Turning Judges Into Kings


Those currently pushing for Australia to enact a statutory bill of rights express bewilderment that anyone could be against one of these instruments. Parliament, they assure us, will continue to have the last word, and it’s a statutory model, not an entrenched model, so what’s the big deal? The whole fuss is completely bewildering to them.

At least that’s their line, and they’re sticking to it.

Do they mention, though, that any proposed new statutory bill of rights will have a "reading down" section (that’s s.32 in the Victorian version) that requires the courts to interpret all legislation as consistent with this new bill of rights, or rather to interpret it that way "so far as it is possible to do so, consistently with its purpose"? Hmm. Do they mention that this sort of reading down provision is basically a copy from the UK and New Zealand statutory bills of rights? Maybe they do, although I don’t hear that piece of information getting much air time.

The most significant UK case on this sort of reading down direction is called Ghaidan v Godin-Mendoza and was decided in 2005. The top UK judges said that this new statutory bill of rights requirement changes all the rules of the game when interpreting other statutes.

Let me quote some passages from that decision of the top court in Britain — the one our judges are very, very likely to find persuasive:

"Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, [these reading down provisions]may nonetheless require the legislation to be given a different meaning … [It] may require the court to…depart from the intention of the Parliament which enacted the legislation … It is also apt to require a court to read in words which change the meaning of the enacted legislation."

That was Lord Nicholls. Lord Steyn said: "The word ‘possible’…is used in a different and much stronger sense." Lord Millett said: "[The judge] can read in and read down…[he can even]do considerable violence to the language and stretch it almost (but not quite) to breaking point."

Now proponents of a bill of rights, and I think that includes the Attorney-General, are honourable people. If they tell us they’re bewildered why anyone would worry about this — about the free and easy sort of interpretive techniques that follow in the footsteps of these "modest" little statutory bills of rights that they claim won’t change anything — then bewildered they must be. Personally, though, I can’t help worrying about an enactment that tells the judiciary to do whatever it possibly can to read any other statute as consistent with their view (not ours) of what some abstract moral list requires. Call me paranoid.

Did I mention that in that same UK case of Ghaidan the top British judges used their "modest" little statutory bill of rights (with the same sort of reading down direction as Victoria’s has) to overturn a case that was only five years old, that had dealt with the very same piece of legislation, and in which in the earlier case the same top judges had said the words were abundantly clear. Clear before the bill of rights. Open to rewriting afterwards.

Apparently these little s.32 "interpret everything in a bill of rights friendly way" provisions can lead any piece of existing legislation, potentially, to be given a new meaning — if the judges happen to think that’s a good idea, and in keeping with human rights, whatever that means.

Now proponents of a statutory bill of rights must know about this case. Can they assure us it won’t happen here? How? How can they make that assurance? Maybe they find such judicial creativity welcome.

What about New Zealand? I’m sure proponents of a statutory bill of rights are right on top of the case law from over there too. They’ll know, then, that in the case of R v Pora three of seven top Kiwi judges said that because of their bill of rights — the one that proponents here are basically intent on copying — an old statute no longer automatically loses out to a new one when the two are inconsistent. The judges said that they could use their modest little statutory bill of rights to prefer the earlier statute to a later one, if they thought it would be more in keeping with a rights-respecting outcome.

What’s wrong with a revolutionary and anti-democratic assertion like that?

Look, a statutory bill of rights leaves Parliament with the last word in name. But it gives the judges the power to interpret away problems. They get to use a new "human rights friendly" method to interpret parliamentary words. It’s a blank cheque.

If the legislature passes some statute, one with an explicitly clear meaning, the unelected judges — in the course of doing what they (not you, but they) think will uphold rights — can read words in, read words out and ignore Parliament’s clear intentions. Proponents baldly state that Parliament will still have the last word. But any word it has will be subject to the judges interpreting it with these new interpretive superpowers.

And that’s not all, because not only do judges get this massive new interpretive power, they also will be given another job. With the enactment of any statutory bill of rights the unelected judges will be able to issue declarations that a statute has breached your rights.

Now, of course, in the real world, exactly how these vague, amorphous rights in a charter or bill of rights ought to play out is highly contestable. Smart, reasonable people simply disagree. No one has a pipeline to God, and that includes committees of ex-lawyers sitting as top judges.

Trawl through 25 years of Canadian Charter of Rights decisions or 17 years of New Zealand ones or a decade of British ones and there is not a single case where the outcome was self-evident, with one side arguing for no free speech or no freedom of religion.

In every single instance committees of ex-lawyers — the top judges — are making moral and political calls that are highly debatable and contested and that at present are made by elected politicians.

Of course all these bills of rights are structured to make it seem that what the judges say about rights is somehow the eternal, timeless, right answer, even if the case is a 4-3 or 3-2 decision. And so when the unelected judges issue these declarations of inconsistent interpretation — when they baldly state that Parliament has breached your rights — they not only gloss over the fact that their opinion on these moral (not legal, but moral) issues is no better than a plumber’s or teacher’s and in no way self-evidently correct, they also make it impossible, in practice, for Parliament to respond.

There have been dozens of these declarations in the UK since the introduction of their bill of rights and every single time, without exception, the legislators have backed down. Is this because the judges are all-knowing? Or is it because the statutory bill of rights itself misstates what is going on, making it seem that Parliament has the option to take away your rights rather than that a majority of legislators happen to disagree with a majority of judges about how, say, the right to free speech should play out? (And for what it’s worth, Canada’s Supreme Court thought that the right to free speech enabled tobacco companies to advertise outside schools, a ruling that Canada’s Parliament felt it could not overrule.)

Proponents of bills of rights presumably know all this. So I ask them: in what sense is it true that any new charter of rights "leaves the final say with Parliament, not the courts"?

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