Response to invitations for submissions concerning a Bill of Rights in Australia

To: The Human Rights Working Group

Queensland Law Society

RE CALL FOR SUBMISSIONS ON A BILL OF RIGHTS

Dear Sir/Madam,

We refer to the invitations for submissions concerning a Bill of Rights in Australia in the February 2016 edition of Proctor.

We write to voice our opposition to a Bill of Rights, for the reasons below.

Self-interest

Self-interest is a common motivation behind most human actions. This is true for groups of people such a professions and industries as it is for individuals. This explains why the superannuation industry always advocates for more money to be taken from employers and employees and into superannuation funds. Hence also why many (if not most) trade union officials deny there is a problem with union corruption and oppose any moves to make them accountable to their members.

Of course, lawyers are also influenced by their self-interest. Hence why personal injuries lawyers have always opposed restrictions imposed by parliaments on personal injury claims and awards of damages. Of course, the future clients of the firm would benefit from not having such restrictions, but so would the personal injury lawyers, who would obtain more work, and hence enjoy more opportunities, greater profitability and greater security of employment than otherwise.

Who will be the beneficiaries of a Bill of Rights? Some clients of lawyers will be better off. Some will be able to sue and obtain damages for matters that they previously were unable to claim for. But again, the beneficiaries will also be the lawyers who will have more work as a result of more litigation being made possible through a Bill of Rights.

Most people will be less free

Meanwhile, the vast majority of people will be indirectly worse off. People will have less freedom within their own lives to act and express themselves as they see fit, out of fear that they may be sued for doing so.

Decisions such as that of the Federal Court in Eatock v Bolt [2011] FCA 1103 (28 September 2011), in which a columnist was found to have breached section 18C of the Racial Discrimination Act 1975 (Cth) for offending and humiliating a number of individuals of Aboriginal ancestry, will be more common if a Bill of Rights is enacted. In Canada, the Human Rights Commission has prosecuted conservative columnists for “hate speech”, including for the publishing of some cartoons. As an indication of how dangerous it might be to criticize a Human Rights regime, conservative pundit Ezra Levant was also prosecuted for describing the Human Rights Commission as “crazy”. A Bill of Rights which in any way attempts to protect people’s feelings or determine what behaviours are acceptable will inevitably stifle liberty and freedom of speech.

For every person who has an injunction made in their favour, at least one other person will have an injunction against them making them not able to lawfully say or do a certain thing. Furthermore, the mere possibility of being sued is often a sufficient deterrent from acting freely, particularly since the vast majority of individuals and businesses simply want to pursue their own interests without any unnecessary stress, hassle, risk or bother.

As lawyers, we all know that when we advise our clients we often err on the side of caution so that we are not later blamed for having understated or minimised a risk that eventuated. As a result, we will tend to advise against a course of action if our clients may be sued for it, whether or not the case against them would be particularly strong. The result is a less free and open society out of fear of legal action.

We are not suggesting that all offensive or obnoxious behavior should be tolerated or condoned. Rather, the difference between our position and the position underlying a Bill of Rights concerns how standards of courtesy or civility should be upheld. In our view, the role of civil society should be respected. Those whose behavior or speech is considered unacceptable by most can expect to lose friends and good company, may receive criticism from others and in some cases can lose their employment. On the other hand, those proposing a Bill of Rights are implicitly suggesting that the state should define acceptable cultural norms and manners, and that the law should enforce such standards. We reject this position. Firstly, it involves elites rather than ordinary people determining what is acceptable. Secondly, what is deemed acceptable or unacceptable can evolve over time, and the law is often slow to change accordingly. Thirdly, having the law take such an active role in human life strikes us as slightly totalitarian.

Furthermore, the effect of making the law encroach on human affairs in this way would have a chilling on our culture. A culture of fear of offending other’s feelings, or otherwise ‘infringing’ their ‘rights’ would develop as some people are made examples of through the courts and are ruined financially. A culture of grievance would also be enhanced, as people would be rewarded financially and in other ways for being offended and then complaining about it. The long term result is that we would all become more sensitive, and everyone would have to be careful in the ways in which they speak or act.

Inevitably, a Bill of Rights will result in more litigation against individuals and corporations. For every person who has an award or settlement for damages in their favour, at least one other person will be liable to pay those damages. Overall, the lawyers win and the community loses.

The community will be poorer

Inevitably, a Bill of Rights will also result in more litigation against governments, government departments and authorities. Effectively, taxpayers will have to pay more taxes in order for criminals, illegal immigrants, terrorists and others to have more ‘rights’ than they presently enjoy.

