http://www.theage.com.au/national/human-rights-act-would-give-canberra-final-say-20091008-gp2d.html
http://www.smh.com.au/national/human-rights-act-promises-a-fair-go-20091008-goz6.html
The SMH and The Age on their front covers today, are both running articles about the proposed Human Rights Act which the Federal Government intends to put before the parliament. Personally I think that such an act if passed is a disgusting and dangerous piece of legislation, because of several higher operating principles.
1. It encourages limitation of humans rights merely to those listed in the legislation.
Believe it or not, discussions were held on this very topic 110 years ago when the Australian Constitution was being framed. The people looked at the example of the American Bill of Rights which formed Amendments to the US Constitution and concluded that the laws which were being passed, although were being made in reference to those rights, considered nothing beyond those rights as written in the legislation.
When you consider possibly one of the Declaration of Independence which inevitably led to the creation of that document, it is important to take note of one specific word.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
This sentence has been called "one of the best-known sentences in the English language" and one of the most sweeping statements of human rights ever written, but take note of that word "among". That is not to say that what followed was all of the unalienable rights endowed by one's Creator, but only some among them.
2. It removes powers from elected representatives (ie the Parliament) to unelected persons (ie the judges and bureaucrats).
The really ironic thing about this is, that the most vocal people on this topic are two people in Australia's political history, that I most often disagree with; namely Menzies and Howard.
"A bill of rights would diminish parliament's authority by transferring decision-making authority to unelected judges, accountable to nobody in the barest theoretical sense.
I've always held the classical view that the public elects members of parliament, who pass laws hopefully in the public interest and those laws are in turn interpreted and enforced by courts.
If adopted, a bill of rights would politicise the appointment of judges, increase the volume of litigation and would not in any way increase the rights and protections now available to Australian citizens".
- John Howard, 27th Aug 2009
Sir Robert Menzies responded to Lionel Murphy in the early 1970s on this subject when the former attorney-general had sought to establish an international covenant of civil and human rights in Australian law.
"In Australia it is necessary to remember, when discussing civil liberties and rights, that one of the functions of common law has been to protect the individual against infringement of his or her personal rights"
- Sir Robert Menzies, 17th Jul 1971
The principles which Menzies and Howard are talking about are ironically even more fundamental than that proposed Act which the Parliament would pass. Howard's argument rests on the fact that the Parliament is ultimately answerable to the people, and Menzies reminds us that common law is ultimately based on the principle of equity: what is fair and just.
By actually enacting a Bill of Rights, the rules with regards what is fair and just are subverted by what is legal.
3. Do we really need a fourth Bill of Rights?
Rather than repeat myself on this subject, I'll provide the link here:
http://rollo75.blogspot.com/2008/05/horse-882-bills-of-rights.html
But as it stands there are already three Bills of Rights which have legal force in Australia. Namely the English Bill of Rights 1689, the Scottish Claim of Right 1689, and the UN's Universal Declaration of Human Rights 1948.
http://www.un.org/Overview/rights.html
http://www.opsi.gov.uk/RevisedStatutes/Acts/aep/1688/caep_16880002_en_1
http://www.opsi.gov.uk/RevisedStatutes/Acts/asp/1689/casp_16890028_en_1
Legally if the existing legislation is either being ignored or trampled, then why does anyone think in their right mind think that new legislation is going to change anything? If the laws already exist USE them.
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