THE idea that anyone could have absolute rights, rights that were never limited in any way, is "nonsense on stilts", said English philosopher Jeremy Bentham. He made that statement more than two centuries ago. He was right then and he's still right.
Take the US. It has a famous bill of rights, one that includes a right to free speech.
Does that mean people in the US can say anything they want, whenever they want? Of course not. You can't walk into a cinema and shout "fire"; you can't deliberately and knowingly lie and malign someone's reputation; you can't use fighting words to provoke violence.
Notwithstanding the US bill of rights, the right to free speech is clearly not absolute. There are all sorts of limits on it. It's just that judges set those limits rather than elected legislators.
The same goes for every right in the US bill of rights. In fact, the same goes for every right in every bill of rights anywhere on earth: in Canada, New Zealand, Britain, all of them. None of them do, or could, give a list of absolute rights.
Remember this as you listen to people celebrating the recent announcement that Victoria will be adopting a bill of rights. Such instruments trade off the powerful emotive attractions that come when you set out a list of vague, amorphous entitlements at a high level of abstraction. Doing that finesses all (or almost all) disagreement.
People tend to think that their view of how a free speech right will affect, say, campaign finance laws, hate speech provisions and defamation rules will be the one that prevails in the end. And they think this despite all the obvious disagreements over such issues.
So the disagreements can't be sold as the inevitable consequence of living in large groups where smart, reasonable, even nice people will disagree and such differences will need to be resolved by voting. Instead, such disagreements need to be painted as the morally righteous standing up to the morally wicked over some great fundamental truth.
The fact is, however, that what the bill of rights sirens are really selling is an instrument that transfers some of the line-drawing powers that are presently exercised by elected legislators to unelected judges. (Let's be honest, to committees of former lawyers.) It's a tool that would (and in Canada and elsewhere does) give judges vastly more say than they have at present.
Why is that a good thing? The issues they'd be resolving under a bill of rights would be moral issues, after all, not legal issues, and I don't know of any reason to think judges have greater moral insight than anyone else.
I think it would be a grave mistake for Australia to adopt a bill of rights and I am sorry to hear of Victoria's plan. The rest of Australia should be very glad we don't have one, however many exist overseas.
Of course, many proponents of a bill of rights will say I'm overstating things. A bill of rights, they'll reassuringly coo, is just a list of basic, fundamental protections.
Wrong! What they won't tell you is that once a bill of rights is in place - be it constitutionalised or statutory - the judges can interpret it almost as they want. They'll talk about "keeping pace with civilisation" and "living tree" interpretations. Then anything can happen, however carefully the bill of rights has been drafted.
Don't believe me? When Canada's Charter of Rights and Freedoms was adopted in 1982, virtually no one at the time would have believed that the unelected Supreme Court would use it to rewrite the marriage laws to cover homosexuals, to gut the country's socialised medicine enactments, to protect tobacco advertising, to extend the franchise to all prisoners, to compel government to provide an oral hearing to all refugee claimants (at a cost the government estimates may be in billions of dollars, much of it going to lawyers) and even to make it much harder to freeze judges' pay than that of other civil servants.
A similar sort of claim with another list of cases can be made about New Zealand since it enacted its statutory bill of rights in 1990. The fact is, a bill of rights is similar to a blank cheque issued to a jurisdiction's unelected judiciary. With a statutory bill of rights the cheque is only a little less blank, but not much.
I should finish by pointing out that it's not just judges who win with a bill of rights.
As the resolution of more social issues is transferred from the political arena (where we are all equal in having one vote) to the courtroom, and political disputes are turned into legal ones, notice that some others win too. People who couldn't convince their fellow citizens now need only convince four of seven High Court judges or state judges.
So lawyers will tend to win. And some special interest groups. And, of course, legal academics, too, who will find themselves suddenly able to suggest to judges how best to make good and right and proper social policies (which, believe me, is more interesting than what we do now).
Basically, the sort of people who made submissions to Victoria's consultation committee will be the winners.
Isn't it interesting that the Victorian Government refused to hold a referendum on such a fundamental issue and opted instead for a consultation committee headed by a well-known bill of rights proponent?
The attractions of a bill of rights to many of those making submissions in Victoria are apparent. The attractions to you, the regular voter, will naturally be less obvious as power seeps from the legislature over to the judiciary. You will have to live with the damage done to democratic decision-making and rule by the people (as opposed to rule for the people by those who think they know better).
Here's my advice to the rest of the states: don't buy what the bill of rights sirens are selling.
James Allan is a professor of law at the University of Queensland in Brisbane.