An excellent demonstration of this sort of outcome occurred when a Muslim pedophile successfully sued the Queensland Department of Corrections for not providing him with fresh halal meat in prison. The cost of defending the proceeding, the award of $2,000 compensation and providing inmates with the option of fresh halal meat in prison were all imposed on the taxpayer. If a Bill of Rights is ever enacted, we can expect more such decisions and more pain for taxpayers.

People will be less safe

The experience of having a Human Rights Act in the United Kingdom has also been instructive, and suggests that the public will be made less safe from criminals and terrorists.

The UK Human Rights Act creates a free-standing cause of action that allows individuals to bring claims against public authorities that act incompatibly with human rights. It has become known as a ‘Villain’s Charter’ due to a number of strange decisions made pursuant to it and the Act tending to disproportionately assist those who have committed offences at the expense of everyone else.

Take for instance the case of convicted terrorist Siraj Yassin Abdullah Ali, sentenced to nine years in jail for his role in the Islamist bomb plot of July 21, 2005. In a decision under the UK Human Rights Act, it was decided that he could not be deported to his native Eritrea because he might face “inhumane treatment” there. As a result, he was released from prison and the community was made less safe. There are at least seven similar cases where terrorists in the UK have not been deported because of their Human Rights Act. Whether such types remain in prison or they are released from prison (with authorities closely monitoring their activities), the costs to the public purse are substantial.

Such decisions in Australia will ensure that there are more criminals and terrorists on our streets.

For these reasons stated above, we submit that the losers under such a change would be the public at large. So far we have not read a single proponent of a bill of rights acknowledge this obvious fact.

Who makes the political decisions?

In Australia and most other countries, there will always be open disagreements between well-meaning and reasonable people about many political issues. A few well known examples of such contentious issues include the following:

1) In what circumstances (if any) should a woman have a right to terminate an unwanted pregnancy?

2) Should an employer be allowed to dismiss an employee at will without having an industrial tribunal later determine whether the dismissal was unfair and order reinstatement and/or compensation?

3) Should a government dismiss many public servants in order to reduce its outlays when its budget is in deficit?

4) Should a person be allowed to terminate their own life if they no longer wish to live?

5) Should the death penalty be imposed for the most serious offences?

6) In what circumstances should a person have a right to own or carry a firearm?

7) Should gay people be allowed to marry?

8 ) Should Australia have an Emissions Trading Scheme, carbon tax or some other price on carbon?

9) Should individuals be entitled to sue others for offending, humiliating or insulting them?

The issue of a Bill of Rights raises the issue of who should be deciding what the law should be with respect to these sorts of issues. Should the parliaments of this nation, elected by the people over whom they govern decide, or should judges, who are not elected decide?

A Bill of Rights will inevitably result in judges deciding on such contentious questions in lieu of parliaments, as they will have cases come before them in which they will have to decide the nature and scope of the ‘rights’ which have been bestowed by a Bill of Rights.

Take for instance if a Bill of Rights contains a provision for the right to life. Does an unborn fetus have this right? Does it prevent a woman from legally terminating her pregnancy? A judge will have to decide these sorts of questions.

It is important that the law is consistent in order to provide clarity to the community. Trying to reconcile the terms of a Bill of Rights with other legislative provisions which might be inconsistent or incongruous (or determine which should prevail) will introduce a level of uncertainty in the law which will have to be resolved through litigation, and judges providing precedents within this new jurisdiction. This task will be infused with absurdity, as the judge will often assume that the legislature intended for the legislative provision in question and the Bill of Rights to co-exist when in most cases a previous parliament passed a law without contemplating that it would years later be read in conjunction with a Bill of Rights. It is impossible for the parliament to review every law in the statute books and evaluate whether it ought to be amended or repealed in light of the Bill of Rights. The judiciary will effectively be left to clean up the legal mess caused by the Bill of Rights. And in doing so it will be effectively making law rather than applying it.

Why the judiciary should not make politically contentious decisions

We submit that there are at least three different problems with having judges determine our rights:

1) Judges are appointed, not elected by the people;

2) Judges cannot be removed for making a decision which most people disagree with. Judges can only be removed in exceptional circumstances such as serious misconduct or a loss of capacity; and

3) In general, Judges tend to come from a very narrow cross section of society. They are required to be qualified lawyers, and typically have privileged backgrounds where they were born into affluent families and received expensive private educations.

These observations are not intended to criticise or insult the judiciary. Nor are they a criticism of how judges are appointed, or of the mechanisms which ensure their independence from the executive and the legislature. Rather, they demonstrate how the judiciary as an institution is inherently ill-suited to deciding on controversial political issues.

The fundamental advantage that a parliament has in a democracy is the fact that its members are elected by the people and can be voted out if they make decisions which too many people disagree with. A Bill of Rights would help ensure that political power is increasingly concentrated in the hands of a few, and that ordinary people are excluded from many political decisions.

