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Charter of Rights

December 10th, 2007

In the aftermath of the election, it’s striking how much the dullness of the campaign reflected the fact that a lot of issues weren’t even debated. Labor’s proposal for a Charter of Rights provides one example. From Labor’s viewpoint, those who liked the idea were probably already aware of it, so there was no payoff from pushing it hard. And while the culture warriors would have liked nothing better than to try and make a big deal of it, even Howard could see that running against human rights would be a risky tactic, especially in view of the government’s record.

Having tried and failed to wedge Labor on rights issues (notably gay marriage), the Liberals were quiet on the topic during the campaign. Now they face the risk of being wedged themselves. The rightwing fanatics who delivered the leadership to Nelson will find it hard to back down quietly, but I can’t see Nelson himself wanting a fight on this.

As regards the substance of the issue, we had an interesting discussion a couple of years ago. The key points I took out of it were:

* Rather than a constitutional bill of rights, we need a statement of principles against which legislation and administrative acts can be tested. If the Parliament chooses to pass legislation that violates our human rights, it should declare that it is doing so.

* To my mind, this means that the Charter should focus on the protection of rights against government action. ‘Positive’ rights such as the right to a decent living standard are important, but should be pursued in different ways.

This article raises a technical question as to whether Commonwealth courts can be used to implement the Charter. Even if they can, it’s not clear that court proceedings are the best choice. However, I’ll be interested to see what commenters have to say.

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  1. December 10th, 2007 at 15:21 | #1

    i don’t see how any action by parliament can protect against further action by parliament.

    the howard government announced ministerial conduct standards early on, then found them inconvenient and trash canned them. there was momentary embarrassment, but howard just shrugged his shoulders and ignored it.

    trying to graft democratic rights onto parliamentary society doesn’t work. power counts, not words. in oz, ordinary people have no power in between elections, and very little then. people with no power can not have rights, only customary privileges. customary privileges are not worthless, unless you are ‘of middle eastern appearance’, then the pm can do as he pleases.

    he can even order the media too be silent, if what he pleases to do might embarrass him.

  2. john cramer
    December 10th, 2007 at 15:55 | #2

    What is the point of going on about rights when governments don’t deliver on health, education, roads etc.
    The article you cite seems a ‘flavour of the month’ in that it mentions Muslims. Why them especially.

  3. swio
    December 10th, 2007 at 16:04 | #3

    The charter as it is envisioned is not an absolute protection of rights from parliament. But on the whole after seeing how the bill of rights in the US works I think this is a good thing. The US system seems to inevitabley end up corrupting the independence of the courts.

    What it does is to clarify what our rights are in an explicit manner so its easy for us to know what they are. This is as opposed to how it works at the moment with rights existing implicitly through hundreds of years of common law which no non-legal person could hope to really understand.

    In practice the only protection this bill of rights gives is to make it absolutely clear when a right is being taken away, which is all I really want. I don’t mind parliament taking away rights if everyone in society understands what is happening and there is a genuine public debate about it. From time to time this needs to happen. But I don’t want that happening by the process of some arcane paragraph in the middle of a one hundred page piece of legislation which turns out to have broader applications than anyone thought, or by new legislation rammed through in a climate of fear with no time for anyone to really figure out what is being given up. I just want to know clearly what my rights are and when and if they’re being taken away.

  4. December 10th, 2007 at 16:12 | #4

    To my mind, this means that the Charter should focus on the protection of rights against government action. ‘Positive’ rights such as the right to a decent living standard are important, but should be pursued in different ways.

    Au contraire, some standards for ‘positive’ rights should be established, particularly with respect to living standards, as noted by a commenter above. This would give Governments something ‘positive’ to work towards, and might minimise the deleterious impact of neoliberal economic imbecility, and other groupthink fads.

  5. John Bignucolo
    December 10th, 2007 at 16:52 | #5

    Au contraire, some standards for ‘positive’ rights should be established, particularly with respect to living standards, as noted by a commenter above. This would give Governments something ‘positive’ to work towards, and might minimise the deleterious impact of neoliberal economic imbecility, and other groupthink fads.

    An example of a modern constitution that embodies the “positive” rights referred to by THR is the Italian constitution, which was drafted in the aftermath of WW2, and after almost 25 years of fascist rule.

    Part 0 contains 12 articles that enumerates “Fundamental Principles”, while Part 1 contains 43 articles that enumerates the “Rights and Duties of Citizens”.

