The Rudd Government has established a panel to conduct an inquiry into whether Australia should have a Bill of Rights. The panel will be chaired by Fr. Frank Brennan. The recently passed Victorian Bill of Rights seems to serve as a model of the proposed Federal version. The question is, do we need such a Charter or Bill of Rights? I believe the answer is no, and I have elsewhere provided ten reasons why we should not head down this path: https://billmuehlenberg.com/2005/08/07/what-is-wrong-with-a-bill-of-rights/
A number of social and political commentators have weighed into the debate. Here I offer the thoughts of four recent writers who have expressed concern about such a Charter. Piers Akerman asks why we need to even consider this: “Cynics might say that this distraction should keep the chattering classes too busy to notice rising levels of unemployment or the growing list of broken election promises beginning with computers for every student and the restoration of the Murray-Darling river system, but that would be a disservice to the True Believers. To them, the lack of a national bill of rights is sufficient argument in itself to call for a document to be immediately prepared and foisted on the long-suffering public, not withstanding the reality that Australia’s extraordinary record of stable government and outstanding level of public civility, despite the appalling behaviour routinely displayed in the state, territory and federal parliaments.”
He rightly notes that they have not done much good elsewhere: “Freedom House, an international rights watchdog, says that three of the [UN Human Rights] Council’s members – China, Cuba, and Saudi Arabia – are among the world’s most repressive regimes and another five – Russia, Pakistan, Egypt, Bahrain, and Azerbaijan – are considered ‘Not Free.’ But just as Stalin endowed the USSR with its charter of rights in 1936, so, too, do these countries have charters and bills listing rights which their citizens can only dream of.”
He concludes, “Given the signal failure of the UN to enforce its charter of rights in any of the world’s trouble spots, and the contempt with which so many nations hold their charters of rights, Australia is well short of such a bill and better off relying on its common law principles, parliamentary democracy and robust freedom of speech to protect its citizens. To do otherwise would be to disparage the nation’s exceptional history which is an object of near-universal admiration.”
Janet Albrechtsen asks who is behind the push and why: “Analysing calls for so-called reforms should always start with a few golden rules. Follow the money. And follow the power. This week both paths lead you straight to the legal profession and to the heartland of politically driven activists. Like pigs sniffing for truffles, lawyers can smell the enticing waft of money and power in the air as they push open new legal industries. For the activists, it’s about influence as they seek to move from the irrelevant fringe of political life to the centre of the action.”
She continues, “If you doubt that a charter of rights will involve a fundamental transfer of power to lawyers, judges and activists, ask yourself this. Would these champions of a charter be so energetically supporting a charter if it didn’t transfer power to them? Would High Court Justice Michael Kirby be eager for a charter if it did not boost judges’ ability to socially engineer a better society according to them? Likewise, the activists. Their glee is driven by the new power they will wield as they seek out like-minded judges only too willing to cement their political agendas into law.”
She provides a good case of how this will all pan out. She notes that “lawyers and activists have never had much time for democracy, and nothing thrills them more than indulging their disdain for democratic processes while locating the next gravy train to fill their pockets. Here’s the next bonanza. If you thought climate change was solely an issue for scientists, religious-minded green activists and governments, think again. The legal profession is busily working out how best to get its snout in this trough, too.”
“Late last month Stephen Hockman QC, a former chairman of the Bar Council in Britain, proposed an international court on the environment to mirror the International Court of Justice in The Hague. This new international court would enforce a ‘convention on the right to a healthy environment’ and allow individuals and non-governmental organisations to protest against environmental injustices. ‘The time is now ripe to set this up and get it going,’ Hockman said. British Prime Minister Gordon Brown is considering it. Actor Judi Dench loves the idea. Well, that settles it.”
Concludes Albrechtsen, “Like a charter of rights, international law has become the lawyers’ and activists’ version of Second Life, that weird cyber space game where you get to live out your grandest fantasies. International law allows them to operate in a parallel universe, unfettered by boring constraints of democracy and national sovereignty, dictating to nation-states how they should be governed. It’s done under the grand auspices of law. But it is really about power and influence of the worst kind. A group of globe-trotting, self-appointed guardians of morality get to hijack the domestic political agenda of nation-states.”
