Allan's 'A Defence of the Status Quo' & Alexander's 'Introduction'

James Allan, ‘A Defence of the Status Quo’ in Tom Campbell et al (eds), Protecting Human Rights (OUP, 2003).
Larry Alexander, ‘Introduction’ in Larry Alexander (ed), Constitutionalism: Philosophical Foundations (CUP, 1998).

James Allan's 'A Defence of the Status Quo'

Note: Many of the issues raised in Allan's article were either discussed or made reference to in the Week 2 lecture. This is particularly useful for those who missed notes on certain sections or were unable to attend.

Summary

  • Allan defends the current constitutional status quo in Australia, arguing against the need for any sort of bill of rights, whether constitutionally entrenched or simply statutory
  • Australia is now the only country in the Western world without some kind of bill of rights
  • Australia today is fully capable of protecting basic human interests – the very stuff of rights – without any sort of bill of rights

Notable features of the Status Quo

  • Context matters whether it is desirable or not to opt for any sort of protection of rights
  • A jurisdiction such as Hong Kong might have a good reason to reach for any possible protections going given democratic government is a recent innovation
  • ‘Grab whatever potential protections you can, their likely costs and bad effects notwithstanding’, may appear a wise counsel of action
  • On the other hand, a developed country with a strong, long-standing democratic tradition and record may reach a different answer
  • There, perhaps, the various costs of entrenching an overriding bill of rights will outweigh any benefits, be the calculation done in terms of rights themselves or in a more hard-nosed utilitarian currency
  • Until 1919 the House of Reps was elected by a ‘first-past-the-post’ voting system used today in UK, Canada and USA.
  • Whoever gets the most votes wins that race; hence often described as ‘winner-takes-all’ system
  • All the winner needs is a plurality of votes, more than any other single candidate, however low his or her overall percentage of the votes may be
  • Since 1918, preferential voting system has been employed for elections to the House of Reps
  • System requires voters to mark preferences other than simply their first preference
  • The winner must obtain more than 50 per cent of the votes cast, thought often no one will win a majority of first preferences
  • The point is that every elected representative will have received the support of an absolute majority of voters in his or her constituency
  • Allan’s opinion is that preferential voting compares favourably to first-past-the-post systems and even more so to proportional systems

Positives of preferential voting:

  • Avoids the undue influence of small parties,
  • Avoids the increased power of party hierarchies
  • Avoids making of much policy post-election during coalition negotiations
  • Avoids wasted votes
  • Allows a few independents to win occasionally
  • Delivers majority governments (and their easy removal) but without the often claimed unfairness of winners having received only, say, 35 or 40 per cent of the cast votes
  • Measures to some extent whom the voter does not want to win
  • The voting system used to elect Australian Senators is a single transferable vote (STV) system – a proportional representative system with an element of preferential voting
  • The senate voting system is certainly complicated and has the effect of making it most unlikely the government will obtain a majority here
  • On any such criteria as ‘preventing the exclusion of some group from the political process’ or ‘allowing citizens to take part in the decision-making process on more or less equal terms’, the voting systems used in Australia score very highly.

Where is there a need for any sort of bill of rights and supervising judiciary?

  • A statutory authority, the Australian Electoral Commission, has been made responsible for the administration of such Cth electoral matters
  • The allocation of boundaries is undertaken by redistribution committees appointed for each state. This means gerrymandering is no longer an option by majority governments, and has been done so by Cth parliament without ‘judicialising’ the issue.
  • Lower House has a three-year maximum term , and so more frequent appeals to the electorate are required than the UK or Canada (five years)
  • Australian was the first to introduce Saturday polling
  • In essence, Australia has a system of public funding of election campaigns joined to an enforced system of disclosure of election financing, but without regulation or expenditure

Method laid down for amending the Australian Constitution

  • Section 128 of the Australian constitution requires proposed constitutional amendments first to pass through Parliament and then to win approval in a referendum
  • Approval needed in referendum is (1) a majority of electors in a majority of states and (2) a majority of all electors.
  • This is dissimilar to USA & Canada where constitutional change is not subject to the people voting in a referendum
  • In Australia, the elected representatives cannot bring about change on their own

