Should there be a charter of rights referendum?

In the SMH, law academic George Williams rejects the idea that there should be a referendum on a charter of rights. He says that

Referendums are held to change the constitution, and have never been to approve an ordinary act of Parliament.

I’m not convinced by this point. The Australian constitutional system is much more than just the formal document called the Constitution. It includes all the laws, conventions and judicial decisions that establish and set out the relationships between the key institutions of government.

In this broader sense of a constitutional system, a charter of rights is an important change in the relationship between the executive and the judiciary, and represents a major shift in how the rest of us consider issues covered by the charter. The substantive rights and wrongs of various issues will become secondary to the legal arguments for and against, which are often much harder for ordinary citizens to understand. The judicial decisions made are likely to lead to conclusions which majorities do not support.

In this context, a referendum is not a silly idea. It’s not like having a vote on an ETS, as Williams suggests, or any of the other issues parliament considers each year. It’s about the rules of the political game, about who gets to decide what. It is a constitutional question, even if not an amendment to the Constitution.

12 Responses to “Should there be a charter of rights referendum?

  • 1
    James Simpson
    October 21st, 2009 22:08

    It depends, doesn’t it Andrew, on what the Act purports to do? Wouldn’t a “Human Rights Act” be similar to, say, the Administrative Decisions (Judicial Review) Act or Section 10 of the Race Discrimination Act?? Its not uncommon for legislation to affect the relationships between the key institutions of government and, as you say, make the “substantive rights and wrongs of various issues … secondary to the legal arguments for and against”.

    I think the Coalition should have taken the opportunity when they controlled both houses to have a referendum or pass an Act that implemented a proper, old-school, US-style “negative rights” Charter. Now that the luvvies are in control, I suspect they’re going to introduce so-called “rights” to all kinds of luxuries. Are they?

  • 2
    Kim
    October 21st, 2009 23:49

    The proposed charter of rights goes much deeper than any system of administrative law. I agree with Andrew that it is qualitatively different from general legislation.

    The point that the constitution extends beyond the written Act (originally of the Imperial parliament) is a very important one. Indeed, the framework of conventions relating to mutual recognition between the various branches of government was the entirety of the British constitution until quite recently.

    It’s clear that the Human Rights Act of 1998 in the UK has profoundly shifted and undermined many of those conventions. The Law Lords themselves have expressly said as much. For instance, it has been established that the doctrine of implied repeal – a core constitutional principle – was abolished by the UK HRA. This isn’t just a matter of legal arguments dictating the outcome in particular areas of policy, this is a fundamental shift in what the courts recognise as effective manifestations of parliamentary intent and authority. It is a form of entrenchment, even if short of the constitutional entrenchment of the US Bill of Rights. Somewhat akin would be a statute purporting to require a 3/4 majority of parliament to be repealed, rather than the usual simple majority in each house. Even the central guiding concept of modern statutory interpretation – parliamentary intent – would be subverted according to UK precedent.

    And the idea of having a US-style negative rights charter would do no good – the US experience is clear on that. The ‘luvvies’ just go for extreme misinterpretation to translate the negative rights into positive rights; hence right to life liberty and the pursuit of happiness guaranteeing abortion rights.

  • 3
    Joe Lane
    October 22nd, 2009 00:34

    I agree with you Andrew, surely a charter of rights (specifying positive rights, in Berlin’s terms, and therefore implied and proscribed freedoms) and the Constitution (specifying rights and prohibitions) rest on fundamentally different legal principles ?

  • 4
    James Simpson
    October 22nd, 2009 01:09

    “The ‘luvvies’ just go for extreme misinterpretation to translate the negative rights into positive rights”

    Better that than a full-blown Charter of Lurve though, no?

  • 5
    Andrew Norton
    October 22nd, 2009 06:39

    James – I think the ADJR Act is part of the consitutional system, but as I recall it (and your LLB is much more recent than mine!) it allows review of executive decisions, but not legislation, and does so only on narrow and specific grounds. So it does not change the balance between the legislature and the courts in the way a charter would. You probably also know more about the Racial Discrimination Act than I do, and perhaps it is ‘constitutional’ in the sense that it sets general rules for how racial differences are to be treated, but I don’t see this as like a charter in which vague general rights lead to courts make the kinds of trade-offs traditionally made by parliaments.

