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The Trouble witha WA Human Rights Act:
Dr Augusto Zimmermann[*]
1. Introduction
The Government of Western Australia is preparing to enact a Human Rights Act. In doing so the government “believes that introducing a WA Human Rights Act would help to establish a human rights culture in this State because it would create a political and administrative culture in which the need to respect human rights is understood and acted upon”.[1] For such a purpose it has appointed a Consultation Committee for the Proposed Human Rights Act, which has already called for public submissions on the proposed Human Rights Act and on eight questions about human rights in Western Australia. But in utter contrast to what this State government suggests, human-rights violations have traditionally been curtailed by a system of checks and balances, not a bill of rights. According to Sir Harry Gibbs, formerly Chief Justice of the High Court of Australia, “the most effective way to curb political power is to divide it. A Federal Constitution, which brings about a division of power in actual practice, is a more secure protection for basic political freedoms than a bill of rights.”[2]
Naturally, a bill of rights is not necessarily inconsistent with realization of the rule of law. Bills of rights can arguably be useful in situations where statutory provisions are already violating basic human rights. It can also be important if one can find an imminent risk of human-rights violations in the near future.[3] Depending on the social context, a bill of rights may offer the educational advantage of “impress[ing] upon the public mind the value of individual rights and make them part of a political creed which the people will defend even when they do not fully understand its significance”.[4] In any other situation, however, a bill of rights risk itself undermining democracy, because, as legal philosopher Jeremy Waldron reminds us, judicial enforcement of a bill of rights may turn out to be inconsistent with the democratic right to freely participate in the political decision-making process. Waldron summarises his critique in this way:
If we are going to defend the idea of an entrenched Bill of Rights put effectively beyond revision by anyone other than the judges, we should… think [that]… even if you… orchestrate the support of a large number of like-minded men and women and manage to prevail in the legislative, your measure may be challenged and struck down because your view of what rights we have does not accord with the judges’ views.[5]
In fact, a bill of rights provides undemocratic transference of legislative functions to the judicial branch. One of the main problems with every bill of rights is that it automatically gives to the judiciary the power to determine the whole hierarchy of human rights and interests in society. According tolaw professor Mirko Bagarik, “rights documents are always vague, aspirational creatures and give no guidance on what interests rank the highest. This leaves plenty of scope for wonky judicial interpretation”.[6] Therefore, a bill of rights can easily result in usurpation of legislative functions by non-elected judges. Indeed, as law professor Gabriël A. Moens points out,
“The possibility of attributing different meanings to the provisions of a bill of rights creates the potential for judges to read their own biases and philosophies into such a document, especially if the relevant precedents are themselves mutually inconsistent. Indeed, in most rights issues, the relevant decisions overseas are contradictory. For example, rulings on affirmative action, pornography, ‘hate speech’, homosexual sodomy, abortion, and withdrawal of life support treatment vary remarkably. These rulings indicate that judges, when interpreting a paramount bill of rights, are able to select quite arbitrarily their preferred authorities… Since a bill of rights will often consist of ambiguous provisions, judges can deliberately and cynically attribute meanings to it which are different from the intentions of those who approved the bill – in Australia’s case the electorate”.[7]
Despite the superficial attraction it normally achieves, a bill of rights may dangerously contribute to politicisation of the judiciary. As law professor James Allan explains, “bills of rights are usually accompanied by interpretative techniques which do not constrain judges to deciding in according with the original intent of the enactors nor to the original understanding at the time of passage. Instead, such instruments are often interpreted as ‘living trees’, where judges pay heed to what they think are ‘contemporary values’… The result is an interpretative regime that places few, if any, constraints on the judiciary”.[8] And yet, when judges make bad decisions their rulings are very hard to be corrected due to the entrenchment of judicial precedents.[9] This may lead to the replacement of the rule of law by the ‘rule of judges’. According to law professor Jeffrey Goldsworthy,
“The traditional function of the judicial function… does not sit altogether comfortably with the enforcement of bills of rights. In effect, they confer on judges a power to veto legislation retrospectively, on the basis of judgments of political morality… This involves adding to the judicial function a kind of power traditionally associated with the legislative function, except that the unpredictability inherent in its exercise is exacerbated by its retrospective nature. That is why, on balance, it may diminish rather than enhance the rule of law”.[10]
One cannot but wonder whether Article 7 of the draft Bill prepared by the Government of Western Australia is directly inspired bythe abortionist lobby. The article in question states that everyone will only acquire their basic right to life “after he or she is born”. In other words, the right to life is only applied to human beings from the time of their birth, which means that prior to birth there is no provision protecting the right to life. Under this provision, judges wouldeasily find ‘legal’ grounds to legalise barbaric practices such as partial abortion, where a child as much as nine months of gestation can be tortured and killed by sucking out its brains immediately before the birth is actually completed.
