A queer statement, coming as it does from a professor

James Allan is Garrick Professor of Law at the University of Queensland. He has a comment piece in today's SMH in which he rails against bills of rights.

His shrill is almost apoplectic. How else can you describe anyone who says that under a US style bill of rights "judges can strike down statutes they don't like"? If that were the case I doubt there'd be few if any laws left on the books. It a statement simply breathtaking in its sweep of ignorance or in its willful falsehood. Though it was many years ago Guambat sat through his (US) Constitutional law classes, he is sure that he'd never have graduated if he had offered such an opinion on any exam.

Now, I'm not on sure footing with British law, indeed have lost my footing on most law these days, and in that regard cannot feel confident in quesioning the good professor on his claims about it. But based on his distortion of judicial powers under the US bill of rights, I'm now a bit sceptical as to his scholarship on that, too. What he said about it is, "Under a British- or New Zealand-style [bill of rights], the kind Victoria seeks to copy, the judges get a power to interpret all other laws in a "bill of rights-friendly manner" - meaning they can read "black" to mean "virtually white" or "men and women" to mean "men and men", or just about any words to mean anything."

Fortunately, he did cite the British case that he relied on for that fantastically expansive claim. "The leading British case on this sort of direction is called Ghaidan. It held that when you have some other statute to interpret this new bill of rights requirement changes all the rules of the game.... In other words, the judges can treat all other legislation in any way they want."

So, I took an admittedly naive and uneducated look at the Ghaidan case. These are the facts of the case in a nutshell. England had adopted some sort of tenancy law in 1977 that provided certain rights to tenants. The law also stated that if the tenant died and was survived by his or her spouse or "a person who was living with the original tenant as his or her wife or husband" (e.g., a common law spouse), the surviving partner continued to have the benefit of the rights.

In 1994 a tenant died and was survived by his gay partner, who sought surviving partner rights like a husband or wife. The Lords decided in that case that the surviving gay partner was not entitled to the survivorship rights of unmarried heterosexual couples.

In 1998 Britain adopted the European Union's Human Rights Act. Under that law, "The provision must not draw a distinction on grounds such as sex or sexual orientation without good reason. Unless justified, a distinction founded on such grounds infringes the Convention...." In the Ghaidan case, the Lords, bound by the new law, interpreted the survivorship provision of the 1977 law to apply to homosexual couples after the Human Rights Act 1998 came into effect.

Now to make the first point. Judges did not enact the Human Rights Act. It is hypocracy to lay the blame at their feet if there is any "unwanted" right granted by that law.

The second point: whatever the Human Rights Act enacted, it constrained the way judges interpreted it. Judges were not given free reign to just announce any old thing constitutes a human right. This was made clear by Lord Nicholls' opinion:

Article 8 does not require the state to provide security of tenure for members of a deceased tenant's family. Article 8 does not in terms give a right to be provided with a home: Chapman v United Kingdom (2001) 33 EHRR 399, 427, para 99. It does not 'guarantee the right to have one's housing problem solved by the authorities': Marzari v Italy (1999) 28 EHRR CD 175, 179. But if the state makes legislative provision it must not be discriminatory.

It goes without saying that article 14 is an important article of the Convention. Discrimination is an insidious practice. Discriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law into disrepute. It breeds resentment. It fosters an inequality of outlook which is demeaning alike to those unfairly benefited and those unfairly prejudiced. Of course all law, civil and criminal, has to draw distinctions. One type of conduct, or one factual situation, attracts one legal consequence, another type of conduct or situation attracts a different legal consequence. To be acceptable these distinctions should have a rational and fair basis. Like cases should be treated alike, unlike cases should not be treated alike. The circumstances which justify two cases being regarded as unlike, and therefore requiring or susceptible of different treatment, are infinite. In many circumstances opinions can differ on whether a suggested ground of distinction justifies a difference in legal treatment. But there are certain grounds of factual difference which by common accord are not acceptable, without more, as a basis for different legal treatment. Differences of race or sex or religion are obvious examples. Sexual orientation is another. This has been clearly recognised by the European Court of Human Rights: see, for instance, Fretté v France (2003) 2 FLR 9, 23, para 32. Unless some good reason can be shown, differences such as these do not justify differences in treatment. Unless good reason exists, differences in legal treatment based on grounds such as these are properly stigmatised as discriminatory.

[But] article 14 of the Convention does not confer a free-standing right of non-discrimination. It does not confer a right of non-discrimination in respect of all laws. Article 14 is more limited in its scope. It precludes discrimination in the 'enjoyment of the rights and freedoms set forth in this Convention'. The court at Strasbourg has said this means that, for article 14 to be applicable, the facts at issue must 'fall within the ambit' of one or more of the Convention rights.

Third point: There are many, many laws enacted by legislatures over the years. Rarely is there a common theme and often are laws enacted which are contradictory or inconsistent with other existing or later laws. Legislatures don't always take the time to tidy up the books when they make a new enactment. So when the facts of a case implicate any of the contradictory or inconsistent laws, the courts adopt the commonsensical expedience of saying that the later laws override the earlier laws, unless there is a clear expression of direction from the legislature to the contrary.

