Clark's Sections 12.35-12.45: Bill of Rights

A Summary of the Pros and Cons.

Pros

• Defects of Democracy
  • Modern democratic politics systems good at dealing with matters of general policy but often fail to provide protection to individuals. Matters best dealt with by courts as able to consider particular cases.
• Judicial action and legislative inaction
  • Courts better suited to deal with the particulars of individual cases of injustice as can concentrate greater energy and intellect on the merits of a single case.
• Minority protection
  • Tendency to ignore minority as secure votes by majority. However, not inevitable in a parliamentary system.
• Educative value
  • Enliven constitutional law, slip into popular consciousness.
• Bringing Australia in line with international trends
  • Australia is the only developed democracy without some kind of bill of rights.

Cons

• It’s not part of the parliamentary tradition
  • Argument = flawed as bill or rights has been part of English law since 1688
• It would politicise the courts
  • Assumes American behaviour, bill of rights politicise legal issues and politicians would strive to appoint judges who reflected their own ideological point of view. However, other parliamentary systems such as Canada and Ireland do not have the same problems.
• Limit rights
  • Listing rights would by implication exclude rights not mentioned. Could be dealt with by saying that the list is not exhaustive and does not preclude new rights emerging.
• Undermine parliamentary sovereignty
  • Argument only has merit if the bill was entrenched in a constitution and that Acts made by the legislature would be invalid if they were in conflict with the bill. Principle not new but basis for attack/conflict would widen with bill of rights and provide new grounds to attack ordinary legislation. However, legislatures might be more careful in what statutes they choose to pass.
• Increase litigation
  • True at first. First few years of a bill of rights there is a significant increase in litigation until basic principles are established and the system settles down. But any new Act in parliament runs the same risk. In some cases there is a requirement for the parliament to scrutinise bills to determine whether or not they conflict with the bill of rights. If this process is reasonably effective it will reduce the number of bills that might conflict with the bill of rights, and reduce litigation.
• Intrude into private organisations
  • Depending on bill of rights, whether bill of rights deals with governmental action or the discharge of public functions only.