the people?

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?