A bill of wrongs, not rights

A debate about a legislative charter of rights is back on the agenda. In this article I argue that we need to look carefully at what is included in any bill of rights (BOR). For the purposes of this article, I define a bill of rights as “a contract between the state and the individual” and not between corporations and individuals. This discussion is for another time.

Together, we need to ensure that the rights included are what Isaiah Berlin calls (in Two Concepts of Liberty) negative liberties not positive liberties.

Negative liberties means man is “free to do what he wants to do and when he wants to do it without imprisonment or enslavement”. Think Adam Smith, Locke and Hayek. Man is treated as a passive being.

Positive liberties, however, mean “man is obliged to do something for someone else”. Think of the ash heap of history: Hegel, Marx and Lenin. Man is treated as being an active being.

Of course, liberties overlap but negative liberties generally favour the individual, positive liberties the community. The latter (positive liberties) almost always curtailed the former (negative liberties) in a brutal centralising apparatus. In what follows I will show that positive liberties limit the scope of policy ideas and leads to unaccountability.

A bill of rights is counterproductive

A classic positive liberty - a right to equality - can be counterproductive due to judicial activism. I define judicial activism as “judgments at odds with the views of a majority of the voting populace”. As Jack Straw reveals “the UK charter of rights had judges interpreting the law the way we never intended or imagined it could be interpreted”.

Consider, however, how a bill of rights can be counterproductive in advancing equality itself.

First, in California a citizen’s initiative (Proposition 8) struck down a judicial judgment where a “right to equality” led the court to conclude that marriage included gay couples. A better approach would have been introduced civil unions (as they have now under the status quo) then marriage. Noble intentions, but the outcomes are subpar: the means do not justify the ends. The courts simply end up making things worse (due to their decisions being too abrupt), aggravating social progress. Clearly, judicial activism has been a source of public alienation.

Second, consider Mabo and the public attitude towards land rights. John Howard used Mabo to advance reforms which some have argued severely limited land rights for a number of Aboriginal communities. A better approach, by either the judiciary or the legislature, would be to give land rights to non-nomadic Aboriginals (like those in the Mabo case) then introduce incremental agreements on the mainland without the need for litigation. Recall mining companies ran a huge scare campaign to give us the Wik decision, arguably setting back land rights to pre-Mabo days. Again, noble intentions, subpar outcomes.

Historically, incremental, reasoned approaches by the legislature, not abrupt approaches by the judiciary are the way to go. Gay marriage gets struck down; land rights get denigrated - judicial legislation is an easier target for scare mongering than Parliamentary legislation.

Judicial activism, especially when positive liberties are involved, are often downright counterproductive (arguably, causing more woes for minorities than it cures). True, judicial activism may bring greater awareness of minority issues, but if you want awareness without removing democracy from the equation and to make citizens intellectually enlightened and informed then campaign for citizen initiated referenda. It is the height of arrogance to suggest that judges, acting as philosopher kings, should have a say on which policies are valid.

Former Chief Justice of the WA Supreme Court, David Malcolm agrees. A BOR is often a one-way ticket to judicial activism: it overvalues the powers of unelected, unaccountable judges. Parliament does not make the difficult decisions anymore. Instead, they are shifted to the judiciary.

Allowing individual or clandestine judges and courts to determine rights, as opposed to a public consensus between the people and their representatives, quickly introduces “uncertainty and injustice into law” and represents “a serious dilution of democracy itself”. Judges are not elected, not representative and not sufficiently accountable. They can make individual decisions at their discretion subject only to oversight by appeals to the courts. The laws passed would have no social legitimacy or transparency. As even Justice Kirby concedes, “parliamentary sovereignty is the bedrock principle” of the Australian legal system. The introduction of a bill of rights is a vote of no confidence in our legislatures and people and, worse still, would fetter and restrict the accountability of parliament.

True, a legislative bill of rights means Parliament can overturn the decision, but it allows Parliament to dodge contentious issues by saying “well, the courts said it is this way due to these basic rights”. It simply diverts the hard decisions to the judiciary and gives Parliament a handy pretext for more radical policies than the broader public would, generally, support.

Thus, a bill of positive rights negates the critical discourse between parliament and the people, treats people as ignorant, creating a less open society for not debating such issues in public and giving unelected judges the sweeping powers to strike down statutes at the expense of the democratic legislature.

Federalism could also be under attack. Recall that s109 of our Constitution says federal laws override state laws: a federal bill of rights, would mean judges could override both Federal and state laws on any topic “to the extent of the inconsistency”, again attacking another fundamental part of the Australian constitutional system: federalism. A bill of positive rights not only attacks the tenets of accountable governance, but federalism itself.

State laws ought to be another thing which ought to be “off-limits” in any charter of rights. A (positive) bill of rights would give more power to Canberra.

