Is Australia capable of a serious debate on a Bill of Rights, or are we stuck with another round of crap speak?

One thing I seriously enjoy about not being in Parliament is not being stuck in a front row seat while people knowingly talk utter bullshit.  The vilifying and irrational scare campaign about asylum seekers sadly still has some life in it, but that is very well documented.  Another developing area of deliberate crap speak which really aggravates me is the line that adopting a Bill of Rights will mean “handing power to unelected judges”.  It is particularly disappointing to see Malcolm Turnbull spouting this sort of nonsense when he undoubtedly knows better – especially given his first hand experience trying to counter many of the nonsensical scare campaigns that were run about what might happen if Australia became a Republic.

At least those arguing against a Republic could legitimately say it would involve amending the Constitution.  There is simply no way any government would try to insert a Bill of Rights in the Australian Constitution, so all we are talking about is just another piece of legislation.  We already have legislation of this sort at a federal level, most notably in the area of anti-discrimination laws.  As has been very evident in recent years, if Parliament doesn’t like what “unelected judges” might rule in these areas, they can easily pass new laws which are exempt from such ‘rights’, as we have seen most notably in areas relating to migration and Indigenous issues.

Running scare campaigns that “unelected judges” might be given the power to interpret legislation ignores the rather crucial fact that this already happens with every single piece of legislation passed by the Australian Parliament.  A Bill of Rights would be just that – an Act of Parliament – and thus subject to judicial interpretation.  The stout defenders of the current Constitution who rail against a Bill of Rights could at least have the decency to acknowledge that the right of the (gasp) unelected High Court to (gasp) interpret and rule on decisions of Parliament is a right given by the (gasp) Constitution!!!

If opponents of a Bill of Rights seriously want to prevent “unelected Judges” having the power to interpret the meaning of laws passed by Parliament, they either have to (a) amend the Constitution to make Parliament the ultimate arbiter of its own laws, or (b) amend the Constitution to remove the jurisdiction of the High Court whenever Parliament decides this should happen (which would have certainly have made Philip Ruddock extremely happy), or (c) make Judges elected by the populace.

  As much as I prefer many aspects of the US system of democracy, one component which I think they have got very wrong is the notion of elected Judges, with all the risks of decisions being made on the basis of what is popular, rather than what is lawfully valid.

A Bill of Rights would just be another law, like every other.  If Parliament didn’t like a Court’s ruling on a matter to do with a Bill of Rights, it could just change the law, as it already does on many occasions in response to a Court ruling – as the afore mentioned Mr Ruddock could well attest.  I know Oppositions have a natural disposition to oppose, but for Mr Turnbull (and alleged ‘moderate’ shadow Attorney-General George Brandis) to be buying into this sort of intellectually barren wasteland is very disappointing.. 

A Bill of Rights may well be a bad thing – if it has bad content.  Or it may contain nothing more than existing anti-discrimination or rights based laws, complete with all the current exemptions.  It is just like any other law – it all depends on the words it contains.  And just like any other law, it will still be interpreted by “unelected judges”. 

So let’s just have the debate about what rights should be codified in law, and drop the scare campaigns.