PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS: INSTITUTIONAL PERFORMANCE AND REFORM IN AUSTRALIA
by Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds). Aldershot, UK: Ashgate, 2006. 358pp. Hardback: $124.95/£65.00. ISBN: 0754625583.
Reviewed by David Erdos, ESRC Postdoctoral Fellow, Department of Politics, University of York. Email: de508 [at] york.ac.uk.
Although there are clear signs that moves to adopt some form of national Bill of Rights are gathering increasing momentum (see e.g. Grattan, 2007), Australia remains unique within the advanced industrialized world in lacking any such instrument. The result is a peculiar system of rights protection which makes this case of particular importance to scholars of comparative constitutionalism. PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS, therefore, fills a clear gap in this literature by providing a one-volume, multi-authored and up-to-date overview of some of the most important aspects of this case. As a result, and despite some flaws, this work should prove a valuable edition to the socio-legal section of university libraries and the personal bookshelf of many comparative constitutionalists.
As the introduction to the book by Jeffrey Goldsworthy states, the volume aims “to provide useful background for evaluating how well Australian institutions – governments, legislatures, courts, and tribunals – have been at protecting human rights in the absence of a bill of rights, and for assessing proposals for practical reform aimed at enhancing such protection” (p.4). Although one section does consider particular human rights issues such as property rights and the position of indigenous people, the book does not, and presumably does not aim to, provide an audit of how effective Australia currently is at protecting human rights. Rather, the focus is on both the institutional mechanisms via which such rights are currently protected and on how such mechanisms may be improved and/or supplemented in the future.
This focus is probably sensible in a multi-authored work such as this and ensures that the book has a ready appeal even to scholars not principally interested in the Australian case per se. This value is further enhanced by many of the contributions integrating relevant literature from across the advanced Anglophone world. Furthermore, one section focuses specifically on comparative perspectives with chapters looking, in particular, at the Australian case alongside those of the United States and Canada.
In addition to its institutional and comparative perspective, the book benefits from a number of other significant strengths. In the first place, the editors, Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone, have amassed a strong set of authors many of whom have already made a prominent and important contribution to debates on these matters within Australia. Alongside the editors themselves, these [*244] include Brian Galligan and John Uhr from the field of politics, and Simon Evans, Hilary Charlesworth and George Winterton from the field of law. In addition, there are a number of first-rate contributions. Three, in particular, may be singled out. Adrienne Stone’s piece exploring the potential for using Australia’s existing Constitution to protect rights presents an important and well-researched argument that most of these efforts are undermined jurisprudentially by either the constitutional text or constitutional history. Jeremy Webber’s piece presents an interesting argument in defence of the statutory variant of Bills of Rights focusing on the particular added value which judicial adjudications of individual rights claims can bring to democratic deliberation and debate. This contribution is both valuable in itself and also complements many of the other essays which are generally considerably more skeptical about Bill of Rights instruments. Finally, Simon Evan’s piece, exploring how private property protections included within the Australian Constitution ought to be protected and conceived, is also worthy of note. This chapter should be of particular interest to an American readership given the very similar dilemmas posed within US constitutionalism.
Despite these important strengths, however, the book is also marked by some weaknesses which prevent it from fulfilling its full potential. At the macro level, the book could have benefited from a more systematic and comprehensive treatment of its core themes, these being the institutional configuration of human rights protections in Australia and, relatedly, strategies for improvement. Thus, despite interesting essays examining the way rights are currently protected by the Australian parliament (Uhr, Horrigan) and by the legal system (Creyke), there is not the same consideration of the role of other important institutional actors such as the executive, civil service, Human Rights Commission and the various international bodies which interact with Australia (e.g. the UN Human Rights Committee). At the micro level, and as is perhaps inevitable in an edited volume such as this, the chapter contributions are also of variable quality. Moreover, in a few cases, these chapters suffer from significant deficiencies. For example, although clearly highly important and generally well researched, Megan Davis’ piece on indigenous rights is, in parts, somewhat polemical and lacking in rigor. Thus, the Australian Capital Territory’s electorate is seemingly and completely unfairly denounced as “racist” (p.179), on the basis that it appeared to favour a broad-based anti-discrimination clause in its statutory Bill of Rights rather than the inclusion of a specific right for indigenous people (who presumably were to be defined, at least in part, on racial grounds). Similarly, legitimate indigenous demands for “consultation” are incorrectly elided with the rather more problematic recommendation of the UN’s Committee on the Elimination of Racial Discrimination that “no decisions directly relating to [indigenous peoples’] rights and interests [should be] taken without their informed consent” (p.188) – in other words, a right not of consultation but of veto. [*245]
From a very different perspective and even more troubling than Davis’ piece is Robert Nagel’s chapter examining American judicial review in comparison with the Australian case. In significant part this reads as a tendentious attack on recent Supreme Court jurisprudence. One particularly unfair portion of it is devoted to a discussion of the 2001 LAWRENCE decision which struck down a Texas law (and similar laws in other states) criminalizing private, consensual homosexual conduct between adults. Nagel’s discussion does not even address the Court’s argument that this law presented an unconscionable coercive intrusion by the state into the most intimate of relationships or Justice O’Connor’s argument that it had a severely disproportionate impact on a small and insular portion of the population (gays and lesbians). Instead, and quite erroneously, the law is presented as having been about “protect[ing] . . . heterosexual marriage” (p.231) and its overruling as allegedly resulting in “segments of the public” exhibiting a “significantly enhanced sense of uneasiness and powerless that readily [and one might presume correctly] translates into anger” (p.234). The way in which Nagel manipulates the facts of this case and the deft way in which he presents an oppressing group as victim will be seen by many (this author included) as reflecting the pathology not of judicial imperialism but of the unpleasant face of modern-day homophobia which exerts a significantly greater sway in America than in Australia or many other similar countries.
Despite these various deficiencies, this book represents an important and valuable contribution to the literature on systems of rights protection within Australian and, more broadly, comparative constitutional studies. It provides a good overview of where Australia currently is located with regard to institutional mechanisms for protecting human rights and presents a variety of interesting perspectives on how such mechanisms may be further improved. It is certainly a book to have on hand in the coming years as Australia’s system of rights protections continues to change, even, perhaps, to the point of including some form of national Bill of Rights instrument. Should that eventuate, however, any second edition to this volume would clearly require a new title!
Grattan, Michelle. 2007. “Labor Push For Human Rights Law.” THE AGE, 20 February 2007
LAWRENCE v. TEXAS, 539 US 588 (2003).
© Copyright 2007 by the author, David Erdos.
Labels: Vol. 17 No.3