Last week I participated in a debate on the Bill of Rights at the University of Queensland. It was the first in a series of ‘Politics in the Pub’ events being held out at the University’s St Lucia campus (although it is really in a club, rather than a pub).
I’ve never made any secret of my view that a well designed Bill of Rights legislation would be beneficial to all Australians. This doesn’t mean it would prevent or provide redress for every injustice, but I believe it would provide some extra protection, particularly against unjust and unfair decisions and actions by government officials.
Opposing me in the debate was Professor Jim Allan, who is a law Professor at the University and a long-term, vociferous critic of a Bill of Rights. He has had many columns in The Australian over many years outlining his opposition to such proposals. Having read many of his pieces, where he tends to engage in rhetoric more befitting a politician than a professor of law, I was expecting the debate to much more combative than it turned out to be.
Apart from running the same old tropes about how a Bill of Rights would allegedly hand law making power to a bunch of “unelected judges”, Prof Allan spent a lot of time pointing to examples from overseas which he said bore out his claim that a Bill of Rights makes judges far more prone to creative interpretations of the law.
However, as the debate unfolded, it became clear there were quite a few Australian Court decisions he didn’t like much either. In some ways, it seemed to me the debate really to transformed into the long-standing argument about whether judges should follow a narrow, literal ‘black letter law’ approach versus one which takes into account wider factors in interpreting the law.
As Adam McBeth from the Castan Centre for Human Rights Law at Monash University noted in an article in The Australian, administrative law has long provided the capacity to override a specific decision that might be seen to have complied with the literal wording of a law, if that decision was manifestly unreasonable or procedural fairness was not applied. In addition, there is already “a common-law presumption that when words in a statute are ambiguous, courts should prefer the interpretation that conforms with Australia’s international legal obligations”.
A Bill of Rights could simply strengthen that requirement. In the Australian context, a Bill (or Charter) of Rights would be just another law – like existing rights based laws such as the Racial Discrimination Act. Parliament could (and has in regards to the RDA) decide to exempt a particular law from some or all of the provisions of a Bill of Rights. Like every other law, its precise impact would depend on what was in it.
Professor Allan responded to McBeth’s arguments and article with (yet another) article of his own, where he providing the lawyerly assessment that McBeth “was full of crap”.
Fortunately, there was no crap flying around during our debate at the University. There will be more such debates in the future – the next one is exploring the proposition that “economists couldn’t predict a sunset”.
For more background on the Bill of Rights arguments in Australia, check out these myth-busting fact sheets from the Castan Centre.
ELSEWHERE: David Jackmanson provides his assessment of the discussion between Prof Allan and myself.
Ian Lee, a Professor of Law from Canada, suggests that the debate on a Bill of Rights in Australia has focused on the wrong type of question.