THE WRONGS OF A WA HUMAN RIGHTS ACT: A RIGHTS-BASED CRITIQUE
The Government of Western
Australia is preparing to enact a human rights act. The government suggests a
particular model similar to those existing in the
PROTECTING HUMAN RIGHTS
But in contrast to what the WA government suggests, the protection of basic human rights has never required any human-rights declaration. Rather, the tendency of governments to acquire ever-increasing power has traditionally been curtailed in Western societies by a constitutional system of checks and balances, not a bill of rights. The fact that real protection of basic rights has never required any bill of rights was previously recognised by Baron de Montesquieu, for whom the genius of the English constitution was that it effectively protected our most fundamental rights and freedoms in practice, not just in theory. The “father” of modern constitutionalism and separation of powers did not put a blind faith in any abstract provisions of law, and this is probably why his major contribution was called The Spirit of the Laws.2
Similarly, Sir Harry Gibbs, formerly Chief Justice of the High Court of Australia, once contended that “the most effective way to curb political power is to divide it. A Federal Constitution, which brings about a division of power in actual practice, is a more secure protection for basic political freedoms than a bill of rights.”3
On the other hand, in
these days people seem to believe in positive law as a sort of panacea that can
heal society from all its socio-economic “diseases”, real or imaginary. They
need though to be reminded that some of the most oppressive regimes in the world’s
history have also enacted bills of rights. Indeed, the governments of
And even Nazi Germany possessed
a glossy bill of rights. In the words of Charles Francis, “Nazi Germany had
what purported to be an excellent Bill of Rights, as did the
Since some of the world’s worst political regimes have also promulgated bills of rights, it seems that some countries have no problem with the lack of proper legislation in this area. The problem, however, might reside in the huge distance which separates formal rights inscribed on paper from their effective exercise, and, above all, the guarantee of their regular exercise.
When a government refuses to govern under the rule of law, power will rest not so much on constitutional law, but rather on governmental will.6 A government that is not subject to formal checks and balances can always exercise its power per leges (through legislation) but not sub leges (under the
law). Such government may even elaborate a rather sophisticated bill of rights, but this by itself will never ensure the full respect to its formal provisions.
BASIC RIGHTS OF THE CITIZEN
Obviously, bills of rights can be useful in situations in which statutory provisions are already violating the basic rights of people. They can also be relevant if one can find an imminent risk of human-rights violations in the near
future.7 Depending on the socio-political context, moreover, a bill of rights might offer the educational advantage of “impress[ing] upon the public mind the value of individual rights and make them part of a political creed which the people will defend even when they do not fully understand its significance”.8 In any other situation, however, judicial enforcement of a bill of rights may actually turn out to be inconsistent with the democratic right of citizens to freely participate in the political decision making process. According to Stephen M. Griffin:9
“Deciding to place the protection of basic rights in the hands of the judiciary is also a decision to remove such issues from the agenda of the elected branches. This restricts the basic right of citizens to participate in important political decisions respecting the content of such rights.… The decision to adopt judicial review involves restricting some basic rights in order to promote others.”
One of the main problems
with a bill of rights is that “rights documents are always vague, aspirational
creatures and give no guidance on what interests rank the highest. This leaves plenty
of scope for wonky judicial interpretation”.10 As a result, they may result in considerable
usurpation of legislative functions by non-elected judges, thereby providing
transference of legislative functions to the judiciary. As Gabriël A. Moens
points out, “those who favour a bill of rights may delight in the vagueness of
these documents, for they sometimes assume that its very ambiguity will enable them
to achieve, through judicial decision, what they have been unable to achieve
through Parliament”.11 Despite the superficial attraction they normally
achieve, bills of rights may dangerously contribute to judicial politicisation.
Yet, as Robert A. Dahl explains, in the
United States court decisions have “sometimes been a major factor in depriving persons of the most fundamental of human and political rights: e.g.,
slaves (Dred Scott in 1857) and newly freed slaves (the Civil Rights cases of
1883)”.12 Similarly, in
“The failure of the Court in Roe v. Wade [the abortion case] … was a
failure to be faithful to the law or to respect the legislature which framed it. Careful research of the history of these two amendments will demonstrate to any impartial investigator that there is overwhelming evidence supporting the proposition that the principal, actual purpose of their framers was to prevent any court, and especially the Supreme Court of the United States, because of its earlier performance in the Dred Scott case [the slavery case], or any other institution of government, whether legislative or executive, from ever again defining the concept of person so as to exclude any class of human beings from the protection of the Constitution and the safeguards it established for the fundamental rights of human beings, including slaves … and the unborn from the time of their conception.”
