Writing the Rights: No Right Turn is Wrong
New Zealand’s extreme form of parliamentary sovereignty is something of an international oddity these days. Under the New Zealand system, an Act passed by Parliament (and hence signed by the Governor-General) is automatically law. And in the absence of a written constitution, Parliament can Do Anything. Literally. Our checks and balances are at the political level (Governments fear losing elections), rather than the legal level.
(We do have a statutory Bill of Rights Act from 1990, which requires the courts to interpret legislation in light of enumerated rights, but the courts do not have the ability to void a law. It is merely an interpretive tool).
Australia is a bit different. It does have a written constitution, but it does not have a Bill of Rights, not even an interpretive one. And New Zealand political blogger, No Right Turn, is bemoaning this state of affairs:
This is one opinion of five in a case which ultimately upheld the government’s foreign influence transparency law, but its still troubling. And with the LNP’s continued American-style attempts at court-stacking, and the tendency of both parties to enact ever-more tyrannical legislation, Australians may wake up one day to learn that the only human right actually (weakly) legally recognised has been removed by judicial fiat.
The answer of course is formal recognition. Australia needs a proper Bill of Rights Act, to affirm and protect human rights. Sadly, that doesn’t seem to be on either major political party’s agenda.
I cackled a bit at that.
No Right Turn fails to realise that Bills of Rights do not actually protect rights. They protect what the courts consider to be rights, which is not actually the same thing. A dreaded “vote” on “fundamental human rights” still happens… it’s just shifting the vote away from the unwashed masses and their representatives, towards a small gaggle of judges. Great if you trust the judges, of course (I don’t), but there is an implicit anti-democratic snobbery here.
Everyone believes in the right of Freedom of Speech. It’s one of those great sacred cows of the Enlightenment West. The problem arises when one considers what this means at the policy level. Do tobacco corporations have a right to advertise outside of schools? There have been court cases on that very subject, based off appeals to Freedom of Speech. The history of US jurisprudence (home of Bills of Rights) is littered with examples of courts cheerfully utilising rights legislation for unintended ends. The infamous Lochner v. New York case from 1905 uses a civil rights amendment to shoot down regulations on work hours.
No Right Turn only imagines courts siding with him, not against him (clearly he can’t even recall Citizens United). And there is a bigger problem – if you don’t agree with a court decision, it is damned hard to reverse. It is possible to vote out arsehole politicians. You can’t vote out misbehaving courts. And to even try is to politicise the judiciary in a way that is profoundly unhealthy.
In fact, No Right Turn is so adorably naive that he actually fails to notice what he’s actually arguing against. He’s disturbed at an Australian judge disrespecting rights (and disturbed at more such judges being appointed)… so he thinks the solution is to give this judge even more power to decide what “rights” mean in practice. Which is insane. Does he not imagine how judges of this ilk could play merry hell with progressive legislation? Of course not. Which is why he’s so in love with Bills of Rights at all.
Some of us know better.