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Bracks’ Bill of Rights is an attack on basic rights
Charles Francis, AM, QC, RFD
So far in Victoria there has been singularly little demand for a bill of rights from the ordinary man. The demand appears to come primarily from judicial and social activists and from some vocal minority groups. These groups frequently have agendas which are contrary to what the majority of Victorian citizens want. Often they are well aware that their objectives are unlikely to be achieved by the ordinary democratic legislative process.
Contrary to what the present Victorian government says, the protection of human rights has never required a charter of rights. Australia today has much the same political and judicial institutions as it had at the beginning of the twentieth century, when we became a Commonwealth. Most of our state institutions enjoy and even longer continuous life. When one compares Australia with most other countries, our institutions have not only exhibited remarkable stability, but have also constituted a most powerful force for ensuring that the peaceful development of our country within the context of maximum personal freedom.
In large measure this is due to our British heritage. It was from England we derived our democracy, our system of parliamentary government, and our judicial system and the rule of law, habeas corpus, trial by jury and the common law, which underpins so well our human rights.
Although many activists and left wing academics now pour scorn on the common law, it is important to remember that the common law in fact is a vast bill of rights, which has been devised over more than 800 years by the finest legal minds in the English speaking world. As such it is incomparably better and wiser than any charter of rights prepared by some allegedly expert State government committee.
By way of contrast during the same period Nazi Germany had what purported to be an excellent bill of rights, as did the Soviet Union under Joseph Stalin. These bills of rights proved of little avail, because there was no separation of powers, the judiciary being entirely subservient to the Executive so that only judicial rights which received any recognition were those which the executive permitted the judiciary to exercise. In this regard it is important also to note that in the 1930s in Nazi Germany democracy withered, whilst in Stalin’s Soviet union democracy never existed.
Today some of the worst abuses of rights occur in Rwanda, China and the Sudan. Yet these countries all have glossy bills of rights. China does not hesitate to abort millions of women each year against their wishes and in Tibet many thousands of women have been seized, held down and sterilized. In the Sudan hundreds of thousands of Christians have been murdered and many thousands of women and children have been kidnapped and taken into slavery. A robust democracy and a free press (both of which we have) provide a much better protection of human rights than any document of rights.
It is also important to remember that in the western world the roots of our individual rights and freedoms and the recognition of the rule of law had their origins in Christianity. It was the Christian Church which first proclaimed that no on was above the law. The Franciscans in the 15th Century were the first to elaborate legal theories of God-given rights and that individual rights derived from a natural order sustained by God’s immutable laws of right reason.
In England the Lord Chancellor played an important part in the development of common law rights. Those Chancellors were all Christians, and a number were ordained. Consequently the common law which evolved had a strong Christian basis.
In passing it is interesting to note that even as late as 1932 in discussing the common law of negligence in England’s highest court Lord Atkin referred to the biblical question “Who is my neighbour?” He said in law the answer seems to be “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question”
In the United States, which inherited the English common law, most Americans do not believe that individual writer originate with the government, but rather that they are inalienable rights coming from their Creator and most rights may not be impaired without due process of law. This philosophy of government was spelled out in the American Declaration of Independence and also by implication in the United States Constitution.
Even the somewhat secular minded Thomas Jefferson played homage to this principle when he said “the only firm basis of freedom is a conviction in the minds of people at their liberties of our the gift of God”.
In a valuable article in the Melbourne Herald-Sun Peter Farris, a senior and distinguished QC, a expressed the opinion that if Victorians were allowed to vote on a Charter the majority would oppose it. The Bracks Government does not intend to permit a vote on the Charter so as Faris puts it “one of the fundamental human rights Victorians will not have is the right to vote ‘No’ to the Charter”.
Peter Farris goes on to say effect on our laws will be revolutionary. All existing state legislation will be interpreted by the courts to comply with the Charter. The Chairman of the Consultation Committee Professor George William denies this. However in Consultation Committee's Report it is said “Victorian courts and tribunals would be required to interpret all legislation, so far as it is possible to do so, in a way that is consistent with the Charter. In doing so they would need to take account of why the law was passed in the first place.
