The Warning in the Court Decision
One part of me cheers whenever I see a government overruled by a court. It reminds me we have an independent judiciary and that this is one of the measures of our democracy. But the sheer subjectivity of judicial decisions gives me the creeps. The US Supreme Court is the most blatant example, as they devote themselves full-time to interpreting the Bill of Rights. They make decisions on capital punishment after surveying states and counting how many states apply it. No mystery of the law here. Just pure politics.
In 2001, when he was serving on the Federal Court, Chief Justice French upheld the legality of the Howard government’s decision to send asylum seekers to Nauru. I’m not au fait with the legal technicalities but this proves a judge can decide cases – with similar facts – so differently, with no intervening statutory changes.
This just deepens the reservations one must feel about what a court – an activist court of the left or the right – would do if presented with the splendid opportunity of a Bill of Rights in Australia.
I heard a story only this week about a Labor MP asking Prime Minister Robert Menzies why he was opposed to a Bill of Rights. Menzies’ reply was succinct: “Because somebody will interpret it.”
That’s all. “Because somebody will interpret it.”
Australia’s been saved from a charter of rights by the good sense of Kevin Rudd and his colleagues in 2010 when they rejected the Brennan Report’s recommendation.
Judicial lawmaking under our existing common law arrangements gives us hints of how politically potent judges would be if they had a charter.