Would the legal system in Australia be improved by a Bill of Rights?

I would imagine that if one surveyed the community of practising lawyers in Australia one would find that a majority favour the idea of a legislated bill of rights. The reasons for this are no doubt legion; some lawyers no doubt feel that legislating a bill of rights would enshrine in law certain inalienable privileges that all individuals in our society should be entitled to. These privileges are not explicitly legislated and are therefore open to fairly broad judicial interpretation. Other lawyers are probably a bit more interested in the financial aspects – the prospect of an Australian bill of rights does lend itself to the possibility that a slew of claimants (some valid, others not so) would swiftly proceed to emerge from the woodwork, asserting that their rights have been infringed. Victoria and the ACT are ahead of the game on this topic; having legislated bills of rights in their respective jurisdictions.

If George Williams is one of the foremost advocates of a bill of rights for Australia, it is interesting to note that former NSW Premier Bob Carr is one of its most consistent decriers. No doubt inspired by recent events at the 2020 Summit, Carr has quite an erudite repudiation of the bill of rights doctrine in The Australian today. He draws on some interesting anecdotes in trying to explain why it is perhaps a good thing that Australia is one of the few of the world’s developed nations without a bill of rights:

Like Australia, Canada also has a shortage of doctors in rural areas. British Columbia came up with a scheme to encourage doctors to practise there, with a finely tuned system of incentives. The provincial Supreme Court struck it down, citing section 6 (“mobility rights”) and section 7 (the “right to life, liberty and security”) of the Canadian Charter of Rights and Freedoms. Canada’s rural population is still under-served by doctors, thanks to judges who want to write society’s rules.

That’s the trouble. A menu of abstractions – that is, any attempt to list rights – wrenches from the cabinet table and the legislature and delivers to the courtroom things that ought to be determined by governments. Thus, in the most recent burst of judicial activism, judges in Britain have determined that the justice secretary can no longer block a parole board decision to release a dangerous prisoner. Judges also determined that failed asylum-seekers in Britain could have access to the National Health Scheme, again something that should be a matter for elected politicians.

Carr is essentially arguing that legislating for a bill of rights would take some degree of power away from the government (elected by the people) and move it to the hands of the unelected judiciary. In some respects this line of argument boils down to whether or not you think the legal fraternity should have power above and beyond what the government of the day has because governments can’t be trusted, or whether you think the opposite is true. He does a convincing job of itemising cases where bills of rights have seemingly failed societies that have implemented them, but on the other hand he neglects to consider the positive aspects of such legislation. One wonders how many cases have been brought before the courts in nations like Canada and the United States where wrongs have been duely righted because the people’s individual rights have been enshrined in law in those nations.

I would describe myself as a slightly apprehensive supporter of an Australian bill of rights. While I agree that it indeed possible (even likely) that a judiciary emboldened by a bill of rights could unreasonably impede the agendas of elected governments as Carr has alluded to, I think the potential benefits to the nation are arguably greater. A bill of rights would provide a fairly unequivocal safety net for the people of Australia when it comes to the question of what they are entitled to as individuals in this great country of ours.

At the moment, with the status quo, things remain quite worryingly equivocal. In the absence of explicit legislation. it would seem that the judiciary are afforded greater flexibility to interpret or misinterpret legal cases as their own particular biases might merit in relation to human rights, which all in all probably makes for a less fair and less predictable legal system than we might otherwise have.

A more interactive democracy for a modern Australia

I admit freely that I have been too thoroughly disorganised to make a formal contribution to the 2020 Summit that has just taken place over the weekend in Canberra. Reading the press coverage and of course the usually insightful contributions from people across the blogosphere, however, I have still been thinking itinerantly over the last week about some of the big issues and questions raised. It is difficult to narrow one’s focus down to a single portfolio or a single idea that is “most important”, given the manifold challenges facing Australia in the coming years. It seems to me though that democracy itself in Australia and indeed across the Western world is in need of reforms that are aimed squarely at keeping people engaged. A healthy society requires that cynicism plays only a supporting role in our conceptualisation of democracy, not the director, producer and cinematographer as it often seems to today.

Now please bear with me and apologies in advance for erring on the side of the zany as I am about to over the fold.

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Australia 2020 Summit – Links (End of Day 1)

When I got home this evening it was around 9AM AEST, so I was able to watch a live stream of the opening of the Australia 2020 Summit. A transcript of Rudd’s opening speech is here. It was at times both stumbling and inspiring; I can easily picture a number of the summit delegates writhing in their seats and thinking to themselves that the PM must be brave or stupid to try and pull this off.

