A bill of wrongs, not rights

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.