Giving a dinner address
is a rather daunting task. Like the mother-in-law who comes to
visit, the trick is not to overstay your welcome---and that can
be hard, even for a former lawyer, given that we are, as Kafka
pointed out, trained in legal infancy to write a 10,000 word document
only to give it the quaint title of a "brief". Donning
my other cap as a columnist, I shall try to be brief as I speak
tonight about the cunning stealth strategy behind those advocating
a Bill of Rights for Australia.
As
a child of Danish immigrants who loved nothing more than to make
their own sausages, I can provide first hand confirmation that
laws are indeed like sausages: it's best not to see them being
made. The current push for a Bill of Rights in Australia is an
equally unedifying sight---it is a first-class lesson in how to
boil frogs.
You
recall the theory. If you dump a frog in boiling water, he'll
hop out. But put him in cold water and slowly raise the heat and
he won't notice he is being cooked. The Bill of Rights strategists
are doing the same. We're being dipped into something that has
a nice, warm feel to it. But like a colony of frogs marked for
execution, the temperature has gone from tepid to warm to hot
to boiling. If you haven't noticed it, that's because the advocates
pushing a Bill of Rights on us are trying to trick us into quiet
submission.
In
his book The Jealous Mistress, Robert Traver described
the law as the difference between a debate and an alley fight.
But pick up George William's little book, A Bill of Rights
for Australia,1 and you'll
find a more under-handed game in play.
Rather conveniently, our high priest of the
Bill of Rights movement laid down his stealth strategy in that
small book some years ago. The game plan goes like this. Introduce
baby Bills of Rights into the States first. But don't call them
Bills of Rights because that might scare people away. Call them
Charters or Human Rights Acts because that sounds more benign.
Then, once people are used to all this new talk about "rights",
up the heat and move on to the main game---entrenching a Bill
of Rights into the federal Constitution.
And
that is precisely how it is panning out. The ACT already has a
Bill of Rights---officially called the Human Rights Act. Victoria is planning
to have a Bill of Rights---called a Charter of Rights and Responsibilities---up and running by
January next year. WA and Tasmania have also put one on their
agendas. Even in NSW, the Attorney-General Bob Debus is pushing
for one now that former Premier Bob Carr, who was a long-time
critic of a Bill of Rights, is off the scene. In Queensland, too,
the Queensland Law Society is putting pressure on Premier Peter
Beattie to keep up with other States and begin community consultation
with a view to introducing a Bill of Rights.
It's
all being done under the guise of listening to the people, as
Tasmanian Attorney-General Judy Jackson said a few months back.2
But going by the experience
in the ACT and Victoria, listening to the people means setting
up something called an "independent committee" stacked
with the most ardent admirers of a Bill of Rights. The consultative
committee in the ACT was headed by Hilary Charlesworth. In Victoria,
it was overseen by George Williams, with basket-ball player Andrew
Gaze thrown in for good measure. Once that committee was established
the result was a fait accompli. And, as Williams
happily reminded us recently, the Victorian Charter is only the
start of incremental change, not the end of it.3
It
goes without saying that the current process is not so much about
listening to the people. You'll notice that a referendum was not
called in Victoria---it seems "rights" don't extend
as far as voting for radical changes. And these changes are radical.
Handing judges a Bill of Rights is like putting them on an extended
dose of slow-release judicial steroids: it fundamentally alters
the traditional separation of powers by creating a pumped up judiciary
and leaving us with a neutered Parliament.
Of course, these matters
are never mentioned by those preaching about a Bill of Rights.
Instead they talk endlessly about educating the ignorant masses,
drowning them in what Williams calls a "rights culture"
by way of State-based Bills of Rights before pushing for, and
I'm quoting him, "a more robust proposal for a Bill of Rights
in the [federal] Constitution".4
And
Williams has plenty of support from the big end of town. Former
High Court Justice Michael McHugh wants a Bill of Rights. So does
former High Court Chief Justice Sir Anthony Mason, who claims
that a "Bill of Rights would bring us in from the cold".
Notice how a Bill of Rights is being sold to us as a cloak to
keep us warm. Similarly, the Chief Justice of the NSW Supreme
Court points to "Australia [being] threatened by a degree
of intellectual isolationism" because we have not introduced
a Bill of Rights. Yesterday we learnt that David Malcolm, the
former Chief Justice of Western Australia, is mystified that we
don't have a Bill of Rights.
