The Bill of Rights debate in Australia: An institutional viewpoint

Presented by

Professor Suri Ratnapala

Wednesday, 8 April 2009
Room: 67.202 (Moot Court)
Time: 12.30-13.30

Abstract

The question whether Australia should have a bill of rights in a statutory or constitutional form has divided legal scholars and political actors. Opposition to a bill of rights is grounded on arguments that range from the difficulty of specifying the rights and liberties that require protection to the unsuitability or illegitimacy of unelected judges determining moral questions and social policy to the exclusion of elected assemblies. At the philosophical level two strands of theoretical opposition are noticeable: a Kantian argument based on disagreement in society and the worth of the individual and a consequentialist argument favouring the resolution of rights issues by parliamentary majorities. I argue that each approach leads to inconclusive results. The paper proposes a more pragmatic analysis drawing on insights from new institutional economics (NIE). Such an analysis suggests that given the institutional strength of the Australian political system, a statutory bill of rights that protects basic civil and political rights, on balance, is unlikely to produce the harm that sceptics fear but will also be less useful than the enthusiasts predict. 

About the speaker:

Suri Ratnapala is Professor of Public Law at the University of Queensland. He holds the degrees of LLB (Colombo); LLM (Macquarie) and PhD (Qld), and teaches constitutional law and jurisprudence, fields in which he has published widely. He is the author of several books including Welfare State or Constitutional State? (winner of the Anthony Fisher International Memorial Prize), Australian Constitutional Law: Foundations and Theory (Oxford UP) , Australian Constitutional Law: Commentary and Cases, and Jurisprudence  (due for release later this month by Cambridge University Press). He has received fellowships from international research centres, the Institute of Humane Studies, George Mason University, Virginia, the Social Philosophy and Policy Centre of the Bowling Green State University, Ohio and the International Centre for Economic Research, Turin, Italy. In 1998, Professor Ratnapala was elected to the membership of the Mont Pelerin Society, the international association of liberal intellectuals and in 2008 was elected to its Board of Directors. In 2000, he received a John Templeton Foundation Award for his teaching in political, economic and social theory. In 2003 Professor Ratnapala was awarded a Centenary of Australian Federation Medal for his contribution to Australian society through research in law and economics. Professor Ratnapala has been a consultant with AusAid, the World Bank and the Asian Development Bank in institutional capacity building projects in Asia. Prior to entering the academy he was Senior State Counsel in Sri Lanka.

For further information contact:

Dr Nadirsyah Hosen
Lecturer
Faculty of Law
University of Wollongong
NSW Australia
Email: hosen@uow.edu.au
Phone: +61 2 4221 4192
Fax: +61 2 4221 3188