Paul Kelly is also concerned, and argues that “the bill of rights has the potential to affect our institutions, governance, High Court and constitutional traditions in fundamental ways”. He believes that we already have too much judicial activism in place, and this bill of rights will only compound problems:
“Judicial activism is the exploding feature of Australian governance. Yet it has not and it cannot solve the problem. Resort to even more judicial activism will create a huge churn of red tape and fat lawyers. It will not assist human rights. This reality is obvious but neither the ego nor the self-interest of the legal profession will concede it. Some of the best insights into Australian governance during the past decade come from Commonwealth Ombudsman John McMillan, whose charge is explicit: the claim that judicial review leads to better administrative results and humanitarian progress is not demonstrated. It is repeatedly asserted by lawyers; it is not proved. For McMillan, ‘such arguments are too easily made and too rarely justified’.”
Finally, Michael Sexton also asks some hard questions. He notes that some people try to distinguish between a bill of rights and a charter of rights. A bill of rights “would allow courts to declare invalid legislation that was found to contravene some aspect of the bill, and a so-called charter of rights, which would allow courts only to declare legislation inconsistent with the rights as set out in the charter. One reason there would be little difference in practice between these two schemes is that no government is likely to leave untouched a law that has been held by a judge to be contrary to human rights. In any event, however, both proposals are designed to produce the same long-term consequences.”
And the consequences are a matter of some concern: “The first of these consequences is that the courts will have to consider new political, economic and social questions. It is true that courts sometimes deal with these kinds of issue now, but under a bill or charter of rights they will do so in a much more direct way. And these issues do not change into legal questions because they are decided by a court. They remain political, economic and social questions.”
“The second consequence is that various individuals and groups in the community will be encouraged to see legal proceedings as a way of achieving their agendas, some of which may be unattractive to most advocates of a bill of rights, rather than using negotiation or political action. It is hard to see why anyone would want to encourage additional litigation given the time and expense of any action in the courts.”
He continues, “It is important to understand, however, that proponents of a charter, almost all of them lawyers, think both these outcomes would be a good thing. They want the role of judges expanded and they see litigation as a good way to resolve many of society’s problems. This is the essential point of difference between those who favour a charter and those who do not. No opponents of a charter, however, will deny that there are often particular social problems that do need legislative action.”
He points out that most of these contentious social issues are now dealt with by legislation, and that has done the job pretty well. So the case for such a bill of rights has yet to be properly made. It seems this is but another example of social engineering and a power grab by various elites. And once again, the real losers will be ordinary Australians.
The culture of litigation and the abdication of responsibility that a bill of rights engenders is something that Australia should try and avoid at all costs. …
The transfer of policy decisions from governments and Parliament to the judiciary …
“Freezing” rights: Our view of the importance and priority of rights changes over time. A constitutionally entrenched bill of rights freezes those priorities at a particular point in time. …
Unpredictable interpretation …
The creation of a culture of litigation … Bills of rights are notorious for being the last ground of the desperate in litigation. … While the Courts are swamped with thousands of Bill of Rights cases, where will the ordinary person go for justice? The Courts will be made even more inaccessible and the cost of running the court system will increase. The main beneficiaries of a bill of rights are the lawyers who profit from the legal fees that it generates and the criminals who manage to escape imprisonment on the grounds of a technicality. The main losers are the taxpayers, and society in general through the reduction of community values to mere courtroom weapons.
Conclusion
Parliaments are elected to make laws. In doing so, they make judgments about how the rights and interests of the public should be balanced. Views will differ in any given case about whether the judgment is correct. However, if the decision is unacceptable, the community can make its views known at regular elections. This is our political tradition.
A bill of rights would pose a fundamental shift in that tradition, with the Parliament abdicating its important policy making functions to the judiciary. I do not accept that we should make such a fundamental change just because other countries have bills of rights. The culture of litigation and the abdication of responsibility that it engenders is something that Australia should try and avoid at all costs.
A bill of rights is an admission of the failure of parliaments, governments and the people to behave in a reasonable, responsible and respectful manner. I do not believe that we have failed.
