Leftist critics of the right like Norman Abjorensen see them as opponents of popular sovereignty. Certainly, in the past conservatives have sometimes supported quasi-democratic upper houses as a way of keeping a restraint on popularly elected Labor governments. Labor responded by planning to abolish upper houses, successfully in Queensland, and didn’t get rid of its pledge to abolish the Senate until 1979.
But over the last 15 or so years there has been something of a role reversal. Conservatism developed a strong populist strain, while Labor governments and their left-wing supporters started thinking of ways to frustrate the will of the lower houses of parliament. This is most advanced in Victoria, where Labor changed the Legislative Council’s voting system to make it difficult for either major party to secure a majority, and introduced a charter of rights, handing substantial power to the judiciary, while reserving the parliament’s power to ultimately over-ride ‘rights’.
The political identity survey suggests that conservatives (combining self-categorised ‘conservatives’ and ‘social conservatives and economic liberals’) are now quite distinctive in their opposition to further ceding power to the judiciary and preserving the democratic system’s role in protecting individual freedoms, though a slim majority of the classical liberals in the survey also prefer the democratic system.
The question read: Do you think individual freedoms should be protected by a constitutional bill of rights/a statutory charter of rights/the democratic system/other. ‘Democratic system’ answers are shown in the chart.
Interpreting these results is difficult, in that it is possible to oppose bills and charters of rights not because of support for greater democratic power but because of concern about damaging the judiciary, by giving it tasks it is not competent to undertake and which will cause it to be the subject of political controversy.
But on the basic practical question of where political power should lie, with elected politicians or unelected judges, among ideologues the democratic option is largely a right-of-centre cause, while the undemocratic option receives overwhelming support from left-of-centre groups.
Update: Support for a bill or charter of rights is below; as can be seen the ‘constitutional bill of rights’ is more strongly supported than a ‘statutory charter of rights’.
S
Andrew Norton 
Andrew: you said “interpreting these results is difficult”
Yep. Perhaps a new survey? Count me in.
btw: me – pro charter/bill, and think executive/parliamentary power should be able to either remove a judge by a two-thirds majority vote, or perhaps initiate proceeding similar to deregistering lawyers/doctors.
This is a really good series of posts.
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Andrew – you could be exaggerating, or I could be entirely mistaken, but in Australia, charters of rights (Victoria and ACT?) don’t overide Parliament, do they?
So one could want a charter of rights that could be used to confront politicians with the ‘rights’ consequences of their decisions, without wanting to displace parliament’s ultimate authority to make the decision ??
I’m also not happy with my choice being described as “the undemocratic option”! I like to think of a healthy democracy as having lots of bases of power of varying degrees – the press, the public service, the unions, the judiciary and so on, with parliament as the ultimate law maker. I suspect your conservatives have an unhealthy sympathy with totalitarianism.
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When will people learn democracy doesn’t work? 🙂 It’s constitutional liberal democracy that works and that’s a completely different beast.
Happy to admit I am one of those who has no objection to over-riding democracy through the right kind of bill of rights e.g. the US Supreme Court in all those pre-New Deal cases. Contra Justice Holmes there was nothing wrong with the US Constitution enacting Herbert Spencer’s Social Statics.
My opposition to proposals for a charter or bill of rights will be case specific and dependent on the prospect that it will be captured to impose ‘positive’ rights, something that a judiciary is inherently unsuited to enforcing as opposed to ‘negative’ rights to simply strike down legislation.
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Russell – As noted in the post, they can’t over-ride, but they can issue a declaration of inconsistent interepretation, requiring the relevant Minister to table his/her response in Parliament. It it is intended to use the judiciary to place pressure on the Parliament.
I have added another chart, showing that the charter of rights option was not popular with any of the groups – I think it is really just a pragmatic first step by supporters of judicial power, recognising that support for the constitutional option is not strong enough in the broader community.
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This is probably Jason’s point, democracy interpreted as untramelled majority rule is no better than any other tyranny unless held in check to avoid “Parliamentary sovereignty”, that is the situation where the majority of bodies in an elected house can pass any legislation they want regardless of traditions and freedoms that are trampled in the process.
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PS Queensland got rid of the upper house but did not go on with the “people’s vote” (citizen-initiated referendums) which almost got up on the eve of WWI but was dropped afterwards.
