A High Court judge warned yesterday of the dangers of poll-driven policies that could disregard the rights of minorities.
Sir Gerard Brennan, High Court judge since 1981, was addressing a human-rights conference organised by the Centre for International and Public Law at the Australian National University yesterday.
He said a Bill of Rights might protect minorities against the political branches of the Australian polity, the legislature and the executive.
Sir Gerard referred to phrase used by Lord Hailsham, a former British Lord Chancellor, that modern parliamentary government was an “”elected dictatorship”.
He said that the bulk of legislation today came in the form of delegated legislative instruments created by the bureaucracy, not by the people’s representatives.
The two dangers were the poll-driven Executive providing for the majority and perforce over-riding minorities, and for the increasingly powerful Executive trammelling the rights of the individual.
He thought that if the political branches could not be checked with existing methods, then new methods, such as a Bill of Rights, could offer solutions.
However, before Australia committed itself to a Bill of Rights, a specific proposal tailored to Australian needs must be debated. Also, the new role of the judiciary under such a Bill must be understood by the people.
The interpretation of human rights in a constitution required new skills by judges. It required the assessment of individual rights that had to be weighed against each other and against community rights and values.
“”This is the stuff of politics,” he said.
None the less, the courts in some ways were more capable of this task than the political branches. The exposure of arguments and the reasoning for judgments in courts made the process more open. Further, some human-rights issues paralysed the political branches of government because they were too hard to resolve in that environment. Sir Gerard thought that the courts had wider public acceptance than the political branches.
The courts were good at embodying political, social and ethical considerations into legal principles.
The courts did not work in a vacuum and were aware now of the political, social and ethical dimension of their work. However, a Bill of Rights would require new skills. Decisions would affect the powers of governments so courts could not rely solely on evidence brought by individual litigants. Advocacy before the courts would have to be wider than the facts in the case at hand. Lawyers’ research would increase, and so would costs.
Few individuals would be able to afford to run cases, especially as they would inevitably go to appeal. There would be greater congestion and delay. The High Court might have to shed some of it other cases.
Another difficulty was that commercial entities and those minorities with political power could run cases that had little to do with the reason for the human-rights question behind the Bill of the Rights.
As if the illustrate the point, Professor Robert Sharpe, of the University of Toronto, told the conference of a case in Canada where a retailing company challenge Sunday trading on grounds of freedom of religion.
Professor Sharpe said that since the Charter of Rights in Canada in 1982 Supreme Court judges in Canada got far greater media scrutiny. The court itself, its judgments and the way judges were appointed were open to far greater public questioning.
Justice Murray Wilcox of the Federal Court, who spent a term last year at Harvard studying the North American Bill of Rights experience, said the problem of selecting judges did not warrant the rejection of the notion of a Bill of Rights.
The problem was not that the judges were making decisions which had a high political content; it is that too many appointments are seen to be politically inspired.
He thought that with intelligence and goodwill it would be possible to devise an acceptable procedure for appointing judges.
Justice Wilcox said that with Australia’s adoption of the first optional protocol of the International Covenant on Civil and Political Rights it would be better for human rights to be determined in Australian courts under constitutionally enshrined guarantees, rather than in an international forum.
Justice Wilcox expressed concern over the sort of public scrutiny attracted to the appointment of Judge Clarence Thomas in the United States. If a Bill or Charter of Rights politicised the Australian High Court in such a way it would not be worth the price, but he thought that that would not necessarily be the case.