Kel Richards’ proposal in these pages for a bill of rights (‘Conservative Notes’, 2 November 2019) as a solution to the problems of freedom of speech in Australia is no doubt well-meaning. But is is totally misconceived.
The basic point to remember about a bill of rights is that it is a fundamentally anti-democratic measure. This is because what happens under a bill of rights is that political, social and economic questions are transferred from elected parliamentarians to unelected judges. It is important to realise that political, social and economic questions do not become legal questions when given to a court. They remain what they have always been but are now decided by judges. This is simply the judicialisation of politics.
John Gray, writing recently and perhaps somewhat surprisingly in the New Statesman, referred to ‘the prevailing variety of rights-based liberalism promoted by philosophers such as John Rawls and Ronald Dworkin. The key feature of this liberalism is that it transfers decision-making from political to judicial institutions. Liberals are turning to law to entrench values and policies for which they cannot secure democratic assent.’
Quite apart from this objection based on political philosophy, there is an obvious practical problem about a bill of rights that is illustrated by the very notion of freedom of speech that Richards wants to protect. It is, of course, protected under the First Amendment to the US Constitution but the US Supreme Court has always recognised that freedom of speech is not an absolute value and can be qualified by such laws as those dealing with defamation, national security and incitements to violence. So the generalised value identified by the First Amendment is just a starting point for a whole range of exemptions. And the question of what qualifications there should be to the general principle of freedom of speech – a political issue if ever there was one – is left in the hands of the courts.
It is also worth noting that whenever the Australian courts have considered Section 18C of the federal Racial Discrimination Act and its state counterparts, which essentially make some kinds of offensive and insulting speech unlawful, they have upheld the validity of those laws.
The solution to Section 18C and similar pieces of legislation is to have them repealed. Richards says this hasn’t worked and it is true that the Turnbull government’s attempt to have 18C at least amended in 2017 failed because it was unable to obtain a majority for this proposal in the Senate. But that is no reason not to try again, especially when we know that these laws will not be struck down by the courts in the context of a bill of rights.
The political character of a bill of rights is underlined by the US experience, where questions like the validity of same- sex marriage and the extent of abortion laws have been decided by the Supreme Court and not by the Congress. This has resulted in the judges of the court becoming highly politicised and their confirmation by the Senate, following nomination by the president, has produced increasingly bitter contests between Democrats and Republicans, culminating in the ferocious conflict in 2018 over the nomination of Justice Kavanaugh.
It is true that Richards suggests only four items in his bill of rights – freedom of religion, freedom of speech, freedom of the press and freedom of assembly. At least he does not include such fanciful freedoms from torture and slavery that can be found in the charters of rights in Victoria, Queensland and the ACT. But once the principle of a bill of rights is accepted, it is highly unlikely that it could be confined in a way that Richards proposes. Most proponents of a bill of rights want it to extend even to a set of economic and social entitlements; for example, a right to affordable housing and to schools of a certain standard, although these are the kinds of public policy issues that would seem utterly unsuitable for the courts.
In any event, the four freedoms proposed by Richards have all the problems already identified because they at once raise highly contentious questions as to what the limits of those freedoms should be. But those limits should be set by elected members of parliament and not by courts. If those elected members won’t, for example, remove some of the existing limitations on freedom of speech, the solution is to try to get ones that will, not to impose a different result through the courts. That different result is exactly what most proponents of a bill of rights have as their goal because they think that judges are better qualified to decide these political, social and economic questions than parliamentarians. And unlike Richards, most advocates for a bill of rights would like more limitations on freedom of speech not less.
It must be conceded that those advocates have had considerable success in Australia over recent years. As mentioned, there are already bills of rights – or charters as they are usually called – in Victoria, Queensland and the ACT. The push for a national bill of rights very nearly succeeded during the Rudd-Gillard period and was only stopped by some serious opposition from the Labor side of politics, most particularly former NSW premier Bob Carr.
The problem with this kind of legislation is that, once enacted, it is almost never repealed, even when a new government that has traditionally been opposed to a bill of rights comes into office.
Victoria enacted a charter of rights in 2006 but, when the Baillieu government was elected in that state in 2010, it had the opportunity to repeal this law yet it did nothing and then lost office after one term.
There is a constant and powerful lobby for this kind of legislation, most particularly from legal professional bodies and legal academics who continue to maintain pressure on governments and have, of course, already succeeded in three Australian jurisdictions. So Richards may yet get his wish but let’s hope that the other Australian jurisdictions will resist the anti-democratic tide lapping at their borders.
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