It is worthwhile also to consider thatArticle 33 of the draft Human Rights Act for Western Australiaexpressly refers judges to “international jurisprudence” to assist in interpreting the meaning of the human rights listed in the Human Rights Act. The scope of material which the draft Act directs the courts to take into account includes “any judgment of a foreign or international court or tribunal” as well as “general comments and views of the United Nations bodies that monitor treaties about the rights of people”. According to Richard Egan, National Policy Officer for Festival of Light Australia, “the direction to consider the ‘general comments and views’ of United Nations treaty monitoring bodies is particularly alarming. These bodies have, for example, expressed that it is a violation of human rights: to foster the observance of Mother’s Day;to permit parents to withdraw their children from a sex education class;to have less than 30 percent of children under 3 in full time day care;to allow doctors or hospitals to conscientiously object to participation in abortion;to give economic support to mothers who choose to stay at home;to limit children from seeking medical or legal counselling without parental consent;to limit teenagers access to abortion without parental knowledge; andto allow religious bodies any exemptions from anti-discrimination laws”.[11]
Besides several specific rights of children enumerated in the draft Bill prepared by the Government of Western Australia(e.g. article 17 – right to protection, right to a name; article 22 – right to be detained separately from adults; article 23 – right to suppression of publication of proceedings; article 25 – rights in the criminal process),other enumerated rights can eventually undermine the authority of parents over their children. Thus, for instance, wouldit be a right to freedom of movement (article 10) if a child left home at any age, whether for the night or permanently? Wouldit be a right to privacy (article 11) to prevent parents from searching a child’s room, monitoring Internet use or being informed by the child’s school or medical practitioner of any matter affecting the child without the child’s express permission? Wouldit be a right to freedom of expression (article 13) to prevent parents from prohibiting swearing, obscene talk or disrespectful speech in the family home?As Egan properly explains, “parents can have no confidence that judges or government agencies who will be required to interpret these rights as they apply to children will give adequate weight to parents’ rights in ensuring their children’s wellbeing according to their own values and best judgement”.
To conclude, the introduction of a Human Rights Act in Western Australia will provoke the interference of judges in crucial political issues, including abortion, euthanasia, parent- child relations, immigration, and religious freedom. Such an Actcould have disastrous consequences, as it has the clear potential to serve as an undemocratic tool for “censorship of ideas unpopular with current intellectual orthodoxy”.[12] Once enacted, it will almost certainly exacerbate a self-indulging mentality of rights without responsibilities, notwithstanding limitingour most basic rights and freedoms to the expression of more radical opinions which are acceptable only by the cultural elite. Disadvantages of such bill of rights by far outweigh any alleged advantage from its enactment.
[*] LLB, LLM(cum laude), PhD (Mon.). Associate Lecturer and Co-ordinator of Off-Shore Courses, Murdoch University School of Law.
[1] A WA Human Rights Act: Statement of intent by the Western Australian Government, p.3, at:
[2] Gibbs, Sir Harry, A Constitutional Bill of Rights, in K. Baker (ed.), An Australian Bill of Rights; Pro and Contra, Institute of Public Affairs, Melbourne, 1986, p.325.
[3] Moens, Gabriel A., The Wrongs of a Constitutionally Entrenched Bill of Rights. From: ‘Australia: Republic or Monarch? Legal and Constitutional Issues’. St. Lucia: The University of Queensland, 1994, p.247.
[4] Hayek, Friederich, The Constitution of Liberty, Chicago: University of Chicago Press, 1967, p.217.
[5] Waldron, Jeremy, A Rights-Based Critique of Constitutional Rights. 13 Oxford Journal of Legal Studies 18, 1993, pp.50-51.
[6] Bagaric, Mirko, Your Right to Reject Bill of Rights. Herald Sun, Melbourne, 8 November 2005, p.19.
[7] Moens, Gabriël A., The Wrongs of a Constitutionally Entrenched Bill of Rights. From: ‘Australia: Republic or Monarchy? Legal and Constitutional Issues’. St Lucia: The University of Queensland., 1994, p.236.
[8] Allan, Jim, Oh That I Were Made Judge in the Land. 30 Federal Law Review 561, pp.574-75.
[9] Moens, Gabriël A., The Wrongs of a Constitutionally Entrenched Bill of Rights. From: ‘Australia: Republic or Monarchy? Legal and Constitutional Issues’. St Lucia: The University of Queensland, 1994, p.240.
[10]Goldsworthy, Jeffrey, Legislative Sovereignty and The Rule of Law. From ‘Sceptical Essays on Human Rights’, Edited by T. Campbell, K.D. Ewing, and A. Tomkins, Oxford: Oxford University Press, 2001, p.75.
[11]Egan, Richard, Submission on the WA Human Rights Act by Festival of Light Australia, 5 June 2007.
[12] Moens, Gabriël A.; The Wrongs of a Constitutionally Entrenched Bill of Rights. From: ‘Australia: Republic or Monarchy? Legal and Constitutional Issues’. St Lucia: The University of Queensland., 1994, p.252.