As Australia awaits the government’s decision on a Bill of Rights, the debate is switching to whether such a Bill should be ‘entrenched’ in the Constitution, or an ordinary Act of Parliament. Here’s the view of Prof Brian Opeskin, of Macquarie Uni.
Socratic Forum
Friday 13 November 2009
Australian National University, Canberra
That Australia should have an entrenched Bill of Rights.
Brian Opeskin
Professor of Legal Governance, Macquarie University, Sydney.
A year ago I visited the town of Viele Armand in the Vosges Mountains in Alsace, France. It is a bluff that overlooks the vast Rhine Plain and in the First World War troops died there in their thousands. Today, you can still walk along the trenches where they fought and perished.
To walk in their steps gives a vivid impression of what it is like to be entrenched in the military sense of that term. Certainly there is the illusion of security, but more than anything there is a cloying feeling of confinement, fixity, entrapment. Today I would like to add my voice to the argument that Australia should not have an entrenched Bill of Rights.
This is not because a Bill of Rights is bad. It is not because a Bill of Rights is unnecessary as we’re ‘already fully protected’, as some still claim. It is not even because an entrenched Bill of Rights is an unattainable goal. It is because entrenchment-and let me put this at its boldest-is bad for this country and this time.
Entrenchment has a special meaning for public lawyers. A law is entrenched if it cannot be changed by an ordinary Act of Parliament. One way to entrench a law is to make it part of the Constitution. Once it is, any amendment requires the approval not only of the Parliament but also of the people voting at referendum. There are two reasons why is this bad.
The first reason is inflexibility. Once we have a constitutionally entrenched Bill of Rights, we are unlikely to be able to amend it in a hurry. Australians have a remarkable reluctance about constitutional change. We have been described as a constitutionally “frozen continent”.
But why would we need to change it? Couldn’t we rely on our lawmakers to propose a Bill of Rights that is the very embodiment of perfection?
Consider this. Sixty years ago the international community drafted the Universal Declaration of Human Rights. The human rights project was not completed by that document. Forty years ago states supplemented it with a convention on race; and then the two International Covenants; and then a convention on women; and then torture; and then children; and then migrants; and then persons with disabilities. The passing years bring new understandings of human vulnerabilities and the need for protection.
Can we really suppose that we have reached such a perfect understanding of what it is to be respected as a human that we can set down a Bill of Rights today, completely and exhaustively for all time, or even for a substantial time?
The second reason follows directly from this. Constitutions are not written like statutes. They deal with values, principles and concepts which need to be interpreted and applied in particular cases, ultimately by judges.
When constitutions are difficult to amend (which of course they should be), judges have an especially heavy burden of making old dogs perform new tricks. That is when an entrenched Bill of Rights transfers power to an unelected judiciary on a large and unacceptable scale. To take the case of the United States Bill of Rights, how else does one make the meagre language of 1789 meet new demands 220 years later?
Australia is fortunate to have a judiciary of outstanding quality and impartiality. But we ask too much if we expect our judges to carry the burden of interpreting and applying an entrenched Bill of Rights in a frozen continent.
Fly forward 220 years into the future. It is now the year 2229. Your seventh generation offspring inhabit this land. Do you believe that the legal trenches you dig today can protect your progeny so far into the future? Or-like Viele Armand-might they be just abandoned ruins; a mere remembrance of distant battles in a distant past?
I would like to end with a quotation from Robert Kennedy who said: “History is a relentless master. It has no present, only the past rushing into the future. To try to hold fast is to be swept aside.”