Jonathan Sarfati, Brisbane
Hi Bill,
I agree wholeheartedly with the warnings of the commentators quoted in your article that a bill of rights will lead to a weakening of representative government and more unelected judge made law. There is also the fact that the sort of rights we are likely to get are more along the lines of ‘each child has the right to an education free from religious teaching’ and ‘every woman has the right to kill her unborn child’ rather than the converse. These are both important practical reasons to resist such a move, but I believe there is a more fundamental reason why Christians should be wary of the very concept of ‘human rights’.
The proper role of government is as God’s agent, upholding what is right and punishing what is evil according to His word. The civil laws contained in the Bible do not follow a rights pattern and so at best such a pattern is unnecessary, and at worst it is pernicious. I believe allowing a government to grant human rights is pernicious because it tends to elevate the role of government outside its legitimate sphere of sovereignty and it changes the perception of the source of one’s blessings from God to man. True human rights come directly from God by virtue of being created in His image and are not for governments to claim to give us. Therefore I feel that Christians who accept, in principle, a role for ‘human rights’ are unwittingly conceding this important shift in thinking to the humanist agenda.
See page 2 middle par for an unheraldad use of a Bill of Rights legal tactic.
John Angelico
Bill,
Anything headed up by Father Brennan or endorsed by Father Brennan is sure to be left wing, socialistic, inclusive, feminist, anti-Christian …..etc. He is well and truly on that rocky road to excommunication. He is in fact walking along the precipice and has done for so many many years.
He is a political beast with a long pedigree and should have surrendered his clerical collar aeons ago.
John FG McMahon
Why are Australian elites always so desperate to pick and choose all these international legal and governmental features in an attempt to hybridise our society?
This obsession with a bill of rights, the obsession with republicanism, the obsession with obliterating the states…Maxine McKew’s comment that she envisioned an Australia where the constitution was up for evolutionary modification every few years at “constitutional conventions”…it is all ridiculous!
The entire “nation” has been built upon the foundation of the six states, the constitution and a Westminster system of government with a monarch at the head of the judicial system and a fully functioning parliament.
Now this form of governance is not perfect, I daresay it is not even superb or excellent in an idealistic sense. However it IS far superior to any of the humanistic, socialist/communist or secular republican alternatives on display in the world today and a bill of rights or similar changes will in no wise constitute an improvement…
Yarran Johnston
Does this proposal change our constitution and if so should a referendum be called on the issue?
I dare say the elite would not welcome the ‘ignorant public’ having a say.
Mansel Rogerson hits the nail on the head; our rights come from our Creator, not our fellow creatures.
John Nelson
Hi Bill, thanks for putting this issue on the agenda. This is shaping up as a key battle for Christians in 2009. I’d encourage as many people as possible to wise up on a bill/charter of rights and to contribute their voice to the consultation process. Details can be found at http://www.humanrightsconsultation.gov.au. Submissions can be made until May 29, and there will be a series of community roundtables. The more voices arguing against this proposal the better.
Ben Williams
Bill and Jonathon
Right and right about the follies of a Bill of Rights.
In addition to Carr, Attorney-General John Hatzistergos is another NSW Labor figure who has been vocal against a Bill of Rights. His article in The Australian A Charter of Rights, or Wrongs?
details how
Our institutions have exhibited remarkable stability and constituted a powerful force for ensuring the peaceful development of our nation within the context of maximum personal freedom.
It is unsurprising therefore that in all my time in public life not one ordinary constituent whose door I have knocked has pleaded for a Bill or Charter of Rights.
The referendum results and previous election results have shown the public have been unenthusiastic about such proposals.
Instead the constituency for such change has come not from ordinary citizens but rather professional lobbyists and law school elites.
Recognising that constitutional amendment is hopeless, the protagonists have turned their attention to a statutory charter model which it is argued gives the Courts an interpretive and/or declaratory role but nevertheless preserves parliamentary sovereignty.
A bill or charter of rights would move rights claims out of the political arena, turning them into legal claims
In essence whether one talks of Bills or Charters of Rights essentially one is discussing the degree to which the primary power for making decisions about rights will shift from legislatures to the courts.