And
most lawyers also seem to want one. At least that's the impression
one gets by reading Lawyers' Weekly, which devotes page after page to articles telling
us why we simply must have a Bill of Rights. Of course, the motives
of lawyers have an altogether different ring to them---the ring
of a cash-register. You may recall the story about Clarence Darrow,
ranked in 1925 as one of the most famous lawyers in the United
States. After Darrow resolved the legal troubles of a female client,
she gushed, "How can I ever thank you?". "My dear
woman," replied Darrow, "ever since the Phoenicians
invented money there has been only one answer to that question".
For much the same reason, soon enough we should expect to see
law firms setting up "rights" departments sitting alongside
their commercial litigation practices.
So
if you get the feeling this is an élite agenda driven,
at least in some cases, by self-serving motives, you'd be right.
And like a general leading his élite band of troops, Williams'
manifesto on how to boil a frog helpfully points to the failure
of other élite agendas to ensure the same mistakes are
not repeated.
He
writes:
"The outcome to the referendum on the republic suggests that Australians are alienated from the political process and that they lack the necessary information about how the system works".
"The debate", says Williams, "has
exposed a lack of confidence in Australian democracy".
Notice
how a "No" vote on a republic is fobbed off as a sign
that the electorate is not smart enough to vote "Yes"?
Not wanting to risk a "No" vote when it comes to the
main game---entrenching a constitutional Bill of Rights at the
federal level---Williams and company are intent on teaching us
about this "rights culture".
The
"rights" seduction
And
so the rights seduction has begun. And that involves peddling
this myth that rights are things to be bestowed on people by gracious
governments and interpreted (read "expanded") by well-meaning
judges. However, that is not the history of rights in Australia.
To put it in the vernacular, each of us has the right to do as
we damn well please, with this caveat. As part of the social compact,
we agree to abide by those restrictions agreed upon by the people
as laid down by Parliament. That's the democratic deal.
Alan
Anderson sums it up like this.
"Rather
than having to petition government for particular rights, I hold
an absolute, unlimited general right. Government must petition
me, as an elector, for permission to restrict that general right".5
But
Bills of Rights activists are intent on re-educating us into believing
that without the protection of a Bill of Rights, we live in a
"rights-free" nation. They invariably point to administrative
stuff-ups as evidence that a new approach to rights is needed---one
where judges get to call the shots.
Susan
Ryan, the chairwoman of the New Matilda Human Rights Act Campaign,
says:
"Those
children detained cruelly behind barbed wire, the imprisoned stateless
asylum seeker Al Kateb, Cornelia Rau and Vivien Solon would not
have been damaged so badly by Australian authorities if our Human
Rights Act had been in place".6
But
episodes of human failing are hardly evidence of complete system
failure. They simply point to the fact that no system is perfect.
And handing power to judges via a Bill of Rights leads us towards
a far more imperfect system. At least it does if you're a democrat.
And I hasten to add that's a democrat with a small "d",
lest I be confused with being one of those ever decreasing number
of capital "D" Democrats, in which case I'd be off singing
the praises of a Bill of Rights at a forum to be held at the ANU
next month.
Dipping
into their bag of tricks, Bills of Rights enthusiasts also argue
that a Bill of Rights is needed to ward off the evils of the new
laws enacted to confront the scourge of terrorism. The Queensland
Law Society---along with just about every other gaggle of lawyers---says
a Bill of Rights is needed to stop these new "intrusive"
laws, which "trample over" long accepted human rights
as part of the war against terrorism.7
They
appear to have already decided that our new terrorism laws will
be abused by government and that judges must be given the power
to stop them. But this argument simply highlights the fact that
the Bills of Rights brigade is driving an élite agenda.
You'll notice there has been no uproar from mainstream Australia
over the new terrorism laws. No demand that judges be allowed
to file the edges off these laws. On the contrary, surveys suggest
overwhelming support for the new laws.
It
seems that the uneducated masses understand that in a democratic
society we need to trust that the government is working to protect
our interests. Whether you voted for the Howard Government or
not, in a liberal democracy there needs to be an underlying level
of loyalty to the very idea of a popularly elected government.
If politicians get it wrong, we can boot them out of office. Judges,
on the other hand, are there to stay.
But
here again, the Bills of Rights enthusiasts revert to a familiar
stealth strategy. The aim is to make you feel like a philistine---someone
who does not believe in human rights---if you are against a Bill
of Rights.
What
the devotees don't tell us is that a Bill of Rights completely
changes the nature of our democracy. They draft up lists of rights
that are full of fine sounding sentiments in the abstract. But
in practice these lists are first and foremost powerful weapons
for judges. Those judges intent on jurisprudential immortality
get to mould new laws under the guise of applying a Bill of Rights.
Power shifts from our elected representatives to a very small
group of unaccountable and unelected judges.
