The major arguments raised against having a Bill of Rights in the Australian Constitution is that it would be handing over a legislative function to the unelected High Court. Unelected judges would be carving out new areas of law that properly belong in the elected legislature, the argument runs.
This is an essentially English view of the world; one in which Parliament is supreme. The American view is to have checks and balances between the three heads of power: the executive, the legislative and the judicial, so that the judges can interpret the limits imposed upon the Congress by the Constitution. And they are wide. They prohibit the Congress from abridging freedoms like speech, religion and assembly. The Australian constitutional lies between the two. Our Constitution provides some limited checks on Parliament’s power. One of them is that Parliament may not take away people’s property without paying just compensation.
This week the High Court brought down four judgments on this very point. They were difficult and complex cases involving many millions of dollars and perhaps the livelihood of many people.
The High Court has been interpreting, refining and applying this section of the Constitution for more than 90 years. The roof has not fallen in. No-one has asserted that the court has taken away something that is fundamentally legislative. To the contrary. Many have round redress denied by the legislature or found redress for an imposition by the legislature.
Last year the High Court has read in to the Constitution an implied freedom of political discourse because it is necessary for the proper functioning of representative government. It struck down the bans on political advertising. The roof has not fallen in. The corruption portended by the Labor Party has not come about.
Given the tendency of the executive and legislative arms of Australian government to trample over basic freedoms, a Bill of Rights would be desirable in the Constitution and should be worked upon in the lead up to the centenary. The High Court’s measured treatment of one of the few personal guarantees given in the Constitution indicates the Bill of Rights could be expressed in plain language of the people without unnecessary legal mumbo jumbo.
The key freedoms are freedom of speech and assembly (which would cover religion); freedom from unreasonable search and seizure and a right to trial by jury for major offences. It is fairly common ground in Australia that we can do without the US right to bear arms an aberration in the history of Western jurisprudence.