Tim Dunlop muses about the need for an Australian Bill of Rights, in light of some comments by the head of the federal Attorney-General’s Department, Robert Cornall, to the effect that perhaps some individual rights might need to take second place to the collective/community right to take measures to enhance safety and national security in an age of terrorism.
Tim regards such statements as profoundly worrying and potentially threatening to basic, hard won individual rights and freedoms. I agree. But it’s also understandable that many people occasionally feel personally threatened and insecure, especially if they live in Washington as Tim does. That provides a willing constituency for those who favour enhanced police and intelligence agency powers at the expense of individual rights. And arguably there is an extent to which some limited accommodation is rationally required to guard against major terrorist acts. But to what extent and with what safeguards?
Tim’s answer is to tout the desirability of Australia enacting a Bill of Rights enshrining some key (non-contentious?) basic rights protections like speech, association, religion etc. But in fact all Bill of Rights proposals are intensely contentious almost by definition. They set boundaries on power; the conferrral of rights imposes duties that may be resented by some; and they transfer power from elected politicians to unelected judges. There is no such thing as a set of rights so “basic” that they would be anything other than deeply controversial and divisive at least in the proposal and implementation stage. And there are a couple of other obvious problems. The biggest one is the inherent improbability of any major political party embracing a Bill of Rights push given Australia’s political history and culture.
As Brian Galligan observed in a 1989 paper detailing the history of efforts to engraft rights protections on the Australian system:
The defeat of the 1988 referendum proposal for extending the modest guarantees of rights already in the Constitution and of all three Commonwealth statutory bills of rights, each one milder than its predecessor and the third one not intending to bind the States, has ensured categorically that there will be no Australian bill of rights. Unfortunately, such an important national decision was not taken after measured assessment of the adequacy of the existing regime for protecting rights nor reasoned public debate. To an extent, this did occur in the work of the Senate Standing Committee on Constitutional and Legal Affairs and the Constitutional Commission, both of which endorsed an entrenched bill of rights. However, the reports of both bodies were swamped by partisan polemics in the ongoing battle between federal Labor Governments and their political opponents.
Nor were Labor’s successive initiatives well executed politically, or for that matter even strongly supported by Labor leaders other than the Attorney-General at the time. Supporters of a bill of rights have good reason to feel cheated by the inept manner in which all the attempts have been handled. Nevertheless, both the strident opposition of the non-Labor parties and the half-hearted commitment of Labor Governments seem to be rooted in an antagonism or indifference to a bill of rights among the general public. While there is no systematic survey evidence of what Australians think about rights, it
does seem that there is little grass roots support for a bill of rights. In this respect, the Australian situation is quite different from the Canadian where Prime Minister Trudeau was able to tap strong popular support for the Charter of Rights and Freedoms in his tussle with opposing provincial premiers. Although the Australian Labor Party changed its official platform to endorse an entrenched bill of rights during the 1960s under the leadership of a new breed of Labor lawyers, that did not reflect, nor has it produced, a groundswell of support from the broader Labor movement let alone the community at large. Australia does not have a rights culture, so it is hardly surprising that the various ill-contrived initiatives for a bill of rights have been defeated in its boisterous system of federal parliamentary democracy where political partisanship and Commonwealth-State rivalries are such potent forces.
Despite Tim’s fond hopes, I doubt that anything has happened since 1989 to change that evaluation or give it less force. Major party politicians view bill of rights proposals as pointless and time-wasting distractions, and that isn’t likely to change in the foreseeable future.
The other big problem with Tim’s proposal is that the specific rights provision that would actually be needed to inhibit authoritarian laws, of the sort Robert Cornall apparently has in mind, is a guarantee of due process along the lines of the 5th and 14th Amendments to the US Constitution. They provide that neither the federal nor state governments or legislatures may “deprive any person of life, liberty, or property, without due process of law.”
Far from being a relatively uncontentious right of the sort Tim apparently imagines to be politically manageable for enactment in contemporary Australia, the Due Process Clause has been (and remains) if anything the most contentious provision of the American Constitution. It has been under this clause that the US Supreme Court has enacted constitutional protection of the right to abortion in Roe v Wade, and much more recently protection of gay rights in Lawrence v Texas in 2003. Can you imagine the apoplexy in Australian conservative and religious circles if a Due Process clause was proposed here?