UNDERMINING OF THE RULE OF LAW
Whereas judicial independence and review are relevant mechanisms for curbing governmental arbitrariness, the whole idea of the rule of law rests in opposition to judges promoting policies that oblige the elected legislature to introduce new statutory laws according to the judges’ “creative interpretation”. Advocates of both formal and substantive conceptions of the rule of law would undoubtedly agree that checks upon the courts are very important to prevent judges from issuing commands that do not ensure satisfactory levels of conformity with the law.14 However, as law professor James Allan points out: 15
“Bills of rights are usually accompanied by interpretative techniques which do not constrain judges to deciding in accord with the original intent of the enactors nor to original understanding at the time of passage. Instead, such instruments are interpreted as ‘living trees’, where judges pay heed to what they think are ‘contemporary values’.… The result is an interpretative regime that places few, if any, constraints on the judiciary.”
There are therefore
problems with a bill of rights as rights are not a single indivisible entity.
They can and do conflict. Once it is introduced in
“The possibility of attributing different meanings to the provisions of a bill of rights creates the potential for judges to read their own biases and philosophies into such a document, especially if the relevant precedents are themselves mutually inconsistent. Indeed, in most rights issues, the relevant decisions overseas are contradictory. For example, rulings on affirmative action, pornography, ‘hate speech’, homosexual sodomy, abortion, and withdrawal of life support treatment vary remarkably. These rulings indicate that judges, when interpreting a paramount bill of rights, are able to select quite arbitrarily their preferred authorities.…
Since a bill of rights
will often consist of ambiguous provisions, judges can deliberately and cynically
attribute meanings to it which are different from the intentions of those who
approved the bill — in
Naturally, “those who favour a bill of rights”, explains Professor Moens, “may delight in the vagueness of these documents, for they sometimes assume that its very ambiguity will enable them to achieve, through judicial decision, what they have been unable to achieve through Parliament”.17 Yet, when the courts make bad decisions, their rulings are very hard to be corrected due to the entrenchment of judicial precedents.18 This may arguably lead to replacement of the rule of law by the “rule of judges”. According to Jeffrey Goldsworthy:19
“The traditional function of the judicial function … does not sit altogether comfortably with the enforcement of bills of rights. In effect, they confer on judges a power to veto legislation retrospectively, on the basis of judgments of political morality.… This involves adding to the judicial function a kind of power traditionally associated with the legislative function, except that the unpredictability inherent in its exercise is exacerbated by its retrospective nature. That is why, on balance, a bill of rights may diminish rather than enhance the rule of law.”
Human rights legislation
is unnecessary in a constitutional democracy like
There is no good reason why Western Australia needs a human rights act and every reason to believe it might damage those mechanisms which up until now have prevented the concentration of power in the hands of a few.
In conclusion, the
introduction of a human rights act in
Once enacted, this act might exacerbate a self-indulging mentality of rights without responsibilities and also limit democratic rights and freedoms to the expression of opinions which are acceptable only by the cultural elite. This is why disadvantages of such a bill of rights by far outweigh any alleged advantage from its enactment. 20. Moens, op. cit., p. 252.
ABOUT THE AUTHOR:
AUGUSTO ZIMMERMANN teaches law at
Future of Freedom: Illiberal Democracy at Home and Abroad (
3. Sir Harry Gibbs, “A Constitutional Bill of Rights”, in K. Baker (ed.), An Australian Bill of Rights; Pro and Contra (Melbourne: Institute of Public Affairs, 1986) p. 325.
4. Sir Harry
Gibbs pointed out: “Anyone who has seen the film The Killing Fields will know that the fact that the Khmer
5. Charles Francis QC, “Bracks’ Bill of Rights is an attack on Basic Rights”, BrookesNews.com, March 20, 2006.
6. Max Weber, Economy and Society — Volume 1 (Berkeley: University of California Press, 1978), p. 215.
7. Gabriël A.
Moens, “The Wrongs of a Constitutionally Entrenched Bill of Rights”, from
9. Stephen M. Griffin, American Constitutionalism (Princeton, JN: Princeton University Press, 1996), p. 123. Likewise, Jeremy Waldron comments: “If we are going to defend the idea of an entrenched Bill of Rights put effectively beyond revision by anyone other than the judges, we should … think [that] … even if you … orchestrate the support of a large number of like-minded men and women and manage to prevail in the legislative, your measure may be challenged and struck down because your view of what rights we have does not accord with the judges’ views” — Jeremy Waldron, “A Rights-Based Critique of Constitutional Rights”, 13 Oxford Journal of Legal Studies 18, 1993, pp. 50-1. 2007 65
Bagaric, “Your Right to Reject Bill of Rights”, Herald Sun (
11. Moens, “The Wrongs of a Constitutionally Entrenched Bill of Rights”, op. cit., p.238.
12. Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker” (1957), 6 Journal of Public Law 279, p. 291.
13. Joseph P.
Augusto Zimmermann, “The Rule of Law as a Culture of Legality”, 14
15. James Allan, “Oh That I Were Made Judge in the Land”, 30 Federal Law Review (2002) 561, pp. 574-5. 2007 67
16. Op. cit, 236.
Goldsworthy, “Legislative Sovereignty and The Rule of Law”, from Sceptical Essays on Human Rights, edited by T. Campbell, K.D. Ewing, and A.