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.

Do Australians favour the constitutional status-quo?

What seems to be the immediately obvious answer to this question is “yes”; as most readers are likely aware, just 8 of the 44 (around 18%) referenda initiated to amend the constitution have succeeded in the history of the Australian federation. It also seems to be the answer favoured by James Allan, a Professor of Law at the University of Queensland, who is concerned that the Rudd Government has stacked the composition of the “Australian Governance” group at its 2020 Summit with potential constitutional vandals. Listing “bill of rights scepticism” as one of his primary research areas of interest, and asserting his delight at having moved to a country without a bill of rights (he was born in Canada), Allan notes has a few predictions about what the group is likely to come up with based on its composition:

There’ll be calls for a bill of rights. There’ll be calls for Australia to become a republic. And such authoritative calls could prove mighty useful down the road, especially if that was what you wanted before you started this little charade. Of course, when we play this game, we would have to concede, were we honest, that the group we had assembled was nowhere near being representative of the views of Australians as a whole.

Whenever Australians have been asked, they have recognised that the constitutional status quo is, as I noted above, comparatively excellent. But with any luck we can finesse that uncomfortable truth.

But do Australians really generally think that the constitutional status quo is excellent? Not to the extent that one would think based on the statistic I mentioned earlier, as it turns out. The infamous “double majority” provision that requires that a referendum be supported by a majority of the states (four of six) and a majority of voters in a majority of states acts as an arguably undemocratic obstacle preventing constitutional change. In actual fact, over the history of referenda, the average national “yes” vote is 50.28%, with the median “yes” vote sitting within reach of majority share at 48.84%. Five failed referenda, in particular, would have been passed on majority national vote if the double majority provision was not enforced. In another nine failed referenda, the supporting vote was over 49%, and three or more states voted in majority support.

With respect to a future Australian republic and a possible national bill of rights, there is also some reasonable evidence suggesting that a majority of Australians (or at least more than those in outright opposition) support constitutional change in each case. A deliberative poll was conducted as part of the process when the ACT enacted its bill of rights, with 47.3% of people polled in favour of the proposal prior to deliberation, and 58.6% after. Similarly, Newspoll [PDF] results over the last ten years point consistently to the fact that more Australians support the idea of Australia becoming a republic than oppose it.

In short, despite the nation’s sad history of failure to succeed in constitutional reform efforts, I don’t think it is fair to say that Australians prefer the constitutional status-quo to constitutional change. The bar for success has been set high; perhaps so high as to be occasionally impractical and in bottom-line terms, undemocratic. One thing is certain; it certainly does not hold that because something was a fantastic national document one-hundred years ago is a fantastic national document now. As a nation we should constantly be on the lookout for ways to improve the legislative infrastructure of the country. All things in human society gradually evolve – it is just a shame that this particular part of our society has been so protectively guarded from improving over the course of the last century.