To protect genuine democracy, bring on CIR! There is a CIS book on this topic.
http://www.the-rathouse.com/shortreviews/The-Peoples-Vote.html
“The Australian Labor Party, from its earliest days in the 1890s, accepted the principle of initiative and referendum (and later the recall) not merely as policy but as one of the primary objectives of the party.”
Legislation for CIRs passed in the Labor controlled Queensland lower house in 1915 but it stopped at the conservative-dominated upper house. After this no serious efforts to promote the people’s vote occurred for many decades and Walker reported that in 1963 the Labor Party dropped it from the party platform.
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The abolition of the Queensland Upper House, like the introduction of the zonal electoral system some decades latter and various other acts of institutional vandalism in Queensland in the 20th century, should be seen as a salutary example of how political-institutional changes introduced for reasons of partisan advantage can come back to bite their original sponsors and lead to all sorts of unforseen consequences.
CIR has some attractions for me, subject to appropriate safeguards to prevent it from simply displacing the problem of tyranny of the majority from the parliament to the populace at large. Also it can be argued that winner-take-all referendums asking people to vote for or against a preconceived position are in some ways less democratic than creating deliberative forums where people from diverse and even opposing positions can come together and attempt to negotiate a collaborative policy outcome which synthesises all the concerns and perspectives which people bring to the table.
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Andrew,
I think your definition of democracy is quite narrow if it is limited to major party rule in the lower house.
While I agree that the reform in the Victorian Upper House resulted in a situation that is more advantageous to the left, it is also a more democratic system.
Democracy should be about majority rule, not plurality rule. And even “majority” rule should be driven by consensus based politics and compromise.
First Past the Post systems and single electorate systems are only a shadow of democracy. Proportional representation gives a far better estimate of the conflicting views that exist within a society.
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Shem – I was more tracking changing Labor attitudes on the issue of lower houses; when Labor formed those views it was in the context of upper houses elected on a restricted franchise and/or with representation skewed to conservative country electorates rather than PR.
Both single-member electorate and PR systems are democratic, the judiciary (rightly) is not.
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Andrew – could you please add the survey question under the update graph – as you have for the first graph?
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Russell – Same question as above, but with the % for the bill of rights and for the charter of rights.
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I think you’re making too much of the fun little survey with this “Support for Democracy over Judicial Power” stuff. The ‘power’ is only to point out inconsistencies between pieces of legislation and can be seen as enhancing democracy rather than reducing it.
I also don’t agree with “the charter of rights option was not popular with any of the groups – I think it is really just a pragmatic first step by supporters of judicial power, recognising that support for the constitutional option is not strong enough in the broader community.”
The Greens and Social Democrats want some formal process for guarding rights – if they couldn’t have a Bill they’d have Charter, or vice versa. In Victoria, where you have a Charter, your Greens readers might have a good grasp of how their Charter has worked – maybe it hasn’t achieved anything much so they voted for the Bill. In W.A. we haven’t had any such experience. I think you need more information before coming to conclusions about support for Charters vs Bills.
There may be not much support for a constitutional change in the broader community, but I’ll bet there isn’t much negative sentiment either. It’s not an issue occupying the minds of the broader community, who generally are suspicious of any constitutional changes. But given that charters have been introduced in Victoria, the A.C.T, and the U.K. and I think also in N.Z., and Canada, I wouldn’t assume they’re unpopular. Have any been repealed?
Finally, thank God we don’t have CIR, in other words, mob rule. Then again it would mean the fun of a referendum every year on daylight saving – we in W.A. are about to have our fourth DSL referendum next month.
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Goodness, you’re unjustifiedly patronising Russell.
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James – if I were trying to patronise Andrew it would be unjustified, and ridiculous. No harm in a little teasing though …
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Andrew
I’m pretty shocked libertarians would rather see the judiciary over the parliament.
You think the question it was properly understood? I would have thought the reverse.
The High Court finding in marbo and Roe/Wade in the US are good examples of judicial overreach surely.
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Your first point is reasonable, but it’s ridiculous to suggest support for parliament over the judiciary amounts to any kind of sympathy with totalitarianism. The “checks-and-balances” view of the state — properly called republicanism, not democracy — has plenty of conservative supporters. (Michael Oakeshott, for example, defined his “libertarianism” as the avoidance of any overwhelming concentrations of power.)
