Debate on whether Australia should adopt a bill of rights has been overly polemical. Former NSW Premier Bob Carr has implied that support for a bill of rights is best understood as a power grab by lawyers sniffing the intoxicating whiff of litigation.
On the other hand, the human-rights lawyer Geoffrey Robertson claims that the opponents of a bill of rights rely on false and absurd arguments. Few voices suggest that there may be reasonable arguments for and against, and that there may be other substantial options.
To sum up the debate, the type of bill found in the ACT and Victoria requires judges to prefer interpretations of the law which best promote human rights. Some judges follow this approach to some extent anyway, when they use the common law presumption that parliament would not intend to unreasonably curtail certain rights. A bill of rights can significantly strengthen this tendency.
A bill might also permit judges to express an opinion that certain legislation is incompatible with rights or it might empower judges to declare that legislation invalid. Perhaps these options are not as likely to be adopted, but the points I make are applicable to these types of bills as well.
Supporters argue that judges can be in a better position than politicians to accommodate the legitimate interests of individuals who lack significant power. Politicians might neglect certain rights, perhaps in favour of tending to their constituencies. Judges, on the other hand, can focus on the plight of individuals without being so concerned about their popularity.
Furthermore, partly in anticipation of possible court decisions, parliament and the bureaucracy may become more sensitive to human rights.
Nevertheless, so the argument goes, a bill would not undermine democracy. Parliament can override court decisions it disagrees with. This does not render a bill of rights useless.
When parliament revisits legislation subject to a court decision, parliament may have had the advantage of seeing how the legislation has worked in practice. Furthermore, parliament may face a special burden of justification before overriding the court decision, given the authority courts enjoy.
Opponents question whether a bill would significantly enhance the protection of rights and some point out that parliament can exclude the operation of the bill from legislation it passes. Even where legislation is susceptible to a rights-oriented interpretation, judges may not favour that interpretation. Governments can appoint judges who are likely to take a very cautious approach to a bill of rights.
Even where judges do reach an attractive rights-oriented interpretation of legislation, parliament can override that decision directly, or make small amendments which avoid the court's direct ruling but leave the legislation in a problematic form. There is a significant likelihood of these courses of action, especially on issues central to the government's agenda which enjoy popular support.
Other opponents argue that judges will enjoy a significant capacity to make unpopular and wrong decisions that are not overridden by parliament. Governments may be loathe to seek parliamentary override in case they are portrayed as hostile to human rights. Issues of rights involve controversial balances between competing interests, and it is not clear that judges are more likely to reach better decisions on these matters.
A bill of rights will not just sensitise the bureaucracy and parliament to rights: it will eventually sensitise them to judicial interpretations of those rights.
Furthermore, it is to the judicial interpretation of those rights that appear in the bill. The ACT and Victorian bills refer to civil and political, not social welfare, rights.
Given these difficulties, opponents unite in arguing there is insufficient justification for the elitism entailed by bills employed by courts. Some favour a bill which guides parliamentary committees and the public at large, but not the courts. Whether that would achieve much, though, is doubtful. Parliamentary committees lack independence and their recommendations can be ignored. Increasing the public's sensitivity to human rights issues would be difficult.
Therefore alternative approaches that supplement or substitute for the conventional options deserve consideration. One possibility is to establish, through ordinary legislation, what could be described as a Human Rights Council. This could empower statistically representative juries of around 300 Australians to decide bill-of-rights matters.
One of the most exciting developments in democratic practice in the last decade or so has been the use of such samples, in Australia and overseas, to discern what informed public opinion might look like.
With deliberative polls, for instance, the participants deliberate over a few days on a particular issue, reading and listening to experts presenting contrary arguments. Broadly representative samples agree to participate and gains in knowledge occur.
Often, there are significant shifts in opinion. For example, a 2001 deliberative poll on reconciliation with indigenous Australians led to an increase in support for an apology to the Stolen Generations from 46 to 68 percent.
With the proposed Human Rights Council, samples of Australians could be given delegated lawmaking power to override parliamentary legislation inconsistent with human rights, subject to parliamentary disallowance.
In this way, Australian citizens could deliberate and then exercise decision-making power on questions of rights. Such juries would be genuinely independent of the government and parliament, yet would enjoy democratic legitimacy.
Costs could be contained by limiting juries to a few matters each year, with juries having a role in their selection, and limiting hearings to a few days. Other objections, such as those relating to competence and representativeness, can be met. Australia could lead the way in promoting novel approaches to rights-protection.
Dr Ghosh is a lecturer in the School of Law, University of New England.
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