The standard argument is that a Bill of Rights gives veto power over legislation to the judiciary. The framing is that of elected versus unelected. The people are just popcorn-stuffing spectators to be appealed to, presumably with bread and circuses.

All of us who are democrats at heart should worry about a provision that tells the unelected judges to do whatever they can to read any other statute as consistent with their view (not the voters' or parliamentarians') of what some abstract moral list requires.

Allen, 2006

James Allen frets that a legislature has allowed the judiciary to wily-nily rule on constitutionality of legislation. Never mind that the only court that can rule on constitutional issues is the highest court. Never mind that there are bills of rights and then there are bills of rights. There are bills of rights like New Zealand's; an arse-backwards granting of rights to the people from the state. Then there are subtractive bills, bills that clearly tell the state that the people do not permit them the power to legislate certain aspects of life.

It is this second variety which is hand in glove with every evolution of English and Australian law. The Great Charter, the various victories of Parliament over the monarchy, the ultimately triumphant Chartist movement, even the extension of suffrage; they are marked by a devolution of the source of the state's power. This is what a bill of rights is, it is the people - the source of the state's power - telling the state where it has no business.

The framing of the debate as unelected judges versus the elected legislature ignores the people. It pretends that the judiciary and the parliament are in some permanent squabble, tussling over a power that exists in its own right, without source, as if divinely provided. It pretends that Australia follows some Nouveau Régime where the executive council, with the consent of the judiciary and the senate, occasionally permits an impotent parliament to offer advice that can and will be ignored. There is no Divine Right of Prime Ministers. The state governs at the sufferance of the people and the people have the right to deny the state power. One last point. The bill of rights that commenters should be talking about - the US Bill of Rights - is as much as their Constitution the result of the people re-asserting that power is sourced from them. The means they exercised were the last resort - ultima ratio plebum if you like - but we shouldn't have to follow suit. Nor should we be content with the first kind of rights bill, that "permitted" us by the state. So in that sense, I find myself agreeing with one paragraph, even if my agreement comes with a sardonic curl of my lip.

One last point: in Victoria the voters themselves didn't get a referendum to decide whether they'd have a bill of rights; the Government decided that for them. So much for the "right to take part in the conduct of public affairs". Any bets on who would have won that referendum?

lo! A statist complains that the state is overstepping its bounds by creating sweeping legislation without the support of the people. Next thing you know, they'll be creating legislation that affects him! Surely there must be some remedy for this. Perhaps some document that subtracts powers from the legislature in order to protect the people and the rule of law from zealous statists. All we need now is a name for this hypothetical document.

More Reading on Bill of rights

• Bill of Rights
• statists
• liberty
• A Bill of Rights For Our Federal and State Constitutions
• Trusting Government
• Universalism in Australian Republicanism
• Prohibiting Government Constitutionally
• The National Security State and Australian Republicanism
• Why articles on a Bill of Rights will lead to wrongs
• Oh won't someone think of the Statists?
• Our way forward?
• The Discrete Political Entity
• Where Do Rights Come From?