The argument for a Bill of Rights

Most people of goodwill understand, even if only vaguely, that living in a complex society requires all members of society to adhere to a commonly agreed set of norms and ideals. These are usually so basic to our thinking that we rarely give them any attention.

Australians have a strong instinct for human rights. Public and political rhetoric tends to favour human rights. Although Australia does not have a written Bill of Rights, we have a shared sense that some ideals are basic to our society. Most of the basic elements of a constitutional democracy are found in our Constitution, but others are taken for granted: we tacitly accept them as basic and inalienable.

The American formulation “life, liberty and the pursuit of happiness” is not only familiar to us from TV dramas; it is a pretty fair reflection of our own assumptions. For most of us, the assumption remains untested.

The starting point in an argument about a Bill of Rights is that, within the scope of its legislative competence, Parliament’s power is unlimited. The classic example of this is that, if Parliament has power to make laws with respect to children, it could validly pass a law which required all blue-eyed babies to be killed at birth. The law, although terrible, would be valid. One response to this is that a democratic system allows that government to be thrown out at the next election.

This is not much comfort for the blue-eyed babies born in the meantime. And even this democratic correction may not be enough: if blue-eyed people are an unpopular minority, the majority may prefer to return the government to power. The Nuremberg laws of Germany in the 1930s were horrifying, but were constitutionally valid laws which attracted the support of many Germans.

Generally, Parliament’s powers are defined by reference to subject matter within a head of power, Parliament can do pretty much what it likes. Thus, the Commonwealth’s power to make laws with respect to immigration has in fact been interpreted by the High Court as justifying a law which permits an innocent person to be held in immigration detention for life, and to be liable for the daily cost of his own detention.

The question then is this: should we have some mechanism which prevents parliaments from making laws which are unjust, or which offend basic values, even if those laws are otherwise within the scope of Parliament’s powers?

If such a mechanism is thought useful, it is likely to be called a Bill of Rights, or Charter of Rights, or something similar. A Bill of Rights limits the power of Parliament in a different way. A modern Bill of Rights introduces, or records, a set of basic values which must be observed by parliament when making laws on matters over which it has legislative power. It sets the baseline of human rights standards on which Society has agreed. Because this is so, it is wrong to say that a Bill of Rights abdicates democratic power in favour of unelected judges. Judges simply apply the law passed by the parliament. That is their role.

Many cases raise questions about Parliament’s powers. Judges are the umpires who decide whether Parliament has gone beyond the bounds of its power. A Bill of Rights is a democratically created document, like other statutes. Enforcing it is not undemocratic at all.

Modern Bills of Rights are concerned with such things as: the right not to be deprived of life; the right not to be subjected to torture or cruel treatment; electoral rights; freedom of thought, conscience, and religion; freedom of expression; manifestation of religion and belief; freedom of peaceful assembly; freedom of association; and freedom of movement.

Here it is important to distinguish the special case of the US Bill of Rights. It is not much concerned with human rights. It is largely a reflection of the anxiety of the American colonists that the federal experiment might replicate the excesses of the Stuart monarchs: its contents are a reflection of the Petition of Right of 1627, with just a hint of Magna Carta. It has little in common with the Bills of Rights which have been adopted throughout the Western world during the 20th century (with the single exception of Australia).

Until a few years ago, I was opposed to the idea of a Bill of Rights. This was for two main reasons. First, the American experience, which suggests that a Bill of Rights serves mostly the interests of unpopular minorities. However a little thought shows why this is so. Any instrument which guarantees basic rights will be needed first by the most vulnerable. In times of stress, the majority show little concern for the rights of unpopular minorities. The argument against a Bill of Rights almost always comes from members of the complacent majority, whose rights are never at risk.