There has been a general asymmetry at work in the Western political world, at least since the end of the second world war. Political parties on the left of the spectrum, once in government, generally try to bring about as much change as they possibly can (as opposed to the Rudd/Gillard varieties who prefer simply to talk about change, hold a few summits of the self-styled great and the good and not do much at all, which in light of the alternative I suppose should be welcomed).
So Tony Blair’s government pretty much tore up the British Constitution, at least to the extent that an unwritten one can be torn up. They jettisoned the Judicial Committee of the House of Lords in favour of a US-style denominated Supreme Court. They enacted an extremely potent statutory bill of rights and linked it to the European Convention on Human Rights. They rejigged the legislative House of Lords Upper House, with no democratic benefits at all. They changed the way judges are appointed, this time at the expense of democratic input. They downgraded the Lord Chancellor’s office. They signed up to the Treaty of Lisbon, and without asking any voters.
On the last of those, Labour took that step despite having promised explicitly not to do so without asking the voters in a referendum. Or rather, that’s how it looks unless you buy the Blair/Brown jesuitical spin that the Treaty of Lisbon (which is 99 per cent exactly the same as the draft European Constitution) wasn’t really covered by their promise as regards that draft Constitution.
And then there’s Canada. One has only to look at what the left-of- centre Liberal party did to Canada under Pierre Trudeau and his heirs to see that they left it a very different place from how they found it, in terms of the power of judges, limiting free speech (in practice, not in terms of paper guarantees) and minimally controlled immigration.
That’s just a couple of examples of what leftist parties do. And then here’s the asymmetry, because the right-of-centre parties, once they get into office, rarely do anything to reverse these changes.
David Cameron’s Tories look to have given up on their campaign promises to get rid of the statutory bill of rights, to stand up against further European integration, and they haven’t reversed any of Labour’s constitutional changes.
Meanwhile Stephen Harper has been in office as Canada’s Conservative Prime Minister since 2006, and truth be told it’s hard to think of a single conservative thing he’s done, other than running a more Hobbesian foreign policy. He can’t even lay claim to keeping the budget in some sort of order. And certainly he hasn’t tried to reverse any of the changes brought in during the many years the centre left ruled the roost in Canada.
Now I know that we can all think of a few exceptions here and there, Thatcher and Reagan, say, though the former more than the latter in my view. But I only mean my claim about this asymmetry to be taken in broad, general terms.
And if you buy that claim then notice that what goes with that asymmetry is a sort of ratchet-up effect. The Left goes hell for leather to change and alter things; the Right more or less maintains the status quo until the Left gets back in.
It’s remarkably similar to what you see with the way judges around the common law world interpret constitutional texts. The fast-and-loose ‘I have my finger on the pulse of changing social values’ brigade pay little attention to external constraints, preferring to deal in ‘living Constitutions’ and shifting meanings. Meanwhile the judges who do feel constrained by past cases and intended meanings hold the line as best they can but rarely turn back the innovations and invented doctrines.
In light of all that, it strikes me that Ted Baillieu’s recent victory in Victoria is the perfect chance to stand up against that general asymmetrical trend. I refer to Victoria’s awful statutory Charter of Rights, foisted on the people of that state after one of those stacked consultation committee scams: you know, you set up a committee without a single known opponent or sceptic of statutory bills of rights as a member and then, hey presto, they recommend one.
And now that Victoria has had a statutory bill or Charter of Rights since it was enacted in 2006, does anyone in Victoria really believe that people’s interests (call them ‘rights’ if you will) are better protected in Victoria than in the rest of Australia? Seriously. Hands up if you think bikies prefer being targeted by the police in Melbourne rather than Adelaide.
Or maybe you’ve bought into the hype and think the entire administrative machinery in Victoria now works in a new, human rights-friendly way, meaning that it is more sensitive to the needs of citizens than such machinery is in New South Wales or Queensland. Any takers for that one, leave aside how insulting the claim is to the rest of Australia’s government workers.
Frankly, except for lawyers, judges, law professors and special interest pleaders whose self-interest in this seems to disqualify them from being impartial, I doubt anyone would say Victorians live in a more rights-respecting jurisdiction than Queenslanders or New South Welshmen or any other Australians.
The Victorian statutory Charter of Rights has been expensive; it has given too much power to judges (though thankfully not nearly as much as in the UK or Canada); and it ought to be repealed.
So here’s the question for newly elected Coalition Premier Baillieu and Attorney-General Robert Clark. Are you going to stand up and repeal this thing? Or are you going to follow the general trend in postwar Western politics and just cave in, maybe tinkering a bit here and there? Or maybe just say nothing and hope people don’t notice?
Remember, it’s no good saying Victoria’s statutory Charter of Rights is poorly designed (which it is) and then opting to amend it in some way that makes you a part owner of this awful instrument. Its underlying premises are all too anti-democratic. It can’t be fixed.
Look, this experiment in handing power to judges can, and should, now be reversed. Give Victorians a plebiscite if nothing else. There is as much mandate to repeal this thing as there was to bring it in. So let’s do it. Let’s repeal the Charter of Rights.
James Allan is Garrick Professor of Law at the University of Queensland.