Where I agree with Helen Irving

Professor Irving is not opposed to limitations on legislative power as such, or to judicial review to determine whether the legislature has acted within its constitutionally-mandated limits. I agree with this, of course. But there is then a question as to what those limits should be. Generally, this is not addressed in her submission, although she does defend certain rights of procedural fairness.

She objects to certain content going in a Bill of Rights, and on this I also agree with her.

Specifically, she objects to any Bill of Rights whose content requires that judges go beyond the sort of judicial review mentioned above, and "answer political questions and provide legal remedies for controversies concerning policy." For example, she objects to a draft Bill of Rights proposed by the New Matilda campaign, which she describes as providing for rights that extend far beyond civil and political rights, to include a wide range of positive socio-economic rights, albeit with a provision requiring courts to consider costs and the financial capacity of the public sector to provide for such a right. As she says:

Such a provision ... would empower the courts to order governments to submit financial statements, budget papers, and justifications for fiscal policy. The courts would become, effectively, tribunals where judges challenged budget decisions or the costing of public programs. The separation of powers would be severely damaged. The time and cost involved in this process would also seriously hinder the normal work of the courts.

Irving adds:

Every good society should provide the best levels of health and education and housing, the best opportunities for decent and well-paid employment, a clean and healthy environment, and much more. But according to which criteria are we to decide whether these claims have been met? How are we to know whether the resources available have been optimally or equitably allocated?

Again, I concur. As she argues, these are not questions that should be justiciable in courts of law. As I would put it, they are the stuff of day-to-day politics.

Here is how I argued the point in my own submission to the National Human Rights Consultation:

Notoriously, there is no general agreement about what level of overall taxation should be levied, what tax mix is most desirable, or which government programs should be the highest priority. Debate about these issues is the stuff of day-to-day politics, with "left-wing" political parties generally seeking to expand government programs, while "right-wing" wing parties generally seek to contract them. (In fact, this is simplistic since "right-wing" politicians often end up leading high-spending administrations that splurge public revenue on such dubious projects as foreign wars, extreme efforts to suppress the trade in recreational drugs, subsidies to big business, etc.) This is all part of day-to-day politics in a country such as Australia, and I submit that it should not be constitutionalised. At least in Australia's situation, a Bill of Rights need not spell out the role of the state in conducting programs related to such things as housing and education. That role should, of course, continue, but the precise outcomes must be determined through the political process, including the negotiation of party platforms and the regular testing of rival platforms through democratic elections.

As well as being unnecessary and at odds with ordinary political processes in Australia, the constitutionalisation of positive rights to such things as housing and education would not be readily justiciable. While the modern state should gather revenue and provide resources for these programs, its duty to do this is one of imperfect obligation. That is to say, the state has a broad discretion in how the duty is to be performed. Democratic politics assumes this, as the electorate is given the choice of rival sets of policies that are themselves expressed at a fairly vague level. Thus, it is not possible to specify in a document such as the Australian Constitution or a supplementary Bill of Rights exactly what positive steps a government must take in order to fulfil its duty. ...

Finally, on this point, it is not necessary that a nation's constitution spell out the entire role of a modern state. If it did so, it would mention not only the provision of services such as education and housing but also the state's fundamental Hobbesian functions. The apparatus of the state enables large societies to exist and prosper, without the kind of war of all against all feared by Hobbes. It does so by such means as establishing a system of property (taking some resources from the commons and allocating them to individuals or groups), sustaining a market for goods and services, banning most uses of violence to obtain advantage (hence we have laws against murder, rape, armed robbery, and so on, although we leave some limited scope for prowess in violence by permitting heavily-regulated martial sports such as boxing). In order to carry out these roles, the state must spend revenue on such institutions as police forces and criminal courts, but also systems of registration for major items of property such as allotments of land. In addition, it attempts to deter — and where necessary to resist — attacks from foreign enemies, and thus spends revenue on military personnel and equipment.

It might be suggested, with considerable plausibility, that everyone has a "right" that the state provide such things as a system of property, a criminal justice system, the armed forces, and so on. Certainly these things are necessary for large societies to function with internal peace and a degree of security from external attack. However, it is not necessary to spell out rights to these things in a constitution. The moral here is that the role of the state, even its most fundamental role, need not, and should not, be constitutionalised. A document such as the Australian Constitution need not delineate the vast range of governmental responsibilities under contemporary conditions. A subsidiary document such as a Bill of Rights should be restricted to fairly precise specification of those things that the state should not do, but which governments of all persuasions may be tempted to do.

Some of Irving's examples in existing non-entrenched Charters of Rights are worth considering. E.g., the Victorian Charter requires courts to consider whether a person who has "a particular cultural, religious, racial or linguistic background" has been denied "the right, in community with other persons of that background, to enjoy his or her culture, to declare and practise his or her religion and to use his or her language." I don't think that the objection that Irving makes to this is so clear-cut as her objection to, say, a constitutional right to something as open-ended as good health or education or housing. Nonetheless, it is a tricky question for the courts. It requires an investigation of social and historical issues to determine what "backgounds" exist and whether a person has such a "background".

Again, the ACT Human Rights Act states: "[t]he family is the natural and basic group unit of society and is entitled to be protected by society."

Irving responds:

This provision requires the courts to resolve questions about the identity of the family and the indicia of its integrity, notwithstanding the fact that the family is social institution, the character of which has long fascinated and taxed ethnographers and social historians. Again, these are not judicial inquiries.

My difficulty is more that this is an example of a contentious anthropological cum moral claim being given the force of law.

Irving suggests that many people who advocate a Bill of Rights hold up the redress of indigenous disadvantage as an example. I agree with her that this is not a good use for a Bill of Rights. It is not a simple matter to draft a provision protecting indigenous people from adverse government actions when it is controversial, even among indigenous people, just which actions are adverse. For example, it is not clear whether, on balance, the current Commonwealth Intervention is adverse or the opposite. That is a matter of political opinion that is not readily, or appropriately, justiciable. As Irving says:

A court cannot determine whether a highly-complex set of processes and actions, based on detailed legislative and administrative schemes, with reference to conduct that is ongoing and future-oriented, is or is not “adverse.” This is a matter for political debate, for public discussion and input, for fine-tuning, for long-term planning, for compromise, for balancing of interests, for hard decisions about means and ends and resources. In short, the sorts of things that are done in the political realm.

But none of this amounts to an objection to the kind of Bill of Rights that I want: a constitutionally-entrenched limitation on the ability of legislatures to abridge freedom of speech and expression - and not just political speech - or other basic negative rights such as freedom of belief and conscience. Such provisions have proved workable in, for example, the US and Canada. There is no reason why they should not be here in Australia. Furthermore, with governments that are continually finding new ways to attack freedom of speech and expression, we could certainly do with such provisions.