Politicizing the Judges: Human Rights Legislation

Article excerpt

Some 20 years ago when the decisions in ACTV (1) and Lange (2) were handed down, there was jubilation in the corridors of some of the 'progressive' law campuses of Australia. The cry went up, 'Dare to be adventurous!' The realpolitik of the separation of powers has, however, so far prevailed.

Human rights are ultimately the implied terms of an ideal social contract. The social contract at any time is the sum of the constitution, legislation validly made under it, and the conventions and values of society itself. The conventions and values include the evolving common law, the morals, ethics, and experience of Australia as a long-standing, in relative terms, democracy. Legislation is the articulation in a comprehensible and enforceable form, of the policy of the politicians holding the majority in the Houses of Parliament. Each policy has to make accommodations with other policy. How much reward should there be for merit, innovation and diligence? How should a government allocate and redistribute taxes it collects? How much should it collect? How and in what amount does it make provision for those who cannot provide for themselves? Take freedom of speech. No democratically inclined person would disagree with the proposition that as a concept it is a good thing. Should it however be confined to prevent hate speech or defamation? How is any right to privacy to be reconciled with free speech? Do limitations upon advertising infringe freedom of speech? Should there be film and literature classifications, or censorship of the arts? To what extent should political fundraising be permitted and how should rules for the conduct of elections be framed? These questions, deceptively simply expressed, are in truth very difficult ones. But even more difficult are those that are raised with respect to the reduction of human rights to a written constitutional or legislative form, because experience teaches that no right can be completely uncurtailed at all times for all purposes and all people. This is so even of the basic right to freedom itself.

People who have done no wrong can be detained in quarantine. The customs authorities can detain people. People who have done no wrong but may involuntarily present a risk to themselves or to others can be detained. People have, from time to time, been detained under witness protection schemes. Some people are refused bail and are detained for long periods before they are even committed for trial. Even people who have been convicted and who have reasonable prospects of appealing successfully are rarely released pending the appeal.

Legislation may from time to time also have the purposes of giving legal effect to the conventions and values of society. The identification and boundaries of particular conventions and values can also be difficult. Few societies are homogenous. Values can be diverse. They can change quickly. All of this nation's governments are secular, something that is not always understood by people from different countries. Matters such as religious observance, abortion, discrimination, privacy and necessary exceptions to an absolute right to freedom of speech are controversial. Different circumstances may call for different treatment in law. Many, many freedoms were curtailed between 1939 and 1945 by the National Security Regulations made under the constitutional defence power to meet the exigencies of war. Against this background the first point that we make therefore is that rights made the subject of a bill of rights, whether constitutionally entrenched or enacted, the latter slightly the lesser of two evils because of the possibility of repeal or amendment, are matters for political debate and political, not judicial, resolution. If Parliament is satisfied that wrongs are being done to a vulnerable group of people, it is better that parliament directly enact a law to right those wrongs. This is so for several reasons, two of which are more obvious than others. …