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.