Professor Bernhard Schlink, former judge and author, said yesterday that the introduction of a bill of rights would give more political power to the Australian judiciary.
Speaking at a forum on the role of judicial values at Sydney University, the former justice of the German Constitutional Court and author of international bestselling novel and film adaptation The Reader, said that a bill of rights was a vital part of the operation of a democracy, even if that meant a more political role for the judiciary.
"I think a democratic constitutional state under the rule of law needs a bill of rights, but your former prime minister has a point - much of our [German] politically hotly debated jurisprudence comes from decisions about bill of rights cases, so it will of course add an additional element of politicised or politicisable jurisprudence."
Schlink admitted that this would give judges more power.
"Of course, the more cases judges have to decide, the bigger their power," he said.
When asked whether this additional power was a good thing, Schlink took some time to formulate his response.
"I think it's difficult, but the right thing," he concluded.
The role of the judiciary had re-entered public debate earlier in the day because former PM John Howard told attendees at the annual Robert Menzies Lecture at the University of Western Australia that the introduction of a national bill of rights would give power to "unelected, unaccountable" judges, politicise the judiciary and undermine Parliament.
Former High Court justice Michael Kirby said jurisprudence on a bill of rights would reinvigorate rather than stultify the democratic process in Australia.
"[The members of the] European Court of Human Rights - they are great judges, dealing with great issues and they are helpful - they stimulate the democratic system," Kirby said.
"I think it's more interesting to ask what Professor Schlink thinks about a country [such as Australia], because we are now almost alone in the whole world - including especially the democratic and freely elected democracies of the world - why are we so unique that we don't need what everyone else has [a statutory bill of rights]? What Germany has? And that great court, the European Court of Human Rights?"
The forum on judicial values was hosted by Damien Carrick from Radio National's The Law Report . Schlink and Kirby were joined by Sydney Law School Professor Reg Graycar and Monash University Professor Justin Malbon.
The forum was part of the Sydney Writers' Festival, held in conjunction with the Julius Stone Institute, the Sydney Law School and Monash University.
- Laura MacIntyre