Australia is said to be well behind the rest of the world in not having a national bill of rights. I think Australia can leapfrog the pack and become a world leader if it plays to its strength as a progressive parliamentary democracy and devises a bill that works as a political rather than a legal instrument. The secret is to bypass the heated but stalled debate over the relative powers of elected politicians versus unelected judges. Then we can focus on the relative powers of two sets of elected politicians: the political executive which is the minority of parliament that forms the government of the day, and the parliament as a whole which can use a bill as a political instrument to set standards for government compliance with a broad range of political rights.
Think of this as a classic third way. The first and second ways are deadlocked. At the moment, advocates of a bill of rights argue that elected politicians cannot be trusted to protect citizens' rights. Defenders of the status quo argue that unelected judges have no legitimacy making political judgments about how to balance competing rights, a task that should fall to elected governments.
The third way recognises that neither the political executive nor the judiciary should override parliament as the legitimate forum for political decisions about how best to balance competing social and political rights. And something like parliament must do the balancing: for instance, in policies relating to national security, where governments seek authority for policies that trade-off rights to civil liberty against rights to peace and security.
The courts can potentially balance the competing rights when legally challenged, but an important role remains for parliament to hold governments accountable to political as distinct from legal standards of rights protection.
Bills or charters of rights can set either legal or political standards. The most constitutionally entrenched bills of rights tend to provide the courts with leverage to set legal standards for judging the performance of government. Citizens can have legal claims against government and take government to court for not complying with those legal standards.
But as many commentators have argued, this gives courts great powers to balance competing rights, including the political rights of governments to make hard decisions about the public interest against the legal rights of citizens (or well-heeled interest groups) to refuse to comply with a government's alleged denial of their legal rights as protected in a bill or charter of rights.
The third way deals parliament back into the picture. Bills of rights are devices to respond to the problem of bad government. But they are not the only device at our disposal. The Commonwealth Parliament already has a variety of mechanisms that set standards for government compliance in relation to the rights of Australian citizens. Among them are political instruments that stay clear of the courts and keep the debate over government action in the parliamentary realm as a matter for political rather than legal determination. An example is the legislative scrutiny of government bills by dedicated parliamentary committees responsible for assessing government compliance with parliamentary standards of, you guessed it, rights protection.
It is happening now, in all Australian parliaments. This form of parliamentary rights-protection began in the Australian Senate in the 1930s, with the establishment of the committee to scrutiny delegated legislation (government regulations) to ensure that government was not, without good reason, arming itself with powers at the expense of individual rights.
This historical parliamentary innovation was a world first. Over time, parliament developed a set of standing orders that works like a mini-bill of rights, designed to force governments to justify each and every policy deviation from strict compliance with a set of standards devised and authorised by the Senate.
The committee continues to this day, holding government honest by compelling governments to explain on the public record each time it seeks to trade-off one set of rights (eg, public health) against another (eg, privacy). The case load of this and related state committees are a showcase of how political instruments can contribute to rights protection, with executive and non-executive politicians forced to debate and justify their political judgments about the public interests being served by the balances they defend.
A toothless tiger? No way: parliament has also established standards for the procedural protection of rights that empower either house of parliament to disallow any government regulation that that, in the political as distinct from the legal judgment of parliament, is unjustified. Disallowances occur each year, not that governments are keen to publicise their own losses.
This approach to right protection was born again in the early 1980s when the Senate established the scrutiny of bills committee to subject bills to audits similar to those given to regulations. Similar processes take place in all Australian parliaments. The main point here is that the committees make informed political judgments about the appropriate balance of rights expected of governments, well before the courts have any role in hearing challenges to later government action.
We do not have to wait for community agreement on one of the many models for a court-focused bill of rights. We can start by strengthening the existing political instruments that protect the community's rights against inappropriate government powers.
I was reminded of the importance of Australian parliamentary traditions when I co-chaired a Canberra workshop on bills of rights at Parliament House last Friday where shadow attorney-general George Brandis quoted former Labor Party justice minister Michael Tate in support of this general approach for greater parliamentary involvement in standards setting.
The approach is thus bipartisan, demonstrating that there is a third way forward in rights protection that preserves a role for parliament as, over the executive government or the courts, the right public forum for balancing political judgments about competing rights.
Of course, the political executive retains responsibility for making the hard decisions about what effective balance parliament should support, and the courts retain responsibility for resolving grievances over specific government trespasses on legal rights.
Professor John Uhr is director of the Parliamentary Studies Centre, Crawford School of Economics and Government, Australian National University.
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