More lawyer power coming?

Sadly, Australia now has a very thick Attorney-General

"I am an economic conservative. I am an economic conservative. I am an economic conservative." Before the recent election, Kevin Rudd couldn't assure voters often enough of his credentials when it came to the economy. And no doubt, as interest rates get higher and labour laws are deliberalised, time and Rudd's response to these and other economic stresses will tell. The voters will get to see if the Prime Minister is the economic conservative he so repeatedly branded himself.

However that plays out, and none of us can know for sure, it is becoming plainer every day that our new federal Attorney-General, Robert McClelland, is not a constitutional and legal conservative. Indeed, it appears that McClelland's mantra is closer to: "I am a legal revolutionary; I am a legal revolutionary; I am a legal revolutionary." First off, as soon as the election is done and out of the way, he announces that he rather fancies one of those new-fangled bills of rights.



Why not aim to bring one in before the next election, he muses. Well, one reason is that the Labor Party has no real mandate to do this. Does anyone reading this recall McClelland or Rudd saying, before the election, "we will give you a bill of rights"?

Here's another reason. These instruments overwhelmingly inflate the power of unelected judges. And I'm talking about statutory bills of rights, not just the constitutionalised versions modelled after the US and Canada. The legal revolutionary crowd, drawn disproportionately from the chardonnay-sipping wing of the Labor Party, like to assure people that statutory bills of rights won't diminish the power of the elected parliament at all. We'll just copy what Britain and New Zealand have, and nothing much will change at all, they assure us.

This is an out-and-out prevarication. Here's what one of the top British judges said, after Britain got its statutory bill of rights just less than a decade ago. It was in the course of giving his judgment in the House of Lords' case of Jackson. Lord Steyn said: "The Human Rights Act (Britain's name for its statutory bill of rights) created a new legal order." That's a quote. Do you think our Attorney-General, who wants to copy Britain's bill of rights, is unaware of that statement?

In a similar vein, do you think McClelland doesn't know that the British judges have used the statutory bill of rights to say that they (the judges, that is) can read any statute they want in a new "bill of rights friendly way"? This, they tell us, means that they can read words in, read words out, ignore the plain, clear meaning of any statute and attribute it the exact opposite meaning to the one they know the legislature intended. Now that, to my way of reckoning, is revolutionary. It cuts to the heart of democracy and rule by the people.

Think of it this way. You decide your 15-year-old son has misbehaved. So you say to him, "You cannot go to the movies this weekend." And assume you are the elected legislature. He, though, is the unelected High Court of Australia and there is a statutory bill of rights in place. He responds: "Well, Dad, in interpreting your words, I am putting them into what I consider to be a bill of rights friendly context and, in my view, denying me access to movies breaches fundamental rights. So what you meant, in this new light, is that I can go to the movies. "Oh, and I am also reading in a few words, namely that you have to buy me some popcorn and a drink. You see, Dad, I'm the one who gets to decide what is and isn't in keeping with fundamental rights, not you." That sounds so ridiculous readers won't believe me. But that's barely a parody of what the British and NZ judges have done in a bunch of big bill of rights cases.

So we need our Attorney-General to come out and tell us if this is what he wants to happen here; if he thinks judges can be restrained (in some way that has failed everywhere else); and, if not, why he thinks this outcome - this revolutionary outcome that takes power away from our elected representatives and gives it to committees of ex-lawyers - is a good idea.

But so far we get nothing but gaseous platitudes about protecting people's fundamental rights, as though there was any consensus at all among smart, reasonable people about what this means in day-to-day practice when it comes to having to draw lines about wearing veils to school, campaign finance regimes, same-sex marriage and so on.

But that's not all, incredibly enough. Our Attorney-General has announced that he's also going to change the way magistrates and judges are selected. He's going to take politicians largely out of the equation. Let sitting judges and ex-judges and top lawyers and maybe a few representatives of special interest groups - pick the favourite special interest group before whom you'd expect people to genuflect - draw up lists based on (wait for it) ostensible merit. You see this sleight of hand works by pretending that the notion of merit is uncontroversial and that it's best to leave the judges and lawyers largely to pick their successors.

And it assumes that a few political hacks getting appointed to the bench (which does happen now) is worse than leaving judges and lawyers to pick their own replacements (which will happen under this proposal). It's not. Test this by asking yourself if you'd let top generals decide who got to be the next chief of staff or whether you'd want political input into that decision.

My point is that if you were asked to set up a system that comprehensively undermined democratic decision-making without anyone realising it was happening, I doubt you could do better than the Attorney-General's one-two punch. One, you put in place a bill of rights that greatly increases judges' powers. Of course you do this while repeating endlessly that you only want better to protect fundamental rights, the unspoken premise being that a group of ex-lawyers are better at this than the men and women elected to parliament. Next, you cut off the voting public's ability to pick who those now incredibly powerful judges will be. They'll get to pick their own replacements, thank you very much. The Australian judges who here too will one day tell us "this is a new legal order" will also decide who sits on the Federal Court and maybe even the High Court.

Of course the jargon used to sell this undermining of your and my democratic input will sound grand and marvellous. Heck, if you don't use your brain at all and just revel in the warm feeling such rhetoric induces, you may even feel the Attorney-General deserves a pat on the back. This is all revolutionary stuff. But it's a quiet revolution. Keep your head down and you won't even see it happening, until it's too late. Those who are democrats at heart need to protest as soon as possible at this prospect of juristocracy.

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Posted by John Ray. For a daily critique of Leftist activities, see DISSECTING LEFTISM. For a daily survey of Australian politics, see AUSTRALIAN POLITICS Also, don't forget your summary of Obama news and commentary at OBAMA WATCH