Not worth the paper it’s written on, like many quotes, has strayed from the original intention of Sam Goldwyn to mean the exact opposite of what he intended.
Goldwyn used the line “”not worth the paper it’s written on” when referring to verbal contracts. With typical Goldwyn cynicism he was suggesting that the wheelers and dealers of Hollywood could not be trusted; their word was as nothing. He was saying that the only way to get something enforceable is to get it in writing on paper so you could go to court.
Nowadays, with perhaps greater cynicism, people use the expression to say that certain written documents or agreements are worthless. For example, some might say the new treaty with Indonesia is not worth the paper it is written on. The expression was often applied to the Soviet Constitution which guaranteed freedom of speech and religion.
Former Chief Justice Sir Harry Gibbs, more prosaic than Goldwyn, has suggested that all bills of rights are not worth the paper they are written on. He said, “”If society is tolerant and rational, it does not need a bill of rights. If it is not, no bill of rights will preserve it.”
This quote has been used by the opponents of a bill of rights in Australia. It was used again at a conference in Sydney last week, notably by the Attorney-General, Michael Lavarch, and from his shadow, Amanda Vanstone. Lavarch was in favour in the long-term; Vanstone against.
The conference was organised by the Law Council of Australia among others. On Saturday, the council agreed in principle that Australia should have a bill of rights of some kind. It was the first time that a body representing lawyers has come out in favour of a bill. The council has had on the table a fairly detailed draft bill for public discussion, but has not endorsed it.
The pros and cons of a bill of rights have been well traversed. On one hand, idealists think a bill of rights will right all wrongs, enabling opponents to argue that it a pious, silly dream and therefore a waste of time. They argue that it is fanciful to say that a bill of rights in Australia would protect us from some military regime after a coup because the first thing they suspend is constitutional government including any bill of rights. They say that only a decent democratic parliamentary system will protect rights.
There is a middle view. You can accept, as Gibbs says, that a bill of rights will not help anyone in the face of an intolerant, irrational society. However, no society is perfectly tolerant and rational, and a bill of rights can go a long way in giving remedies to individuals whose rights are abused in a society that is mostly tolerant and rational, but not totally so.
The point is that a bill of rights can give courts the opportunity to give redress to individuals who are badly treated in the present system … those that fall through the gaps of what is, on the whole, a pretty good system.
I stress that a bill of rights only gives the courts the opportunity to redress breaches of rights. It cannot force them to. Australian constitutional history has many examples of courts shunning the opportunity in the face of fairly obvious wording to guarantee, for example, trial by jury for serious matters and the right to vote. These guarantees in the Australian Constitution are now not worth the paper they are written on.
On voting, the Constitution says that upon federation people who have a right to vote at state elections have a right to vote in Commonwealth ones. It meant, of course, that adults should get the vote. In some states in 1901 there was no female vote and certainly no vote for 18- , 19- and 20-year-olds, but when they got it in the states they should get it in the Commonwealth. No so, said the High Court in 1983. It said the provision meant that if you were 21 in 1900 and could vote in a state, you kept that right. A very useful right for all those now over 106 years old.
On trial by jury, the Constitution says that trials for indictable offences shall be by jury. The High Court should have read the words “”indictable offences” to mean “”serious” ones. But no; it said they were “”offences on indictment” so if you summons a person, or get the coroner or Attorney-General to charge them … even with very serious offences … there is no need for a jury. In the face of that sort of idiocy, should we give up. I think not.
These examples show that virtually any provision in a bill or rights can be lawyerised to mean something completely different from what sensible people in the community might think the words mean. But they do not mean that this will always be the case.
The High Court has changed its spots recently. It is more open to human-rights arguments. It has, for example, found a implied freedom of political communication in the Constitution and a right to legal representation.
The lesson here is that the judicial climate is of equal importance as the words in the Constitution as to whether rights get enforced.
If the climate of judicial thinking is not disposed to human rights no amount of detailed wording in a bill of rights will help. But if it is, the judges should be given the tools in the form of a bill of rights to make the best of it.
