Learning from America

Last week in the Australian, Janet Albrechtsen argued that overseas experience demonstrated that adopting a Bill of Rights for Australia was unwise. Simon Evans responds to the errors in her analysis of the overseas experience. JANET ALBRECHTSEN is right about one thing. Just about the worst argument for an Australian Bill of Rights is that every other Western democracy has one. But she misunderstands some key points about how modern Bills of Rights, like the British Human Rights Act and the Canadian Charter of Rights, actually work. As a result, her jeremiad against an Australian Bill of Rights is built on shaky foundations. An Australian Bill of Rights might not be a good idea, but not for the reasons that Albrechtsen gives. Old-fashioned Bills of Rights, like the United States Bill, give the final say about rights to the courts. If the Supreme Court says that a law or some government action violates the Bill of Rights then that’s the end of the story. The law or government action is invalid. There’s nothing Congress can do except try to amend the Constitution. Modern Bills of Rights are different. Their framers have learnt the lessons of the United States experience. As Albrechtsen points out, when interpreting the Bill of Rights, US judges make policy decisions that should properly be made in congress. Not only do they make policy decisions, they get the final word. In Canada and the UK, the courts don’t get the final word. The Canadian Charter of Rights has a specific mechanism that allows parliament to legislate ‘notwithstanding’ the rights contained in the Charter. The Canadian courts can strike down laws that in their view are inconsistent with the charter. But parliament can respond and take a different view what the rights contained in the Charter mean or what limits need to be placed on them in a democractic society. In the UK, the courts can’t even strike down laws that in their view are inconsistent with the Human Rights Act. They can declare that in their view that laws are inconsistent with the act. But that doesn’t affect the validity or operation of the law. In both countries, the courts will try to interpret laws so that they are consistent with human rights. Our own courts do that already. Sometimes that means that courts interpret laws more narrowly than governments may wish. But in Canada and the UK, just as in Australia, governments have the means to respond if they disagree. They can say to the courts that their interpretation of what human rights require is wrong. Or they can amend their laws to respond to some of the criticisms made by the courts. That’s what’s happening in the UK at the moment in relation to deportation of ‘preachers of hate’, although Tony Blair does seem to want to wind back the Human Rights Act rather than legislate within its framework. Equally, Canadian legislatures may respond to the private health insurance ruling by reinstating the existing system or (more likely and perhaps better policy) improving it in light of the problems brought out by the Supreme Court’s ruling. It might be convenient for politicians to describe this as a battle for supremacy with the courts. But it’s nothing of the sort. It’s the natural operation of a system, fundamentally different from the United States system, in which parliaments and courts have distinct and complementary contributions to make in relation to rights. Parliaments have democratic legitimacy and policy making expertise. But they can’t predict the future and every possible ramification of the laws they enact. Courts look backwards and see how laws have affected the human rights of particular individuals. This dynamic relationship between parliaments and courts in the UK and Canadian models - sometimes but controversially described as a dialogue - draws on the strengths of both institutions to protect human rights, enhancing and not undermining democracy. If any more Australian jurisdictions do adopt Bills of Rights, it is almost inevitable that they will follow the UK or perhaps the Canadian model. They will not give Australian courts the unbridled power or the direct political role of the United States courts. Parliaments will retain the final say. They will continue the existing practice of Australian courts in interpreting laws consistently with human rights. But they will give them an explicit and democratically established framework for doing so. And they will provide a framework for parliaments and courts together to develop an understanding of what human rights require in the Australian context. • Simon Evans is Director of the Centre for Comparative Constitutional Studies at the University of Melbourne Photo: Mark Hurlburt/ iStockphoto.co