The problem with bills of rights is not that they take some power from the parliament and give it to the judiciary (that’s the whole point of a constitution!). It’s that “rights” are usually very vague in extent and often don’t suggest a means of implementation. In practice, this means bills of rights give a lot more power to the judiciary than you might expect.
The canonical example of this in the U.S. is of course Roe vs. Wade — a decision based on a vague, supposedly-implied “right to privacy” and which has poisoned and polarized the abortion debate in that country ever since. Another, more left-friendly example might be the constant bickering over the second amendment.
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Leon – the second sentence was just more teasing. So, OK, I promise to cut down on the teasing.
I reckon all the Americans I know would think it ridiculous that someone from a country without any sort of Bill or Charter of rights would say that their U.S. Bill of Rights was ‘undemocratic’. I think they would say that it was a protection of their democratic rights. Maybe not perfect, what system is, but on the whole, a democratic plus.
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JC: Constitutional limitations on the ability of Government to abrogate certain rights of citizens seems to me perfectly consistent with a small-Government philosophy. (Such bills of rights typically limit Government action, but not private action).
I don’t see Constitutional limitations on Government action as undemocratic – the Constitution itself is a democratic institution which is only modified through direct popular vote.
Are the current Constitutional restrictions on the areas in which the Federal Government can legislate also to be held to be undemocratic?
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Having attended the ‘consultation’ for the federal charter – I make the following points.
1. The Rights being discussed between the various groups have little correlation
2. The proposed Bill of Rights is modeled on the UN Charter – which makes a complete hash of the distinction between positive and negative rights
3. The ALP platform specifically denounces the US Bill of Rights as a model for the Charter – one thinks because of the second amendment, but possibly knee jerk anti-Americanism
4. At the consultation – once the difference was explained between rights protecting one from government and ones demanding government action. A consensus was reached, rights protecting (i.e. US Style) should be treated as the priority. This was in a room dominated by Get-Up and various people who don’t contribute to blogs such as this.
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Caf
I’m not talking about the obvious need for constitutional limitations on government.
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My concerns regarding a bill of rights is along the same lines as Jasons concern.
If it includes a right to free health care for everybody then it aint my cup of tea.
I will often say that I don’t support a bill or rights just as I will often refuse to sign a blank cheque. However name some rights and I may well support them and even wish to see them codified in the constitution. For instance I’d happily see a free speech clause put in the consitution. I’d happily see the race powers removed from our consitution and a clause preventing racist laws inserted.
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I’d agree in the case of Roe/Wade but not Marbo.
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JC – you asked if the question was properly understood. It referred to protecting individual freedoms. To me, “individual freedoms” connotes negative rights. How did you interpret it?
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I think that if properly instituted direct democracy can be a powerful limit on government. Reforms I would support include:-
1. TABOR. Essentially a constitutional per capita limit on tax revenue that can only be increased in line with inflation or if amended via a referendum. If the government of the day breaches the limit then all taxpayers would be legally entitled to a pro-rata tax rebate. Colorado has such a restriction in it’s constitution.
2. A spending cap as part of the budget process. Lawfully government spending should not be allowed to grow any faster than the past ten year geometric average in revenue. California is soon to vote on such an amendment to their constitution.
3. A citizens power of repeal built into the constitution. Don’t like a particular act of law then get a petition with enough signatures and at the next election the people can decide if they want it repealed. A determined government may then reinstate it but I doubt many governments would so blantantly snub their nose at the majority like that. Some unpopular laws (eg the act allowing the privatisation of Telstra) permit governments to do things (ie privatise Telstra) that don’t get undone by merely repealing the enabling laws (what was lawful was done). However laws with enduring powers (as opposed to enduring effects) could be brought to heal.
With all of the above I’d leave the timing of referendums in the hands of the government with the provision that there must be a referendum at each general election (assuming there are questions pending).
Places such as Switzerland demonstrate that there can be a large degree of compatibility between direct democracy and limited government. It is quite valid to be in favour of more direct democracy and also in favour of more limited government. The two can readily fit together like a hand and a glove.
