Last night former Prime Minister John Howard argued that a Bill of Rights would lead to unelected judges making decisions that should only be made by parliaments. Howard thinks it’s outrageous that gay people, for example, should be allowed to go the courts, when the legislature fails them, to stop discrimination against them.

Delivering his Menzies Lecture last night in Perth, Howard said that:

… in the Australian context, the adoption of a charter or Bill of Rights would represent the final triumph of elitism in Australian politics — the notion that typical citizens, elected by ordinary Australians, cannot be trusted to resolve great issues of public policy and that the really important decisions should be taken out of their hands and given to judges.

This argument is not new, but it reflects a fundamental misunderstanding by people such as Howard of how our democratic system works.

A recent speech by the former High Court Chief Justice Anthony Mason represents an intellectually rigorous and experience-based rebuttal of the Howard line. Unlike Howard, Mason’s paper on August 13 at a Bill of Rights conference in Canberra, draws on his extensive experience over 40 years as a constitutional lawyer and appeal court judge. Where Howard has no direct experience of dealing with a Bill or Charter of Rights, Mason most certainly does.

For several years Mason has been a judge on the highest appellate court in Hong Kong, a jurisdiction that does have a Bill of Rights. And as he noted in his speech “if there was any substance at all in this argument, you might have expected it to arise frequently in Hong Kong. Yet I can say that, in my 12 years’ experience as a Non-Permanent Judge of the Hong Kong Court of Final Appeal, this is not the position.”

Howard’s precious defence of the unbridled power of politicians to play with people’s rights also ignores the reality of modern democratic societies and that is that unfortunately the political process is now so corrupted that vulnerable people without lobbying force get crushed. As Mason observed in his August 13 speech:

There is a popular perception that politicians are disconnected from the concerns of the people, that politics is all about gaining and maintaining power at all costs and that the political process is exploited by powerful lobby groups and stakeholders in their own interests. In addition, there is perceived to be an unhealthy relationship between the media and politics, a relationship in which politicians vie with each other for media attention and the media sensationalises and trivialises politics.

In such a climate, there is little or no incentive for politicians to take action to protect the disadvantaged minority or the individual, unless to do so offers the prospect of political mileage. Unfortunately, very often that may be no more than a remote prospect.

It is extraordinary that John Howard should be given any credibility when it comes to criticising judicial protection of rights. His government’s treatment of asylum seekers alone is testament to what happens when the parliament and not the courts are left to deal with human rights.