Shadow Attorney-General George Brandis has outlined the Federal Opposition's key arguments against a bill of rights.
Speaking at the Queensland Law Society's 47th Annual Symposium in Brisbane last Saturday, Brandis emphasized that the debate about a bill of rights is not about whether human rights should be protected in Australia, but about what is the most appropriate means of doing so.
Brandis said that the opposition has two main criticisms of the Government's proposed statutory bill of rights -firstly, that a bill of rights is not the most effective mechanism for protection human rights, and secondly, that it would lead to a "fundamental rebalancing" of the constitution away from parliament and towards the judiciary, "with dangerous consequences for both".
Specifically, Brandis argued that human rights would be better protected in specific statutes which set out detailed rights in particular cases and area accompanied by enforceable remedies, as opposed to being expressed more generally, with the details left to be nutted out through judicial interpretation.
As an example, he pointed to the suite of amendments made last year to provisions in 84 Commonwealth statutes which discriminated against same-sex couples. "I have no doubt that the rights of those affected are on a much surer footing, having those specific and detailed statutory protections, than they would be were their rights merely dependant on vague, aspirational statements in a bill of rights, unaccompanied by any specific protections or legal remedies," he said.
He also argued that - going by the experience of the UK, Canada and New Zealand - the introduction of a bill of rights would see judges making determinations about issues which are "essentially of a political character, and thus far removed from the orthodox understanding of judicial decision-making".
This is problematic, he said, because of the nature of judicial appointments in Australia, that is, judges are unelected.
"The privilege of making laws lies with those whom the people elect and may dismiss, not with those whom they do not and cannot," he said.
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