Thanks Damien; that article by Attorney-General John Hatzistergos was very cogent.
Jonathan Sarfati, Brisbane
The idea that some judge, sitting up there in a stuffy gown and an equally stuffy and ridiculous wig, could dispense a special brand of wisdom, unattained by the man or woman in the street is premium quality balderdash. You only need to observe some of their court decisions, to prove that because someone has passed exams, they don’t automatically attain wisdom. This is a ploy by Rudd, to have Labor or Green Lawyers appointed to permanent jobs, in an effort to sneak through a leftist agenda, without the worry of being accountable to parliament. The choice of a trio to consider the plan is interesting. We have Frank Brennan, more interested in Left politics than his job as a priest and Mary Kostakidis, whose only claim to fame is reading the news in a deadpan voice with regular mispronunciation of some common words. Of the third choice, I heve no knowledge, but I’d be surprised if it would be an different from the other two.
Frank Bellet, Queensland
One of the best critics of a Bill of Rights is former NSW Premier Bob Carr, and he’s Labor! In The Rights Trap: How a Bill of Rights Could Undermine Freedom, he noted (following his headings):
The culture of litigation and the abdication of responsibility that a bill of rights engenders is something that Australia should try and avoid at all costs. …
The transfer of policy decisions from governments and Parliament to the judiciary …
“Freezing” rights: Our view of the importance and priority of rights changes over time. A constitutionally entrenched bill of rights freezes those priorities at a particular point in time. …
Unpredictable interpretation …
The creation of a culture of litigation … Bills of rights are notorious for being the last ground of the desperate in litigation. … While the Courts are swamped with thousands of Bill of Rights cases, where will the ordinary person go for justice? The Courts will be made even more inaccessible and the cost of running the court system will increase. The main beneficiaries of a bill of rights are the lawyers who profit from the legal fees that it generates and the criminals who manage to escape imprisonment on the grounds of a technicality. The main losers are the taxpayers, and society in general through the reduction of community values to mere courtroom weapons.
Conclusion
Parliaments are elected to make laws. In doing so, they make judgments about how the rights and interests of the public should be balanced. Views will differ in any given case about whether the judgment is correct. However, if the decision is unacceptable, the community can make its views known at regular elections. This is our political tradition.
A bill of rights would pose a fundamental shift in that tradition, with the Parliament abdicating its important policy making functions to the judiciary. I do not accept that we should make such a fundamental change just because other countries have bills of rights. The culture of litigation and the abdication of responsibility that it engenders is something that Australia should try and avoid at all costs.
A bill of rights is an admission of the failure of parliaments, governments and the people to behave in a reasonable, responsible and respectful manner. I do not believe that we have failed.
Jonathan Sarfati, Brisbane
Hi Bill,
I agree wholeheartedly with the warnings of the commentators quoted in your article that a bill of rights will lead to a weakening of representative government and more unelected judge made law. There is also the fact that the sort of rights we are likely to get are more along the lines of ‘each child has the right to an education free from religious teaching’ and ‘every woman has the right to kill her unborn child’ rather than the converse. These are both important practical reasons to resist such a move, but I believe there is a more fundamental reason why Christians should be wary of the very concept of ‘human rights’.
The proper role of government is as God’s agent, upholding what is right and punishing what is evil according to His word. The civil laws contained in the Bible do not follow a rights pattern and so at best such a pattern is unnecessary, and at worst it is pernicious. I believe allowing a government to grant human rights is pernicious because it tends to elevate the role of government outside its legitimate sphere of sovereignty and it changes the perception of the source of one’s blessings from God to man. True human rights come directly from God by virtue of being created in His image and are not for governments to claim to give us. Therefore I feel that Christians who accept, in principle, a role for ‘human rights’ are unwittingly conceding this important shift in thinking to the humanist agenda.
Mansel Rogerson, Melbourne
From journalist Rod Liddle in the UK Spectator comes an article with a number of vignettes on the modern Santa phenomenon:
http://www.spectator.co.uk/the-magazine/features/3088606/part_2/come-with-me-to-santas-grotto-to-discover-the-state-were-in.thtml
See page 2 middle par for an unheraldad use of a Bill of Rights legal tactic.
