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.
http://blogs.news.com.au/dailytelegraph/piersakerman/index.php/dailytelegraph/comments/bill_of_slights_against_our_prized_democracy/
http://blogs.theaustralian.news.com.au/janetalbrechtsen/index.php/theaustralian/comments/keep_power_with_the_people/
http://www.theaustralian.news.com.au/story/0,25197,24791480-7583,00.html
http://www.theaustralian.news.com.au/story/0,25197,24834912-7583,00.html
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