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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 445 ..

One of the big problems with any bill of rights is that those rights are transferred to an extent to an unelected judiciary who, no matter how well intentioned and diligent, are not accountable like a parliament is.

Bills of rights have been enacted in a number of western democracies. Have any of the countries that have recently acquired bills of rights been better off for their experience? I think not. It is not just me and it is not just the ACT Liberal Party saying this: it is the view of every other Labor government in Australia, including such vehement opponents of a bill of rights as longstanding Labor premier, Bob Carr.

Bob Carr wrote an article which appeared in the Canberra Times of 20 August 2001. What he said in that article is somewhat similar to what was written in his book Thoughtlines and is indicative of their attitude to a bill of rights. Bob Carr wrote:

The culture of litigation and the abdication of responsibility that a bill of rights engenders is something that Australia should try to avoid at all costs.

There have been many calls recently to introduce an Australian bill of rights. Debates have arisen over what rights to include, and how a bill of rights should apply.

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.

Bob Carr goes on:

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.

Carr goes on to say:

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