The
UK experience
While
Bills of Rights advocates argue that such claims are the ravings
of the paranoid, you only have to scan the British newspapers
to learn that the British are only now waking up to the way such
Bills transfer power from Parliament to the courts---and what
it means for their ability to govern themselves.
Tony
Blair's Labour government proudly enacted the Human Rights
Act with the aim to "bring
rights home"---as if somehow, up until then, Britain had
been devoid of human rights. Equally nonsensical was Blair's promise
that the sovereignty of Parliament would be preserved under the
new Act.
Blair
is now singing a different tune. The man who brought human rights
home to Britain has, since the London bombings, threatened to
send them packing. He has canvassed the possibility of amending
the Human Rights Act and is threatening
judges with, and I quote, "lots of battles in the months
ahead". Blair said, "Let's be quite clear---because
of the way that the law has been interpreted over a long period
of time, .....I am prepared for those battles in the months ahead".
The
battle is one between the British Parliament and the British courts.
As columnist Melanie Phillips said in Melbourne last year:
"It was the judicial rulings under human rights law, both in Britain and in the European Court of Human Rights in Strasbourg, which had made Britain a soft touch for radicals seeking a hospitable berth".
Phillips
said:
"These judges had effectively torn up British border controls by making it impossible to police asylum claimants through an elaborate system of hearings and appeals; thwarting government attempts to limit welfare benefits to immigrants to deter widespread abuse of the system; and, above all, preventing the deportation of those thought to be a danger to the state if they were to be returned to countries where they might be ill-treated---and then preventing those foreign terror suspects who ... could not be deported from being locked up either".
"Radical imams such as Abu Qatada, Omar Bakri Mohammed, Abu Hamza and Mohammed Al-Massari were allowed to use London to preach incitement to violence, raise money and recruit members for the jihad. UK-based terrorists have carried out operations in Pakistan, Afghanistan, Kenya, Tanzania, Saudi Arabia, Iraq, Israel, Morocco, Russia, Spain and the United States. And because of the chaos over asylum and immigration, which meant that the authorities had no idea who was in the country and who was out, the job of the intelligence service in tracking terrorist recruiters and recruits from abroad was made almost impossible".
It's
worth pointing out that, when it comes to a Bill of Rights, operating
in the shadow of judicial creativity is as problematic as confronting
the real thing. In other words, the threat of what judges might
do, given half the chance, is having real consequences. London's
Daily Telegraph8 recently
reported that detectives in the United Kingdom are refusing to
issue "wanted" posters for missing criminals because
to do so may infringe the right to privacy under the UK Human
Rights Act.
An
over-zealous application of the Human Rights Act is seeping into every
aspect of life. Twelve year-old Ben Syms and his mother threatened
to sue his school for trying to prevent him from attending school
with his hair dyed red, claiming that the ban on hair dye would
infringe his right to free expression. Needless to say, the school
backed down.
Returning
to more serious matters, the Association of Chief Police Officers
has stopped the practice of secretly taking suspects' boot prints,
which might have proved useful in future investigations. Prior
to the Human Rights Act, police asked suspects
to remove their boots before entering a cell, giving them an opportunity
to record the boot prints. Once the new laws were in place, lawyers
advised police that the practice could infringe the prisoners'
right to privacy. So police were told they must first ask a suspect's
permission to take the boot prints. As one newspaper points out,
this kind of defeats the purpose, since the suspects would simply
slip on a different pair of boots next time they went out to commit
a crime.
It's
getting so bad in the UK that a few weeks ago the Lord Chancellor
admitted to genuine public fears that there was a problem with
Labour's attempt to bring human rights home. Lord Falconer said:
"I
think there is real concern about the way the Act is operating.
The deployment of human rights is, often wrongly, leading to wrong
conclusions about issues of public safety. There needs to be political
clarity that the Human Rights Act should have no effect
on public safety issues---public safety comes first".9
The
tricks of the Bill of Rights trade
But
we don't hear about these concerns from those pushing a Bill of
Rights. Instead, they try to placate the critics---who are written
off as legal nitwits---by pointing to clever clauses that apparently
ensure that power is not shifting to judges.
They
point to Canada's so-called "notwithstanding" clause.
Section 33 of the Canadian Charter of Rights and Freedoms allows Parliament
to declare that legislation "shall operate notwithstanding"
certain provisions in the Charter. The Victorian Bill has a similar
provision in section 31, where Parliament may issue an override
declaration in "exceptional circumstances".
