The ‘feral judge’ furphy in the human rights debate

There are many arguable reasons for maintaining Australia’s unique position in not having a national guarantee of human rights.

You might question the concept of universal human rights. You might be opposed to legislation as a way of affecting behaviour. You might think that human rights promote the individual over the community.

All these reservations are worthy of debate, and I trust they will be part of the Federal Government’s promised consultation on legislating to protect human rights in Australia.

But one argument that is simply wrong is trotted out regularly by the professional opponents of human rights legislation: that human rights laws allow the judges to usurp the authority of parliament.

That is just not so, and I am bemused that people who know it is not so continue to peddle this misinformation. Perhaps it’s a power thing. Or just a way of getting attention - after all, it’s easy to be a critic because you get headlines predicting doom and disaster, and you get all the smug one-liners.

Whatever their motivation, the nay-sayers in the human rights debate in Australia have gained good traction with their scary tales of rampant judicial power. The truth, always less dramatic, is very different.

When I explain how human rights laws work with our parliaments and judges, I am going to refer simply to “human rights laws”. Terminology at the moment is fraught, in large part because terms are loaded up with meaning they were never meant to carry.

The shorthand term “bill of rights” is so compromised that it has lost any useful meaning in Australia. It is used to invoke the idea of the US Constitutional Bill of Rights, an old and idiosyncratic law of another country.

Rights critics know that the US Bill of Rights is irrelevant to a rights debate in Australia, but they also know that they can get a lot of mileage from raising the spectre of an entirely alien gun-toting, ambulance-chasing, litigation-happy society.

The other shorthand term is “charter”. It too is confusing, because it has a number of meanings. Canada’s national human rights law is called a charter, but it is a constitutional law that covers not only government power but also personal conduct. And in Australia voluntary codes of practice - with less authority than an Act of Parliament - are also called “charters”.

What I am talking about is what has happened in the ACT (a Human Rights Act) and in Victoria (a Charter of Rights and Responsibilities). These are ordinary Acts of Parliament. They can be over-ridden, amended or repealed. They are not part of a constitution.

A long but accurate description would be “legislation that sets human rights standards for the exercise of government power, not extending to personal conduct”.

So, I’ll stick with “human rights law” for the moment, but I quite like it that the ACT human rights law, like the UK and NZ human rights laws, is just a plain old “Act” of parliament.

The scare-mongering argument I want to put paid to is that a human rights law (made by an elected parliament) will give judges the power to negate and over-ride other laws of the parliament. It is not enough that this terrifying human rights law explicitly says that judges do not have that power: we should believe parliament will be too fearful to ignore the judges.

Yes, Australia’s existing human rights laws explicitly negate the very fear that the rights critics promote; the rights critics can only prophesy that there will be different, darker, unplanned future.

But in the ACT and Victoria, where there are human rights laws, the elected parliaments have a stronger sense of their authority, and a much better grasp of their relationship with the judiciary, than do the rights critics. Those parliaments have volunteered that their laws will comply with certain human rights, and that the bureaucracy will comply with those same human rights standards when providing public services.

This is hardly undemocratic. In fact, the ACT and Victorian governments have been re-elected since enacting their human right laws.

So, what exactly do the judges do in the scheme of these human right laws?

First, when they come across a law that does not comply with human right standards, they say so. They cannot invalidate the law, they cannot stop it from operating, they cannot ignore its effect, they cannot decide a case differently.

They tell the parliament, and the people, that a law is operating contrary to the human rights standards the parliament has set for itself. And the parliament is free to say “OK, we’ll fix it”, or “Well, that’s the way we want it to be”. Whether the parliament’s response has public support will be judged at the next election.

In fact, the human rights laws let the judges do less than they usually do. Every day judges make decisions that define and constrain the exercise of government power, telling governments whether parliament’s laws let them collect taxes, pay pensions, sue under contracts, release prisoners, regulate corporate conduct, sack workers, sub-lease property and so on. That’s the deal - the parliaments make laws and governments, along with the rest of us, abide by them and get pulled up when they don’t.

The second thing the judges do is interpret laws. This is about as remarkable as a medical specialist interpreting test results. It’s the business of judges. It’s why people go to court: “you say the agreement means one thing, I say it means another, let’s ask the judge.”

The guiding principle for interpreting law is to give effect to what parliament intended. If parliament has said “we intend laws to be human rights compliant” then that’s how the judges have to approach the laws.

This is not an invitation to ignore parliament; to the contrary, it is a clear direction from parliament to the judges how to go about their business. And if parliament, for whatever reason, doesn’t like result, it can change the law: that’s how our system of governance is designed to work.

Quite simply, the existing human rights laws in Australia do far less than the ordinary laws passed by parliament. They give the judges less power on human rights than they on any other matter that government gets involved in.

So let’s get the “rampant judicial power” non-argument out of the way, and have a debate about national human rights legislation on real issues, and in light of the real experience in the ACT and Victoria.