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At the Academy

November 7th, 2005

I’m at the annual meeting of the Academy of the Social Sciences in Australia. I’ll be talking in a symposium on Ideas and Influence on the topic “Economic liberalism: Fall, Revival and Resistance”. This evening there’s a public lecture from Paul Kelly on Rethinking Australian Government, at the Shine Dome (Academy of Science).

I had dinner last night with Max Corden, one of the great names in Australian economics, and we had a fascinating discussion about trade and current account deficits and the ways they might come back into balance smoothly (or not).

Then there was a colloquium on the topic of a Bill of Rights, at which Hilary Charlesworth and Larissa Behrendt spoke, which produced a couple of new (to me) developments. First, most people seem to have abandoned the idea of inserting a Bill of Rights into the Constitution, favouring a legislated Bill instead. Rather than being entrenched, this would require courts to interpret laws consistently with human rights as far as possible. If governments wanted to pass laws inconsistent with the Bill of Rights they could do so, but they would have to be explicit about it.

The second point is that the ACT has already passed such a Bill and that other states are considering it. This is part of a more general trend where the old assumption that the only way to achieve desirable progress is to centralise power in the federal government is being overturned.

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  1. Ian Gould
    November 7th, 2005 at 08:05 | #1

    >most people seem to have abandoned the idea of inserting a Bill of Rights into the Constitution, favouring a legislated Bill instead. Rather than being entrenched, this would require courts to interpret laws consistently with human rights as far as possible.

    I’m fairly certain the Queensland Legislative Standards Act already has such a provision.

  2. Ian Gould
    November 7th, 2005 at 08:11 | #2

    “4 Meaning of “fundamental legislative principlesâ€?
    (1) For the purposes of this Act, “fundamental legislative principles�
    are the principles relating to legislation that underlie a parliamentary
    democracy based on the rule of law.4
    (2) The principles include requiring that legislation has sufficient regard
    to—
    (a) rights and liberties of individuals; and
    (b) the institution of Parliament.
    (3) Whether legislation has sufficient regard to rights and liberties of
    individuals depends on whether, for example, the legislation—
    (a) makes rights and liberties, or obligations, dependent on
    administrative power only if the power is sufficiently defined and
    subject to appropriate review; and
    (b) is consistent with principles of natural justice; and
    (c) allows the delegation of administrative power only in appropriate
    cases and to appropriate persons; and
    (d) does not reverse the onus of proof in criminal proceedings
    without adequate justification; and
    (e) confers power to enter premises, and search for or seize
    documents or other property, only with a warrant issued by a
    judge or other judicial officer; and
    (f) provides appropriate protection against self-incrimination; and
    g) does not adversely affect rights and liberties, or impose
    obligations, retrospectively; and
    (h) does not confer immunity from proceeding or prosecution
    without adequate justification; and
    (i) provides for the compulsory acquisition of property only with
    fair compensation; and
    (j) has sufficient regard to Aboriginal tradition and Island custom;
    and
    (k) is unambiguous and drafted in a sufficiently clear and precise
    way.”

    The Bill establishes an independent Office of Parliamentary counsel which is responsible for ensuring that legislation either complies with the principles or is referred to a cross-party Parliamentary Committee.

    Parliament, in theory, can pass legislation which violates the principles but is forced to justify publicly why it does so.

    In practice i’ve seen just how easy it is to evade these requirements.

  3. November 7th, 2005 at 08:45 | #3

    In a federalist system, it is expected that the states would be the point of greatest innovation. It is also not as hard to get a Bill of Rights into a state constitution, as most of them do not have the whole constitution entrenched. Only certain parts of it. The federal constitution has exceptionally rigourous requirements to pass a referendum, which is why a statutory Bill of Rights for the federal system is often pursued – it is seen as more achievable.

  4. November 7th, 2005 at 08:46 | #4

    If such an approach were adopted, I would suggest also inserting a clause into the Bill of Rights legislation requiring all subsequent acts to have a sunset clause. By this I mean a requirement that each and every Act automatically expires after (say) 5 years unless renewed by subsequent Act of Parliament within 6 months of the expiry date. If laws such as the anti-terror laws currently proposed by the Howard Government really are necessary then we should adopt them only temporarily, and we should debate their continued renewal periodically.

  5. November 7th, 2005 at 11:05 | #5

    The problem with a bill of rights, though, is that it gives an implication that anything not in the bill is not a “right”, whereas without one, anything can be argued to be a right, even if not officially recognised as one.

    So, naturally Im a bit iffy about ruling out certain things that could and perhaps should be rights but dont end up in the bill for one reason or another, such as negotiations about the content of the bill.

  6. Paul
    November 7th, 2005 at 15:31 | #6

    I’m a couple of years removed from my constitutional law, but my understanding is that state-based bills of rights don’t operate effectively. The starting point is that a later Act supercedes any earlier Act to the full extent of the inconsistency, including provisions purporting to restrict future Acts.
    The way around that is entrenchment under the Australia Act, but that is limited to putting “manner and form” restrictions on the repeal and amendment of the entrenched piece of legislation. I believe there is case law specifically stating that including a particular form of words in the later statute “notwithstanding the bill of rights” is not a valid manner and form restriction. In any case, only Acts dealing with the powers and procedures of parliamanet can be entrenched, and this restriction applies to the subject matter of the entrenched act, not to the means of repealing or amending it.
    None of this applies in the ACT, but I had thought it fairly concluded elsewhere.
    Can anyone clarify the position?

  7. Ian Gould
    November 7th, 2005 at 15:48 | #7

    “The problem with a bill of rights, though, is that it gives an implication that anything not in the bill is not a “rightâ€?, ”

    I don’t think the history of the US which originated the Bill of rights in its more or less modern form supports this view.

  8. jquiggin
    November 7th, 2005 at 17:20 | #8

    I think the US Bill has a clause explicitly stating that all existing rights of the people are retained in addition to those in the Bill. Obviously, we should do something similar.

  9. November 7th, 2005 at 18:01 | #9

    As regards acts automatically lapsing, this is a feature of Scots Law (“desuetude”) but not of English Law, including Common Law. Introducing it as a general rule would create many inconsistencies with present practice, along with many unforeseen consequences. That is why sunset and/or grandfather clauses are introduced specifically now, for specific scrutiny when at the bill stage.

  10. Terje Petersen
    November 10th, 2005 at 21:01 | #10

    One way to introduce sunset clauses sensibly might be to amend the constitution such that:-

    Any bill with a sunset clause of 15 years or less requires support from 51% of parliament before it passes.

    Any bill with a sunset clause of between 15 and 30 years requires support from 65% of parliament before it passes.

    Any bill with a sunset clasues of more than 30 years or more or without a sunset clause at all requires support from 80% of parliament.

    This way those that draft the law have to give consideration to the politics of gaining support.

    Laws that are universally regarded as acceptable (ie murder is criminal) will probably pass without sunset clauses but controversial laws (eg blasphamy is criminal) will probably only have a transient life.

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