The ‘feral judge’ furphy in the human rights debate

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.