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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 446 ..

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 would be considered unacceptable. A bill of rights will turn community values into legal battlefields.

He then says:

The respected American jurist Judge 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 the 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.”

Carr continues:

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—

this is very important in terms of this bill—

and can therefore be changed by legislation, the political reality is that it is given “quasi-constitutional status” and is almost impossible to amend.

He continues:

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, liberty or property without due process of law have been used to invalidate laws limiting working hours, fixing minimum wages and standardising food quality.

In New Zealand, despite political assurances to the contrary when the Bill of Rights was enacted, the courts have created new remedies to apply to breaches of the Bill of Rights. For example, the NZ Court of Appeal has held that the right to freedom of speech includes a power for the court to order the publication of a correction of defamatory material.

Carr continues:

Even the Parliament found, to its surprise, that it was subject to the Bill of Rights and had to apply natural justice, particularly in parliamentary committee hearings.

A bill of rights will further engender a litigation culture. Already it seems that people are unable to accept responsibility for their own actions. A person who trips and falls today does not blame himself or herself for carelessness but looks for someone to sue.

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