MIME-Version: 1.0 Content-Location: file:///C:/30F312B2/The-rights-and-wrongs-of-Law-Carr.htm Content-Transfer-Encoding: quoted-printable Content-Type: text/html; charset="us-ascii" THE RIGHTS AND WRONGS OF LAW

THE RIGHTS AND WRONGS OF LAW  

Bob Carr

 

The Daily Telegraph, TUE 21 AUG 2001

 

The enactment of a bill of rights in Australia will allow the judiciary to determine policy which will undermine personal freed= oms within the community, not enhance them, says Premier BOB CARR*

 

THE culture of litigation and the abdication of responsibility that a bill of rights engenders is something that Australia should try to avoid at all costs.
There have been many calls recently to introduce an Australian bill of righ= ts. Debates have arisen over what types of rights to include in a bill of rights and how a bill of rights should apply. My objections to the legislative enactment or constitutional entrenchment of a bill of rights, however, are = more fundamental. Parliaments are elected to make laws. They should not abdicate their policy-making functions to the courts.
A bill of rights transfers decisions on major policy issues from the legislature to the judiciary. It is not possible to draft a bill of rights which gives clear cut answers to every case. No right is absolute. Rights a= lso conflict.

The right of freedom of speech will conflict with = the right to equality (e.g. racial vilification) and the right to equality will= in turn conflict with the right to freely exercise one's religion (e.g. the ri= ght to exclude females from the priesthood). While these are extreme forms of conflict, most conflicts will be more subtle and difficult.
A bill of rights can only be interpreted by the courts by balancing rights = and interests. Most modern bills of rights include a clause recognising that ri= ghts may be subject to such reasonable limits ``as can be demonstrably justified= in a free and democratic society''. This is clearly a policy decision, not a j= udicial issue.
If a bill of rights were enacted, it would then be up to a court to decide whether freedom of speech should be limited in relation to pornography, tob= acco advertising, solicitation for prostitution and publication of instructions = bomb making.
These issues need to be considered in the context of community views. They = are issues which should be decided by an elected parliament whose members are responsible to the people. They are not decisions that should be made by judges, who are not directly accountable to the people.
SOME of the most abusive and oppressive regimes have had extensive bills of rights. In reality, it is not a ``bill of rights'' which protects rights. N= or can the courts alone adequately protect rights. The protection of rights li= es in the good sense, tolerance and fairness of the community. If we have this, then rights will be respected by individuals and governments, because this = is expected behaviour and breaches will be considered unacceptable. A bill of rights will only have the effect of turning community values into legal battlefields, eventually undermining the strength of those values.
Our view of the importance and priority of rights changes over time. A constitutionally entrenched bill of rights freezes those priorities at a po= int in time. If a bill of rights had been included in the Commonwealth Constitu= tion in 1901 it would most likely have enshrined the ``White Australia policy''.= The ``right to bear arms'' is a right under the United States Constitution that many see as the root of that country's tragic shootings. It is not enough to say these rights can be changed by a constitutional referendum. We know referenda are rarely held and are rarely successful.
Another problem with a bill of rights is the unpredictable ways in which it will be applied by the courts. Sir Harry Gibbs, former Chief Justice of the High Court, noted the ``due process'' clauses of the US Constitution (which prohibit anyone from being deprived of life, liberty or property without due process of law) have been used to render invalid laws limiting working hour= s, fixing minimum wages and standardising food quality.
A bill of rights will further engender a litigation culture. Already it see= ms people are unable to accept responsibility for their actions. If a person t= rips and falls, instead of blaming himself or herself for carelessness, the pers= on will look for someone to sue. How much more litigation will we be inviting = by a bill of rights?
A QUICK look at the law reports of Canada and New Zealand will show the extensive use of their respective bills of rights in litigati= on. It will also show the primary use of a bill of rights is in relation to criminal appeals. In New Zealand, in the first seven years after the Bill of Rights Act was enacted, it was i= nvoked by the accused in literally thousands of criminal law cases, a large number= of which were appealed to the Court of Appeal (the highest court in New Zealand). Some may argue this shows the system for prosecuting defendants was deficie= nt, and indeed reforms were made. However, the fact is the Bill of Rights conti= nues to be routinely used as a ground for attempting to overturn the admissibili= ty of evidence, including confessions, evidence obtained under search warrants= and breath testing of drunk drivers. It gives lawyers a new source of technicalities to allow the guilty (including those who have confessed or w= ere found with large quantities of drugs) to go free.

Bills of ri= ghts are notorious for being the last ground of the desperate in litigation. The= broad terms of ``rights'' can be argued to cover almost anything.
FOR example, the New Zealand courts have considered the case of a man who claimed the Bill of Rights protected his right to walk down his street naked (freedom of expression, religion and belief) and a case where it was claime= d a rise in rent for public housing breached the ``right to life'' in section e= ight of the Bill of Rights.
While those who propose the enactment of a bill of rights do so with the in= tent it be used for lofty purposes, the more likely result is expensive litigati= on concerning naked strollers, vegetarian menus, and new ways to avoid losing = your licence for drink driving.
The main beneficiaries of a bill of rights are lawyers who profit from legal fees generated and criminals who escape imprisonment on a technicality. The main losers are taxpayers, and society in general through the reduction of values to courtroom weapons.

*This text = is an edited version of an article prepared for the winter edition of Policy Magazine, published by the Centre for Independent Studies. It is based on Mr Carr's submission to the Standing Committee on Law and Justice Inquiry into= a NSW Bill of Rights.