Politicizing the Judges: Human Rights Legislation
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POLITICIZING THE JUDGES: HUMAN RIGHTS LEGISLATION * ** I.D.F. CALLINAN AC AND AMANDA STOKER Some 20 years ago when the decisions in ACTV1 and Lange2 were handed down, there was jubilation in the corridors of some of the ‘progressive’ law campuses of Australia. The cry went up, ‘Dare to be adventurous!’ The realpolitik of the separation of powers has, however, so far prevailed. Human rights are ultimately the implied terms of an ideal social contract. The social contract at any time is the sum of the constitution, legislation validly made under it, and the conventions and values of society itself. The conventions and values include the evolving common law, the morals, ethics, and experience of Australia as a long-standing, in relative terms, democracy. Legislation is the articulation in a comprehensible and enforceable form, of the policy of the politicians holding the majority in the Houses of Parliament. Each policy has to make accommodations with other policy. How much reward should there be for merit, innovation and diligence? How should a government allocate and redistribute taxes it collects? How much should it collect? How and in what amount does it make provision for those who cannot provide for themselves? Take freedom of speech. No democratically inclined person would disagree with the proposition that as a concept it is a good thing. Should it however be confined to prevent hate speech or defamation? How is any right to privacy to be reconciled with free speech? Do limitations upon advertising infringe freedom of speech? Should there be film and literature classifications, or censorship of the arts? To what extent should political fundraising be permitted and how should rules for the conduct of elections be framed? These questions, deceptively simply expressed, are in truth very difficult ones. But even more difficult are those that are raised with respect to the reduction of human rights to a written constitutional or legislative form, because experience teaches that no right can be completely uncurtailed at all times for all purposes and all people. This is so even of the basic right to freedom itself. People who have done no wrong can be detained in quarantine. The customs authorities can detain people. People who have done no wrong but may involuntarily present a risk to themselves or to others can be detained. People have, from time to time, been detained under witness protection schemes. Some people are refused bail and are detained for long periods before they are even committed for trial. Even people who have been convicted and who have reasonable prospects of appealing successfully are rarely released pending the appeal. Legislation may from time to time also have the purposes of giving legal effect to the conventions and values of society. The identification and boundaries of particular conventions and values can also be difficult. Few societies are homogenous. Values can be diverse. They can change quickly. All of this nation’s governments are secular, something that is not always understood by people from different countries. Matters such as religious observance, abortion, discrimination, privacy and necessary exceptions to an absolute right to freedom of speech are controversial. Different circumstances may call for different treatment in law. Many, many freedoms were curtailed between 1939 and 1945 by the National Security Regulations made under the constitutional defence power to meet the exigencies of war. Against this background the first point that we make therefore is that rights made the subject of a bill of rights, whether constitutionally * Former Judge of the High Court of Australia (1998-2007). ** Queensland Barrister 1 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. 2 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 54 University of Queensland Law Journal 2011 entrenched or enacted, the latter slightly the lesser of two evils because of the possibility of repeal or amendment, are matters for political debate and political, not judicial, resolution. If Parliament is satisfied that wrongs are being done to a vulnerable group of people, it is better that parliament directly enact a law to right those wrongs. This is so for several reasons, two of which are more obvious than others. The first is that Parliament is simply better equipped to do so. Courts are not parliaments. Courts should not engage in the polemics of politics. Courts do not have the close and daily association with the people in the electorate that politicians have. Courts have less capacity to make the compromises that almost all political decisions are. The duty of Courts is to find the right law, not to make it up, or to weigh up and eventually implement the judges’ preferred view of societal values. The second of the obvious reasons is associated with the first: that judges are not elected, they have security of tenure, and are not therefore accountable to the people. This is so even though it may be part of the social contract that judges will behave in an unbiased way, will be knowledgeable in the law, and will, so far as is possible, try to act according to the best humanitarian principles. There are advantages we think in the appointment rather than the election of judges. In the United States almost all of the State judges are elected, either directly or by confirmation polls. They engage in political campaigns in order to be elected. They may therefore be accountable but the question is whether society is better off when judges may be deciding cases acutely aware of an imminent election and short term populist causes. We do not think there is less freedom in this country than there is in the United States and, we have never heard it suggested otherwise. Some 188 years separate the decision of Lord Mansfield, Chief Justice of Kings’ Bench, in Somerset v Stewart3 in which his Lordship granted habeas corpus to prevent Stewart from seizing and detaining Somerset, a former slave, for shipment to Jamaica to be sold,4 and the commencement of the line of American desegregation cases, beginning with the landmark decision in Brown v Board of Education of Topeka.5 The absence of political accountability in this country has produced a judiciary in no way inferior to that of the United States or other countries where judges have to stand for election. It is true that Federal and Supreme Court judges in the United States are not elected, but as we will show, generally attain judicial office by an agonising political process. The particular and less obvious argument against bills of rights that we wish to make here is however a more subtle one and does need some introduction. Heydon J has recently re-examined the neglected critical question of the capacity and ability of courts to inform themselves by reference to so-called legislative or constitutional facts, by contrast with the facts proved in evidence by the parties.6 His Honour demonstrates that armed with the power to find such facts, the judges run the risk 3 Lofft 1, 98 Eng. Rep. 499 (KB 1772). 4 For recent discussion, see William M Wiecek, ‘Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World’ (2011) 42 University of Chicago Law Review 86. 5 347 US 483 (1954). 6 The Honourable Justice JD Heydon AC, ‘Developing the Common Law’, in Constituting Law: Legal Argument and Social Values (2011) 93 – 136. Vol 30(1) Politicizing the Judges: Human Rights Legislation 55 of assuming both too much and too little, and of denying natural justice to one of the parties.7 It is not unusual in human rights litigation before the United States Supreme Court for ‘briefs’ to be submitted by special interest groups and people other than the parties, not simply attempting to argue a side of the case, but also making all sorts of factual allegations as to all manner and kinds of things, including their perception of the present state and expectations of society, or sections of it. This approach, highly political as it is, permits the court to roam at large and give effect to what the court or members of it prefer, relying on what are essentially legislative facts. To describe such facts as legislative is indeed apposite. The High Court of Australia is much more than a constitutional court. It is a court of general appeal for all justiciable matters in Australia. That it can entertain only a limited number of these does not affect the court’s character as a rigorous interpreter, finder and expounder of the law, both the common law and the law made by Parliaments. Its starting point, as is the common law’s, whether stated or not, is, in every case that all conduct is free except to the extent that it has been proscribed. A former Prime Minister, Mr Keating said that when you the change government you change the country.8 When you change the law by empowering a court to interpret and apply a bill of rights you inevitably change the character of the court.9 The determination of human rights can be a seductive exercise. Judges can become role players rather than case deciders. Less perhaps than entirely jocularly, one Justice of the High Court referred to himself as a ‘legal rock star’. The personalities, politics, personal inclinations and philosophies of Justices of the Supreme Court of the United States are the subject of endless speculation and gossip. Most Justices of the High Court past and present, regard their work, and their attitudes and legal philosophies as something divorced from their personalities, and are averse to the donning of a cloak of celebrity.