Myth 1: The proposed Human Rights Act would shift decision making to unelected judges
The myth: The judiciary is an unelected, unaccountable arm of government. It should not have the power to decide what constitutes a breach of human rights.
The reality: Australian judges are indeed unelected, which helps to ensure that they are apolitical, independent and impartial. There are several reasons why judges could play an important, but not overbearing, role under a Human Rights Act. First, the judiciary can offer better protection to vulnerable minorities, who lack political traction (see myth 10 for a greater discussion of this point).
Second, judges are accountable. They must issue reasoned judgments, which are usually open to being overturned on appeal. Judgments should be crafted according to arguments presented openly in court, or in public documents. Judicial decisions are also generally based on precedent, and changes to the pre-existing interpretations are usually incremental and thoroughly reasoned.
Third, judges are less powerful than popularly portrayed: judicial decisions (other than those relating to constitutional law) can be reversed by legislation. Under the proposed Human Rights Act, judges would not be able to invalidate legislation and Parliament could choose to do nothing if the High Court declares that legislation is incompatible with human rights.
Fourth, under human rights legislation, judges would be able to address those situations where individuals may have been unfairly caught in the cracks of broad-brush legislation. For example, Mr Al-Kateb was a stateless Palestinian asylum seeker held in immigration detention who was unable to be deported, even though he was willing to leave Australia, because there was no State willing to take him. It seems doubtful that the Parliament had considered the possibility that an immigration detainee might be locked up forever despite a willingness to be deported. In the absence of a Human Rights Act, the High Court ruled in 2004 that Al-Kateb’s detention was legal, even though that meant he might be detained indefinitely.
For a longer discussion of the arguments regarding unelected, unaccountable judges, see this section of the Castan Centre’s submission to the National Human Rights Consultation.