There are some terrible ideas that just won’t die. That’s because the progressives love them so much they’ll keep trying and trying. This column is about one such idea, a bill of rights. Now as readers will know I was a huge and vocal opponent of the lockdown thuggery and authoritarianism of the Covid two-and-a-half years. More than a few fellow anti-lockdowners asked me if a bill of rights would have helped. Unequivocal answer: No. My longstanding opposition to a bill of rights was only strengthened due to what we saw during the lockdown thuggery. Why? Well, we’ve just lived through the biggest experiment in protecting (or not) civil liberties ever. Lockdowns imposed what retired U.K. Supreme Court judge Lord Sumption called “the biggest inroads on our civil liberties in 300 years”. And how many democracies had judges who did anything to push back? Zero. You can’t point to a single case anywhere in the democratic world of judges invoking one to roll back or limit the lockdown thuggery and authoritarianism. Not in the U.S. with its potent and entrenched bill of rights. Not in my native Canada with its even more potent and entrenched bill of rights (the top Canadian judges being even more activist than the U.S. ones in striking down laws and intervening in social policy-making). Not in Britain with its powerful statutory version of a bill of rights, one so potent many cheerleading, pro-bill of rights law professors in Britain consider it virtually as potent as the U.S. model.
In none of those countries did the unelected top judges step in to soften or curtail the lockdown thuggery. Nor did it happen in continental Europe. In fact nowhere. There were two cases in the world, one in Scotland and one in the U.S., where the court said, in effect, “if that big box store gets to open then so does this church”. Wins, but not bill of rights wins. So if you think that, say, U.S. First Amendment jurisprudence would have helped, we lived through a real life experiment and the answer is now clear. No it would not have helped!
Second point. Even if you ignore the clear evidence of the lockdown years it is also the case that no non-U.S. country can buy the U.S. First Amendment case law. All post WWII countries with bills of rights – ones that were entrenched or enacted in the last half century or less – include equality type rights. And these virtually always are held to trump the free speech and religious liberty rights. You are going to end up with judges who copy the EU and Canada and Britain, not the U.S. They’re going to go down the virtually unconstrained path of ‘proportionality analysis’, which takes us to the next point.
Thirdly, when you buy a bill of rights you are simply buying the views of the unelected judges (and more broadly of the lawyerly caste, and they were all-in for the lockdown thuggery). That’s because bills of rights deal in amorphous, loosely articulated entitlements – ‘right to free speech’, ‘freedom of assembly’ and so on. As Jeremy Bentham noted over 200 years ago, people tend to assume these amorphously articulated entitlements mean you can say anything. Wrong, and wrong for good reason. Even the U.S. with its First Amendment imposes all sorts of limits on speech from no inciting violence to no kiddie porn. It’s just that those limits will now be laid down by an unaccountable, unelected judiciary rather than by an elected and removable politician. Be clear. That is why activist progressives would walk barefoot over broken glass to get a bill of rights. They think, rightly, that the judicial caste will deliver more of their first-order political and moral preferences and druthers than the democratic process.
And here it’s worth making two ancillary observations. Firstly, 60 years ago the median lawyer was to the political Right of the median voter. Today, the median lawyer is a standard deviation or more to the political Left. (The data on this from the U.S. where political donations are public information are scary.) These are your future judges. Have you seen our law schools? Have you seen what the current High Court of Australia is doing even without a bill of rights? Because it’ll be much worse with one. My second ancillary observation is this. Having spent a big chunk of my professional life arguing against the undemocratic nature of bills of rights, in no small part because when you buy one you are simply buying the worldview and druthers of the judges and lawyerly caste, I cannot understand why Bruce Lehrman and his team did not opt for a jury defamation trial. (I say this now because I openly said it at the time.) I would never, ever put my fate in the hands of a judge on an issue of facts and what conclusions to draw from them. That’s not because of insincerity worries or real or apparent bias. It’s because I believe that tradies, secretaries, grannies, truck drivers, waitresses et al. would likely see the evidence very differently than would most members of the inner-city judicial caste. Give me a jury any day! And if you doubt there’s much of a worldview difference just recall how most judges were for Yes and most voters for No in last year’s Voice referendum. (In the openly Yes camp this included retired Chief Justices, a sitting superior court Justice, Bar Councils, Law Societies, an over-exuberant KC, the list goes on.)
Fourthly, and this surprises many, in terms of what people can say there is more scope today, right now, to speak your mind in no national bill of rights Australia (re hate speech type claims, re campaign finance rules, re speech related to religion) than there is in my native Canada. Or in the EU or Britain. All have powerful bills of rights in play. That is what you’d be buying because, to repeat myself, the U.S. First Amendment (which did nothing during Covid) is not what’s for sale in today’s bill of rights marketplace.
Fifthly, along with the transfer of social policymaking power to the judges that comes with a bill of rights you magnify by orders of magnitude the issue of who gets appointed to the top courts. Is there sentient being anywhere who believes the Coalition would do a good or even a barely tolerable job in picking top judges who brought with them a commitment to interpretive conservatism? Just look at what the Coalition did in giving us a top court that decided the Love case (the worst-reasoned constitutional case I have ever read from any jurisdiction, not to mention its reliance on identity politics fluffery such as ‘otherness’ etcetera). Or whose judges delivered the woeful Ridd decision. Or that overturned the 20-year-old Al-Kateb case and forced the release of very dangerous people (who aren’t going to be living in nice parts of cities near the lawyerly caste). Oh, and while we’re on the topic of Coalition appointees, it was Team Coalition that appointed the President of the Australian Human Rights Commission who (while silent during all the lockdown thuggery) initiated this new push for a bill of rights. The e-Safety Commissioner was the Coalition’s too!
Personally, I don’t think it’s even in Labour’s interest to bring one in – it was the High Court, remember, that landed the party in its current mess by overturning Al-Kateb. Try to have secure borders with a bill of rights! So no, a bill of rights is still a terrible idea.
James Allan is the Garrick Professor of Law at Queensland University. This article first appeared in Spectator Australia.
