Features Australia

Judge dread

16 March 2019

9:00 AM

16 March 2019

9:00 AM

Let me talk about an example of an undemocratic trend from my home state of Queensland. A fortnight ago the Queensland parliament passed the Human Rights Act 2019. This is the name that’s been given to what is a statutory bill of rights, not unlike the one in Victoria nor even much different to the one Tony Blair had enacted in the UK. So this is the second Australian state to go down this road, and I am embarrassed to say that it was my home state of Queensland that opted to do so.

These instruments are wildly popular on the left side of politics. You can still find a very rare Bob Carr-type who’s against, but basically such ‘opponents of bills of rights on the left side of politics’ are becoming an endangered species.  Head out into the political wilds now with David Attenborough if you hope to spot a left-wing politician opposed to a bill of rights. Time is running out.

The basic problem is that bills of rights transfer a lot of social policy-making power to a lawyerly caste, namely the unelected top judges. Australia has held two constitutional referenda trying to entrench one into our Constitution and both were slaughtered. In 1988 voters in all States voted massively ‘no’, with even Victoria voting against!  So since then the game has shifted to statutory versions that can be enacted without a s.128 constitutional referendum.  And here’s how the game is played. Proponents of these statutory versions, like Victoria’s and soon Queensland’s, will tell you that they too don’t like letting judges strike down (i.e. invalidate) democratically-enacted statutes. That’s why they tell us they’ve opted for the statutory bill of rights model. But that’s a sleight of hand response if ever there were one.  Look, it is true that these statutory bills of rights do not empower judges to strike down statutes. But they come close to handing the unelected judges a functional equivalent.

First off they get what’s known as a reading down power – roughly, ‘do everything you judges can to read statute X in a rights-respecting way’. You might wonder ‘whose view of what is rights-respecting counts?’. The judges’ view of course. And you might wonder how far the judiciary can go in reading ‘white’ to mean ‘black’ or ‘dark grey’. A long way is the answer.  In the UK this has allowed what were once the most interpretively conservative judges on the planet to go bonkers (in the technical legal sense of ‘bonkers’ you understand). The top UK judges have proclaimed that they can ‘read words in’, read words out, ignore the clear intentions of the enacting parliament and basically do everything up to the point of ‘judicial vandalism’.

Ask yourself this: are you more powerful if you can openly and in front of everyone strike down a democratically-enacted law (as in Canada or the US) or if you can, outside the public gaze and rather surreptiously, take that law and reshape it so as to proclaim it really means what you, the ex-lawyer judge, happen to feel is more in keeping with some vague and amorphous rights provisions? Put it no higher than this. These are not instruments that do nothing. The political Left wouldn’t go to the wall fighting for them if they did nothing. They take decisions out of the hands of the political class and hand them to the lawyerly class. That’s the point. When you buy a bill of rights you are buying nothing more nor less than the views of judges.

On top of that these two state statutory bills of rights here in Australia require the courts to apply proportionality analysis. In other words, these top judges will often end up asking themselves whether some statutory route chosen by the parliament is ‘proportional’ – could the legislators have chosen a more rights-friendly route to achieve what they seem to have wanted to achieve? But, and I speak for myself here, who cares what some handful of top unelected judges happens to think is ‘proportional’? This whole line of analysis came out of Europe where the judges are über-powerful and where entrenched bills of rights are in play. Our High Court, disgracefully say I, has opted just to give itself the power to embark on this without any obvious constitutional warrant for doing so. And these statutory bills of rights give it to the judges explicitly. As one distinguished British legal academic put it, ‘proportionality analysis is plastic’ – you can use it to come to any conclusion you want, in other words. I agree. It’s legislating from the bench under another name; it’s not interpreting.

The cynics amongst you will be saying to yourselves, could it be that the appointed judges in Victoria and Queensland have, on average, in median terms, views that are politically to the left of the electorate? Is that a possible function of having had lots and lots of Labor governments making lots and lots of ‘social justice warrior’ type appointments to the Bench? Well, you don’t need to go fully down that cynical path to think there is a huge problem with bills of rights.

Alas, it gets even worse. Why?  Because we know the Libs are spineless jellyfish and will do absolutely nothing to reverse course once in office. Ted Baillieu came into office having promised to peel back the Victorian Charter of Rights. On the select committee he set up all the Liberal MPs voted for doing just that. But then Red Ted opted to side with Labor against his own MPs and he did nothing. Personally, I would never vote Liberal again in Victoria because of that pusillanimous sell-out and I certainly wouldn’t preselect anyone who’d been his policy advisor at the time.

As for Queensland, during the run-up to Labor enacting this I spoke with a couple of shadow LNP Ministers. I mention no names but they made it clear to me that they thought the LNP would not do anything about repealing this Labor Charter of Rights once back in office. The problem is that there are far too many jellyfish in the LNP partyroom who’d never fight on this issue (which at least makes them consistent as I can’t think of anything much they’d fight for on any front).

It’s a tough time to be a right-of-centre person in Australia these days. The political class supposedly on our side stinks and seems not to have a principle it wouldn’t sell out for the chauffeur and nice pension.

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