    I’m all for enumerating rights and putting constitutional brakes on the Executive, though at the end of the day a democratic society is dependent on the elements of its political institutions’ willingness to “do the right thing”. For example, I’d argue that under Tony Blair and the Labour Party, the British system with comparatively little black letter constitutional law, behaved far more lawfully and decently with respect to upholding democratic principles than the American system. George Bush (at Dick Cheney’s urging) has set about aggregating (and arrogating) powers to the Executive at the expense of the Congress (Parliament) and the Judiciary, despite its Constitution and pledges to uphold it.

    And speaking of Dick Cheney, I quite like this defence of Darth Vader by Paul Krugman:

    Back when Hillary Clinton described Dick Cheney as Darth Vader, a number of people pointed out that this was an unfair comparison. For example, Darth Vader once served in the military.

    Here’s another reason the comparison is invalid: the contractors Darth Vader hired to build the Death Star actually got the job done.

  6. December 10th, 2007 at 21:04 | #6

    The Vic model is a similar normative charter, as opposed to strict binding rules. It’s interpretation is still being worked out, so watch that space.

    Personally I’m not convinced we will end up with the kind of rights progressives hope for. There will still be state sponsored religions (they’ll end up stronger if anything), gays won’t be marrying, and security risks will trump habeus corpus every time.

  7. MikeM
    December 10th, 2007 at 22:06 | #7

    I think swio has it right. The US model of giving the Supreme Court the power to overrule the people does not seem good, but what we need is a clear statement of rights that has popular support plus a way to highlight when the legislature has a shark attack and tries to take a big bite out of our freedom.

  8. December 11th, 2007 at 07:08 | #8

    there is a way to institute rights which parliament must submit to, and any court will support: a nation which has citizen initiative referendum can set the limits of administrative and judicial power.

    of course, there is always a down-side, getting cir would require a bit of effort. not much, but ozzies grow up in a society in which they do almost nothing, and it shows.

    still, once you’ve got it, you don’t have to use it often. it just lies there, in view of the pollies, and greatly shapes their view of acceptable behavior.

  9. John Greenfield
    December 11th, 2007 at 10:17 | #9

    Whenever I hear the phrase “positive rights” I reach for my revolver. If the same luvvie clowns who stuffed the farce of “The Republic” get their hands on this side-show, we’re in for ANOTHER few years of bitter division. Can’t you people just let your adolescent imported Culture Wars go? Please, for the rest of us.

  10. John Greenfield
    December 11th, 2007 at 10:28 | #10

    Mike M

    but what we need is a clear statement of rights…

    Please point us all to this “need.” I have been hearing people bang on about this “need” since first year law lecturers indoctrinated us in the 1980s. They never succeeded in highlighting any “need” then. The “case” presented by cyber-luvvies is even more woeful now. Check out the loons over at New Matilda. The “right to indigenous culture and language?” Please.

    The problem with many budding revolutionaries in this country is that they do not live in 17th century England, 18th France or America, or post WW2 Germany. This is a tragedy for the rest of us. If they did, these Bills and Charters would be appropriate.

    As it is, these debates are totally out of whack with Australia’s history and socio-political reality.

    Time for you to start living in the now.

  11. Andrew
    December 11th, 2007 at 10:36 | #11

    Well said JG

  12. December 11th, 2007 at 11:14 | #12

    ‘Positive rights’ could also refer to the right to food and shelter, and not merely the ‘right’ to sing kumbayah at the local commune.

    You should re-examine your own commitment to adolescent culture wars, JG.

  13. John Greenfield
    December 11th, 2007 at 11:53 | #13

    THR

    No, my commitment will remain at the same level. That is, as a visitor to a marginal zoo of puffed-up moral narcissists, stuck in the 1980s, whom history has passed by. I shall occasionally drop by their cages, perhaps throw a treat to them in return for a performance of teeth-gnashing over this or that Murdoch columnist and then go on my way in the real world.

    Why, what will you do?

  14. December 11th, 2007 at 12:15 | #14

    I’ll be focusing on the issues that interest me, rather than self-righteously slaying PC-phantoms of my own creation, without any shred of reasoning or evidence.
    I take it you think food and shelter are marginal issues of interest only to ‘luvvies’? And you dare to accuse others of being ‘out of touch’, or of being ‘moral narcissists’?

  15. jack Strocchi
    December 11th, 2007 at 20:42 | #15

    I am dubious about the so-called “need” for a Bills of Rights. It sounds like an attempt to licence a new swathe of over-lawyering.