Historical exclusion of Aborigines from the political process

  • The treatment of native Americans in the USA 30, 50 or 100 years ago was not better than the Australian treatment of Aborigines
  • The American judges overseeing the vague, amorphous rights in the Bill of Rights did not stand out against the prevailing majority sentiments
  • There is some feeling that perhaps the historical exclusion of Aborigines from the political process somehow proves the case for a bill of rights. The evidence, such it is, shows nothing of this sort

No bill of rights, only implied rights

  • What is missing: it is not the legal protection of rights (or human rights)
  • Various parliaments in Australia have passed numerous pieces of legislation covering such right-based issues as equal opportunity and discrimination
  • What is missing in Australia is the constitutional or quasi-constitutional, instrument (or set of instruments) that sets out very general standards about the place and entitlements of the individual in society
  • The Australian electorate has not yet shown any desire for a bill of rights and its judicial overlords – voting in the 1988 referendum which failed
  • HCA soon after the referendum held a limited number of freedom of communication concerning political matters to be an implication of the text and structure of the Constitution
  • It is difficult to use the text of the Australian constitution to ‘find’ implied rights.
  • So much is working against any judge who travels down that route. There is a detailed history of the Founding Fathers specifically rejecting any American-style bill of rights.
  • Explicitly proclaimed individual rights simply give the unelected judiciary much more scope to get its own way against the elected branches of government, be it by regularly striking down legislation or by deliberately interpreting other legislation so that it is consistent with what the judges take the bill of rights to demand

Rights and Bill of Rights: A digression

  • The nature of rights themselves, may itself lead us to doubt the wisdom of placing a set of these rights at (or near) the apex of the legal and constitutional system, where of necessity un-elected judges would have to give them specific context
  • The parliamentary system (in the sense of self-government by the people) is as likely to lead to morally acceptable outcomes as any elitist, judicially driven alternative
  • The main effect of entrenching a bill of rights in a Western democracy is to transfer a significant degree of social policy-making power to unelected judges.
  • It is the judges, and no one else, who will take these open-textured right guarantees and apply them to specific situations where legislation passed by the democratically elected legislature has been argued to infringe or conflict with the rights guarantees.
  • Those who are attracted to bill of rights, but find discontenting this undeniable effect of a rather massive transfer of social-policy-making often find refuge in two alternatives to the fully entrenched model.

1) Non-entrenched statutory model

  • NZ opted for one of the most enervated bills of rights imaginable, removing any provision allowing for legal remedies for breach and inserting an operative provision which basically stated that in the event of inconsistency with any other statute, present or past, the statute prevails
  • NZ Judges let loose on this statutory alternative have ‘read in’ powers for themselves to issue declarations of inconsistency, to undertaken potentially seeping abridging inquiries and to grant remedies for an ad hoc Bill of rights Act cause of action subjecting the Crown to potentially unlimited liability for its breach.

2) Overriding clause in the entrenched bill of rights

  • Lesson from Canada (with its section 33 ‘notwithstanding’ clause) shows they have next to no practical effect in terms of limiting judicial power
  • Neither alternative appears to do much in the way of reducing the poer of judges once a bill of rights is adopted

A bill of rights for Australia?

Arguments against : -

  • Once in place, the overwhelming majority of the population will be disenfranchised (in favour of a few selected judges) on a significant number of major social policy questions and on basic rights questions
  • Bill of rights is broad and imprecise and therefore no one should expect consensus or even agreement when they have to be applied in specific circumstances, by judge/s
  • Highly unlikely that any political party will ever expand the capital needed to get rid of it. There will be no going back to the foreseeable future. This is an asymmetrical decision.
  • No plausible grounds for believing that the unelected judges who would operate the bill of rights have a more highly developed sense of moral perspicacity than elected politicians

Originalism (‘locking-things-in’) is a principle of interpretation that tries to find out the original meaning or intent and not impose new interpretations foreign to the original intention of the authors. It is based on the principle that the Judiciary is not supposed to create, amend or repeal laws (which is the realm of the legislative branch) but only to uphold them.

‘Living tree’ interpretation claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.

  • Allan sees this just as a trade off from ancestor worship to the worship of unelected judges. He thinks one of the only points to a written constitution is a means to transfer power and 'lock things in'.