A bill of positive rights in fact limits liberty

PJ O’Rourke, like Berlin, observed that a legislative bill of rights:

… produces an endlessly expanding list of rights - the "right" to education, the "right" to health care, the "right" to food and housing. That's not freedom, that's dependency. They aren't rights. Those are the rations of slavery - hay and a barn for human cattle.

Indeed, a classic positive liberty is a “right to a free education”. Now, again, the intentions sound great but the outcomes are subpar. Question: would a “free” education mean that vouchers, which give parents and students a choice of school, be struck down as breaching the charter of rights?

Potentially yes. In Canada, the legal validity of vouchers was questioned before the Canadian Supreme Court by a series of education unions. Although the system was held to be constitutional, the obiter remarks by a minority of judges in the McClellan case noted that a “right to a free education would have negated the possibility of a voucher system”. Any charter of rights would require limitations on what issues the court can make judgments on.

Australia also has an impeccable standard of living compared to several other countries with a bill of rights. When it comes to positive liberties, we don’t have rampant poverty and absence of housing like in parts of the US or South Africa. Real rights are organic - they come culturally, not on sheets of paper. I concede while Australia has a reasonable human rights record, we can be better (and hence why I support a bill of negative liberties, for example, on freedom of the press and asylum seekers, getting government out of our lives). It is bizarre and frankly meaningless to introduce a series of positive liberties in Australia. Instead, if housing is a problem, we could be pouring resources into actually creating housing through various policy initiatives, not talking about an unenforceable right to housing!

Furthermore, a bill of positive rights does not mean rights in reality. A right to housing in South Africa was, in practice, held to be absolutely meaningless: “there needs to be a progressive realisation of such a right” (Republic of South Africa v Irene Grootboom). In other words, this policy is already encapsulated in all the major policies of all the major parties, through for example, the ALPs housing development and affordability policies. There is nothing to protect. So, on one hand, positive liberties destroy progressive policy ideas like vouchers (or, at least, delay them as polemical interest groups challenging their legal validity, through collateral legal disputes) and on the other hand, are probably unenforceable by the courts!

As David Friedman remarks, “perhaps with a voucher system we wouldn’t need as much people to require a right to housing and healthcare - the voucher would give them that much”. Arguably, culling freedom of choice (like negative liberties such as vouchers) not only limits policy creativity needed to avoid such “dependencies” in the first place (like welfare), but involves a vicious cycle and greater demand for the need for positive liberties - a lack of negative liberty causes positive liberty which simply reduces our liberties further. If I may paraphrase Milton Friedman, a society that puts equality (positive liberty) before freedom (negative liberty) will end up with neither. A society which puts freedom before equality will end up with a great measure of both.

The final problem with positive liberties is they are probably not enforceable and even if they are could cost millions of our tax money in litigation by those seeking “positive liberties” - compensation better spent on housing for Indigenous people, Mr Rudd!

A bill of (positive) rights is inefficient and unnecessary

A bill of positive rights could also bureaucratically delay, even restrict, evolving individual rights in response to scientific or academic knowledge. The simple addition of rights such as a civil or social right or a scientific breakthrough that threatens an existing right would need the approval of the courts to be overturned (unless Parliament, of course, amends the bill of rights, which raises the question of why have one if Parliament can simply overrule it).

Education vouchers might give poorer students the chance to attend a private school and increase literacy rates as recent studies have shown, but positive rights like a “free education” may strike such laws down.

Cases such as Roe v Wade allow for a woman’s right to choose to abort a fetus up to 24 weeks gestation; but this is clearly out of date with contemporary scientific developments. Science tells that between 10 to 12 weeks an unborn baby has brainwaves and can sense pain. For a legal system to fully protect rights it must be able to quickly and efficiently adapt to changing needs and information whether they be a result of shifting values or off advancements in science and technology.

Anyway, the issue here is the inflexibility. Without a bill of positive liberties, Parliament can efficiently adjust the bar accordingly, not needing to go through the bureaucracy of the court system to examine an ideological tug-a-war. Such policy questions should be left to an election and Parliamentary debates, not the courts.

Conclusion

Australia does not need a bill of rights but a bill of wrongs (i.e. a prohibition of government power, not more government power).

First, a bill of positive-based rights could limit the scope of policy ideas needed to starve of positive liberties in the first place.

Second, most of the rights themselves would be unenforceable.

Third, a bill of positive rights creates a democratic deficit and allows politicians to evade the big issues involved with policy deliberation.

Therefore, we must be alert (and perhaps even alarmed) of any bill of rights proposal. We must make sure some topics are “off limits”. The best attitude to have towards a bill of rights is the sort of attitude we should always take towards our government: beware, beware.