In History's Cold Light, It All Seems A Little Misguided

Sydney Morning Herald

Saturday January 10, 2009

Rick Feneley

DOES Australia need a charter of rights, or even a bill of rights? The Rudd Government has appointed a committee headed by the Jesuit priest and lawyer Frank Brennan to consult widely with the community on this question. Brennan has suggested that "doing nothing" is an option.

Stephen Gageler, of course, has an opinion, but three months into his job as Solicitor-General he says he is not at liberty to express it. So we're left to trawling the records for an insight into his thinking.

In 1997, Gageler wrote a paper on implied rights in the constitution. While not specifically about a bill of rights, it delivered a cautionary note. He quoted from a seldom-borrowed book in the High Court library, The Bill of Rights by the American jurist Learned Hand, published in 1958.

Gageler said its thesis was simple and direct: "At the end of the day judges called upon to apply the Bill of Rights must exercise value judgments on issues which are inherently political." So judges needed to exercise restraint and be careful not to usurp the function of political choice.

Unlike the US constitution, Australia's does not guarantee free speech. It does, however, contain an "implied" freedom of political communication. "Of course," Gageler wrote, "once you have implied one thing into the constitution, it is perhaps easier to imply another. But the warning sounded by Learned Hand . . . must be steadily borne in mind: by what right and by what criteria are unelected judges to make and apply these constitutional implications."

Gageler cites interstate trade, "which is properly the province of regulators and merchants" but which often became the province of lawyers and judges.

"The deceptively simple express constitutional requirement that interstate trade shall be absolutely free became a thicket of intersecting and inconsistent rules purportedly required by the constitution, the application of which rules held back significant social and economic reform by both State and Commonwealth parliaments.

"In the cold light of history . . . it all seems a little misguided."

© 2009 Sydney Morning Herald

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