LEGAL AFFAIRS: by James AllanNews Weekly
Unelected judges are today's new aristocracy
, March 21, 2009
A bill, or charter, of rights would be bad for Australia, argues University of Queensland law professor James Allan.Suppose you are one of those people who believe that an aristocratic element is essential to good government. It's a bit late in the day, of course, for you to advocate a role for hereditary peers or for representatives of an established church. And yet you think there's a need for something to curb what you see as the dangers of raw majoritarianism or "letting the numbers" count.
When it comes to society's fundamental moral issues - things related to immigration, the treatment of criminal suspects, the regulation of speech and the like - you prefer some sort of aristocratic or non-representative element to be infused into our constitutional structures. The fact is, when push comes to shove, you don't want to put your money on the basic decency of your fellow citizens. No, you'd like some more aristocratic group to be given a role.
Now, in this day and age, you might think things are hopeless for you. There is little chance of any of that in today's democratic world, you'd figure. Yet you'd be wholly and completely wrong in thinking that. In fact, outside most of Australia, your preferred set-up is exactly what any observer would find.
Today's decision-making aristocrats throughout the common law world are the unelected judges. They are the people in Canada, the US, the UK and New Zealand who give you just what you want - that check on the social policy choices of your fellow citizens through their elected representatives.
Here's how it works. First off, set out a list of indeterminate, amorphous entitlements in the language of rights, and make sure they are so abstract that no one could possibly object to them.
(So if you want the unelected judiciary ultimately deciding questions related to, say, society's campaign finance rules or its hate speech provisions or the defamation laws, you talk vaguely of a "right to free speech". That should be general enough, and emotively attractive enough, to finesse all disagreement down where it counts when it comes to drawing all the tough lines that need to be drawn.)
Then hand over all decisions related to these rights-based issues to the judges. Then, when it comes to upholding our fundamental rights (which is another more grandiose way of saying "when it comes to making tough, debateable, social policy decisions"), it will be the judges who either get the last word or get the cards so stacked in their favour that no elected politician can ever gainsay them.
All of a sudden we've put our money not on the line-drawing choices of our fellow citizens, but on the choices of the top judges (or truth be told, on committees of ex-lawyers who, just like legislators, vote amongst themselves when they disagree, with the ultimate decision-making rule being four votes beat three, full stop).
Of course, that's not how the effects of a bill of rights are generally presented. Proponents tend to picture instead a world of moral blacks and whites, one where the right moral answer is plainly obvious, at least to the judges and to them, and yet for some inexplicable reason the elected politicians are too self-interested or too morally wicked or too plain stupid to see those answers.
The trick is to paint a world of self-evident moral wrongs here and there, and then combine that with the usual remarks about the inevitable deficiencies of any system of representative government (but with little similar cynicism as regards the judiciary).
However, if the world is seen as one in which reasonable, smart, well-intentioned, even nice people happen to disagree on virtually all fundamental moral and so rights-based issues - the war in Iraq, abortion, same-sex marriage, how to finance elections, to name but a few - then resolving such issues by counting everyone as equal and letting the numbers count looks infinitely more attractive.
Handing the last word to the judges only looks desirable when the argument is pitched at a high level of moral abstraction that obfuscates all the ongoing disagreement down in the quagmire of detail and ignores the fact that none of us has a hotline to God.
So it will be no surprise at all for me now to say that I think bills of rights are a very bad thing indeed and that we Australians are exceptionally lucky not to have one (or at least those of us outside Victoria and the ACT).
Yes, I know we're virtually alone in not having one. So what? We're virtually alone in having compulsory voting, and preferential voting, and a genuine house of review in the Senate. Must we ditch those to fit in too?- James Allan is a native-born Canadian who is currently Garrick Professor of Law at the University of Queensland. He spoke on problems associated with bills, or charters, of rights at the National Civic Council's 2009 national conference on February 7. This article is an edited extract from a longer piece by Professor Allan, published in Victorian federal Liberal MP Kevin Andrews's Policy journal (Summer 2008/09).