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  • Rights that are all wrong
  • By James Allan
  • 27/09/2005 Make a Comment
  • Contributed by: Rambo ( 3 articles in 2005 )
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In Australia, rights are decided by those elected to power, which is how it should be.

Compare the constitutional structures of Canada and Australia and what do you notice? Both are federal systems. Both share the English common law tradition, the Westminster parliamentary form of elected government, and a great deal of history.

True, Canadian provinces are much more powerful than Australian states. (And, ironically, this was not the product of design, but quite the reverse. Canada's provinces were meant to be enervated, rather impotent creatures, while Australia's states were meant to be strong and powerful. Historical events turned this design on its head.)

True, republicanism is barely noticeable on the radar in Canada. The 1982 repatriated and amended Canadian constitution gave a veto on some matters to every single one of the 10 provinces, so the tiny province of Prince Edward Island, with about 100,000 of Canada's 30 million people, has a veto. Republicanism is a waste of time in Canada for the foreseeable future.

Yet neither of those is the significant constitutional difference between Canada and Australia. Here's what is. That repatriated 1982 Canadian constitution brought with it an entrenched charter of rights. Australia, of course, pretty much uniquely in the Western world, hasn't got a constitutional or statutory bill of rights.

At this point most readers might expect a long sermon on how Australia should have one of these instruments; how you need one to be part of the civilised world; how elected politicians cannot be trusted to protect individual rights.

If that's what you expect you're not going to hear it from this native-born Canadian. I have just recently arrived in Australia with my family to take up a new job, and one of the many attractions to me of moving here is that Australia does not have a bill of rights.

To be blunt, these instruments are far from obviously desirable. I've had first-hand experience with the bills of rights in Canada, the United States and New Zealand and I think all three of those jurisdictions are the worse for having them. Britain is too, for that matter, with its new Human Rights Act.

The case against bills of rights in a successful liberal democracy such as Australia comes on many fronts but at core it is that these instruments undercut citizens' participation in social decision-making. They transfer too much power to unelected judges.

The rights set out in a bill of rights - the right to freedom of expression or of religion or of association or to equality - enunciate very general standards about the place of the individual in society. Bills of rights offer us all an emotionally attractive statement of entitlements and protections in vague, very broad terms. Up in the Olympian heights of abstract rights guarantees, nearly all of us can and do support them. Who, after all, would say he or she is against free speech?

The problem, however, is that the effects of bills of rights are not felt up in these Olympian heights. They are felt down in the quagmire of detail, of where to draw the line when it comes to hate speech or pornography or campaign finance rules or defamation. Repeating the mantra that we have a right to free speech doesn't change the fact that down in the quagmire of drawing these lines there is no unanimity. Tough calls have to be made about where to draw lines. Nowhere in the world does enshrining some right to free speech in a bill of rights mean one can say anything one wants to any time one wants to. No, there is always disagreement, debate and dispute about how this and other rights should play out. Down where unelected judges decide real-life bill of rights cases there are only differences of moral opinion. And those who happen to disagree with you cannot easily be dismissed as unreasonable, morally blind, evil or in need of re-education. Despite the sanctimonious sermonising of some bill of rights proponents, it is simply a fact that how rights should play out is highly debatable, and not self-evident.

So adopt a bill of rights, as Canada, the US, Britain and New Zealand have done, and you transfer a chunk of power to unelected judges to make some of these social policy decisions, to draw some of these contentious lines, under the cover provided by the amorphous, appealing language of rights.

Without a bill of rights in place, these difficult, debatable social policy lines are drawn on the basis of elections, voting and letting the numbers count. I think that's a good thing, both in terms of the consequences it generates and morally.

With a bill of rights in place, the unelected judges decide, though they too decide by voting - four justices' votes beat three. It is just that with a bill of rights in place the franchise becomes noticeably more restricted. (Victory does not go to the judge writing the most moving judgement or the one with the most references to moral philosophy.)

What makes a bill of rights, and its transfer of power to judges, appear attractive is the unspoken assumption that the moral lines drawn by judges are somehow always the right lines - that a committee of former lawyers somehow has a pipeline to godly wisdom and greater moral perspicacity than secretaries, plumbers and regular voters. A good many judges, human rights lawyers and legal academics may happen to think this. I do not. Most Australians so far do not.

In my view, then, Australians should be glad that they have resisted the sirens' call of a bill of rights. They should be wary of those advocating a bill of rights for the state of Victoria, and pretending that judicial power can be easily contained. It cannot. Thus far in Australia we have decided not to throw in our lot with an aristocratic judiciary. I hope this continues to be the case. It is one of the great attractions of this country.

James Allan is the Garrick professor of law at the University of Queensland.


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