Just an Act

The ACT Human Rights Act 2004 has excited a lot of interest among those in favour of bills of rights (among whose number I count myself). There has already been a conference held on the Act, and now a website has been set up to catalog cases dealing with it.

The trouble is, no-one seems to want to apply it. There are 19 cases on the database, and the typical case summary goes like this.

  • Counsel for the accused referred to s 30 of the Human Rights Act 2004 (ACT) in relation to the operation of s 187 of the Drugs of Dependence Act but without any particular suggestion as to how the construction of that Act would be altered.  I can see none.
  • Crispin J found that the Human Rights Act was not relevant to this issue and that it did not relevantly affect the interpretation of the Discrimination Act in this case.
  • The Tribunal concluded that the provisions of the HRA did not affect the outcome of the review.

Soon we may have to ask the Zen question, if a bill of rights gets passed in the ACT, and everyone ignores it, did it really get passed?

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18 Responses to Just an Act

  1. avocadia says:

    On the other hand, those who oppose a bill of rights often claim one would politicise the judiciary. The case law involving the ACT bill would suggest otherwise. That leaves us in the position of having to argue the question, Why do we need one at all? Rather than leave that as an exercise for the reader, my favourite arguments – at the moment – are that common law doesn’t protect freedom of speech, which is why we have a possibly overly broad Racial and Religious Toleration Act in Victoria; and common law doesn’t adequately protect property rights, so we have the removal of rights for firearms posession federally.

  2. Sinclair Davidson says:

    I’d like to offer the opposite explanation to avocadia. We need a bill of rights because politicians and activist judges don’t respect the common law. We need a bill of rights to protect us from pollies. That would include an absolute freedom of speech (rendering the Victorian legislation unlawful) and an absolute right to bear arms (rendering the Federal anti-gun laws unlawful). Of course, it would include an absolute freedo to contract rendering most IR law unlawful. Hm, can’t see it getting up – too many hippies in Australia …

  3. avocadia says:

    It would also include an absolute freedom of association, which would render the terrorist group black lists and the anti-union bits of the IR legislation unlawful.
    Back in the real world of course, there would be some sort of compromise.

  4. Sinclair Davidson says:

    yes, it would also have to include absolute freedom of association making the anti-union aspects of IR unlawful. (As an aside, children by defintion cannot enter into a binding contract and so would not be covered by freedom of contract).

    Avocadia is correct, in the real world some compromise would have to be called for, which is why I (and i suppose many others) would oppose a bill of rights. Unless I get exactly what I want, I prefer the status quo. Sounds selfish I know…

  5. avocadia says:

    Shouldn’t the powers granted to parliament within the constitution be the the compromises? Even if the bill of rights is passed as an addition to the constitution, the bill doesn’t have some higher standing than the constitution itself. So drawing the examples above, parliament already has the been granted the power to legislate IR. I don’t see why a bill that purposefully takes powers from parliament should take away powers that have been purposefully given to parliament.
    Given this case, it then comes down to an argument of what powers does parliament have; not just what the constitution grants them but also what powers they have appropriated or been granted. That would be resolved by referenda. Which might as well be translated as “never resolved” given Australia’s track record of passing referenda – if parliament is not granted the powers it wants because referenda don’t pass then it will never put a bill of rights up for a vote.

  6. Sinclair Davidson says:

    We probably have different views on what a bill of rights would be. My view is that the bill would have the severly constrain the parliament, and government. So, the bill would have to remove powers the government already holds.

    Over and above our wishlists, I would also severly constrain revenue powers and would include a cap on the size of government and would include a balanced budget requirement (in each year, not over the business cycle).

  7. avocadia says:

    No, I think we have much the same view, that a bill of rights would be subtractive. I think where we diverge is the extent of that restriction. As I said, I think if the constitution grants powers to parliament, then the bill of rights shouldn’t take those powers away. If we believe the constitution is mistaken in granting a power then it has to be removed from the constitution. On the flip side, if we believe the government should have a power it hasn’t been granted, and is denied by the bill of rights, then the constitution needs to be changed to grant that power.
    The powers granted are granted by the goverened. You could probably make a pretty good argument that when the people by vote on and pass a bill of rights that would seem to deny those powers that they are also rescinding the powers. I don’t see it that way though. I see it that we would be voting on removing from the government the powers to do anything except that which we have already granted them.

  8. Sinclair Davidson says:

    I think that a bill of rights would have to come in via a constitutional amendment. But as you say, it’s very unlikely the parliament would constrain itself in this way.

  9. avocadia says:

    A constitutional amendment is the only way, unless we accept that the bill of rights can be trivially overridden by the very body it is meant to constrain. Which makes it doubly unlikely a bill would ever pass – Australians don’t vote up many referenda.

  10. Sinclair Davidson says:

    No they don’t, but most refereda that succeed are those that constrain government and those that fail attempt to expand government power. So, I suspect, the only thing standing between Australia and constrained government is the parliament 🙂

  11. avocadia says:

    Most? Hmmm. I count four as definitely extending federal government power (1910 State Debts, 1928 State Debts, 1946 Social Services, 1967 Aboriginals), one changing the date Senate terms began, one extending the referendum franchise to the territories, one mandating a retirement age for judges and one trivial change to the national song.
    That leaves the 1977 Senate Casual Vacancies referendum, which I believe you could make an argument extends Federal government power; even if it doesn’t, it certainly doesn’t restrict it.

  12. Sinclair Davidson says:

    1967 doesn’t really extend the power of parliament/government as provide equal treatment for Aboriginals. I would count the 1946 change as definitely increasing power and 1928. the 1910 could go either way, as it was probably an overhang from pre-federation. so with 8 changes 2, or 3, increased power the other reduced it.

  13. avocadia says:

    1967 removed language preventing the Federal Government from making laws targetted at Aboriginals. In other words, it granted them the power to make such laws. It may have made it equal treatment, but it also granted power.
    Even so, I don’t think any of them restricted power. If they didn’t grant, they were at best Granted Powers neutral.

  14. Sinclair Davidson says:

    I hear what you say – but the 1967 outcome was the correct one, even if it did advance the power of government which is generally a bad thing.

    A (very) revised version of this paper ((http://papers.ssrn.com/sol3/papers.cfm?abstract_id=304881)) is forthcoming in the European Journal of Political Economy.

  15. Andrew Leigh says:

    A most entertaining dialogue – please keep it going. FWIW, the model I see as most promising is a legislated BOR, which the parliament can subsequently override – but only if it does so explicitly. The Racial Discrimination Act seems to have worked pretty well in this manner.

  16. Andrew Leigh says:

    PS. Sinc – congrats on the paper. EJPE is the best economics journal whose primary focus is on political economy, isn’t it?

  17. Sinclair Davidson says:

    I’m not sure – but I’ll quote you.

    We first sent it to J. law, economics and organization where the referees said accept, but the editors said the australian focus wasn’t of any interest. The J. Economic Behavior and Organization said the referendum failed because Whitlam got sacked after the CIA intervened because they were running secret listening posts in Australia (all very confusing, but you can’t argue with a good conspiracy), so we were at a loss where to send it and we pushed our luck at the EJPE.

  18. avocadia says:

    All the way back to my first sentence and the original point, I wonder how much the judiciary would be politicised if a bill of rights were passed. I don’t think we can realistically use the US example as an arguing point, the US is basically at the point that the idea of picking out wedding china being political is not that laughable.

    Would a legislated bill of rights mean more or less accusations of judicial activism?

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