On this page:-
- A Bill of Rights is stuck in an ivory tower and is not specific or real!
- A Bill of Rights will make unelected Judges the interpreters of our rights, but we want democratic debate to respond to the latest science and data about specific policies in the real world.
- Australians have just enough rights in the Constitution to guarantee democracy – and trust democratic debate to handle the rest.
- A Bill of Rights will encode the silly prejudices and blind spots of our generation forever!
- A Bill of Rights enshrines petty selfishness over the rights of the community, sometimes at a vastly disproportionate cost to the community and very little reward for the individual.
- A Bill of Rights will politicize the judiciary
I’m all for human rights, who isn’t? But what is the best mechanism to protect human rights in a country? Is it a Bill of Rights, or some other mechanism? I think there are a number of problems with developing a Bill of Rights and then with implementing it.
1. A Bill of Rights is stuck in an ivory tower and is not specific or real!
We all want the right to privacy, right? Let’s just have Australia sign the Bill of Rights and be done with it. Pass the champagne. As long as we stay in the abstract like this we are happy.
But let’s see what happens if we take it out on the road for a test drive. While we can all agree on a right to privacy in the abstract, when we get specific in the real world, people will disagree. For instance, I’m quite happy with Random Breath Testing (RBT). Australian police have the power to pull you over and ask you to count to 10 on their breath analyser. I only get tested about once a year, but it means I’m on statistically safer roads. When I explained RBT to an American friend he exploded in outrage – “But what about your right to privacy?” My argument is what about my right to life? I want to live on safer roads where my family is less likely to be wiped out by a drunk driver, and will gladly submit to the law and do RBT as required.
Or now that we have a global pandemic, I’m happy to download a government app that helps track and trace my random street contacts in an anonymous digital bluetooth handshake for the next year or so and warns me if I met anyone that turned out to have the virus. The data is protected by law, and deletes every 21 days. When the crisis passes I will do a factory reset on my phone and delete the app. Also, anyone worried about a collection of anonymous Bluetooth handshakes should REALLY worry about using Siri or Google Maps! But in the meantime, doesn’t my right to life outweigh my right to privacy? Shouldn’t we all be prepared to give up some things in order to beat a global pandemic and then get the economy back on track?
We can all agree on a right to privacy, but once we get specific the battle lines are drawn up. RBT and Covid tracing apps are not the point — the fact that we can so easily disagree about RBT and tracing apps is. I see it helping my right to life but others see it attacking their right to privacy. We can all agree on a vaguely worded, sugar-and-spices bill of rights sitting in a shiny showroom, but take it out on the streets for a drive in the real world and we suddenly discover all sorts of problems.
Once we get into the mucky business of getting specific we discover that smart, educated people disagree. The rest of this page is about how best to protect our rights in a society that must adapt to new technologies, changing cultures, and above all, have a process for protecting our rights even when people disagree. I believe Australia already has those mechanisms in place, but we simply don’t appreciate them for what they are because too many of us feel we need a parchment of fine sounding words, without defining what all these fine sounding words actually mean in our daily lives. As ABC’s ‘Big Ideas’ said:
The language of human rights is arguably the dominant language of moral discussions in today’s world, but does this language alter a State’s scope for action? According to today’s guest yes it does. He argues that the language of human rights can achieve a sort of bogus consensus because it deals in moral abstractions that are so abstract and so couched in emotively appealing connotations and generalisations that just about everyone can sign up to it. And that the definitions of human rights are contestable and contested, debatable and debated every day and all of the time.
Canadian Professor James Allen
2. A Bill of Rights will make unelected Judges the interpreters of our rights, but we want democratic debate to respond to the latest science and data about specific policies in the real world.