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I am all for the judiciary being empowered to reject legislation that offends “rights”, but under two conditions:
1. Those “rights” are constitutionally entrenched.
2. Those “rights” are the product are citizen agitation, debate, and finally approved via referenda.
Unfortunately, the current ‘Charter’ campaign is foisted upon us by an oleaginous elite pimping “rights” that elite has picked out of its ass, and which that elite has no intention of allowing the citizenry a say.
It is time to tell the Luvvie Citizen-Hating Elite to Naff Off!
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If Libertarians are supporting the current obscene offering, it can only be because they have not read the Victorian Charter
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JG – what bad things have happened as a result of Victoria’s Charter?
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Russell
I didn’t make any comment relevant to your question. Remember, the Victoria Charter only applies to state legislation and has barely been operative for a year.
But I implore all concerned people to read this astonishingly badly drafted document and the horror of s.32!
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JG – it looked like you were making some connection between the “current obscene offering” and the Charter. “Only applies to state legislation” would include most criminal law, wouldn’t it, where rights are not unimportant. Not to mention state anti-discrimination laws ….
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How was Marbo constitutionally proper, Terje?
Where, in the Constitution are rights over tribal lands mentioned or even asserted?
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JC,
Space flight isn’t mentioned in the Australian constitution either. That does not meant laws about space ships are not constitutionally proper.
More to the point the Australian constitution did not strip away pre-existing property rights and was never intended to. All the Mabo decision essentially found was that aborigines lived here before 1788, that they had a right of ownership over the land they occupied prior to 1788, that the Queensland government was breaching the Queensland anti-discrimination act by trying to take away such ownership rights. The decision did not last long anyway because the federal government subsequently legislated it’s own decision on the matter via the Native Title Act. As far as I am aware nobody has challenged the Native Title Act on constitutional grounds and if they did I doubt they would succeed.
Roe v. Wade was not merely about property rights or clear facts of history. It essentially invented a right based on a privacy clause in the constitution that is not even explicitly there. In Roe v. Wade I agree with the discenting opinion.
http://en.wikipedia.org/wiki/Roe_v._Wade#Dissents
Abortion in the USA ought to be a matter for state law even though I would personally tend to vote at a state level in favour of the values expressed by the majority view in Roe v. Wade. I agree with the sentiment of the decision but not the validity. Although validity isn’t mine to decide, that role most certainly does lie with the United States Supreme Court that made the decision. So in a way they can’t actually be constitutionally wrong even if I think they were constitutionally wrong.
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Terje:
Condoms aren’t mentioned either, so what’s your point. The Australian High court is a constitutional court of appeal, which means it adjudicates on matters to do with the constitution, not about space flight, condoms or whether Eddie deserved his land. Those issues belong in the people’s house.
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The point is, Terje that the High court created group rights which the constitution doesn’t mention.
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No, the High Court is more than just a court deciding constitutional matters – it is also the final court of appeal for common law matters (among other things), which is the context in which the Mabo judgement was given.
Plenty of things prior to the Constitution remain a part of our law – for example the Magna Carta remains in force here.
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My point is that your earlier comment “Where, in the Constitution are rights over tribal lands mentioned or even asserted?” is pointless. They don’t need to be mentioned in the constitution for the high court to decide matters relating to them.
Exactly. Mabo was not a constitutional matter. It was a case about property rights. And property rights were not invented by the Mabo case. The idea that natives have legal title over land isn’t knew it was just not generally applied in Australia due to an early declaration of terra nullius which was obviously factually untrue. In England under British law traditional rights of way have long coexisted with formal land title. Mabo was not particularily original.
The US Supreme Court is also not limited to constitutional matters but in Roe vs Wade they decided the case on the basis of something they imagined to be in the constitution. In the process they essentially invented a new right.
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The idea that natives have legal title over land isn’t knew it was just not generally applied in Australia due to an early declaration of terra nullius which was obviously factually untrue.
Is it? So group rights are an explicit constitutional right now, are they? Terra nullus has to be factually true or we shouldn’t be here.
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Groups have never been excluded from owning property jointly. For instance that’s what corporations are all about. And the Mabo case was pretty clear that Aboriginies could not merely claim land because their ancesters once roamed the continent. They have to demonstrate an enduring association with the land in question along a heritary blood line. Even then it does not give them full title. It gives them a lesser form of title called native title. And there was nothing costitutional about this right of claim or else the subseqent Native Title Act, which put limits on such rights, would have been unconstitutional.
