Who are un-elected judges to determine moral issues on behalf of the community, was the question posed by Canadian-born Professor James Allan who argued a statutory Bill of Rights took too much power away from the people at the recent Charles Darwin Symposium.
Professor Allan believes Australia is well-served by its federal system and its Constitution.
‘I don’t like the idea of the High Court or the federal government chipping away at it,’ he said.
Professor Allan said he believes Bill of Rights hands difficult and often cloudy decisions, which require moral rather than legal judgments, to unelected judges rather than democratically elected politicians.
He admits politicians can make mistakes as easily as judges, but argues at least the people have recourse.
‘You can fight someone who is elected, but if you get don’t like a judge, there is nothing you can do about it,’ he said.
Professor Allan criticised the new human rights legislation in Victoria, called the Charter of Human Rights and Responsibilities Act, and argued that, just as has occurred in the UK and Canada, judges have too much power.
‘While judges don’t have the power to strike down legislation as they do in the United States, they do, under the Victorian Act, have the power to interpret all other laws in a “bill of rights friendly manner” that can mean almost anything,‘ he said.
Interpretation becomes a sort of Alice in Wonderland exercise, he said; ‘In other words, the judge can treat all other legislation in any way they want.’
Visit the Symposium website for further information about the event.