When we break down notions of human rights into specific questions we can see that they become divisive. It’s just like watching a panel of experts debate where you can see the audience drawing up their battle lines and feel the tension in the air. Educated, nice people will just disagree because of their own life experiences and baggage. For instance, if I have had a bad experience of the police in my youth, I might naturally feel suspicious about RBT. On the other hand, if I knew a family where the father had been wiped out by a drunk driver, plunging the family into poverty, I might be more sympathetic to RBT and strong action against drink drivers.
But what do lawyers know about the concerns of our daily lives, traffic rules and statistics, and highway policing? Lawyers and judges have had training to interpret the law as a bunch of existing rules. They’re not experts in the statistical modelling of traffic accidents and policing practices. They do not have expertise to brainstorm new solutions to social issues. That’s what the democratic debate is all about, where relevant experts are interviewed on all those TV shows and the general public weigh in with their insights. Then politicians propose a variety of new laws to be discussed and democracy takes over.
Seriously – who are Supreme Court judges to interpret multi-disciplinary issues that might involve Australian society, culture, psychology, architecture and infrastructure? Human rights can affect everything, from how we design a train station to how we run a school or employ people. Are a bunch of wealthy lawyers going to make better decisions than engineers and transport experts and teachers and bosses on these matters? Are they somehow more qualified to debate the practicalities of real world city design, policing practice and other issues as technology and the world change?
3. Australians have just enough rights in the Constitution to guarantee democracy – and trust democratic debate to handle the rest.
Australia does actually have some rights in our constitution, but it is minimalist on rights which leaves the rest of our rights to the democratic process. We have just enough rights to guarantee our vote, own property, a fair trial, freedom of religion, and freedom from prejudice based on which State we’re from. (An archaic concern born out of Australia Federating from a bunch of disparate colonies into one nation.)
Managing human affairs is not an exact science. We are often trying to compromise to have the ‘least bad’ society to live in. It might change down the track – but that’s a good thing. It acknowledges that human beings run imperfect systems and do not have all the data all the time. If we don’t like something we tell our politicians. If they don’t get it – we’ll vote for the other team. That’s why the top 4 fundamental rights are so important. (I hardly think point 5 is an issue today.) They support our basic democratic functions so we can decide everything else together. As it should be. We’re not trying to encode our silly blind spots for centuries to come.
There are five explicit individual rights in the Constitution.
- These are the right to vote (Section 41),
- protection against acquisition of property on unjust terms (Section 51 (xxxi)),
- the right to a trial by jury (Section 80),
- freedom of religion (Section 116) and
- prohibition of discrimination on the basis of State of residency (Section 117).
The High Court has found that additional rights for individuals may be necessarily implied by the language and structure of the Constitution. In 1992 the Court decided that Australia’s form of parliamentary democracy (dictated by the Constitution) necessarily requires a degree of freedom for individuals to discuss and debate political issues.
Australia’s common law was inherited from the United Kingdom. Common law is often called ‘judge-made’ law. This distinguishes it from laws made in Parliament. As well as common law, United Kingdom law includes the Magna Carta of 1215 which was probably the first human rights treaty. Student and teacher resources about the Magna Carta are available here: Magna Carta – the story of our freedom. 800th Anniversary (2015).
4. A Bill of Rights will encode the silly prejudices and blind spots of our generation forever!
Policies can be right for one generation and wrong for another.
With their unique history of being born out of revolution and war, early Americans valued the right to carry firearms. But now so many Americans are being murdered each year maybe the public would like the right to vote against widespread gun use? Maybe they would like whole categories of guns made illegal, and have a huge government sponsored buy-back of all the illegal weapons? But they can’t. The Supreme Court will not allow it – their very right to vote on this issue is locked away. The Second Amendment cannot be touched by something as small and petty as the will of the people!
In Australia, we had the Port Arthur massacre. It was awful – horrific stories emerged of parents jumping in front of children and babies to take the bullet – only to watch their children also gunned down as they died. So the government of the day banned many categories of fast reloading weapons, ran an enormous gun buy-back program, and we haven’t had a gun massacre since. Australians generally accept this ruling – and tend to be proud of our anti-gun stance. A small number might disagree – but the vast majority support it. I like being in a society where I am 19 times less likely to get shot than America!