In the United States, the Supreme Court has overruled the state legislatures (and the result of a referendum in California) and declared that gays should be allowed to marry. The Supreme Court has often taken activist positions with its creative interpretations of the Constitution. Meanwhile, ordinary people in the United States feel that the nation is being controlled by an elite that undermines their own interests. This is no doubt a contributing factor in why people in the United States feel powerless and angry, and many of them have turned to supporting Donald Trump as President. We in Australia should not feel immune to such revolts, especially if a Bill of Rights is ever introduced.

Another noteworthy aspect to this issue is that many of the proponents of a Bill of Rights are intent on imposing a left-wing political agenda. Such individuals, who tend to support a republic, gay marriage, open border immigration policies and lots of government spending have been disappointed by successive governments that have not implemented their agenda. It is highly likely that a Bill of Rights, if ever introduced, will be used as a vehicle to promote a left-wing ideological agenda that would never be endorsed by the Australian people. The undeclared hopes of the supporters of a Bill of Rights that the judiciary would generally be more accommodating of their political agenda appears to be well founded given the cases mentioned and referred to in this letter.

Less power to the people

Proponents of a Bill of Rights often claim that a Bill of Rights would not intrude on parliamentary supremacy or prevent the governments from pursuing certain policy objectives. In our view, this argument overlooks the realities of the political process. In practice, judges would often interpret legislation in order to make it consistent with a Bill of Rights, and this would in effect change the meaning and application of legislation passed by parliaments. Further, politicians, who are also motivated by their own self-interest, are often only too happy to hide behind judicial and quasi-judicial decisions so that they are not held responsible for unpopular decisions (I note the above-mentioned decision concerning the provision of fresh halal meat in prison was never overturned). With partisan politics and recalcitrant Senates, governments will often be unable to pass legislation to correct unpopular decisions even in cases where they have the will to, and it is fanciful to believe that a double dissolution election over a controversial decision pursuant to a Bill of Rights would ever be likely.

A good example which demonstrates how political judicial decisions can stand despite the will of the people is the High Court decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 (31 August 2011), which effectively killed off a democratically elected government’s policy to stop unauthorized boat arrivals through a highly creative interpretation of section 198A of the Migration Act 1958 (Cth). As French CJ himself noted while finding that any declaration under s198A(3) of the Migration Act was invalid if it involved taking unlawful non-citizens to a nation which was not a signatory to the Refugee Convention, “These proceedings involve legal issues which arise in a strongly contested area of public policy”.

Meanwhile, a strong majority of the Australian people wanted the government to put an end to the unauthorised boat arrivals. Due to the combination of an obstructive Senate and an activist High Court decision, the will of the people was not put into effect and the unauthorized boat arrivals and drownings at sea continued. Under a Bill of Rights it is inevitable that similar decisions are made by courts which are not corrected by the people’s assembly.

The reality is that politicians already have a heavy workload and substantial volumes of legislation are passed through our parliaments every year. It is unrealistic to expect parliaments to correct every strange and unpopular decision which is made as a consequence of a Bill of Rights providing judges with jurisdiction over contentious political issues. The evitable result of a Bill of Rights is that political power is transferred from the people to the judiciary by default.

The philosopher and economist F.A. Hayek argued that one of the key advantages that the market possesses over central planners is that the market utilises the knowledge of every participant within it, which involves the local and unique knowledge of a much greater number of people than any central planner ever could harness. While democracy is far from a perfect political system (the majority is not always right), the inherent advantage it has over rule by elites is that it incorporates the knowledge, beliefs and will of a far greater variety of people of different backgrounds, interests and wishes. Through a process of open and rigorous debate (which will be stifled if a Bill of Rights is introduced), ideas can be tested, challenged, replaced and improved. A judicial decision by definition is not based on such a process. The people are better suited than the judiciary to decide over contentious political issues.

Summary

To summarise, it is submitted that a Bill of Rights is an idea which should be soundly rejected for the following reasons:

1) It reflects the interests of lawyers, and not those of the community;

2) It would make people less free because they could be sued more easily, and would have to watch what they say and do;

3) Everyone would have to pay more in taxes;

4) It would have long term effects on our culture because it encourage taking offence, victimhood and grievance;

5) It would introduce legal uncertainty and more litigation; and

6) It would effectively result in judges deciding political questions, and parliaments could seldom be expected to correct such decisions.

Finally, we would encourage the committee to focus more on the practical consequences than the sentimental appeal of abstract rights. We believe there is a stark contrast between the two, and that rejecting a Bill of Rights will help protect freedom, justice and democracy.

We give the Human Rights Working Group permission to publish or distribute this submission as it sees fit.

Yours faithfully,

Legal Practitioner Director

Sterling Law (Qld) Pty Ltd

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