Mabo was just a court case. It did not invent new constitutional rights.
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Stop confusing the Act with the actions of the high court.
It did confer group rights and I can’t believe you would suggest otherwise. It recognized that one group (aboriginals) had a particular right to land the rest of us could not enjoy.
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Even the concept of terra nullus was wrongly inferred. There isn’t anything much in legal dictionaries that suggest that it was even a governing concept under English law.
The fact is that under the standards of European government when Cook claimed Australia for the Brits, settlement in Australia by any context would have been considered barbarous.
The court certainly did over-reach by establish a property right over land based on a false premise. The proper place for that sort of decision rests with the parliament or referendum and most certainly not with a court.
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On the contrary, answers to questions like “Does a legal property right exist in this instance?” are the bread and butter of courts.
You may not agree with the legal reasoning put in that case, but the courts are certainly the right place for legal reasoning to be tested.
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JC – the bottom line is that they have not imported anything into the constitution. There is nothing in the Mabo interpretation of the constitution that stops the commonwealth from extinquishing native title. So even if the court did create a right they did not create a constitutional right that surpasses the power of parliament.
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Terje:
Of course they surpassed the authority of parliament. Granting special privileges to one group at the cost of others because of race is a clear political decision that belongs with the peoples’ representatives. It most certainly doesn’t belong with an unelected group of twerps who think they can make laws by themselves because they think they have some higher calling.
It moved away from any known system of title that we used to confer land ownership therefore making it a political decision, not a legal one.
You clearly don’t even understand the difference between conferring special rights and privileges to a particular group (by your suggestion that groups have never been disqualified from owning land)… As though we’re discussing that or that it is the same thing.
Caf:
Legal reasoning? What legal reasoning did they use when even the concept of Terra nullus was something they dredged out or nowhere creating a stawman. As I said Terra Nullus wasn’t recorded in standard English law dictionaries.
I say it again. Marbo was actually equivalent of an Exocet missile lobbed straight at our legal system. There is nothing in this wholly extra legal decision that any libertarian could like as it was the first major law created outside of parliament to confer special rights on one group pf people at the cost of another.
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No, all the court did was recognise the existence of a property right. All you are arguing is that you don’t agree with the legal reasoning that was used – that doesn’t mean it wasn’t legal reasoning!
It fits perfectly within our system of law – it is similar reasoning that is used to recognise pre-1778 grants of land by the Crown in the US.
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1.What property rights was it able to find under English law, Caf? The only right it found was group rights under some alien system not know under English law.
2. The Torries strait Island where the dispute occurred was not even the mainland. In fact the islanders are not aboriginal. So why push its decision on to the mainland when there was no need to as there wasn’t a case brought before the court to adjudicate a dispute over an issue on the mainland.
3. There were no cases in front of the court over the issue of mainland aboriginal property rights disputes so it wasn’t acting as an appeals court at all. It was making law.
4. Where was the evidence from aboriginals over the issue of native title that was brought before the court…. Oh, there wasn’t any.
The court made law, alright and it made law without the citizens deciding it could.
As I said these decisions belong with the people’s representatives.
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As TerjeP tried to point out, limited property rights vesting in a group of people have existed in English law for a long time – for example, Rights Of Way. I don’t know why you are so hung up on “group rights” – such things are common as muck (large numbers of couples own their estates as “tenants in common”).
Furthermore, the decision didn’t directly impact any other land. The only effect on the mainland would be through precedent – that is, if someone else took a similar case to court it could be expected to be decided in a similar way. It was the legislative response of the Federal Government (or the “people’s representatives”, if you prefer) that explicitly extended it to the general case.
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Caf:
Where have group rights based on racial preferences existed in traditional English law? It seems to me you’re trying to make a pig into a beauty contestant here.
For that matter where have groups rights based on racial preferences grounded on primitive tribal ways become modern law?
If you want to give away the land then do so through the parliament. Furthermore it would be up to the parliament to decide on the use of a new form of title method, no?
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JC – the fact that the court decision in regards to Torries Strait Islanders was seen as having implications for mainland aboriginies contradicts your notion that this was about special rights for a particular racial group. It was seen as having equal application to other groups in the same circumstance so I don’t see how it is racially based.
