LEGAL NOTES

THE WRONGS OF A WA HUMAN RIGHTS ACT: A RIGHTS-BASED CRITIQUE

AUGUSTO ZIMMERMANN

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 United Kingdom, New Zealand, the Australian Capital Territory and Victoria. For such a purpose it has decided to appoint a Consultation Committee for the Proposed Human Rights Act, which has already called for public submissions on the proposed Human Rights Act and on eight questions about human rights in Western Australia. In doing so the WA Government “believes that introducing a WA Human Rights Act would help to establish a human rights culture in this State because it would create a political and administrative culture in which the need to respect human rights is understood and acted upon”.1

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 China, Cuba, Rwanda, Sudan — all of them notorious violators of human rights — have elaborated sophisticated bills of rights.4

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 Soviet Union under Joseph Stalin. These bills of rights proved of little avail, because there was no separation of powers”.5

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 1973, in Roe vs. Wade, the US Supreme Court held that the Fourteenth Amendment to the US Constitution, an amendment which guarantees individual liberty as part of due process of law, also encompasses a supposed “right to privacy” for abortion. Joseph P. Witherspoon, jurisprudence professor at the University of Texas Law School, commented that such a decision grossly distorted the original intent of the Fourteenth Amendment:13

“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 Western Australia, a rights declaration will provide the courts with the extraordinary power to decide on crucial sociopolitical issues of this society, under the premise that the judiciary is a “neutral” entity and, accordingly, it is always willing to uphold the law. In practice, however, the experience overseas reveals that this alleged moderation is rather illusory, and that bills of rights, framed in abstract and general language, have proven amenable to “progressive interpretations” urged by a minority of social activists. As Gabriël A. Moens explains:16

“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 Australia’s case the electorate.”

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 Australia and, when introduced, upsets the balance between the legislature and the judiciary, giving the latter more power. Rights legislation being general in nature needs interpretation, but there is little legal guidance to assist in this process. The outcome depends largely on the ethical views of a few judges, thus providing a mechanism by which the intellectual elite can force its values on an uninterested or reluctant majority. As well, the modern emphasis on group rights discriminates against non-favoured groups and diminishes the more fundamental individual rights. In the community in general, it stimulates increased litigation and irresponsible and selfish behaviour.

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 Western Australia might provoke the interference of judges in crucial political issues, including abortion, euthanasia, parentchild relations, immigration and religious freedom. Such a charter has the potential to serve as an undemocratic tool for “censorship of ideas” which are thought undesirable by the “current intellectual orthodoxy”.20

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 Murdoch University and is author of the well-known books, Teoria Geral do Federalismo Democrático (General Theory of Democratic Federalism — 2nd edition, 2005) and Curso de Direito Constitucional (Course on Constitutional Law, 4th edition — 2005).

1. A WA Human Rights Act: Statement of intent by the Western Australian Government, 3. Available at: http://www.humanrights.wa.gov.au/documents/ Human_Rights_Act.pdf NATIONAL OBSERVER (Council for the National Interest, Melbourne), No. 73, Winter 2007, pages 62-68. Web site: www.nationalobserver.net 2007 63

2. Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York: W.W. Norton, 2003), p. 45.

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 Republic [in Cambodia] had adopted a bill of rights did not assist the inhabitants of that unhappy country. We are all familiar with the abuses that have occurred in Uganda: that country had a bill of rights on the European model, and had judges who bravely tried to enforce it, but were unable to resist the forces of lawlessness” — Sir Harry Gibbs, “A Constitutional Bill of Rights?”, op. cit., p. 40.

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 Australia: Republic or Monarch? Legal and Constitutional Issues (Brisbane: University of Queensland, 1994), p. 247.

8. Friederich Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), p. 217.

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

10. Mirko Bagaric, “Your Right to Reject Bill of Rights”, Herald Sun (Melbourne), 8 November 2005, p. 19.

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. Witherspoon, Texas Tech Law Review, Vol. 6, 1974-1975. Quoted from: Francis A. Schaeffer, How Should We Then Live? (Wheaton: Crossway, 1983), pp. 220-1. In fact, Blackmun J himself confessed that the U.S. Constitution does not mention any right such as this. Justice Rehnquist then reminded him in his dissenting vote that it is misleading to talk about a right to privacy when abortion by a physician can never be a “private” act. The dissent of White J is even more revealing in that it demonstrates the visible arbitrariness of the decision: “I find nothing in the language or history of the Constitution to support the Court’s judgement. The court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. … As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court” — 410 U.S. at 221-22 (White J, dissenting).

14. See: Augusto Zimmermann, “The Rule of Law as a Culture of Legality”, 14 Murdoch University Electronic Journal of Law 10, 2007.

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.

17. Id., p. 238.

18. Id., p. 240.

19. Jeffrey Goldsworthy, “Legislative Sovereignty and The Rule of Law”, from Sceptical Essays on Human Rights, edited by T. Campbell, K.D. Ewing, and A. Tomkins (Oxford: Oxford University Press, 2001), p. 75.