    And what about a Charter of Duties? Every principal’s right implies an agents duty. Every entitlement implies an obligation.

    The moral economy of post-modern liberalism is completely out of whack.

  16. jack Strocchi
    December 11th, 2007 at 20:46 | #16

    Pr Q says:

    If the Parliament chooses to pass legislation that violates our human rights, it should declare that it is doing so.

    Liberals want the Parliament to strip firearms and fast cars from the hands of red-blooded men. Fair enough if such measures do more good than harm.

    But dont pretend that these prohibitions are not stripping them of their rights.

  17. jquiggin
    December 11th, 2007 at 20:54 | #17

    (Playing straight man here) I know the Liberal government introduced gun laws under Howard, and the Victorian Liberals under Hamer were leaders in reducing the road toll, but that was a fair while ago. I haven’t heard of any proposals like this from Nelson or other Liberal leaders (end straight man).

    Social democrats and others mostly follow Mill on this – your right to swing your fist ends at my nose, and similarly with guns and cars.

    The only people I know of who deny this are the kind of Americans who use “liberal” as a term of abuse, but surely we don’t have, or need, anyone like that here in Australia.

  18. jack Strocchi
    December 11th, 2007 at 21:00 | #18

    Pr Q says:

    even Howard could see that running against human rights would be a risky tactic, especially in view of the government’s record.

    Howard has left AUS a freer place than it was under the ruinous and foolish liberal-Left cultural dispensation, given a free pass if not with flying colours, by Pr Q. Its insane cultural policies allowed indigenous women to be terrorised, ethnics were encouraged to tribalise and the general populus were polariseing to wards a grass roots right wing nativism.

    A veil of political correctness was also being drawn over the whole nasty business, the better to allow rackets and rorts to go undetected. That is why such wonderful rights activists as Theophanous and Clarke got to the top of the political pecking order, rorting and raping as they went.

    All this endangered liberty an order of magnitude more than detaining a few cricket teams worth of asylum seekers or a handful of terrorist-traitors. But liberal-Leftists have lost all perspective on liberty and Leftism.

    This remark also tendentiously equates liberal-Left judicial activism with the ancient rights of free born men. As if British common law has not evolved and conserved civil rights in its absent minded way.

    The UK with its ancient unwritten constitution and absent Bill of Rights has been a freer and fairer place than the US for the common man over the past couple of hundred years.

    The equation of rights with liberty is fallacious and betrays a completely ahistorical and asocial understanding of the evolution of modernity. Individual autonomy emerges from the interplay of separated and competitive institutional authorities.

  19. jack Strocchi
    December 11th, 2007 at 21:31 | #19

    Pr Q says:

    Social democrats and others mostly follow Mill on this – your right to swing your fist ends at my nose, and similarly with guns and cars.

    Not this one. And not Mill either. He was a utilitarian not a libertarian in principle. He did not pretend that coercive political regulation of the general populus was not an infraction of liberty. He simply justified it as causing more good than harm to the body politic.

    Pr Q says banning or constraining muscle cars and personal firearms is not interfering with anyone’s civil rights on the assumption that all such usage necessarily violates others rights.

    But this is plainly false. Plenty of fire arm owners never hurt a fly. And plenty of big fast cars rarely leave the garage.

    No doubt red-necks dont deserve their right to express themselves in their rotten selfish ways. But that does not mean that they cannot at least legitimately claim a right to such activity.

    Banning things violates rights or curtails liberty. Perhaps such regulation is in the public interest. (One therefore needs to specify a corporal or communal interest function).

    But such regulation does not cease to rob, mostly harmless, peters to pay paul. Even if pauls are in the majority and face a statistical threat from peters this is still an infraction of someones liberty and therefore a “violation of their rights”.

    To pretend otherwise is to swallow the totalitarian conflation of positive and negative liberty, so ably criticized by Pr Berlin.

    Pr Q says:

    The only people I know of who deny this are the kind of Americans who use “liberal� as a term of abuse, but surely we don’t have, or need, anyone like that here in Australia.

    By the sound of things you should widen your social circle to include more unsavoury people.

    I am using the term “liberal” as a swear word to describe and despise the degenerate post-modern form of libertarianism that has afflicted normal people over the past generation. Ever since unis started to spew out legions of people with a habit of cherry-picking Mill.

