Don’t Leave Us with the Bill: The Case Against an Australian Bill of Rights Edited by Julian Leeser and Ryan Haddrick Don’t Leave Us with the Bill The Case Against an Australian Bill of Rights Edited by Julian Leeser and Ryan Haddrick Published by The Menzies Research Centre Limited RG Menzies House Cnr Blackall and Macquarie Streets BARTON, ACT 2600 ISBN 978-0-9806383-0-1 The Menzies Research Centre Limited is a company limited by guarantee ACN 067 379 684. The Menzies Research Centre is supported by a grant from the Commonwealth Department of Finance and Deregulation The views expressed in this publication are those of the authors and do not necessarily reflect the views of the Directors or staff of The Menzies Research Centre. © 2009 The Menzies Research Centre Project management and production: QOTE Canberra (02) 6162 1258 iii Foreword THE RT HON SIR NINIAN ST EPHEN , KG, AK, GCMG, GCVO, KBE, QC he expression ‘a bill of rights’ has an immediate attraction to it; to be subject to such a measure seems at first sight inherently desirable, just the kind of legislative measure a freedom loving nation would Taspire to. Only with experience of the operation of such measures do doubts arise. The true measure of those doubts lies in the assumption, inherent in any such measure, that at a given moment in time it is possible once and for all to identify and declare, both for now and for the future, all those rights which citizens should desirably possess, secure in the knowledge that such a declaration will serve all future needs of the community. The very enshrining of rights in a single measure of special status carries with it the consequence that its formulation is critical and that its interpretation becomes of the highest significance and confers extraordinary power upon those to whom the task of interpretation is given; yet those possessing such power will not customarily be the elected of the people but instead, almost necessarily, lawyers and appointees of government. All this has, of course been much debated in the past; this volume now states the issues both pungently and with particular application to Australia and we citizens are fortunate indeed to have those issues expressed with such clarity and from a great variety of viewpoints. Australia’s democracy is surely the better for the publication of this work. Sir Ninian Stephen Melbourne May 2009 v Chairman’s Preface TO M HA R LEY he Menzies Research Centre is proud to publish this important collection of essays making the case for preserving liberty and against an Australian bill of rights. It is the first time such a collection has Tbeen assembled. The Centre arranged this collection of essays to respond to an imbalance in advocacy in the debate, and to demonstrate why a bill of rights is not the answer to our present challenges. The case against a bill of rights is also the case for freedom: for freedom and flexibility, with our liberties protected by parliaments subject to the will of the people, an independent judiciary and a free and sceptical media. Our legal tradition is embodied in the principle that a person is free to do whatever he or she wishes unless it is otherwise prescribed by law. Freedom is ours unless the government gains our permission, through the ballot box, to curtail it. Our rights have developed organically through the common law and Parliament allowing maximum freedom for individuals to respond to the challenges of our age. As Menzies said ‘[t]o live in a common law country is, in itself, the very best guarantee of the rights of the individual.’ By setting and limiting our rights a bill of rights hampers our freedom and creates uncertainties in our law. The idea of a bill of rights in Australia is not new. Australians have rejected inserting a bill of rights in our Constitution at federation and again in 1944 and 1988. Two attempts to introduce statutory bills of rights in 1973 and 1986 were also abandoned. A statutory bill of rights neither represents new ideas nor fresh thinking. The Menzies Research Centre saw a need for some of the many bill of rights sceptics to provide a contribution to the debate in the lead up to the report of the Brennan Committee and the Government’s response to it; and to delve a little deeper into why the enthusiasm of bill of rights advocates is misplaced. Most of the contributors to this volume are policy professionals. Many carry no partisan flag. Their contribution should not be seen as an endorsement of the Menzies Research Centre or the Liberal Party but, rather, as indicative of their policy expertise and concern that the issues raised in their papers need to be addressed. The Menzies Research Centre has a role is in bringing experts together and putting ideas on the table to improve the standard