THE CULTURE of litigation and the abdication of responsibility that a bill of rights engenders is something that Australia should try to avoid at all costs.
There have been many calls recently to introduce an Australian bill of rights. Debates have arisen over what rights to include, and how a bill of rights should apply.
I object because a bill of rights transfers decisions on major policy issues from the legislature to the judiciary. It is not possible to draft a bill of rights that gives clear-cut answers to every case.
The right to freedom of speech will conflict with the right to equality (eg, racial vilification) and the right to equality will conflict with the right to freely exercise one's religion (eg, the right to exclude females from the priesthood). Mosts conflicts will be more subtle and difficult to determine.
A bill of rights can only be interpreted by the courts by balancing rights and interests. Most modern bills of rights include a clause recognising that rights may be subject to such reasonable limits "as can be demonstrably justified in a free and democratic society", a policy decision, not a judicial issue.
If a bill of rights were enacted, it would be up to a court to decide whether freedom of speech should be limited in relation to pornography, tobacco advertising, solicitation for prostitution or the publication of instructions on how to make bombs. These are issues that should be decided by an elected parliament, not by judges, who are not directly accountable to the people.
Furthermore, courts operate within an adversarial process. Matters only arise before them when there is a dispute and judgments are made on the basis of particular facts.
Decisions are therefore piecemeal in nature and cannot take into account all issues relevant to determining policy. In short, a court is not an appropriate forum for making these decisions. A bill of rights does not protect rights. Nor can the courts alone adequately protect them. The protection of rights lies in the good sense, tolerance and fairness of the community. If we have this, then rights will be respected by individuals and governments, because this is expected behaviour and breaches will be considered unacceptable. A bill of rights will turn community values into legal battlefields.
The respected American jurist Judge Learned Hand once said, "This much I think I do know - that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.''
Our view of the importance and priority of rights changes over time. A constitutionally entrenched bill of rights freezes those priorities. A bill of rights included in the Constitution in 1901 would most likely have enshrined the White Australia policy.
It is not enough to say that rights can be changed by a constitutional referendum. We all know that referenda are rarely held and are rarely successful. Even when a bill of rights is not constitutionally entrenched, and can therefore be changed by legislation, the political reality is that it is given "quasi-constitutional status" and is almost impossible to amend.
Another problem is the unpredictable ways in which it will be applied by the courts. Sir Harry Gibbs, former Chief Justice of the High Court, has noted that the clauses of the United States Constitution that prohibit anyone from being deprived of life, liberty or property without due process of law have been used to invalidate laws limiting working hours, fixing minimum wages and standardising food quality.
In New Zealand, despite political assurances to the contrary when the Bill of Rights was enacted, the courts have created new remedies to apply to breaches of the Bill of Rights. For example, the NZ Court of Appeal has held that the right to freedom of speech includes a power for the court to order the publication of a correction of defamatory material.
Even the Parliament found, to its surprise, that it was subject to the Bill of Rights and had to apply natural justice, particularly in parliamentary committee hearings.
A bill of rights will further engender a litigation culture. Already it seems that people are unable to accept responsibility for their own actions. A person who trips and falls today does not blame himself or herself for carelessness but looks for someone to sue.
The law reports of Canada and NZ show the extensive use of their bills of rights in litigation, and that the primary use of a bill of rights is in relation to criminal appeals. In NZ, in the first seven years after the Bill of Rights Act was enacted, it was invoked by the accused in thousands of criminal cases.
The Bill of Rights continues to be routinely used as grounds for trying to overturn the admissibility of evidence, including confessions, evidence obtained under search warrants and breath-testing of drink-drivers.
In a recent Australian case, a prisoner brought a legal action on the basis that his rights were being abused because there was not enough variety in the vegetarian meals offered at a prison. He relied on the International Covenant on Civil and Political Rights, often described as the International Bill of Rights. His claim was rejected because the covenant is not enforceable at Australian law.
When the courts are swamped with thousands of bill-of-rights cases, where will the ordinary person go for justice? The courts will be made even more inaccessible and the cost of running the court system will increase.
The main beneficiaries of a bill of rights are the lawyers who profit from the fees and the criminals who escape imprisonment on the grounds of a technicality. The main losers are the taxpayers.
Parliaments are elected to make laws. In doing so, they make judgments about how the rights and interests of the public should be balanced. Views will differ in any given case about whether the judgment is correct. If it is unacceptable, the community can make its views known at elections.
A bill of rights is an admission of the failure of parliaments, governments and the people to behave reasonably, responsibly and respectfully.
Bob Carr is the Premier of NSW. This is an edited version of an article that appears in the Winter 2001 issue of Policy, the journal of the Centre for Independent Studies.