Ruddock: Bill of rights do not protect freedoms

In a recent vitriolic editorial, Philip Ruddock tells us that “Bills of rights do not protect freedoms”.

Regardless of whether we think an articulated Bill of Rights would be desirable, this piece is an overt attack on the independence and ability of our judiciary.

Ruddock argues that:

Bills of rights do not protect essential freedoms - all they do is present the very real risk of having judges imposing personal opinions as law, leaving everyone to guess about what the law might be.

This is where we start getting confused. Ruddock is still under the impression that law is neutral and value-free. In fact, what he's saying here, is that we don't want a bill of rights because we want judges who read the law very literally, and don't do nasty unexpected things like recognise native title or strike down workplace relations statutes.

Ruddock gives a number of Canadian and UK examples of shocking judicial activism, including:

• deciding that “all asylum seekers are entitled to an oral hearing”;

• recognising gay marriage;

• mandating remand for prisoners awaiting trial for over eight months;

• recognising that tobacco advertising is speech;

• police providing food (admittedly, KFC) and cigarettes to a criminal suspect;

• placing limitations on the ability of landlords to evict tenants who are behind in their rent payments, recognising the interest that tenants have in their homes.

The common law has always been concerned with developing legal principles to protect the interests of citizens. Judges do an excellent job of making rules where the legislature hasn't, and have a long history of protecting the people from the worst excesses of both the legislature and the executive. The examples used by Mr Ruddock above are examples of the common law at work. One of the dangers of popular representative democracy is that the rights of minorities are often overlooked. We depend on the judiciary to have the power to stand up for the rights of minorities, and to be able to place important checks on the exercise of legislative and executive power.

Australia has a record of having a strong independent judiciary, but this is something that Mr Ruddock has failed to uphold. One of the Attorney-General's functions has historically been to protect the integrity of the judiciary. Australian judges are reluctant to defend themselves in political contexts. In recent years, however, they have lost the support of the Government. The High Court and the Federal Court have been exposed to overt and often outrageous criticism for 'judicial activism'.

This is another facet of a systematic attack on the judiciary from a government which is terrified of having its policies and actions scrutinised. From immigration to copyright to industrial relations to prisoners' right to vote, the Howard Government has complained about the power of the courts to regulate and limit their power.

The real threat to democracy is not judicial intervention. To claim that a judge who takes a literal and conservative approach to the text of the law is not acting politically is mere legal fetishism.

The real threat to democracy here is the sustained attack on judicial independence that we have witnessed from a government which refuses to have its policies reviewed, either by the legislature before they become law, or by the judiciary afterwards.