Constitutional Catch 22

By Dr Gavin R Putland

Certain critics of a constitutional bill of rights say it would give too much power to unelected judges. That this argument is based on the constitutional status of the proposed provisions rather than their subject matter, but applied selectively to provisions whose subject matter concerns human rights, reveals the motives of the critics.

Motives aside, there are three answers to the argument:

(1) Judges per se don’t write the Constitution; they only interpret it.

(2) If the judges’ interpretation of a particular constitutional provision is sufficiently daft, the provision can be amended so as to exclude the daft interpretation. Changing the Constitution, although usually difficult, is not impossible. And while history shows that
the Australian Constitution cannot be amended without bipartisan support, it also shows that it’s easy to get bipartisan support for measures that curtail human rights.

(3) It is too often assumed that one can have an ordinary law that can be amended by the Parliament or a constitutional law that is interpreted by the High Court, but nothing in between. But why couldn’t the Constitution empower the Parliament to adopt a reasonable interpretation of any constitutional provision that is open to more than one reasonable interpretation’ The High Court could then decide whether the Parliament’s interpretation was reasonable, but could not impose one reasonable interpretation over another. If the judges overstep the mark, refer to answer (2)!

For example, if the Federal Parliament had been allowed to decide whether duties of “excise” (s.90 of the Constitution) include all taxes on goods, or only those taxes that treat local goods more harshly than imported goods, not only would the sky not have fallen, but a great deal of uncertainty, inconvenience and expense would have been avoided.

Other critics rightly note that governments routinely exploit loopholes in bills of rights, treating rights simply as obstacles to be overcome. The appropriate response to that history is to draft the bill so as to avoid the loopholes; and the same history tells us how.

The only real problem with a constitutional bill of rights is that it’s too much like the mice trying to put a bell on the cat: the same wickedness that makes it necessary to entrench a watertight bill of rights probably also makes it impossible.

Gavin R. Putland (www.grputland.com) is Research Officer for Prosper Australia (www.prosper.org.au), a private non-profit association that advocates financing government from economic rent of finite resources (especially land) rather than punitive taxes on productive effort.