The Centre for Independent Studies has a program of events includind presentations on research in progress.
The first event of the year was a report by Elise Parham on the proposed Bill of Rights. The report “Behind the Moral Curtain” is on line here and there is also an audio on the same page.
Of course everyone is in favour of rights but the question is whether rights can be engineered in a political process that has proved around the world to be a vehicle for special interests. The title of the report hints at the “trojan horse” nature of this kind of legislation that looks so good and turns out to be poisonous. Discussion on the night raised a number of horror stories of rights gone mad.
The conclusion of the paper:
Charters of rights are another tool in the political game. A national charter of rights would represent a variety of interests and ideologies, like any other law. It would inhibit the rights of some in favour of the rights of others, like any other law. The profoundly important difference to other laws is that a charter would be a legal trump so that its contents would be potent in effect.
The manipulability of a statutory charter makes it a dangerous political tool, particularly in the long run. There is already evidence that a range of interest groups, legal intellectuals, and others are attempting to have their interests and causes preserved by such a law. Once a charter becomes subject to that kind of manipulation, it allows the infuence of those few who get their rights suffcient protection to dominate the rights of everyone else.
Although a human rights charter has an important and luring moral undertone, in practice it is not clear that a charter would preserve those moral imperatives as it continues to grow and change through the lobbying of various groups. In a foretelling of the potential for this change, AHRC President Catherine Branson QC told a human rights gala dinner in July 2009:
“[W]e should remember that ensuring the best protection of human rights is an ongoing process …” Australia is at an interesting stage in what I believe is a journey towards better rights protection. Tonight there is much to celebrate, but we should also remember that we have a long way to travel yet.
When this journey gets under way, what onglomeration of interests will be dictating the way government, judges and eventually the Australian community will live?
We can only imagine.
The profoundly important difference to other laws is that a charter would be a legal trump so that its contents would be potent in effect.
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Exactly. Y’see other laws are different. They’re not legal trumps, they are not potent in their effects. They’re more like guidelines. Suggestions? Brainstorming sessions? Aw gee guys it’s just an idea.
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And of course in this country we have a tradition (smirk) and parliament protests, um, protects our rights as John Howard demonstrated so well with his laws that protect us from
people criticizing fascist laws supposedly safeguarding us againstterrorism..
And, of course, the People know and understand and will fight for these rights. I mean look at the way they reacted when ASIO invaded some writer’s house, pinched her files and computer and made her sign something that said she couldn’t tell anybody they’d pinched her files and computer. Oh wait…
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I have no doubt that forces will be at work to seek rents and special privileges from a national charter of rights. We’ve seen this in the States – most notoriously, the misuse by criminals, disorganized and otherwise, of the rights of those citizens. But guess what – it’s worth it! The proper response for anyone who understands what liberty actually is, is advocate a minimum, disinterested, code. I find the CIS’s deployment of relativism here amusing. Talk about laws that give advantages to corporations and we will be flooded with a torrent of Objectivist rosiness viz the wonderful Rule of Law. Anyone who points out that the law is slanted thus will be denounced as a Marxist.
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Naturally some idiot will say such legislation doesn’t guarantee anything. No? well riddle me this Batman: how many Americans are in Gitmo?
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And no. I don’t advocate a Charter of Rights. I advocate certain negative rights embedded in a new constitution.
Adrien
7 Feb 10 at 10:27 am
My immediate reaction is that negative rights in the constitution, administered by the normal courts would be a much better way to go than enforcing positive rights through special courts and tribunals which inevitably get stacked by judicial activists.
What negative right do you have in mind?
Another thing to remember (pointed out by Hayek) is that in a free society we have to put up with a lot of things that we find objectionable and we need to beware of people who want to use the law to enforce their own preferences and predudices.
Parallel to this I would like to see much more use of community justice centres and mediation processes where people who feel hard done by can get into a non-litigation situation and work through the issues without lawyers involved.
Rafe
7 Feb 10 at 10:37 am
What negative right do you have in mind?
