Previous tatooed breasts scales of justice deep-sixed to avoid bad taste distraction from a post intended to provoke serious discussion …
John Greenfield is a conservative blog commenter who occasionally fulfils a useful function, rather like a canary in a coal mine. He can always be counted on to trot out a stereotypical Tory response to any issue, but sometimes that reveals basic misunderstandings which might well be shared by other more sophisticated conservatives not so impervious to rational arguments. So it was with John’s comment about my previous post on charters of rights:
None of the statists has been able to argue why we need a Bill of Rights. I am sorry, but the argument everyone else has got one doesnt wash.
In fact (and leaving aside the fact that I was talking about a legislated charter of rights not a constitutionally entrenched Bill of Rights, a distinction that seemed completely to escape John), the purpose and effect of a charter of rights is almost the exact antithesis of John’s assumption. it is an “anti-statist” measure designed to limit excessive power of the political arms of government, albeit preserving parliament’s sovereign power to legislate to remove, suspend or limit rights in a democratically acccountable manner whenever governing politicians wish to do so and think they can make a sufficiently persuasive case of necessity to the voting public to avoid being kicked out at the next election. Most libertarians are strong advocates of bills or charters of rights precisely because they limit excessive governmental power and enhance individual freedoms.
The kneejerk opposition to a charter of rights by many conservatively-minded Australians evinces historical and constitutional “deafness”. The entire edifice of liberal democratic constitutionalism which Australia’s system of governance exemplifies is premised on the need for multiple checks and balances on excessive power. The principle dates back at least to the 17th century when the British discovered the hard way that anyone with excessive and unchecked power was apt eventually to use it as an instrument of oppression and unfreedom.
Hence Lord Acton’s dictum “power corrupts …” and John Locke’s 1689 Treatises of Government which elucidated a system of checks and balances, including rudimentary rights protections, later developed by Montesquieu and adopted by the French and American constitutions and subsequently emulated by almost every country in the world including Australia. Locke was directly influenced by his immediate experience of the oppression of the Stuart kings, civil war, revolution and regicide, republic and Cromwell Lord Protector, Restoration and Glorious Revolution; experiences which taught the indelible lesson that checks and balances are essential to “keep the bastards honest” and that anyone becomes a bastard if given unchecked power.
America and European-influenced constitutional systems thereafter tended to rely on checks and balances provided by a strong separation of powers between legislature, executive and judiciary; (usually) a bicameral parliament; independent judiciary; (sometimes) federal division of power; and a bill of rights enshrining basic individual freedoms.
Britain relied on checks and balances provided by a bicameral parliament; limited constitutional monarchy; executive government responsible to parliament and people via the notion of responsible government; an independent judiciary; and strong common law tradition.
Australia’s Founding Fathers equally believed in checks and balances to protect freedom, but opted for a hybrid mix of American and British-style measures. Some limited human rights provisions were even enshrined in our Constitution, and the High Court has identified a few others that are necessarily implicit in that system. However, an 1897-8 Constitutional Convention motion engineered by principal Founding Father Andrew Inglis Clark (who drafted around 80% of the text of the Constitution), and proposing an American-style guarantee of equal protection and due process modelled on the 14th Amendment to the US Constitution, failed by just 23 votes to 19. Delegates’ reasons appear to have been diverse, but prominently included the perception that basic human rights freedoms would be adequately protected by the accountability of the executive government to parliament under the British doctrine of responsible government, and an unblushing concern that such guarantees would inhibit their own freedom to discriminate against Chinese and Pacific islander residents.
If we extend our historical gaze through to the present, we see that Britain eventually adopted a charter of rights itself in 1998, partly as an incident of EU membership but also because increasing centralisation of executive power and the progressive reduction in the role of the House of Lords as a check on excessive power made it apparent to many that additional safeguards of basic human rights were needed.
In Australia, we didn’t adopt either a full separation between legislature and executive government or a comprehensive bill of rights. Moreover, the evolution of our political culture into a system involving rigid and punitive party discipline has meant that the Founding Fathers’ idealistic conception of parliament acting as an effective check on executive power through Ministers being members of it has proven to be an absurd fantasy. The political executive rules parliament with an iron fist, ensuring a Hobbesian nasty, brutish and short political career for any backbencher who doesn’t toe the line.