As
the room is filled with great constitutional minds, let me flag
this issue. It strikes me that such a clause raises very real
constitutional questions. The normal rule is that one Parliament
cannot fetter the discretion of a later Parliament; when a later
law is inconsistent with an earlier law, the later law automatically
repeals the former, without the need for formal action of any
kind.
But
provisions like section 31 in the Victorian Bill appear to set
up a completely new regime that moves the goalposts. Now, unless
you issue an override declaration, later laws do not repeal earlier
inconsistent laws. On the contrary, earlier laws override the
later laws unless you issue such a declaration. I wonder whether
that is constitutional?
But
quite apart from that constitutional issue, going by the Canadian
experience, the real problem with the "override" provisions
is that they are useless. In Canada, the "notwithstanding"
clause has never been used---not once since the Charter was introduced
more than twenty years ago. This clause was the clincher when
a Charter was being proposed to Canadians. It was meant to ensure
that Parliament was not neutered by a galloping judiciary, because
it suggested that the elected legislature had the power to override
the Charter in certain circumstances. But it has been politically
untouchable for a government to draft legislation which apparently
infringes the "rights" of Canadians as set down in the
Charter.
Bills
of Rights enthusiasts also point to section 4 in the UK Human
Rights Act which, they say, allows
a court to do no more than issue a declaration of incompatibility.
Parliament is free to ignore that declaration or act upon it.
And that is true. Since its introduction, British courts have
used section 4 to issue a number of declarations of incompatibility.
Rather like Margo Kingston's book, Not Happy, John, these "Not Happy,
Tony" judicial sledges, packaged up as judgments, have often
been ignored by the British Parliament.
Back
in Australia, Bills of Rights crusaders promise that we, too,
will have no more than a "modest" little charter because
courts will be able to do no more than issue declarations of inconsistency.
When the ACT Human Rights Act was introduced, Hilary
Charlesworth assured listeners to ABC radio that the new law will
be "an ordinary, common, garden [variety] piece of legislation",
just like the UK Act.10
But
there is nothing ordinary or garden variety about these laws.
The real power handed to judges is found in the interpretation
clauses. Section 3 of the UK Human Rights Act
says that:
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights".
It
goes without saying that anything is possible. Judges, like painters,
can easily change white into black. And judges are using their
new-found power to re-shape society to suit their own vision of
what is fair and just.
For
example in Ghaidan v. Godin-Mendoza, the House of Lords
extended the meaning of "spouse" in the 1977 Rent
Act to include homosexual
spouse, despite very clear language in the Act that defined "spouse"
to mean a person "living with the original tenant as his
or her wife or husband".
That
was no barrier for the testosterone-fuelled House of Lords. They
described the interpretation obligation set down in section 3
as "unusual and far-reaching in character".11
As one judge noted, if Parliament's intent was to bring rights
home, then section 3 is the linch-pin of that objective as the
"prime remedial measure".12 And as this case
illustrates, armed with such a provision courts can, when interpreting
domestic laws, read words in, read words down, up, inside out,
in fact, any which way they please.
As
Lord Steyn notes, while the drafters of the UK Human Rights
Act had before them the
NZ Act which requires that the interpretation must be "reasonable",
the British Parliament specifically rejected any requirement for
a reasonable interpretation when applying the Human Rights
Act to domestic legislation.
Similarly, the Victorian Charter and the ACT Human Rights Act have no requirement
for reasonableness in their interpretation clauses.
Various
members of the House of Lords talk in abstract terms about "a
Rubicon which courts may not cross". They point to a distinction
between "judicial interpretation" and "judicial
vandalism". But as the Ghaidan
decision reveals, when crunch time comes, the court indulges in
the equivalent of judicial graffiti by leaving their own distinctive
mark on even the clearest of Parliament's expressed intentions.
With impressive legal sophistry, they classify their decision
as a case of "robust interpretation" rather than legislative
amendment.
The
ability to socially engineer their preferred outcomes has proven
to be, as the dissenting judge in Ghaidan pointed out, "dangerously seductive".13
In
2004, the UK Court of Appeal ruled that gypsy families who
had set up home on land they bought in Chichester, West Sussex
in contravention of planning laws should be allowed to stay because
human rights law gave them "the right to family life".
As one commentator
noted at the time:14
"The ruling effectively
gave the green light for illegal gypsy camps the length and breadth
of the land to become legally untouchable, in flagrant breach
of the planning laws. It thus legitimised widespread law-breaking".
"How
can unlawful behaviour suddenly be deemed lawful, even though
the law that prohibits it is still on the statute book? The answer
is that the Human Rights Act has become
the law that subverts the rule of law itself".
