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 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.
So what do we do about it? 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 asking what all these fine sounding words actually mean in our daily lives.
As ‘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, not our elected Politicians who are often trained in the statistics of social policy and public mood.
Does RBT infringe on my right to privacy or help protect my right to life? Will society judge that my right to privacy is violated if a cop pulls me over and asks me to blow into a tube, or will society decide my right to protection from drunken idiots wielding a ton of steel at a hundred kilometers an hour is more important?
When we break down notions of human rights into specific questions we can see that they become divisive. It’s just like watching the ABC’s Q&A, 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 ban run in with the authorities as a youth, and naturally feel suspicious about giving the police extra powers, I would no doubt want to ban RBT. It’s just too open to abuse! But if — on the other hand — I had watched my dear father die in the twisted metal of a car wreck, then I might be more likely to want strong action against drink drivers.
Lawyers and judges have had training to interpret the law, not decide social issues for us. Who are lawyers 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 with access for the disabled to how we run the public transport system as a whole. Rights questions are asked of employment programs and military training, running a school and how you walk to school. Are a bunch of wealthy lawyers going to make better decisions than engineers and teachers and bus drivers on these matters? Are they somehow more qualified to debate the issues and rights and wrongs of the best ways to protect Australian citizens living in the real world with real problems?
I say no. I say — as imperfect as it is — that we keep our human rights where they are. We keep them under Parliamentary Law. For our Parliaments, whether Federal or State, are subject to the ebb and flow of contemporary wisdom and common sense. Politicians should adapt the laws to the concerns of the day. Every year brings new social problems, scientific concerns, technological innovations, infrastructure concerns and public health crisis. Laws travel in one direction for a while and society learns from experience. Then — when the situation changes and public pressure builds — laws can move back again. This is a good thing!
Social policies should be decided by science and statistics and sociology and psychology and, if all else fails, elections! Surely, in a specific question like the RBT laws, we want the public to decide. Surely we want controversial policies like banning the Burqa or pub curfews or teenage driving laws decided by statistics and social sciences and public opinion, not dusty old texts written by our grandfathers. For make no mistake — a Bill of Rights will age. Even more so in this era of technological acceleration.
3. A Bill of Rights will politicize the judiciary
Lawyers and judges are unelected, unaccountable, and unsuited to interpret a bill of rights in the thousands of very real, very practical questions that could be put to them. A bill of rights turns judges into high priests of social policy. This politicizes the judiciary. Just watch American politics the next time a new judge is appointed to the Supreme Court.
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. RBT might be necessary in this generation of drinking and driving. But if robot cars arrive over the next ten years, driving may become a thing of the past — let alone drink driving. So if RBT’s become irrelevant, the laws and policies can easily be changed. They are not enshrined in some interpretation of the Bill of rights — a hallowed parchment up there with our Constitution!
The problem with these Bills is they cannot predict the thousands of new social policies we will need for each situation. The ivory tower doesn’t always understand life on the street. A bill of rights attempts to condense weighty and complex issues into trite summaries. Do we really want these things encoded for all time?
Bills of rights promote an absolute formula of ‘rights’ as interpreted by our generation, and make them absolute for all time. However they should more accurately be described as social policies and Parliamentary laws held to account by the political process and democratic discussion of the day. Instead of ensuring our rights through some abstract, ivory tower parchment codified for all time, we should protect them through a strong democratic process. It will reflect the silly prejudices and blind spots of our day.
Instead let’s protect our human rights by protecting the free press and good government and integrity of our elections and all the other foundations of a good democracy. Let’s stay vigilant in protecting the processes of effective democracy, for this best protects the integrity of the conversation of the day. Not some piece of paper stuck behind glass in a museum.
5. A Bill of Rights will enshrine selfishness over the good of the community
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 “Bills of rights enshrine selfishness over the rights of the community”, which helped me remember my conversation with my American friend about RBT. For 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? In other words, YES, I support RBT! I think it is a valuable tool for getting the idiots off the road. Drink driving is death on wheels. I have trouble imagining a society that would refuse this powerful tool for curbing a very real problem. But my American friend gasped in revulsion at the concept. He saw view it as an attack on his freedom because he was taught about his ‘right to privacy’ from a very young age. But that’s not really the lesson Americans seem to learn. Instead, in this and so many other areas, they learn that the individual matters more than the community, that selfishness is good. I find that appalling.
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