As a result, the political executive government in Australia enjoys unchecked power to an extent unknown in any similar western country including the US and UK. All of them have some form of bill of rights, and all have functioning systems involving either much more complete separation of executive and legislative powers than us or real responsible government. In Britain, for example, MPs are free to vote as they wish in parliament without sanction except in the case of a three line whip.
In Australia, by contrast, federalism is almost moribund, party discipline is getting more and more rigid, the powers of political leaders more and more presidential, and their ability to manipulate a mainstream media sector with greater concentration of ownership than just about any comparable nation has been enhanced through increasingly sophisticated spin/media management strategies.
Despite all these factors, I was a moderate bill of rights sceptic until fairly recently. But the Howard government’s recent Senate majority and its persistently high-handed abuses of power, especially in areas like treatment of asylum seekers and anti-terrorism measures, caused me to re-evaluate. A recent paper by retired High Court Justice Michael McHugh makes the case in relation to abuses of human rights far more eloquently than I could. The bastards just aren’t being kept even modestly honest by our current system, and you’d be naive to imagine that Kevin Rudd will be much better in the long run. Best to grasp the opportunity of a national charter of rights when it’s seemingly on offer early in the reign of a new government while a few of their ideals remain intact.
I would tend to be fairly conservative in the range of rights and freedoms I would like to see protected, but I’m pretty relaxed about the range of rights covered by the Victorian Charter of Human Rights and Responsibilities Act 2006, with the notable exception of the guarantee of “cultural rights” which I oppose for the sorts of reasons canvassed by various people in the comments thread to my previous post.
Moreover, I agree with many of Graham Young’s sentiments:
There is a false dichotomy in the general bill of rights debate which is that you have a choice to have a bill or not. You don’t. The choice is whether you have major and minor rights sprinkled around a galaxy of legislation, or whether you collect the most important of them into one piece of legislation and decide the relationship between them, as in which rights are more fundamental than others. A further choice is whether you imbed that document in the constitution, where it can only be changed by a referendum supported by a majority of voters in a majority of states, or in legislation, which can be changed by a simple majority in parliament.
The idea that you can keep laws away from judges is bizarre.
My one quibble with Graham lies in his assertion that charters of rights themselves can feasibly “decide the relationship between them, as in which rights are more fundamental than others”. Very few charters attempt to do this, certainly neither existing state/territory Australian model does so nor does the UK Human Rights Act 1998. It’s hard to see how any charter or bill could itself workably enshrine any broad-ranging prioritisation of basic rights and freedoms where they come into conflict (as rights and freedoms often do). Which protected basic right or freedom should prevail is unavoidably contingent on the particular fact situation in which the conflict arises, and is therefore incapable of being usefully reduced to a statutory formula.
Moreover, I even have doubts whether a court of law is the best place to have conflicts between basic rights and freedoms determined, at least in the first instance. Such disputes are ones about which reasonable minds can and very frequently do differ. Moreover, satisfactory resolution may depend on application of a range of professional skills, knowledge and wisdom that judges often don’t possess. I think we should consider adopting a federal charter of rights that vests first instance basic rights determinations in some independent quasi-judicial tribunal like the Administrative Appeals Tribunal, which would have its membership suitably augmented by lay members who might be economists, ethicists, psychologists, philosophers or other experts appropriate to resolution of conflicts between the particular basic rights in question in each case.
Incidentally, that would also resolve concerns recently expressed by former High Court Chief Justice Sir Gerard Brennan as to whether there might potentially be a breach of the separation of judicial powers doctrine involved in the power in the Victorian Charter to issue a declaration of inconsistent interpretation where the court deems a law to be unavoidably incompatible with Charter basic rights (albeit that, like Charter architect George Williams, I doubt that this provision breaches separation of powers in any event).
There are lots of issues to be considered before adopting a charter of rights, moreover they’re critically democratically important issues mostly not susceptible to TV soundbites or tabloid newspaper sensationalism. That’s why I’m laying them out here. A blog like Troppo is potentially a very effective vehicle for teasing out, arguing and testing questions like this.
Update – Also see this article by Andrew Lynch.