A while ago former Priminister John Howard wrote a very persuasive article about why Australia should not have a Bill of Rights. I have to say that after reading it I was convinced. He presented what seemed to be an excellent argument for how a Bill of Rights would reduce democracy.
He argued that a Bill of Rights would shift power from the Legislature to the Judiciary. While he is right about that I find that I don't agree with his conclusion. And it all has to do with the concept of the two freedoms. A concept I first encountered in the dystopian novel 'The Handmaids Tale' by Margaret Atwood.
The two freedoms are freedom to and freedom from. And the thing is that they frequently clash. In the so called war on Terror we all have lost some of our freedom to, in the name of freedom from. Mostly this has happened in the guise of special anti terror laws that reduce some individual rights in order to protect society from harm.
More recently in Australia there has been the Internet censorship debate and the argument that to protect society from pedophilia we will have to restrict every ones Internet access. But we promise not to misuse this new censorship tool for any other purpose. Senator Conroy has argued vehemently that anyone who opposes him is supporting paedophilia and hence is morally corrupt. Not Senator I'm not supporting paedophilia I'm supporting my right to access information that the government of the day does not like. Promises that the blacklist will be limited to refused classification, with no public oversight, rings hollow to me. And are something you cannot promise in perpetuity. Instead I am certain that once the tool is there the government will come under immense pressure from lobbyists to use it against all sorts of information that some vocal minority find objectionable.
Would freedom of information enshrined in a bill of rights prevent this? Maybe maybe not. John Howard wants to argue that its not a choice that should be left to judges. The thing is that the worst the high court could do is agree with the government that such a filter was not against the bill of rights. What they couldn't do is mandate one, that power would remain with the Legislature.
What I have realised is that a Bill of right protects freedom to. But cares nothing about freedom from. In effect it says that some freedoms
are so important to maintaining democracy that we are willing to sacrifice freedom from, to protect them. A Bill of rights gives the judiciary the power to say no this law can't stand as it would reduce the freedom to do X which is protected by the Bill of rights. Now the Judiciary can already do this for anything that is covered by the constitution, so this isn't really a new power.
It seems to me to be a very good division of powers. Let the Judiciary protect freedom to and the Legislature protect freedom from. Because
when it comes down to it a free and open society cannot exist without freedom to.
So a bill of rights does, as Mr Howard claims, extend the power of the judiciary, but it does not give them new powers. The extension is very tightly focused and will in the end serve to strengthen democracy, just in case we ever make the mistake of electing a wannabe dictator into the highest office in the land.