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Legislative Assembly for the ACT: 2002 Week 4 Hansard (9 April) . . Page.. 833 ..

MR STEFANIAK (continuing):

I object because a bill of rights transfers decisions on major policy issues from the legislature to the judiciary. It is not possible to draft a bill of rights that gives clear-cut answers to every case.

The right to freedom of speech will conflict with the right to equality (eg, racial vilification) and the right to equality will conflict with the right to freely exercise one's religion (eg, the right to exclude females from the priesthood). Most conflicts will be more subtle and difficult to determine.

A bill of rights can only be interpreted by the courts by balancing rights and interests. Most modern bills of rights include a clause recognising that rights may be subject to such reasonable limits "as can be demonstrably justified in a free and democratic society", a policy decision, not a judicial issue.

If a bill of rights were enacted, it would be up to a court to decide whether freedom of speech should be limited in relation to pornography, tobacco advertising, solicitation for prostitution or the publication of instructions on how to make bombs. These are issues that should be decided by an elected parliament, not by judges, who are not directly accountable to the people.

Furthermore, courts operate within an adversarial process. Matters only arise before them when there is a dispute and judgements are made on the basis of particular facts.

Decisions are therefore piecemeal in nature and cannot take into account all issues relevant to determining policy. In short, a court is not an appropriate forum for making these decisions.

A bill of rights does not protect rights. Nor can the courts alone adequately protect them. The protection of rights lies in the good sense, tolerance and fairness of the community. If we have this, then rights will be respected by individuals and governments, because this is expected behaviour and breaches will be considered unacceptable. A bill of rights will turn community values into legal battlefields.

The respected American jurist Judge Learned Hand once said, "This much I think I do know-that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish."

Our view of the importance and priority of rights changes over time. A constitutionally entrenched bill of rights freezes those priorities. A bill of rights included in the Constitution in 1901 would most likely have enshrined the White Australia policy.

It is not enough to say that rights can be changed by a constitutional referendum. We all know that referenda are rarely held and are rarely successful. Even when a bill of rights is not constitutionally entrenched, and can therefore be changed by legislation, the political reality is that it is given "quasi-constitutional status" and is almost impossible to amend.

Another problem is the unpredictable ways in which it will be applied by the courts. Sir Harry Gibbs, former Chief Justice of the High Court, has noted that the clauses of the United States Constitution that prohibit anyone from being deprived of life,

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