There has been plenty of buzz in the blogosphere recently (for example here and here) about the Rudd government’s consultation of the public about a mooted Australian bill of human rights. The issue is also getting some attention in the mainstream press and obviously places like Amnesty.
I’m hugely in favour of a legislated bill of rights (or even better, a constitutional amendment), and in the next post I’ll talk about my thoughts and concerns in more detail.
I’ve always been perplexed by arguments against adopting such legislation. As far as I can tell, some people are worried about a tyranny of the courts, where “unelected judges” can override our representatives in Parliament. That strikes me as bizarre – every day judges make decisions that define and constrain the exercise of government power, telling governments whether parliament’s laws let them collect taxes, pay pensions, sue under contracts, release prisoners, regulate corporate conduct, sack workers, sub-lease property and so on. That’s the deal – the parliaments make laws and governments, along with the rest of us, abide by them and get pulled up when they don’t.
It’s also wrong. The model for a national bill of rights is the ACT and Victorian attempts, and in those the judges can only advise that a law contravenes someone’s rights. They can’t stop it or override it at all. The government can then withdraw it or ignore the court. But at least the public knows that government doesn’t care too much about human rights, and will (hopefully) be punished at the next election. In effect, the human rights laws of the ACT and Victoria are less powerful than ‘normal’ laws.
So much for “rampant judicial power.”