Yes, we may have seen the biggest government heist of our human rights, but a bill of rights is still wrong.
If you didn’t like governments disfiguring our democracy during Covid, that’s nothing compared with what judges will do to mutilate the democratic deal if they are given the power to interpret a list of vague rights that will be longer than Malcolm Turnbull’s political hit list. …
The issue comes down to this: who do you think should rule our lives, parliaments or courts? …
Courts have a limited role in our democracy. If we appoint them philosopher kings to make far-reaching policy decisions, it will mark, as John Howard once said, “the final triumph of elitism in Australian politics — the notion that typical citizens, elected by ordinary Australians, cannot be trusted to resolve great issues of public policy”.
If you think politicians were disconnected from our lives during Covid, their wages intact, able to travel at will, family around them, never having to hole up in hotel quarantine, you’re right. But judges are far more removed from our lives, they have no access to policy advice from the outside world, they would likely be big supporters of locking down entire communities to protect the vulnerable — many of them are getting on in years. And the clincher: we can’t get rid of the buggers.
All of that explains why a gaggle of legal academics and activists have long demanded a bill of rights. …
When press freedom was a hot topic a few years ago, Amnesty International demanded an Australian charter of rights to secure it. The same group was missing in action when it came to repealing section 18C of the Racial Discrimination Act, which curbs free speech.
These people have one thing in common: they have a policy they feel strongly about but can’t be bothered with the messy, exhausting democratic structures required to secure it.
The anti-democrats want to head straight to the courts, hoping it is easier to get their way from a handful of unelected judges. They have a different view of democracy: a belief in elite rule where the small mouthy groups determine policy by the cases they bring to a court that is newly empowered to determine the content of our laws.
If Australia ends up with a bill of rights, we won’t be able to control or predict the frolics of judges on significant policy issues. It’s a safe guess the views of many judges might be closer to those academics and activists who are so keen to use courts, not parliament, to make policy. Otherwise, why would they be so excited about a bill of rights?
Both systems — the US style of enumerated rights which are misinterpreted by judges to suit the dominant political ideology of the time, or the UK system of letting Parliament rule unhindered and relying on democracy to rein them in — have their pros and cons. But the activist left prefer rule by judge, because it saves them having to convince the majority.