The ACT Human Rights
Act
and the Victorian Charter of Rights and Responsibilities Act
have similar clauses, so we can expect the same kind of judicial
law-making. Here, the Bills of
Rights brigade will no doubt say we should just trust judges to
do the right thing. That might be a safe bet when you know that
activist judges tend to have the same world view as yourself.
American
columnist Charles Krauthammer has noted that, in a few short years,
the US Supreme Court had cemented into constitutional law abortion
on demand, racial preferences, and most recently gay rights. It
was, said Krauthammer, the "liberal trifecta"---"just
about their entire social agenda save shutting down the Fox News
Channel".15 Another American commentator has remarked:
"If the American courts started interpreting the Second Amendment
the way they interpret the First, we'd have a right to bear nuclear
arms by now".16
But
when judicial activism goes the wrong way, just wait for the outcry.
A few weeks ago Philip Adams sniffed at the George W Bush versus
Al Gore contest as a reminder that "the outcome [was] left
to the voters on the Supreme Court".17
That, of course, is
the problem in a nutshell. If we are to count votes when it comes
to implementing major social change, let's count the votes of
the people rather than those of a few judges.
Where
to now?
Having
traversed the tricks of the Bills of Rights trade, the next question
is, where to now?
Winning
the intellectual argument is one thing. The real battle is winning
the political one. Williams would have us believe that the public
is uneducated and disconnected on these issues. I'm not so sure.
The general public may not be able to cite sections of the Australian
Constitution but their understanding of the judicial role is impressive.
When
I first started writing opinion columns, judicial activism was
one of the first topics I covered. Some friends working in the
law suggested that this was a narrow topic for the legal in-crowd.
They were wrong. I received mountains of mail---and still do---from
laymen concerned about the transfer of power to unelected judges.
Like
Williams, I'm all in favour of educating the public, but if we
are to have an informed decision on a Bill of Rights for Australia,
then let's ask some meaningful questions. Not just, "Do you
want Australia to have a Bill of Rights?", but also a question
that asks, "Do you understand that a Bill of Rights transfers
power from Parliament to the Judiciary?".
If
we are to have a Bill of Rights to bed down the social compact
that Williams and Co are so keen to educate the public about,
then let's talk not just about rights, but also about responsibilities.
It's a neat trick to draft up, as Victoria has, a Charter of
Rights and Responsibilities but then make no mention
of responsibilities in the Act.
So
let's talk about what we might have on the other side of the ledger---on
the obligations side. We might want to draft those obligations
in the same ethereal language of rights to ensure that if rights
are to breed freely, then obligations will too.
Let's
be truly avant-garde and give conservatives on the bench something
to work with so they too can engineer a better world. This might
flush out the not-so-true-believers. Will supporters of a Bill
of Rights be quite so supportive of conservative activist judges
who play policymaker with a long shopping list of fine-sounding
obligations?
So
let me finish by suggesting that we should not respond to the heat
with our own stealth strategy. Instead, we need to work towards
a more honest and open debate about a Bill of Rights. The trade
of lawyers is, as Thomas Jefferson once said, to question everything,
yield nothing and to talk by the hour. I hope I have fulfilled
only the first two of those three criteria.
1.
George Williams, A Bill of Rights for Australia, UNSW Press, 2000.
2.
Tasmania, WA join push for bill of rights, Australian Financial Review, 13 January, 2006.
3.
A clear right of way for people who cherish their freedoms, George Williams,
The Sydney Morning Herald,
21 December, 2005.
4.
A Bill of Rights for Australia, op. cit., at p. 54.
5.
The Rule of Lawyers,
Alan Anderson, Policy, Volume 21, No 4, p. 36.
6.
Safe rights: why not?,
Susan Ryan, letter to The Australian Financial Review, 5 December, 2005.
7.
Queensland calls for human rights charter, Lawyers Weekly, 12 May, 2006 at 6.
8.
Human rights fears mean police refuse to issue wanted
posters for foreign criminals, London's The Daily
Telegraph, 14 May, 2006.
9.
Ibid..
10.
The Law Report,
Radio National, 9 December, 2003.
11.
Ghaidan v. Godin-Mendoza
[2004] UKHL 30 at para 30.
12.
Ibid., Lord Steyn at para
44.
13.
Ibid., Lord Millett at para
61.
14.
A caravan and horses through the rule of law, Melanie Phillips,
Daily Mail, 1 October, 2004.
15.
Courting a crisis of legitimacy,
Charles Krauthammer, The Washington Post, 4 July, 2003.
16.
Annie's Got Her Gun,
Ann Coulter, George Magazine, December, 2004.
17. Polls fail to detect apathy, Philip Adams, The Australian, 28 March, 2006.