I do agree that there are plenty of good reasons to be sceptical about the summit, but like Andrew Leigh, even so I can’t really help but be more interested in its positive possibilities. I don’t think this is really about the Rudd Government. I don’t believe that we have a an ideas culture in Australia anymore, and this summit is an artificial but realistic way of bringing ideas back into the public limelight of political debate again. Even if only fleetingly. I would not be surprised if this summit spawns a new annual event for Australia should it be successful in throwing a few worthwhile ideas out into the public domain – something already hinted at by Rudd. One thing Australia does not need less of is the focused discussion of ideas.

There are already quite a number of interesting reports out there from the summit, so I thought I would summarise some of them here. I have to say once again that it appears that the best coverage is coming from The Australian. Fairfax, lift your game.

Peter Martin: A nice look at how the discussions actually unfolded for the economics group at the summit.

‘2020 summit city-centric’ (ABC): Covers National Leader Warren Truss’ assertion that the summit was too city-centric. I had forgot that the Nationals had a leader, truth be told.

Danielle Cronin (Canberra Times): Some high-level notes on those who have declined to attend.

Philip Hudson (SMH): Has an overview piece on the summit, notes that discussions between delegates are continuing this evening in Canberra over dinner. Glyn Davis reportedly “excited” about the exchange of ideas.

Annabel Crabb (SMH): Focuses on the summit’s ephemera which is I think a bit unfortunate. Butchers’ paper, blocks of ice and what sounds suspiciously like airline grade food choices.

‘Prosperous and engaged’ AAP (The Age): The following quote from General Peter Cosgrove sounds strange coming from someone who was always close to John Howard with a defence background, but welcome:

“We believe that we should aim for a cultural step where we are the most open and the most diverse culture in the world.”

Alan Dupont sees the proliferation of nuclear weapons to terrorists as one of the key global security issues facing the nation. Also some interesting snippets from David Wright-Neville, Sharyn Burrow and Fiona McLeod.

Katharine Murphy (The Age): Takes a somewhat sceptical view of the summit, and wonders about its nebulous nature and how this ties in with Rudd’s current focus on “vision”. Does Rudd really have a vision? Looks like an interesting read.

David Marr (The Age): Takes an interesting look at how folks have in some cases tried to sell their own ideas to the delegates. Marr is “just going for a yak” though (not the mammalian sort one assumes).

Sid Marris (The Australian): Highlights an interesting idea regarding the adoption of a school by each of Australia’s Top 100 companies. Also some interesting ideas there from Ernesto Peralta (a “peace corp” of retired Australians) and Marion Baird calling for a paid maternity scheme to be introduced.

Paul Maley (The Australian): Covers Brendan Nelson’s reaction to the summit so far. The story seems to want to put words in Nelson’s mouth a bit; probably the defining quote from the Opposition Leader on it all is the following:

“It’s a bit of a schmozzle, but I think there’s some method in the madness.’’

Mike Steketee (The Australian): Covers NAB Chief Executive Ahmed Fahour’s idea for a special loan fund used to provide loans to those normally excluded from sources of finance. This one sounds like an idea that is going somewhere, particularly in the context of Australia’s indigenous communities.

‘Legalise all drugs’ AAP (The Australian): GP Wendell Rosevear had some guts throwing this one out there. Bound to be a magnet for populist criticism, but I think there might be something in the concept of introducing a new category of “illegality” for people with the misfortune to have become addicted to drugs.

Samantha Maiden and Christian Kerr (The Australian): Covers (unsurprisingly given that this is the Murdoch Press after all) Westpac Chief David Morgan’s call for the abolition of inefficient state taxes. Hard to disagree with this assessment:

Dr Morgan backed a major review of tax. “We are paying a very heavy cost for fragmented, unharmonised, duplicative inefficient arrangements between state and commonwealth governments,” he said.

Sian Powell (The Australian): Covers the Prime Minister’s big idea of a one-stop “parent and children” centre from the perspective of a suburban mother.

Stuart Rintoul (The Australian): Takes a look at indigenous issues, including former Federal ALP President Warren Mundine’s strenuous objection to the formation of a publicly funded aboriginal body to replace ATSIC. Brendan Nelson’s views on this were similarly scathing, although the formation of such a body does still remain ALP policy.

Patricia Karvelas (The Australian): Covers Tim Costello’s view that the government should act as a guarantor for struggling renters attempting to buy their own home. We really do need to end the new and destructive Australian divide between renters and owners.

Mike Steketee (The Australian): Steketee for one seems generally upbeat about the summit.

George Megalogenis (The Australian): On the other hand, we have George, who is perhaps the most brutually pessimistic of the mainstream columnists I have read, excepting of course the usual suspects.