Over the next few days, I'm going to take some time to read - and blog about - the new book from Geoffrey Robertson, The Statute of Liberty: How Australians Can Take Back Their Rights (Sydney: Vintage, 2009). Like Robertson, I support the idea of a bill of rights. Actually, Robertson is only supporting a statutory charter, whereas I support full-blown constitutional entrenchment of fundamental freedoms (such as freedom of speech). On the other hand, he probably supports more content going into his charter of rights than I am happy with. We'll see how this plays out.
So far, I've read Chapter 1, which is a rather chatty introduction that hasn't said anything much at all. I do wish books would cut to the chase, rather than starting slowly with irrelevant personal reminiscences and the like. To Robertson's credit, however, he does have a shot at the simplistic claim that documents such as bills of rights transfer power from politicians to unelected judges. He doesn't say much about why this claim is misleading - nonetheless, so long as the rights concerned merely take the form of limits on government power over the citizens, there is no such "transfer".
Rather, there is an area of freedom created for citizens, where governments (legislatures and executive branches) do not have the legal ability to tell them what to do. Where there is a dispute about whether the government has overstepped the boundary, it is determined by the courts. However, the courts do not possess the power that has been taken from government, such as a power to restrict freedom of speech. All they can do is decide whether or not the government has acted in such a way as to overstep the limits, and even the power to decide that must be exercised in a structured way that severely limits the courts' discretion.
If a bill of rights starts setting out positive rights, things become more complicated. But as long as we are dealing with provisions that protect an area of freedom for the citizens, by imposing limits on government power, there just is no transfer of the power of elected politicians to unelected judges. Rather, it is removed from the politicians, and an area of power over their lives is handed back to the citizens themselves.
This annoying meme - transferring power from elected politicians to unelected judges - has an ability to replicate itself that is greatly disproportionate to the small amount of truth it contains. I wish that people who trot out this idea were taken to task more often.
Then again, Robertson doesn't make the point all that well. He has less analysis of the real issue than I have set out above, and it remains to be seen whether what I've set out applies neatly to his own proposals. We'll find out more as I work my way through the book. Now for Chapter 2 ...