But guns are not the issue – who decides is. I have a right Americans do not have – the right to vote for or against guns, RBT, or a host of other issues of the day. Voting means the right to talk about and campaign for a whole host of specific policies. Where Americans argue that their Bill of Rights protects them from government overreach, I would argue that a Bill of Rights is government overreach – from one generation seeking to bind all future generations to their vision of human rights across far too vast a canvass. Instead, if we limit our Constitutional rights to guaranteeing the fundamentals of fair voting, fair courts, fair treatment of your private property and fair freedom of religion, then democracy can decide the rest.
It’s not perfect – and Australia has many areas of prejudice and aboriginal health and human rights to address. But did America’s Bill of Rights fix this? Did it give African-Americans protection against Jim Crow and segregation all those decades? Or what about police brutality now?
Let’s not be seduced by the allure of power of encoding our ideas for all time. Instead let’s admit we probably have blind spots like all previous generations, and leave the majority of issues to democracy.
5. A Bill of Rights enshrines petty selfishness over the rights of the community, sometimes at a vastly disproportionate cost to the community and very little reward for the individual.
I would have sworn the Australian Christian Lobby would have been for a bill of human rights. Of course they are for human rights, but surprisingly they are against a bill of rights! Instead, Brigadier Jim Wallace, AM, (Ret’d) Managing Director of the Australian Christian Lobby said something to the effect that a Bill would enshrine selfishness over the rights of the community, in effect reducing all our rights. Some of the ‘rights’ we might give up for the community are quite small and petty to us, but have enormous benefits to the community.
Take for example the typical American reaction of horror and disgust over something as trivial as RBT. Is it really that big a deal to pull over and blow through a little tube once a year, if that? Is it really affecting my privacy that much, especially if I am a law abiding citizen and have nothing to fear? RBT has reduced drink-driving deaths in New South Wales by a factor of eight. Imagine if we didn’t have it and instead experienced eight times the drink-driving deaths and grief and sheer cost, all because we banned RBT on the alter of “My rights!” All because the individual’s ‘right’ to not blow into a tube once a year is perceived to be more important than another individual’s right to live? That’s bizarre. I find that horrific, even unpatriotic. How self-centered can you get? RBT is trivial! I’ve experienced RBT many times and never experienced cops abusing it. They are courteous and efficient and I am soon on my way. If anything, it is a comfort to see them running an RBT station – doing their job to protect me.
It’s about balance. I’m not arguing that the police should have the right to do whatever they want, follow you home and enter your house and demand you explain your whole life to them without due process. A right to privacy is important. But so is RBT. Australians can enjoy the benefits of both privacy and being protected by RBT. Americans can’t.
A Bill of Rights generates an individualistic society that enshrines petty selfishness against a sometimes vastly overwhelming public good. The American ‘debate’ about wearing masks during a pandemic is just another example of this entitled whining. Their deaths per million citizens is now 45 times higher than Australia’s.
Please, as the ABC says, “Don’t leave us with the bill!” Download the podcast here.
6. A Bill of Rights will politicize the judiciary
A Bill of Rights politicizes the judiciary – making the appointment of any new judge on the Supreme Court a momentous issue. They have lifetime appointments. Just watch American politics the next time a new judge is appointed to the Supreme Court. It shows how much power they have over the interpretation of laws to the point where stacking the court with ‘your team’ happens whenever one of the old team dies of old age!
It’s a bizarre system – and fraught with dangers. Various Hollywood political thrillers even explore how it might incentivise someone to assassinate a Judge. It’s better to leave all these extra matters to the democratic process and have a simpler, tidier Constitution that guarantees our basic democratic rights – and let other areas of our human rights flow out of that.
Brilliant – particularly the unelected judges bit. The application of law itself is highly governed by past judgments not the words of the law itself but some previous determination of what was meant.