Federal government plans for a charter of human rights are misguided.
THE question has to be asked - why is it that the ever-vocal supporters of a charter of rights do not want the people of Australia to have a vote on the proposed rights law?
Although the proposal is for a rights law and not a change to the Commonwealth Constitution, the impact and intended impact of the charter is to create a super law that affects all other laws. In substance and effect it is a proposal to change the constitutional governance of Australia.
It should, of course, go to a referendum of the people.
But that is not the proposal (and indeed very deliberately so). The ardent supporters of the charter know full well that the Australian people have in the past, and if given the chance would again, reject a charter of rights.
So we are to be denied one of our fundamental rights, which is the right to vote on such matters.
All this suggests that the charter of rights proposal is an agenda item for some people who want to achieve it any cost. It is interesting to contemplate what that agenda is.
Australian Human Rights Commission president Catherine Branson, arguing in favour of the charter, recently listed rights that should be protected.
All of them are already protected by law.
Our comprehensive rights are protected by the long traditions of the common law, by the values we hold dear and which people constantly assert in our society, and by numerous specific acts of the parliaments of Australia.
The common law was used to create Aboriginal land rights in Australia. We are all protected by law, by an independent judiciary and by numerous specific laws about disability, schooling, access to buildings, discrimination, vilification, racial equality and many other provisions developed over many years to meet perceived particular needs.
What the charter of rights proponents want is a super law, which curtails parliament's ability to legislate and which allows the judiciary to modify enacted law to match the provisions of the charter.
The effect is to reduce the power of the democratically elected parliaments of our nation and increase the power of an unelected and not accountable judiciary.
Charter supporters actually want to curtail democracy.
They see themselves as the philosopher kings, better able to judge than the common person what he or she might believe, think, say or do.
This is an agenda - an agenda to change society in a way that conforms to the beliefs of a minority liberal elite. It is elitism in its most extreme and dangerous form.
The late Sir Robert Menzies, longest serving Australian prime minister said (writing in The Herald, Melbourne, March 15 1974) of the proposed constitutional Bill of Rights put forward by the late Senator Lionel Murphy: "I wonder if people in Australia would like to have their rights guaranteed not by the common law as interpreted by lawyers but by somewhat vague phrases as interpreted by people, I am sorry to say, in the light largely of their own political convictions. Modern experience in the United States has shown that broadly expressed guarantees of individual rights have recently been interpreted by their Supreme Court in the light of the political and social concepts of the judges whose judgments will in truth be legislative."
More recently, Greg Craven, vice-chancellor of the Australian Catholic University wrote: "Many lawyers ... elevate the notion of individual human rights into an all-purpose acid test against which every public policy solution must be minutely tested. In the real world things are somewhat more complicated. For a start we need to understand there are rights other than individual rights. Most notably there are collective rights that inhere in society as a whole, or in large slabs of it."
The argument put by Catherine Branson that Australia is the only Western democracy without a national law protecting human rights is harldy convincing when we see both that the most notoriously undemocratic countries in the world have had human rights laws - including China, Cuba, Uganda, Rwanda, Cambodia, Russia and the Sudan - and that the rights laws in Europe have prevented deportation of terrorists while those in the US have prevented gun control and the observance of Christianity in public schools.
Rights laws do several things, all of which are at the very least undesirable.
- They transfer power from elected and accountable parliaments to unelected and unaccountable judges who necessarily apply their own values and views to issues that should be fought out over time in the court of public opinion,
- They allow governments to define our rights in laws laid down by them whereas many would argue that we are born with our rights and they can neither be given nor taken away by government,
- They limit, and are intended to limit, the power of the representatives of the people in elected parliaments to respond to the needs of society in particular situations, such as in the case of terrorism, the marauding of bikie gangs, or requirements for mandatory sentencing in particular cases.
All of this is to be done without any advance in the protection of our human rights.
While our system is not perfect, the proposed alternative is a demonstrable failure. The only beneficiaries will be human rights bureaucracies and legions of lawyers living fat on the human rights industry.
Even more criminals will be left to roam the streets as the ever-purist lawyers pursue the minutiae of procedure over substance.
Human rights legislation is unnecessary. The late Sir Harry Gibbs, former chief justice of the High Court of Australia said: "The most effective way to curb political power is to divide it. A federal constitution, which brings about a division of power in actual practice, is a more secure protection for basic political freedoms than a bill of rights".
An effective federal system is exactly what the charter of rights proponents do not want. They want a super law that effectively alters the constitution and opens up new avenues for the High Court to make state laws invalid.
Their aim is to impose their views and beliefs on an unwilling population, which so stubbornly clings to the inherited freedom to disagree with those who would rule us for what they believe is our own good.
None can suggest our system is perfect. But as its deficiencies are exposed in a free media and subject to the rigours of public debate we will, as we have in the past, deal with the problems that emerge in our traditional and evolutionary manner.
The super law charter of rights proposal will solve no problems and create many.
n Bill Hassell is a former WA leader of the Liberal Party and a company director