John Angelico
Bill,
Anything headed up by Father Brennan or endorsed by Father Brennan is sure to be left wing, socialistic, inclusive, feminist, anti-Christian …..etc. He is well and truly on that rocky road to excommunication. He is in fact walking along the precipice and has done for so many many years.
He is a political beast with a long pedigree and should have surrendered his clerical collar aeons ago.
John FG McMahon
Why are Australian elites always so desperate to pick and choose all these international legal and governmental features in an attempt to hybridise our society?
This obsession with a bill of rights, the obsession with republicanism, the obsession with obliterating the states…Maxine McKew’s comment that she envisioned an Australia where the constitution was up for evolutionary modification every few years at “constitutional conventions”…it is all ridiculous!
The entire “nation” has been built upon the foundation of the six states, the constitution and a Westminster system of government with a monarch at the head of the judicial system and a fully functioning parliament.
Now this form of governance is not perfect, I daresay it is not even superb or excellent in an idealistic sense. However it IS far superior to any of the humanistic, socialist/communist or secular republican alternatives on display in the world today and a bill of rights or similar changes will in no wise constitute an improvement…
Yarran Johnston
Does this proposal change our constitution and if so should a referendum be called on the issue?
I dare say the elite would not welcome the ‘ignorant public’ having a say.
Mansel Rogerson hits the nail on the head; our rights come from our Creator, not our fellow creatures.
John Nelson
Hi Bill, thanks for putting this issue on the agenda. This is shaping up as a key battle for Christians in 2009. I’d encourage as many people as possible to wise up on a bill/charter of rights and to contribute their voice to the consultation process. Details can be found at http://www.humanrightsconsultation.gov.au. Submissions can be made until May 29, and there will be a series of community roundtables. The more voices arguing against this proposal the better.
Ben Williams
Bill and Jonathon
Right and right about the follies of a Bill of Rights.
In addition to Carr, Attorney-General John Hatzistergos is another NSW Labor figure who has been vocal against a Bill of Rights. His article in The Australian A Charter of Rights, or Wrongs?
details how
Our institutions have exhibited remarkable stability and constituted a powerful force for ensuring the peaceful development of our nation within the context of maximum personal freedom.
It is unsurprising therefore that in all my time in public life not one ordinary constituent whose door I have knocked has pleaded for a Bill or Charter of Rights.
The referendum results and previous election results have shown the public have been unenthusiastic about such proposals.
Instead the constituency for such change has come not from ordinary citizens but rather professional lobbyists and law school elites.
Recognising that constitutional amendment is hopeless, the protagonists have turned their attention to a statutory charter model which it is argued gives the Courts an interpretive and/or declaratory role but nevertheless preserves parliamentary sovereignty.
A bill or charter of rights would move rights claims out of the political arena, turning them into legal claims
In essence whether one talks of Bills or Charters of Rights essentially one is discussing the degree to which the primary power for making decisions about rights will shift from legislatures to the courts.
http://www.theaustralian.news.com.au/story/0,25197,23522655-17044,00.html
Damien Spillane
Thanks Damien; that article by Attorney-General John Hatzistergos was very cogent.
Jonathan Sarfati, Brisbane
The idea that some judge, sitting up there in a stuffy gown and an equally stuffy and ridiculous wig, could dispense a special brand of wisdom, unattained by the man or woman in the street is premium quality balderdash. You only need to observe some of their court decisions, to prove that because someone has passed exams, they don’t automatically attain wisdom. This is a ploy by Rudd, to have Labor or Green Lawyers appointed to permanent jobs, in an effort to sneak through a leftist agenda, without the worry of being accountable to parliament. The choice of a trio to consider the plan is interesting. We have Frank Brennan, more interested in Left politics than his job as a priest and Mary Kostakidis, whose only claim to fame is reading the news in a deadpan voice with regular mispronunciation of some common words. Of the third choice, I heve no knowledge, but I’d be surprised if it would be an different from the other two.
Frank Bellet, Queensland