Readers might well ask how a constitutional right to mere due process of law could possibly be interpreted as providing a substantive guarantee of rights like abortion or homosexuality? Well, the answer is that the Supreme Court, at least in its most recent explanation of the jurisprudential basis for so-called “substantive due process” protection of rights, reasons that laws which infringe fundamental liberty interests which are “so rooted in the traditions and conscience of our people as to be ranked as fundamental” must be subjected to “heightened scrutiny” of such intensity that in practice no significant infringement of such rights is constitutionally possible. Thus, in Washington v Glucksberg (the case that most clearly and recently enunciated the doctrine) the Supreme Court held that assisted suicide/euthanasia is not a right so deeply rooted in the traditions and conscience of the American people as to merit “heightened scrutiny” protection under the Due Process Clause. However, as conservative Justices like Scalia J argue, how can it plausibly be said that abortion or homosexuality are any more deeply rooted in the traditions and conscience of the American people than euthanasia?
It’s difficult to escape the conclusion that the US Supreme Court has simply enacted the majority Justices’ personal notions of social justice under the guise of “due process”, and by so doing placed those notions beyond the reach of elected governments. Now this sort of judicial activism might not be a major concern for classical liberals (like me, for instance) if we could always be assured that these unelected judges would adopt a liberal/libertarian approach in their creative interpretations of constitutional rights. But in fact, as Galligan points out:
Regarding effectiveness, the American Bill of Rights was not of major significance for most of America’s more than two hundred years of political history. And certainly for most of that time it was not the progressive reformist instrument of national government that it became in the 1950s and 1960s. That was partly because the states had their own bills of rights and systems of common law, and the national Bill of Rights applied only to national government until its application was progressively extended to the states by the Supreme Court in the twentieth century. It was also because for long periods of time the American Supreme Court was dominated by political and social conservatives. The point can be illustrated graphically with two examples: first, the existence of slavery in the Southern states until the Civil War; and second, the persistence of extensive public discrimination against blacks until the antidiscrimination cases of the 1950s. Thus, only for a relatively short period of modern history has the American Bill of Rights been a progressive instrument of national reform.
Moreover, and somewhat ironically, the Due Process Clause itself was interpreted until the 1930s as providing a substantive guarantee of the laissez faire economic rights of corporate America to be free from pretty much any legislative restriction of their economic freedom. This frustrated almost all attempts at regulation of wages, work conditions or consumer protection until Roosevelt intimidated the conservative Supreme Court into abandoning its economic “substantive due process” doctrine under the threat of appointing as many additional Justices as were needed to gain a liberal majority.
In light of this dark history, it has always intrigued me how so many left-leaning Australian political afficionados (e.g. Tim Dunlop) seem to think a constitutional bill of rights is such a magic bullet solution for threatened authoritarian infringement of basic freedoms. Even the current US Supreme Court majority in favour of a relatively socially liberal interpretation of the Bill of Rights is quite fragile. There is already a conserative majority, but a couple of Republican appointees mostly vote with the liberals on social justice/rights issues. One would suspect that this mildly liberal judicial status quo won’t survive another three and a half years of George W. Bush. Court interpretations of bills of rights will always ultimately reflect prevailing political orthodoxy in any system where judges are appointed by the government of the day (e.g. Australia and the US). But judicial tenure results in that prevailing orthodoxy being reflected only after a time lag (as supporters of a previous orthodoxy retire and get replaced). That certainly provides a certain degree of democratic checking and balancing, but the lag effect operates in both directions. That is, if and when we see a more liberal Democrat President in the US or a Labor government here, it will take quite a few years to restore a liberal majority on the Bench.
In many respects, this lagging check and balance mechanism is indistinguishable from the role of the Senate in the Australian system. The major real world reason why Tim Dunlop and I hold real fears of authoritarian legislation flowing from the sentiments of an influential bureaucrat like Robert Cornall is that the Coalition is about to gain control of the Senate. And the reason for that is that Labor has performed so ineptly for two electoral cycles in a row that Howard has managed to beat the lag effect of our constitutional system and gain a Senate majority. And Labor incompetence has been exacerbated by the fact that the Australian Democrats imploded and then began competing with the Greens for the mung bean left vote instead of providing a centrist alternative for mainstream voters disillusioned with both major parties. Classical liberals and social democrats would do far better to concentrate their efforts on the political task of regaining a Senate balance of power, and forget the chimera of a constitutional bill of rights.