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April 11, 2008
James Allan, Garrick professor of law at the University of Queensland, does go on and on about the badness of a bill of rights is in various op-eds in The Australian. This time he is referring to the panel on the future of Australian governance at the 2020 Summit, and he notes that it consists of three retired High Court justices associated with implied rights and none who have that interpretively conservative outlook that characterises the present High Court. Allan adds:
Not just any retired justices but the ones who gave us the execrable implied rights jurisprudence. Those were the cases from the 1990s where the High Court discovered (or, more honestly stated, made up) some implied rights, and it did this even though the founders of our Constitution explicitly rejected any US-style bill of rights. And it did this despite Australian voters consistently rejecting such proposals in referendums. The trick was to treat the idea of an implication as divorced from any actually held intentions of any real human beings, which is another way of saying it was judicial redrafting.
In these op-eds there is little attempt by Allan to argue the case for why implied rights or a bill of rights is bad apart from gestures to unelected judges ---'to hand lots of decision-making power to an aristocratic judiciary.'
The general argument is pretty standard one. Conservatives say that Charter of Rights politicizes the courts, blurs the authority of parliament, shifts the primary power for making decisions about rights from legislatures to courts, transforms social and political questions into legal ones, creates a special role for the judiciary to comment on and determine matters of public policy, courts would become social laboratory's where the balancing of rights and interests would be undertaken according to the political leanings of the bench.
These arguments were advanced by John Hatzistergos, the NSW Attorney-General and Minister for Justice, in a speech to the Sydney Institute. The appeal to parliamentary sovereignty is a defence of (corrupt) executive dominance in NSW, and a blocking of checks and balances on the executive's political power to protect individual liberty. Democracy is equated with parliamentary sovereignty with individual liberty pushed into the background.
The Australian Constitution does use the language of rights, but in such a narrow sense that it has often been criticised for its scant protection of rights and freedoms. The Constitution contains few express rights. The main ones are:
s 41 – the right to vote;
s 51(xxxi) – the right not to have the Commonwealth acquire property, except on just terms;
s 80 – the right to trial by jury;
s 92 – the right that ‘trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free’;
s 116 – the right to freedom of religion; and
s 117 – the right to freedom from disabilities or discrimination on the basis of State residence.
As George Williams observes the High Court has found that the Constitution does embody a range of implied freedoms:
From the entrenchment of a system of representative government in ss 7 and 24 of the Constitution, which require, respectively, that the members of the Senate and the House of Representatives be ‘directly chosen by the people’, the High Court in Australian Capital Television Pty Ltd v Commonwealth implied a freedom of political communication. The Court has also explored the possibility that rights can be implied from the separation of judicial power achieved by Chapter III of the Constitution. The Court has held that this separation of federal judicial power prevents the legislature or executive from imposing involuntary detention of a penal or punitive character and that the Constitution requires due process under the law, at least of a procedural kind.
One tension point is implied rights and the other is the interpretation of the Constitution. The history tell us that the majority of delegates felt that the traditional rights and freedoms of British subjects were sufficiently guaranteed by the Parliamentary system and independent judiciary which the Constitution would create. So how should we interpret the Australian Constitution as a text?
Should use the records of the convention debates as a source of guidance when interpreting the Constitution. Presumably, but these texts and the way they signify the intent of the participants need not provide an appropriate blueprint for the interpretation of the Constitution.
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