Bill of Rights bad says Albrechtsen

The Australian

Bill of rights full of risks - Janet albrechtsen

10aug05

TERRORIST attacks elicit two reactions. One is a call from the likes of Tony Blair and John Howard for tougher laws and stronger resolve in prosecuting terrorists and those inciting terrorism. The second is a call from the likes of academics for a bill of rights to protect these people. It's fortunate that academics are not running the country.

Last week the British Prime Minister outlined a sweeping package of reforms aimed at protecting the British people from future terrorist attacks. It includes deporting religious extremists, banning radical extremist groups, screening foreign imams who arrive in the country and closing down mosques that foment violence against the West.

More significantly, Blair presaged a battle for supremacy between parliament and the courts. Warning the courts that there is "a different mood today", he announced his intention to tackle the judiciary for using the European Convention on Human Rights to block government attempts to deport those whom newspapers call the "preachers of hate".

Blair's battle with judges is entirely predictable. As a progressive Labour politician, he introduced British Human Rights Act, which incorporated the European convention into British law. That handed to a small group of unelected judges extraordinary power to make policy decisions that should be made by parliament. Thwarted by judges, Blair is now crying foul.

Meanwhile, back in Australia, at regular intervals - like now - the usual legal suspects, such as academic George Williams and other activist lawyers, have been casting their eyes overseas and salivating over the prospect of an Australian bill of rights.

Some experts claim we need one more than ever after the London terrorist attacks. Blair may not agree. Build up a cache of so-called human rights laws, and terrorists might be the first customers. It's not as far-fetched as it sounds. In opposing a bill of rights some years ago, former NSW premier Bob Carr pointed out that criminals were the biggest winners under such laws.

But the problem with a bill of rights is much broader than providing escape hatches for criminals. The biggest problem is one of unchecked power. It's bad enough handing governments sweeping powers. With appropriate checks and balances, such as sunset clauses and elections, government power can be kept in check. Hand sweeping power to unelected judges and just watch the fun unfold.

The language of rights is invariably vague, giving judges a blank cheque to legislate from the bench. Soon enough you end up with layer upon layer of activism. Guided by their personal agenda, progressive judges push the law into uncharted places. Their decisions become the law of the land. Confronted with these decisions - the legal jargon is "precedents" - traditional judges face a quandary. Overturn them and you look activist in a right-wing kind of way. Let the decisions stand and you only encourage the left-wing activist judges. Soon enough, like a cheap aftershave that sticks, the entire court is awash with activism of one description or another.

That's why US Democrats such as Teddy Kennedy fulminate against the prospect of George W. Bush nominating a right-wing activist judge. Following the resignation of Sandra Day O'Connor from the US Supreme Court, many, like Kennedy, worry that a new Supreme Court judge will try to undo some of the progressive judicial follies of the past.

Note the legal inconsistency. Left-wing activist judges are just dandy. But right-wing activist judges are out of order because they might overturn decisions such as Roe v Wade, whereby the 1973 Supreme Court created a sweeping legal right to abortion from a dubious cocktail of rights under the US Constitution.

Kennedy is right to worry about a conservative judge taking up the activist cause. You only have to glance at Canada to see that it takes a restrained judge to resist the law-making game. In Canada, public healthcare has been a political sacred cow. But then along came what one newspaper dubbed "the hip that changed healthcare history". George Zeliotis from Quebec was told he would have to wait 12 months for his hip replacement. So he sued, challenging a Quebec law that, like laws in other provinces, bans private healthcare insurance, in effect banning private healthcare.

The Supreme Court held that the right to healthcare means more than access to a waiting list, thereby effectively legislating private healthcare into business, using the Canadian Charter of Rights and Freedoms. Tossing out Canada's archaic, failing public health system is eminently sensible, but good policy is no excuse for brazen judicial activism. Some Canadians are calling their highest court the Supreme Court Party. The only hitch is you don't get to vote for your favourite political judge.

Our legal experts love to point out that Australia is the only Western liberal democracy without a bill of rights. Mimicking the woman from Katz's Deli in When Harry Met Sally who, after hearing Meg Ryan's fake orgasm, tells the waitress "I'll have what she's having", they insist we, too, must have a bill of rights.

Might sound fine in theory, but the wow factor evoked by these laws starts to look a bit fake when you realise it involves a fundamental shift of power away from the people to judges. Blair is now working that out.

So the next time our legal experts whimper about being the only Western democracy without a bill of rights, the retort is simple. That must make us the only remaining Western country that is a true democracy.