The Australian Constitution already had a Bill of Rights implied in it, according to an argument put by a High Court judge yesterday.
Justice John Toohey hinted that a court could go much further in implying a bill of rights into the present Australian Constitution than it did in the two freedom-of-speech cases brought down last week.
He said also that Australia did not protect individual liberties as well as those nations with bills of rights.
“”Liberties are as well or better üenjoyed in Australia, but that is different from the proposition that rights are no less üprotected,” he said.
He was speaking at a conference on Constitutional Change in the 1990s in Darwin held by the Northern Territory Legislative Assembly.
Justice Toohey used the term “”judicially enforced limits on legislative power” to describe what most would describe as a bill of rights to ensure that the Parliament did not override individual rights.
He said: “”Of course, it is easy to point to countries with have constitutional guarantees to which no more than lip service is given. But the imposition of judicially enforced limits on legislative power, so that intrusive provisions can actually be invalidated, does constitute an additional protection.”
He said countries in the Westminster tradition did not rely on expressed bills of rights because they presumed Parliaments would not legislate in a way inconsistent with traditional common-law liberties. That was because English political history had Parliament championing freedom against a tyrannous monarchy, whereas the US (which had a Bill of Rights) had a revolution to throw off the oppression of a Parliament (the English one) that imposed taxation and other burdens.
He wrote the speech before the High Court brought down the decision last week invalidating the ban on the broadcast of political material.
He said: “”The judicial task of defining the limits upon the powers of each level of government may incidentally promote individual liberty.”
And he cited the High Court’s invalidating Menzies’ law to dissolve the Communist Party in 1950, where it was held to be outside the scope of the Commonwealth’s defence power.
Some commentators have seen last week’s decisions in a similar light: a mere expression than the laws in question were beyond the Commonwealth’s broadcasting and industrial-relations power. However, Justice Toohey indicated there was room to go further in protecting liberties than that.
He said: “”Yet it might be contended that the courts should take the issue a step higher and conclude that where the people of Australia, in adopting the Constitution, conferred power to legislate with respect to various subject matters upon a Commonwealth Parliament, it is to be presumed that they did not intend that those grants of power extend to invasion of fundamental common-law liberties _ a presumption only rebuttable by express authorisation in the constitutional document.
“”If such an approach to constitutional adjudication were adopted, the courts would over time articulate the content of the limits on power arising from fundamental common-law liberties and it would then be a matter for the Australian people whether they wished to amend their Constitution to modify those limits. In that sense, an implied “bill of rights’ might be constructed.”
He rejected the cry that judicial invalidation of laws passed by the people’s parliament was anti-democratic.
“”Democracy need not be defined narrowly to mean no more than majority rule,” he said. “”Rather, it might be regarded as involving recognition of a range of fundamental principles concerning the manner in which people exercise power over each other for common purposes.”
When judges did this they were not behaving as unelected legislators. It could never amount to government, because judges did not have a positive power, only a negative one to strike down the Parliament’s legislation. The judiciary had no will or force, just judgment. It could only frustrate the will of parliamentary majorities by promoting liberty.
He cited the Communist Party case as an example of where the anti-liberty will of the parliamentary majority was different from the will of a majority of the people. The court struck out the law. A referendum rejected a replacement and yet the Menzies Government was re-elected. Thus a majority of citizens might prefer a particular government to the available alternative, but might want to put some of its anti-liberty tendencies out of reach.
“”Judicial review is a vital vehicle for upholding the majority will in this regard,” Justice Toohey said.
If a majority government did not like what the court had done, it could always get the court’s decision overruled by referendum (as Menzies tried). However, a referendum required citizens to consider the merits of the issue in isolation from the question of electing a government. There were several US cases of the people supporting fundamental principles that the Parliament or Congress they elected had tried to breach.
“”Some principles are fundamental and it is the role of an independent judiciary to give effect to those principles, within the rule of law, as best it can,” he said.