And applying such a scheme is often much more complicated that would appear at first blush. Courts usually are loath to declare a prior law to be repealed by subsequent enactments, preferring to distinguish cases on facts. And legislatures usually attach "savings" clauses to direct courts to try to reconcile inconsistencies between new and old laws in such a way that the old law is harmonised to the new law and not thrown out altogether. This is what was in the Human Rights Act, as noted by Lord Steyn in the Ghaidan case: "under the 1998 Act the use of the interpretative power under section 3 is the principal remedial measure, and ... the making of a declaration of incompatibility is a measure of last resort.... If Parliament disagrees with an interpretation by the courts under section 3(1), it is free to override it by amending the legislation and expressly reinstating the incompatibility."

Lord Steyne also said the British bill of rights model rejected the New Zealand one:

"the draftsman of the Act had before him the model of the New Zealand Bill of Rights Act which imposes a requirement that the interpretation to be adopted must be reasonable. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Instead the draftsman had resort to the analogy of the obligation under the EEC Treaty on national courts, as far as possible, to interpret national legislation in the light of the wording and purpose of directives."

Lord Steyne described the Parliamentary source of this duty placed on the courts to effect a harmonised interpretation:

How the system modelled on the EEC interpretative obligation would work was graphically illustrated for Parliament during the progress of the Bill through both Houses. The Lord Chancellor observed that "in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility" and the Home Secretary said "We expect that, in almost all cases, the courts will be able to interpret the legislation compatibly with the Convention": Hansard (HL Debates,) 5 February 1998, col 840 (3rd reading) and Hansard (HC Debates,) 16 February 1998, col 778 (2nd reading). It was envisaged that the duty of the court would be to strive to find (if possible) a meaning which would best accord with Convention rights. This is the remedial scheme which Parliament adopted.

Finally, I would note that the courts are already overriding the legislature in matters constitutional, and have been since Federation. That is their job. That is the essence of a constitution.

In one of the Opus d'Guambat, I took issue with another critic of bills of rights. I'm going to repeat myself here:

Every day politicians weave and duck the tough calls. Every day politicians write laws that are vague, broad and require an ultimate judgment by a court. Every day politicians hand off the tough decisions to committees, study groups, their underlings, the courts, anyone but their own accountable selfs.

Take the case of negligence, since this has been in the political ball court for a while. Can politicians write laws that tell us if this particular person entering this particular beach under this particular set of circumstance is entitled to recover for this particular damage in this particular amount. No. But judges do that every day.

Take family law. Do politicians write laws making the tough calls, drawing the difficult lines about how this man and this woman will divide these particular assests and share the responsibility for their children in this particular way? Again, no, of course not. But judges do that every day.

Take terrorism laws. Do politicians write laws that tell us what "incite to violence" means, or do they leave that up to judges? Do politicians have trouble defining why someone might be a suspect, and is that the reason they want no interference if they want to "detain" someone for days on end? Do politicians who cannot even articulate what makes a person a suspect have any greater moral compass than a judge? Can politicians define when it is "malicious" to leave an unattended bag at an airport subjecting you to fine or imprisonment? Would you want that decision determined by politicians or a judge?

Do you want to leave it to politicians to determine for themselves if they have "credible evidence" of babies overboard, weapons of mass destruction, incitement to violence or an imminent terror event?

The argument against a bill of rights, and by extension, using the courts as a check and balance against executive power, is that judges cannot make moral judgments but politicians can: "What makes a bill of rights, and its transfer of power to judges, appear attractive is the unspoken assumption that the moral lines drawn by judges are somehow always the right lines...."

This is truly a fatuous statement; judges make, as best they can a legal judgment. Cutting judges out of that process raises the unspoken assumption that our politicians will be the ones to draw a moral line, the "right" moral line, rather than the politically expedient one, [a special-interest lobbied one], because they have such a great track record in drawing the right moral lines rather than politically expedient ones.

If I had my druthers, I would prefer a judgment based on reasoned legal lines that may be influenced by a judge's moral compass than one based along expedient or influence-peddled political lines that may be influenced by a politician's moral compass. What about you? Would you prefer your fate to be decided with the wisdom of a Solomon or the crowd-pandering of a Pilate?

As the Scott Parkin case showed us, the government doesn't have to explain itself to us. It doesn't have to give reasons. As the weapons of mass destruction arguments bear out, governments can play with the information that they officially "rely" on to make a decision. As the Rau and Solon cases demonstrate, governments do not have to bear responsibility for the tough lines wrongly drawn.

But for judges, their decisions must be [published, factually based] legally reasoned and transparent and not driven by some philosophical dogma or ideological end [to the exclusion of legal reasoning]. [The decisions are available for all to read, assess and critique.] Even the author of that opinion piece acknowledged: "Victory does not go to the judge writing the most moving judgement or the one with the most references to moral philosophy." And thank our lucky country for that.