We are in any case digressing. The point is that the legislature can over ride the Mabo decision if they wish. Where as in Roe versus Wade the court implied that there was a right that legislation could not take away. Surely you can see a distinction between these two situations even if you disagree with the Mabo decision.
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It is nothing to do with race.
Fundamentally the court made a finding of fact (that prior to settlement the ancestors of the claimants had enjoyed property rights in the land in question) and a finding of law (that those rights survived settlement and the founding of the State).
The court in no way prevented Parliament from legislating with respect to those property rights, or acquiring them as it may lawfully do under the Constitution.
Eddie Mabo was entirely within his rights to have his day in court to decide the legal question “have these property rights continued to exist?”. Just because YOU don’t agree with the answer doesn’t mean it wasn’t a legal question or that it wasn’t the right forum. It is essentially no different to any other property dispute – if I have an argument with my neighbour over property rights I don’t expect Parliament to sort it out.
Further, it seems to me that the decision was a blow in favour of a libertarian philosophy, because it essentially confirmed that property rights exist as a matter of facts on the ground, and do not derive from the power of the State.
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JC – the fact that the court decision in regards to Torries Strait Islanders was seen as having implications for mainland aboriginies contradicts your notion that this was about special rights for a particular racial group.
Nonsense. Simply because I brought the absurdity of those opinions doesn’t mean that they weren’t conferring special rights based on a title system that was completely alien to anything we had before.
It was seen as having equal application to other groups in the same circumstance so I don’t see how it is racially based.
ROTFL. Like you mean the same law applied to 1950’s southern European immigrants too. I can’ believe you’re even saying that.
We are in any case digressing. The point is that the legislature can over ride the Mabo decision if they wish.
They can’t on what is seen as constitutional matters. In fact they can’t override them at all.
Where as in Roe versus Wade the court implied that there was a right that legislation could not take away. Surely you can see a distinction between these two situations even if you disagree with the Mabo decision.
Surely you’re not suggesting I wasn’t able to see the difference, Terje? At least I hope you aren’t.
Caf:
It is nothing to do with race.
That’s right Eddie Marbo was actually an Italian immigrant whose ancestors arrived 30,000 years ago.
Fundamentally the court made a finding of fact (that prior to settlement the ancestors of the claimants had enjoyed property rights in the land in question) and a finding of law (that those rights survived settlement and the founding of the State)./i
To which you should have added….
“ and designed an entirely new system of title”.
The court in no way prevented Parliament from legislating with respect to those property rights, or acquiring them as it may lawfully do under the Constitution.
The court in fact demanded the Parliament design a system.
Eddie Mabo was entirely within his rights to have his day in court to decide the legal question “have these property rights continued to exist?”. Just because YOU don’t agree with the answer doesn’t mean it wasn’t a legal question or that it wasn’t the right forum.
That’s a strawman argument. Eddie was entitled to take anything he liked to court. The court should have turned him down and directed Eddie to go and see his elected rep as he did have a reasonable case for a political settlement, not a legal one.
It is essentially no different to any other property dispute – if I have an argument with my neighbour over property rights I don’t expect Parliament to sort it out.
As I said earlier: It’s hugely different as the court found a new level of property rights based on a system that was alien to ours. Surely you wouldn’t expect the High court to decide through dispute resolution that the current system of title transfer doesn’t work and that they set up another well away from parliament.
Further, it seems to me that the decision was a blow in favour of a libertarian philosophy, because it essentially confirmed that property rights exist as a matter of facts on the ground, and do not derive from the power of the State.
Sorry, but special race based rights are not a libertarian principal. It’s essentially a leftist philosophy.
My point is that this should have been a political accommodation, not a legal one.
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They are NOT race-based rights. If the Dutch had left a few of their countrymen behind here when they dropped by in the 17th century, and their descendants were still hanging out in the Western Australian boondocks, then the Mabo decision would apply to them too. There’s no racial test involved.
It is self-evidently ludicrous to suggest that Eddie’s ancestors should have simply popped down to the local titles office and registered Torrens Title on their land. In any case the property rights in question pre-dated the establishment of the Torrens Title system.
Property rights are a question of fact, not of bureaucracy.
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