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Property, speech, association, fair trial and no imprisonment without one .. y’know the standard ones everyone agrees on.
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Positive rights are a dumb idea.
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work through the issues without lawyers involved.
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Hear hear.
Adrien
7 Feb 10 at 10:46 am
You are anticipataing a post that I am writing on the classical liberal agenda. The four pillars:
1. A suite of freedoms – of speech, association, movement, religious belief, trade.
2. The rule of law, including the protection of property rights.
3. Limited (minimal)government under the rule of law.
3. A moral framework that includes such things as honesty, compassion, civility, community service, personal responsibilty and enterprise. These principles can be found in all the religions of the world (more or less).
Rafe
7 Feb 10 at 10:58 am
I look forward to it. But the moral framework is the rub. Religions of the world are two things: out of date and not exactly universally complied with. Secular humanism has not replaced them either. It’s an elephant that’s been sitting on the couch since Charles Dickens was alive.
Adrien
7 Feb 10 at 11:13 am
Isn’t the whole point that No.4 is some the things flowing from upholding No.1, No.2 and No.3?
Michael Sutcliffe
7 Feb 10 at 11:33 am
No Michael you’ve got it backwards. Nos 1,2,3 flow from #4. IMHO.
Adrien
7 Feb 10 at 11:53 am
Rafe
I am surprised by how ambivalent I have become about an Australian Bill of Rights. I still do believe our Constitution needs some significant improvements.
But I was stunned at the cynicism of this extremely small clique of law academics and NGOs who out of nowhere stole the agenda for themselves, and repackaged it as a legislative Charter of Rights. This group acts like modern day carpetbaggers.
The 2 most objectionable features of the current Charter movement are:
1. It presumes an off-the-rack approach is preferable to an Australian grass roots approach. They have just downloaded 1, and sometimes 2 and 3 or more, UN Conventions, and now agitate that these should be Australia’ Charter of Rights.
2. It is a nonsense for parliament – and indeed, the current executive – to presume to enact a Bill of citizen’s rights against that very same parliament and executive. Poachers and gamekeepers come to mind.
I now I am not a supporter of this mooted legislative Charter of Rights, at least not while the current dodgy clique of carpetbaggers are running the agenda.
I am particularly offended that they can so brazenly say “it will be just another law, like any other”.
But we don’t want another LAW. we wants RIGHTS. “Rights” are a whole other – higher – level than mere “laws”. Even the carpetbaggers’ own model legislative Charters insist that every other law in the land be subject to the “rights” in this charter. So, right from the get-go, they are brazenly lying to us.
Peter Patton
7 Feb 10 at 12:17 pm
Adrien, shouldn’t your bill of rights, or constitutional amendments, just include rules about being nice to each other?
Michael Sutcliffe
7 Feb 10 at 12:20 pm
Property, speech, association, fair trial and no imprisonment without one .. y’know the standard ones everyone agrees on.
But none of these rights is absolute or unconditional; and the courts will nevertheless still have to interpret whether they have been satisfied or not in the circumstances. Charters of Rights are generally imagined to be magic bullets that are better at preserving our present freedoms then either common and statute law, but they simply aren’t.
dover_beach
7 Feb 10 at 3:22 pm
db
Except the current campaign in Australia is being run by people whose agenda is far, far beyond these basic rights against and arbitrary and capricious state stomping on an individual’s liberty. You don’t have to read these people for very long before you see how plainly is their aim to implement socialism, even communism, by charter. Truly scary.
Peter Patton
7 Feb 10 at 3:35 pm
Adrien, shouldn’t your bill of rights, or constitutional amendments, just include rules about being nice to each other?
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Again: positive rights are a dumb idea. So is being nice to some people.
Adrien
7 Feb 10 at 4:21 pm
Au contraire. I think we should have a constitutional right to be as offensive to certain people as we like!
Peter Patton
7 Feb 10 at 4:24 pm
What I can’t understand is why such a “Bill of Rights” champion like McLelland is now chickening out.
Peter Patton
9 Feb 10 at 2:41 pm