The recent invitation to Father Frank Brennan to speak to the federal Labor Party caucus on human rights shows that plans for new legislation are still on the table. Brennan is the man who chaired the Attorney-General’s specially selected committee, the National Human Rights Consultation Committee, the one that came out in favour of a strong statutory bill of rights.
Frank Brennan was described, when that committee was first set up, as a fence-sitter, a disinterested person who came to the task of whether we needed a statutory bill of rights – the only sort even mooted – with a completely open mind. Of course, that label was nonsense.
Before being appointed, Brennan had been on the record, more than once, as being in favour of Australia enacting a statutory bill of rights. Hard to be classed as a fence-sitter, really, when you’d earlier been pushing this cause on one, and only one, side of that fence.
In fact, Attorney-General Robert McClelland didn’t bother to appoint a single known bills-of-rights opponent or sceptic. This didn’t help his attempt to depict the process as disinterested. Nor was it convincing to make claims about consulting all Australians when the committee heard from fewer than one-fifth of one per cent of them. And that’s on the generous assumption that you count postcards written by lobby-group members.
Still, public opposition to this statutory bill of rights proposal, including among a big chunk of the Attorney-General’s Labor Party colleagues, has been such that we learned a few weeks ago that Cabinet was not treating a statutory bill of rights as a high priority. That’s a polite way of saying nothing will happen before the next election.
Enter Frank Brennan and the invitation offered to him by Labor Party proponents of a bill to speak to caucus. Presumably, the hope was that Brennan would stiffen the spine of the Government and get it to think again. Let’s hope not. I’m a long-time opponent of these anti-democratic instruments, and I think the Rudd Government was brave to stand up to the chardonnay-sipping, lawyers’ wing of the party over this.
The case against it is overwhelming.
When you buy a bill of rights, all you’re really buying are the views of unelected judges rather than of elected legislators. And there’s no reason at all why judicial views – the views of committees of ex-lawyers – should be more morally attuned or rights-respecting than those of elected legislators.
Take free speech and the ability of citizens in Australia to speak their minds. I’ve long pointed out that people in Australia have more freedom to say what they want than do Canadians.
Look at hate speech or campaign finance rules or defamation regimes. Canada, which for 28 years has had one of the strongest bills of rights on the planet, has noticeably more restrictions on speech than we do here. They have the bill of rights. We don’t.
In fact, last year the Canadian Supreme Court referred specifically to our High Court’s views in changing some of their defamation law restrictions. The case was called Torstar. And it hardly showed Australia being isolated on issues of free speech.
But let’s assume what is plainly not true. Let’s just assume, for the sake of argument, that the failure to enact a bill of rights would lead to Australia being completely isolated in the sense that Canadian and European judges stopped citing our cases. So what?
If the cost of not having one is that Australian top judges feel a tad isolated when next they jet off to international conferences, or that the members of the new Supreme Court in Britain stop citing their judgments, well, that’s frankly a cost that is worth bearing.
After all, we’re talking about transferring power to unelected judges. We’re talking about making inroads into democratic decision-making.
That’s true no matter how often proponents prevaricate and pretend that a statutory version won’t make any difference, leaving us to wonder why they would expend so much effort for something they claim will leave legislators exactly where they are now. What rubbish!
At any rate, I’m perfectly happy to suffer a bit of isolation in return for leaving society’s key decisions with the elected representatives of the voters. The fact that my Canadian compatriots have unwisely decided to let judges make all sorts of decisions on abortion, same-sex marriage, the health system and where to draw the line with free speech, doesn’t make me want Australia to emulate them in the least. The same goes for Britain, and the trend there of legislators deferring to judges every time they disagree.
So much for Australia being an outlier. What I would urge people to keep an eye out for is this. The sensible wing of the Labor Party here looks as though it has killed off any explicit enacting of a statutory bill of rights. But the Brennan Committee foreshadowed a back-up strategy that the lawyers’ wing of the Labor Party just might try.
The ploy here will be to insert one of the key provisions of a statutory bill of rights, known as a reading-down provision, into another statute, probably the Acts Interpretation Act.
This transplanted provision will do the same work of authorising judges to interpret all other statutes in a new-age, Alice in Wonderland way as it would in a real bill of rights. It will allow them to read other statutes in a way that they, the judges, happen to think is more rights-respecting.
A similar provision in Britain has resulted in the judges saying they can ignore the clear meaning of other statutes and the clear intentions of parliament.
Put one of these in some other statute and you get a bill of rights in all but name. Watch to see if this secondary ploy can be foisted on the sensible wing of Labor.
James Allan is a native-born Canadian who is currently Garrick professor of law at the University of Queensland.