Just as a bill of rights is not a panacea or a guarantee that all rights will be protected, nor can we assume that a democratically elected parliament will always respect rights. But together they make for a more formidable force to ensure rights are protected than either separately. This is where the Law Council’s contribution comes in.
Its discussion bill has the virtue of identifying important rights which are at the mercy of Parliament alone or not protected at all.
It sensibly proposes a gradual approach. You can bet that people will not vote for a bill of rights tomorrow … whatever is put up. So the council has taken the Canadian approach. That is to start with an ordinary Act of Parliament, not a change to the Constitution. The Act sets out the rights and says that the Attorney-General must be certify whether new law complies with it. If the new law does not comply at least everyone knows about it. Courts are told to prefer interpretations of law and application of common law that are consistent with the charter.
When everyone realises that the sky does not fall in if rights are stated, then the charter can be put to the people for a referendum to change the Constitution. After that Parliament could not pass a law in breach of it without further referendum.
However, the charter suffers from too much detail, because it is a lawyer’s document. The provisions on freedom from arbitrary arrest, due process, jury trials and protection of property take several A4 pages in the Law Council’s draft as against a mere 108 words in the more elegant US Bill of Rights.
The Law Council’s draft has too much detail … nice for lawyers … but runs into the danger of future inflexibility.
The free-speech provision waffles. “”Australians have the right to free speech” is all that is needed. However, the charter adds, “” this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice”. All of that is unnecessary … the product of a suspicious legal mind that attempts to anticipate every trick from lawyers on the other side. But if you have a willing and able judiciary and the words “”right to free speech”, freedom to put artworks on the Internet or whatever will follow. Moreover, an able judiciary will draw sensible lines, so the freedom would not allow a sky-writer to belt out obscenities within a dangerous distance of the Parliament’s flagpole.
Some of the charter’s provisions invite contentious interpretations and are probably unnecessary or mere duplication of other provisions. These include, no slavery, the right to life, “”the right to recognition as a person before the law”, the right of free movement within Australia, the right to own property, the right to marry and some long-winded provisions on the rights of children.
The right to marry seems an unnecessary one to protect. Perhaps, like the right to life, it is there to appease or gain support from some pro-family groups.
Again, the council is to be commended for suggesting that the right to vote should be enshrined, but you only need a few words and a good judiciary will imply that votes must be equal, fair, secret and so on and that elections must be regular, and that some sneaky attempt to the contrary will be struck down.
In general, the council’s draft charter has too many unnecessary provisions and too many qualifications and detailed prescriptions that are bound to have unintended consequences in the future. Courts, and the lawyers who argue in front of them, sometimes overdo the job of qualifying freedoms in order to make them workable and they may occasionally take perverse meanings. But legal history shows that screeds of detailed black-letter law is not the solution. Indeed, it may add to the problem, by locking courts in to a particular interpretation.
The charter also has some unenforceable “”directive principles” … that Australians have the right to social security, education, employment, rest and leisure and a clean environment. This is unenforceable twaddle and bound to give a bill of rights a bad name.
A bill of rights, however, can only be a safety net. It can stop the creep of undemocratic tendencies. It can stop unintended breaches of rights. It can complement and check democratic parliamentary government, especially in a federal system where the judiciary at least has the barometer of other Australian jurisdictions when faced with an isolated outbreak of rights infringements in one jurisdiction. But it will not stop the jackboot.
A bill of rights presents an opportunity for courts, in an imperfect world, to remedy some (but not all) of the imperfections that parliament creates or allows to persist.
I would simplify the council’s bill of rights to just the following: (indent)
1. No-one shall be deprived of life, liberty or property without due process of law.
2. Australians have the rights of freedom of speech, assembly, association and religion and to participate equally in the democratic process and to equal treatment under the law.
That may seem fairly woolly and ill-defined. But in the context of Australian democracy, and with an able judiciary it may be all that is needed. For example, it would encompass children’s rights (in “”liberty”), marriage rights (in “”association”) and deal with discrimination under “”equal treatment under the law”.
It would be better for the courts and Parliament to work in a general framework than to be locked in to the details of the council’s draft 15 A4 pages … less space but certainly worth the paper it’s written on. That said, full marks to the council for reinvigorating the debate.