    New Left and New Right libertarianism is the doctrine that celebrates ethnic diversity at the expense of civic integrity, mewls and pukes over the rights of terrorist-traitors, porn-peddlers and drug pushers. And gives wrist slaps to predatory males who rip out their women folks genitals or indulge in a bit of recreational pack-rape. Lionizes the unearned income of card-sharps and tax-dodgers whilst sacking honest workers at the drop of a hat.

    Post-modern liberalism has rightly earned the contempt of decent people. It is the reason Dirty Harry movies were so popular and commercial TV gotcha current affairs shows continue to rate so well.

    This seems to be the form of “liberalism” prevalent amongst the metro media, liberal arts academy, Big End of Town and legal fraternity. Which probably explains the low opinion most ordinary people have of their high-falutin’ betters.

  20. John Greenfield
    December 13th, 2007 at 18:59 | #20

    THR

    ‘Positive rights’ could also refer to the right to food and shelter, and not merely the ‘right’ to sing kumbayah at the local commune.

    Could. But most certainly do not from what I have read around the “Bill/Charter of (Human) Rights” types around the traps.

    If your own position focuses on food and shelter, then clearly my criticism is not necessarily aimed at you.

    However, I am curious as to why you think a Charter of Rights is necessary to achieve outcomes (food and welfare) that can be pursued within existing frameworks, such as welfare policy.

  21. March 24th, 2009 at 13:18 | #21

    Pr Q says:

    * Rather than a constitutional bill of rights, we need a statement of principles against which legislation and administrative acts can be tested. If the Parliament chooses to pass legislation that violates our human rights, it should declare that it is doing so.

    That sounds fine and dandy in principle. But thats always the case as “new liberal” demands for rights usually starts of with basic ones but winds up giving a “villains charter” (Gordon Brown).

    The Age reports how child molesters are now gaming the VIC Human Rights Act in order to get watered down sentences:

    Two convicted sex offenders are invoking Victoria’s human rights charter to appeal against being given an extended supervision order in what is a legal first. One of the applicants is a child sex offender jailed for more than 10 years for his crimes.

    Mr Grace said the man continued to “thumb his nose up at authority” and suggested he tried to create relationships with females with children while he was in jail so he could groom them for sexual offending.

    Victoria became the first Australian state to implement a Charter of Human Rights and Responsibilities on January 1 and it is the first time it will be considered by Victoria’s appeal court.

    So instead of brave dissent being crushed by right-wing populists in a moral panic over terrorism (Pr Q’s caricature of the authoritarian case) we have sex fiends trying to do an end-run around the intention of Parliament in order to get off more or less scot-free.

    I dont think these are the kind of people Jefferson was trying to protect.

  22. March 24th, 2009 at 13:55 | #22

    Pr Q says:

    even Howard could see that running against human rights would be a risky tactic, especially in view of the government’s record.

    Not if those claiming the protection of “human rights” are sex-fiends, dope dealers or ethnic gangstas. The Police Commisioner thinks that bikies can hide behind civil rights laws.

    Brumby can deny it till he is blue in the face but the fact is that such “human rights” laws will have a chilling effect on the states drive to stamp its authority on these thugs.

    It cant be long before bike gangs get lawyered up to mount an anti-discrimination case against police crack-downs on their lawless behaviour. I can see it now. Tatoo-branded, head-shaven and muscle-bound Bikies getting up in court quoting Milton and Mill in defence of their civil rights to deal drugs and create mayhem.

    In fact some of the bikie gangs could probably double-dip on Human Rights and Equal Opportunity. That is, they could claim police opporession on both sub-cultural and multicultural grounds.

    It turns out that the usual suspects are the suspects. The new rogue gangs (Notorious and Commancheros) are people of NESB background who use bikes as props in their drive for drug turf. The Age reports:

    The arrival of the gang called Notorious is clear evidence of this. This new kid on the block is apparently a blend of former Nomads and men of Middle Eastern or Pacific islander descent. Their target: control of Sydney’s nightclub doors.

    In the battle to break down ethnic stereotypes it would greatly help if some members of some ethnic groups did not behave so stereotypically.

    Its the combination of sub-cultural perversity and multi-cultural diversity that really catalyses the Culture War. Ever since the Sixties Black Panthers et al.

    Thats why Dirty Harry movies are so popular.

    District Attorney Rothko: Where the hell does it say that you’ve got a right to [yada, yada, yada liberal mantra] I mean, you must have heard of the Fourth Amendment. What I’m saying is that man had rights.

    Harry Callahan: Well, I’m all broken up over that man’s rights!

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