    Joe – The current charter in Victoria is a mix of freedoms and rights, though mostly not the ‘social’ rights that are likely to lead to the courts making social policy program decisions.

    Kim and James – I would be more comfortable with a traditional freedoms list than some of the broader court powers wanted by many people involved in the human rights consultation (for example, people wanting more health services in their area). Indeed, I’m certainly not ruling out being personally involved in litigation on these issues if we get a charter. But from an overall perspective I am still not convinced that this is a desirable change. It is better if we do things the hard way, having to persuade others of our beliefs.

  • 6
    Jack Strocchi
    October 22nd, 2009 10:12

    Andrew Norton says:

    In this broader sense of a constitutional system, a charter of rights is an important change in the relationship between the executive and the judiciary, and represents a major shift in how the rest of us consider issues covered by the charter.
    The judicial decisions made are likely to lead to conclusions which majorities do not support.

    The current Bill of Rights proposal is a Trojan Horse being pushed into our constitutional system by enemies of democracy. It will create a “Villains Charter” for all kinds of crooks trying to game our system of justice. And in doing so it will become a “lawyers picnic” for multitudes of sleek fat-cats.

    The notion that a constitutional referendums are somehow separated or unrelated to the legislature is bogus. One needs to pass an Act of Parliament to even propose and hold a constitutional referendum.

    If the elites who are currently pushing a Bill of Rights are so confident of the democratic efficacy of such an instrument then they should be willing to put it to the popular test of a democratic referendum. The fact that they prefer to smuggle their new laws in through the constitutional back-door indicates that they know their specific measures are on the nose with the general public.

    A Bill of Rights, modeled on the US system, is clearly an amendment to the Constitution. That is in fact how the US Bill of Rights became law, through 2/3 majorities in the legislature proposing and ratifying amendments to the US constitution.

    The Bill of Rights under current consideration is clearly aimed at doing an end run around the legislature. This is because the cultural elites who are pushing it are not happy with the legislatures position on a number of issues.

    The legislature is the peoples house and tends to reflect the will of the populus. Unfortunately bogans and Red-necks have the vote. Their preferences are often at odds with the pet programs of the elites.

    The elites plan to use the prestige of the notion of a Bill of Rights, generally associated with protecting citizens from the arbitrary power of Kings and Popes, to smuggle in their own agenda of minority grievances.

  • 7
    Kim
    October 22nd, 2009 11:13

    ““The ‘luvvies’ just go for extreme misinterpretation to translate the negative rights into positive rights”

    Better that than a full-blown Charter of Lurve though, no?”

    Not really, the US experience strongly suggests that judges will go just as far. Plus if you entrench it a la US, then your problems are permanent.

    Given that there’s still an appreciable chance that we will avoid all this nonsense, it would have been abject surrender for the Libs to implement a charter themselves while in power.

  • 8
    Russell
    October 22nd, 2009 12:57

    Yes, all very confusing …. could you answer this sample question from the new citizenship test material:

    14. What is a referendum?

    a. A vote to change the government

    b. A vote to change the Australian Constitution

    c. A vote to change the Prime Minister

    Apparently the answer should be b. Yet if you were in W.A. you would have heard plenty about our many daylight saving and retail trading hours referenda. Of course our W.A. arrangements – no daylight saving, no extended trading hours – should be in the Constitution, but they aren’t, yet.

  • 9
    James Simpson
    October 23rd, 2009 07:29

    I accept what Kim says; on reflection I think that’s probably right.
    .
    But I still disagree with you on this Andrew. The Constitution is clear that referenda are only necessary in respect of alterations to the document itself (the relevant section refers to alterations to “this Constitution”, which term is used throughout to refer to the document itself). We would be just as bad as the Left if we were to start interpreting clear provisions such as this in obscure ways because its politically expedient.
    .
    I think the more compelling argument would be that a “Charter of Rights” of this nature ought to go into the Constitution rather than be a stand alone Act, and therefore it requires a referendum. I.e., if it is going to do what its proponents want it to do then it needs to go into the Constitution. To the extent that an Act changes the relationship between executive, legislature and/or judiciary in a way that is incompatible with the Constitution as it stands, the Act would be unconstitutional and therefore invalid, would it not?

