Do we really want a transfer of power from the parliament to the courts?

The US is moving into failed-state territory. There is still lots to admire, but as time goes on, there is fewer and fewer of its social institutions that I think are of much use to the rest of us. It is an example in so many ways of what not to do. Its big cities, now overwhelmingly run by Democrats, are a lesson in wreckage. Outside of new technologies, there is so little to learn from the US at the moment that it is frightening how such descent can occur during the space of less than a single lifetime.

There is an article on the op ed page of The Australian today, Bills of rights are overrated, like the Magna Carta, written by Michael Sexton SC, described as “the author of several books on Australian history and politics”. If the rest of what he’s written is as good as this, I will have to read the lot. The kind of sentimentality over judicial concern for our freedoms is all very nice, until you watch how quickly every judicial system buckles the minute some totalitarian regime takes over. Here he is looking at whether Australia needs a Bill of Rights:

It would be easy to say a bill of rights is a lawyers’ picnic and that is why it is strongly promoted by some sections of the legal profession. While it is true, however, that a bill of rights inevitably leads to increased litigation, most human rights lawyers in Australia are funded by the taxpayer, either as academics or in community law centres, so their interests in this area are not directly financial.

The real problem with this group is that they welcome a transfer of power from the parliament to the courts and do not see this as anti-democratic. This in turn is because they tend to see every problem as having a legal solution, even if they are fundamentally economic, social or political questions. These kinds of issues are not changed into legal questions by being given to courts. All that happens is that courts are then required to decide economic, social and political questions.

The approach of human rights lawyers is demonstrated by the litigation in Australia concerning persons who arrive in the country without going through the normal immigration procedures. Some of these persons may be the victims of political persecution but most are potential economic migrants.

There have been numerous challenges to federal legislation in this area over recent years, with many of the cases going all the way to the High Court. The lawyers mounting these challenges do not accept that immigration control is a political decision for the government of the day and they rely in part on international law to say no Australian government can exercise complete control over entry to the country.

Better what we have than leave such decisions to Her Honour Justice Triggs.