August 31, 2007
Just when it seemed safe to be openly proud of Australia, the cultural cringers are at it again. This time we need to be ashamed of ourselves because Australia does not have a bill of rights. Forget the fact Australia is one of the world's oldest and most successful liberal democracies. Forget the fact bills of rights did nothing for enslaved African Americans or those persecuted in Stalinist Russia. No, we need a bill of rights to "keep up" with the rest of the world.
[A bunch of 'it's Election time' blather.]
[Apparently Ruddock has just noticed that Geoffrey Robertson QC is a human rights lawyer.]
[And then he suggests that human rights lawyers are an insignificant proportion of the profession internationally.]
The High Court of Australia is a formidable institution, of which all Australians should be proud. Current members of the High Court enjoy a very high international standing.
[He brags about two appointees to the High, but doesn't name them. Perhaps they're not worth mentioning?]
[We're an advanced democracy because we didn't have to fight for it ...]
[And we can change out minds.]
Bills of rights do not protect essential freedoms - all they do is present the very real risk of having judges imposing personal opinions as law, leaving everyone to guess about what the law might be.
In Canada, [judges can make decisions without checking if they'll be acceptable to the parliament of the day ...]
In Britain [suspects are allowed to be given food during interrogations.]
In 2001 the European Court of Human Rights held that certain tenants who were behind in their rental payments could not be evicted because of their "right" to "their" home. In 2006 the House of Lords followed and applied that decision. [But I'll ignore the context. Who needs that messy stuff.]
I doubt that many Australians would welcome these outcomes. I would also doubt that many Australians would want our High Court to reduce itself to this kind of decision making. [Because making decisions according to the law is such an inconvenience - and so beneath our 'formidable' court.]
In a proper democracy, [this would be one that Mr Ruddock approves of? It's OK for politicains to make value-laden decisions, but not judges?] it should be the people's elected representatives, not an unelected elite, [actually, Mr Ruddock, you got to elect the guys, and gal, who sit on the High Court bench.] who make these kinds of social and economic decisions. [you're more qualified because you won a popularity contest?]
I have no doubt that if there were a national bill of rights, Australian judges would approach questions relating to rights in good faith. [Apparently the institution of the High Court is formidable, but the judges who sit on it are not? The very same judges he was praising just a few paragraphs above ...] However, they would become involved - even if unintentionally - in making policy. [*headdesk* in other words, we ought not look behind the curtain? Trust you instead? Judges make decisions all the time that affect policy. It comes with the job of interpreting and applying the law. Government policy is not a factor when you're wading through 200 pages (and more) of legislation.]
I suspect that those advocating a bill of rights in Australia have a different view from the Australian Government on difficult issues such as responding to terrorism and people smuggling. [I know we do. And thank fuck for that.]
I also suspect that they do not have the courage of their convictions to put this to the electorate. [Umm?] As one activist in the United States was quoted as saying, "We have to look to the courts to create new rights that we won't be able to get from the legislature." [Nothing like being frustrated as hell by the stupid games and rhetoric that goes on in politics to make you look elsewhere for help. After all, gays being able to marry would destroy everything. Somehow. Just can't quite pin down how. I'm sure it'll come to us. Meanwhile, how about that hospital over there ...]
That is anything but democratic. [And thus he ignores the whole raison d’être of democracy: that the people rule, not the politicians. and we get to disagree with you. oh, no, maybe I've strayed into 'human rights' territory there. Whatever would I want with those?]
Philip Ruddock is the federal Attorney-General.
This is another facet of a systematic attack on the judiciary from a government which is terrified of having its policies and actions scrutinised. From immigration to copyright to industrial relations to prisoners’ right to vote, the Howard Government has complained about the power of the courts to regulate and limit their power.
The real threat to democracy is not judicial intervention. To claim that a judge who takes a literal and conservative approach to the text of the law is not acting politically is mere legal fetishism.
The real threat to democracy here is the sustained attack on judicial independence that we have witnessed from a government which refuses to have its policies reviewed, either by the legislature before they become law, or by the judiciary afterwards.
In short, Ruddock is continuing to espouse the Howard Government's "Waaah! Woe is us! The Law (our own laws even) are getting used 'against' us! Waaah!" line. Time and again we are told that they are obstructed in their 'duty' to 'protect' us.
But we can see under the curtain ...