  • 10
    Andrew Norton
    October 23rd, 2009 08:30

    James – OK, call it a plebiscite to distinguish it from the section 128 procedure – the proposal does not rely on section 128 at all, though it recognises that the change has the character of a change to the system of government.

    While constitutional entrenchment is clearly the ultimate goal of the charter’s proponents, I don’t think we should facilitate that. Though obviously it is intended that the charter will make it difficult for the parliament to disagree with the judiciary, in Victoria and the ACT the parliaments do retain the power to over-ride court decisions.

  • 11
    Kim
    October 23rd, 2009 23:39

    “To the extent that an Act changes the relationship between executive, legislature and/or judiciary in a way that is incompatible with the Constitution as it stands, the Act would be unconstitutional and therefore invalid, would it not?”

    Actually, this is a really interesting question. Most of the attention re the constitutionality of a Charter has gone towards the issue of whether applying for declarations of incompatibility from the High Court would infringe the restriction on advisory opinions set forth in the Re Judiciary Act case.

    But another question is whether the implied repeal doctrine should be considered implicit in the Constitution (most likely through the understanding of ‘parliament’ etc that was clearly taken from the British concept at the time of Foundation). If so, then a Charter of Rights with a interpretative provision requiring courts to depart from the clear legislative meaning would seem to be ineffective; the Charter would be implicitly repealed by a clear contrary provision in a subsequent Act.

    The Brits avoided this problem by saying that their HRA abolished the implied repeal doctrine, but that was relatively easy for them since they never had any form of constitutional entrenchment. There’s at least an argument that implied repeal can’t be dislodged without (written) constitutional amendment in Australia.

  • 12
    James
    October 27th, 2009 22:00

    I’m pleased to see that I’m not the only one who doubts that Australian courts can validly be required or empowered to depart from the legislative intention when interpreting constitutionally valid future laws.

    I’ve previously expressed my view on this issue in other places. It’s as follows.

    In contrast with the situation in the UK, the ‘traditional view’ of the doctrine of implied repeal still prevails in Australia. The application of that doctrine in Australia is founded on constitutional requirements. Sections 106 and 107 of the Constitution and s 2 of the Australia Act 1986 (Cth) confirm and continue the constitutions and legislative powers of the State parliaments. Those powers include the power to impliedly amend or repeal earlier laws (subject to any applicable ‘manner and form’ requirements for the making of laws respecting the State parliament’s constitution, powers or procedure).

    Section 118 of the Constitution requires all Australian courts to give ‘full faith and credit’ to constitutionally valid State laws in cases where it is identified (through choice of law rules) that they are the applicable law.

    Covering clause 5 of the Commonwealth of Australia Constitution Act states that all laws made by the Parliament of the Commonwealth under the Constitution ‘shall be binding on the courts’.

    In the circumstances, it is doubtful that any State parliament or the Commonwealth Parliament possesses the power to require or empower the courts to give interpretations of constitutionally valid future laws that are not consistent with the intention of the enacting parliament.

    The giving of such an interpretation arguably would constitute a failure to give ‘full faith and credit’ to a valid State law, or to duly apply or comply with a binding Commonwealth law.

    I contend that the same impediment also applies to the giving of interpretations (of valid future laws) that are not reasonably open.

    On the issue of whether a referendum should be held, imagine the following scenario. The House of Representatives passes a proposed law containing a Bill of Rights. The Senate subsequently passes the proposed law with a suggested amendment (a new part 1) to the effect that the commencement of the Bill of Rights (encompassed in new part 2) shall occur on a specified date, subject to the Bill being approved in a referendum to be held at the same time as the next general election. The amended proposed law would become a valid Act if passed by the House and assented to by the Governor-General.

    If you were the Prime Minister, what would you do? Would you support the proposed amended law in the House, or would you deny the electors a say on whether our system of government is to be fundamentally changed?