James Allan is Garrick Professor of Law at Queensland University. He writes in the Sydney Morning Herald Sep. 6, 2005:
Compare the constitutional structures of Canada and Australia. Both are federal systems. Both share the English common law tradition, the Westminster parliamentary form of elected government, and a great deal of history. Yet there is a significant constitutional difference: in 1982 Canada opted for a Charter of Rights and Freedoms. Australia, pretty much uniquely in the Western world, doesn’t have a constitutional or statutory bill of rights.
But to my mind, one of the many attractions of Australia is that it does not have a bill of rights. 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 jurisdictions are the worse for having them. Britain is, too, for that matter, with its Human Rights Act of 1998.
The case against bills of rights in a successful liberal democracy 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 these bills – the right to freedom of expression or of religion 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 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.
Enshrining some right to free speech in a bill of rights nowhere in the world means one can say anything he or she wants any time he or she wants. No, there is always disagreement and dispute about how this and other rights should play out.
And those who happen to disagree with you cannot be easily 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 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. With a bill of rights in place the unelected judges decide – though ironically they, too, decide by voting; four justices’ votes beat three. 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 ex-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.
Australians should be very glad that they have resisted the siren call of a bill of rights. They should be wary of those who advocate the need for one, , 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.