of public debate in Australia. We hope that this volume contributes in that way. vi DON’t LEAVE US WITH THE BILL I would like to congratulate Julian Leeser, our Executive Director and co-editor Ryan Haddrick, for bringing together this timely and thoughtful collection of essays. I know this issue has been of great concern to Julian for some time. The editors have demonstrated that some of the ideas put forward by bill of rights proponents, no matter how well intentioned, can be blighted by murky and muddle-headed thinking. Finally, the Menzies Research Centre wishes to thank the authors for their contribution to the debate and, in particular, Sir Ninian Stephen and Dr Sue Gordon who have honoured the Centre by writing the foreword and afterword respectively. Tom Harley Chairman, Menzies Research Centre May 2009 vii Contents Foreword ..........................................................................................................................................................iii The Rt Hon Sir Ninian Stephen, KG, AK, GCMG, GCVO, KBE, QC Chairman’s Preface ......................................................................................................................................v Tom Harley Introduction ..................................................................................................................................................ix Julian Leeser and Ryan Haddrick The Contributors .................................................................................................................................... xvii PART I: AN OVERV I EW 1. A Reflection on a Bill of Rights ...................................................................................... 3 The Hon Chief Justice Paul de Jersey, AC 2. The Debate We Didn’t Have to Have: The Proposal for an Australian Bill of Rights ................................................................................................... 17 Senator the Hon George Brandis, SC 3. Responding to Some Arguments in Favour of the Bill of Rights ......... 31 Julian Leeser PART II: SE PARAT io N O F PO WER S 4. Don’t Risk What We Have .............................................................................................. 67 The Hon John Howard, AC 5. In Whom We Should Trust ............................................................................................. 73 The Hon Ian Callinan, AC, QC 6. What’s Wrong About a Statutory Bill of Rights ............................................... 83 Professor James Allan 7. Solomon’s Heirs? Dissecting the Campaign for Judicial Rule in Australia ................................................................................................................................ 97 Alan Anderson 8. Human Rights: The Question is – Who is the Master? ............................ 111 The Hon Justice Kenneth Handley, AO PART III: SPECIFIC CHALLENGE S 9. Principles and Exceptions: Problems for Bills of Rights ........................ 119 Dr David Bennett, AC, QC 10. Pluralism, Parliamentary Democracy and Bills of Rights ..................... 127 The Hon Christian Porter, MLA 11. The Judicature, Bills of Rights and Chapter III ............................................ 145 Ryan Haddrick viii DON’t LEAVE US WITH THE BILL 12. A Legal Perspective on Bills of Rights ................................................................. 169 Professor Helen Irving 13. A Charter of Rights will Harm Aboriginal Prospects ............................... 183 The Hon Dr Gary Johns 14. Trust Me – It Will Not Be As Bad As You Think .......................................... 197 Major General AJ Molan, AO, DSC (Ret’d) PART IV: His T O R I CAL AND CULTURAL PER sp ECT I VE S 15. A Chaos of Rights .............................................................................................................. 207 Professor Geoffrey Blainey, AC 16. From British Rights to Human Rights ................................................................ 215 Dr John Hirst 17. There is More to it Than Meets the Eye! ............................................................. 223 The Hon Bronwyn Bishop, MP 18. Four Fictions: An Argument Against a Bill of Rights ............................... 233 His Eminence Cardinal George Pell, AC 19. Slaves Cannot Be Free – The Biblical Roots of Our Rights ................... 243 Rabbi Dr John Levi, AM 20. Why Should Christians be Concerned About a Bill of Rights ............ 251 Brigadier Jim Wallace, AM (Ret’d) 21. Ethics and Limits of a Bill of Rights ..................................................................... 263 Amanda Fairweather PART V: BILLS O F RI GHT S IN OP ERAT io N 22. The Human Rights Act 1998 (UK): An Impossible Compromise .... 271 Felicity McMahon 23. The Devil in the