Charting a course for legal disaster

American jurist Oliver Wendell Holmes once described law as the “calling of thinkers”. An unfortunate consequence is that lawyers tend to think that they know better: a dangerous thing when they have greater opportunities than others to implement their public policy preferences. History tells us that these opportunities are an inevitable effect of introducing a bill of rights.

On January 1, 2007, Victoria, having passed the Charter of Human Rights and Responsibilities Act, became the first Australian state to possess such a document. It follows the lead of the ACT Human Rights Act and contrasts with the limited rights provided in the Australian Constitution.

No doubt the Victorian experiment will be keenly observed by the commonwealth and the other states. All have thus far resisted a sustained campaign, led by lawyers and activists, towards similar legislation.

So how will the Victorian charter work? Much has been made of what the charter will not do. Although setting out the rights of Victorians, the charter does not give the Supreme Court power to strike down laws that infringe these rights. Rather, the charter gives more subtle powers, intending to establish what its advocates describe as a dialogue between parliament and the courts. Principally, this requires courts to interpret legislation in a way consistent with rights. There is also power to require the relevant ministers to explain themselves in parliament when legislation is declared inconsistent with rights identified in the charter.

Superficially, there could be no objection to safeguards that sound as if they have been created to protect rights in extreme cases. The problem is that the charter won’t just apply in extreme cases.

The expectation among lawyers and academics is that the charter will apply in all kinds of cases before the courts, to everything from criminal trials to backyard planning.

This mind-set can be glimpsed in a review of the early effects of the ACT Human Rights Act. The authors found that the act had barely been considered by the courts. This was not taken as suggesting that there were, in fact, no great human rights violations in the territory. Rather, it was concluded that the reason for its limited application was a lack of familiarity with international human rights law and standards.

No such ignorance can be expected in Victoria. There, argument will be based on the requirement that laws be interpreted consistently with rights. Lawyers know that when you ask judges to interpret the law to make it consistent with rights, there is scope for judges to rewrite the law according to their personal view of what these rights should be.

This is a problem because law is a product of democratic compromise: compromise fought and negotiated between members of parliament, and between stakeholders, negotiators, lobbyists and the community. Hours, days and years of negotiation may lead to outcomes that are ultimately enshrined in legislation. Politics is the art of the possible, and legislation an often difficult balancing of interests.

Consistent with the separation of powers, judges have no role in this process. Yet under the charter there is scope for judges to alter the balance, to shift laws towards their own view of individual rights. Here the charter makes a mistake identified by US Supreme Court judge Antonin Scalia. Dismayed by creative interpretations of the US Bill of Rights, Scalia diagnosed the misapprehension that law will always be improved when it is shifted in the direction of individual rights.

Britain provides a cautionary tale. There laws are now routinely interpreted to make them, in the words of the Human Rights Act, compatible with rights. As a result of this process, judges have found a way to allow accused rapists to cross-examine victims as to their previous sexual history, and have narrowly interpreted a prohibition on prisoners giving jailhouse interviews to reporters.

One might be surprised to find that such cases involved human rights at all. But this is the fundamental point. Arguments about rights are inherently subjective and place great discretion in the hands of the courts. This is, of course, a boon for lawyers, but disenfranchises those who have neither the time nor money to fight over the consistent interpretation of laws. The sad upshot is that although the charter has been passed in the name of rights, Victorian democracy and justice are likely to be made all the weaker for it.

This article is based on “Sinking the Boat to Save It” in the summer 2006 issue of Policy, published by the Centre for Independent Studies.