What are the great wrongs that will be set right by an Australian Bill of Rights? Aboriginal deaths in custody? Unlikely, death rates for Aboriginal non-custodial offenders are even higher than for those in custody. The detention of illegal immigrants? Unlikely, the risk of allowing criminals free in the Australian community is too great. That is how nazi-sympathisers got through after WWII. What about the right of the poor to be housed? No, that is a matter of resources. Only the taxpayers, collectively, can decide. The great liberating potential of the human rights discourse is a dud. It seeks to undermine rules established in common law and in the parliament, rules tested by different generations under different circumstances. We are a civilised and generous society; we trust each other and our government to be reasonable. Ah, but that is not good enough it seems. Some want perfect justice, total justice and an instrument into which they can pour all manner of values. Values not necessarily acceptable to most people.
Like what? Homosexual women should have access to reproductive technology, thus overcoming the male heterosexual domination of reproduction. Children should have access to counselling, thus overcoming the parental monopoly on moral guidance. Animals are not to be gaoled or used in experiments to satisfy the curiosity and vanity of humans. Men who injure a fellow worker should not have to suffer the fear of being sued when the boss is available to take the blame. Any of these and thousands of other matters could be the subject of a BoR, it just depends on how long the list is. The New Zealand Bill of Rights Act has so many grounds of discrimination, nearly fifty in all, that it caused one wit to remark, "discrimination for the connoisseur"! In fact, the unsurprising thing about the NZ BoR is that it generates a large number of appeals from criminals.
What about the recent incorporation into British law of the European Convention on Human Rights? A senior British judge noted its historical context and its aspiration, "While the Gestapo and the death camps are the Conventions backdrop, its stage is now often a battleground against much lesser evils, such as corporal punishment in schools". He may also have added that no BoR would have halted Hitler. No judges could have done so. Only the determination and sacrifice of allies who, with the consent of their people, decided to fight him.
There are perhaps five levels of human rights. The first is the familiar civil and political rights that attach to individuals. These have been progressively imbedded in Australian political culture -- common law, parliament, free press -- for over 200 years. In the absence of this culture, a BoR may have been useful. The second are reasonably familiar, economic, social and cultural rights. These may be individual, the so-called right to strike, or to a pension. They may be collective, the right to a language. Trouble is, none of these is an unassailable right. Each of these has various levels of protection or entitlement dependent on prevailing values. The balance has been worked out over time and is a work in progress. The third and fourth are collective rights, usually of post-colonial or indigenous people. We are in the throes of the fourth level now with the call for a treaty with aborigines. This is a heavily contested issue.nbsp; I have a feeling that once aboriginal people work out the downside, having a cousin or uncle decide who should get what rather than the present democratic-legal system, they will not have a bar of it. The fifth level is just appearing on the horizon, the rights of nature and beasts (matters that only humans can decide). Mmmmm, who is to represent them? Plaintiff lawyers will surely come up with a (publicly funded) scheme!
Take the simplest case of a BoR as suggested by George Williams (The Australian, 17/4/01). Why not support a parliamentary bill covering just the basic procedural, political and civil rights. Such a bill supposedly overcomes the objection of the primacy of the judges inherent in a constitutional bill. It leaves aside the highly contested menu of second and higher level rights. However, it changes the onus. The parliament will be asked to defend its actions against the list of agreed rights, as interpreted by the courts. There will be a further fetter on the actions of parliament, which will place any lobby in the box seat. A small group will be able to create a solid bloc of votes for their particular claim, the public will be indifferent to the extent that their vote will probably not change on this issue alone.
The left pursues collective rights, the right pursues individual rights. Whether the object is to favour individual liberty or the public good, a BoR will cause harm to both because it will diminish the trust that is the heart of our democracy.
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