To me this plainly suggests that courts and tribunals will no longer necessarily construe the actual legal meaning of the existing statutes, but rather will be free to interpret in accordance with their own beliefs as to what the philosophy of he Charter ought to be.
This represents a very serious transfer of power from the legislature to activist judges and activists tribunals. Much of the Charter is expressed in vague terms, which further greatly increases the opportunity for activist judges and tribunals to mould the law in accordance with their own philosophy. This leads, inter alia, to what in the United States is now referred to as the problem of judicial supremacy.
In the western world in the past a system of checks and balances has often been an important part of the protection of our human rights. Free nations establish a constitutional division of powers between the legislature, the executive and the judiciary. As the late Sir Harry Gibbs, one of our greatest Chief Justices of the High Court of Australia, pointed out that the most effective way to curb political power is to divide it.
He said that “a Federal constitution which brings about a division of power in actual practice, is a more secure protection for basic political freedom than a bill of rights, which means those who have power to interpret it say what it means”.
What has happened in the United States in the last 50 years not only lends strong support to what Sir Harry Gibbs says is but also stands as a strong warning of the problems which may be created by bill of rights. The United States inherited the common law of England but also said out in its constitution a bill of rights. Whilst the common law has functioned effectively in the United States for more than 220 years, in the last 50 years its bill of rights has created problems never envisaged by those who drafted the original Constitution.
These problems in the United States a very well analyzed by Phyllis Schlafly in her recent book The Supremacists. She asserts that judicial supremacy in its present form emerged with the appointment of Earl Warren as chief justice in 1953. Although Warren had been the Attorney-General of California (1939 to 1943) and Governor (1943 to 1953) he had no judicial experience and seems to have no understanding of the principle of the separation of powers. From the moment on his appointment Warren was an activist judge acting as a politician rather than a judge.
From the American Bill of Rights Warren began to spell out new rights which overturned established laws about criminal procedures, prayer in schools, internal security, obscenity and legislative reappointments. Not only did the public speak out against what was occurring but the American Bar Association was presented with a stinging criticism of some fifteen decisions in which the Warren Court had ruled against the U.S. internal security.
To little avail. Thereafter United States judges were directly to blame for the allowing a torrent of obscenity to engulf the movies, television, the theatre books and even classroom curricula. This was achieved by an entirely new interpretation of the First Amendment’s speech clause, which was originally designed only to protect freedom of political speech. The Court suddenly discovered in this amendment that pornography and a wide variety of other assaults on decency were to be elevated to a first amendment right. The obscenity dealers were not disappointed.
A bill of rights can thus eventually contribute to the erosion of the rule of law and its replacement by the “rule of judges”. Professor James Allan has pointed out that “bills of rights are usually accompanied by interpretive techniques” (as is the case with the present proposed Charter) “which do not constrain judges to deciding in accordance with the original intent of the enactors nor to the original understanding at the time of the passage.
Instead, such instruments are now often interpreted as ‘living trees’ where judges heed to what they think a ‘contemporary values’”. The result is an interpretive regime that places few if any constraints on the judiciary”. Some judges may be ill-informed on contemporary values and may tend to accept the values of a “political elite rather than those of the community as a whole.
A Charter of Rights, once it is enacted in Victoria, will give judges the undemocratic power to decide many of the most important social issues in this State. Such a power is given under the guise that State judges are neutral entities which uphold human rights and freedoms. Experience of bills of rights overseas demonstrated that the supposed moderation of some judges can be entirely illusory.
The Canadian Charter of Rights and Freedoms (CCRF) 1982 (held up by the government of Victoria as a “model”) has enabled judges in Canada to invalidate all statutory prohibitions on abortion, leading to complete legalizing of such horrors as partial birth abortion where a very viable human being of nine months gestation may be killed by sucking out its brains immediately before birth is actually completed.
One cannot but wonder whether the Constitution Committee had in mind the validation of similar practices in Victoria when it said in its Recommendation there should be “a provision protecting the right to life (which) should provide that, for the purposes of the Charter, the provision applies from the time of birth” i.e. prior to the birth there is no provision protecting the right to life.
In Canada the homosexual lobby considers the Canadian Charter a “stunning success” because since its enactment “same-sex marriage has been validated by legislation and same sex-couples have been allowed to adopt children. The majority of Victorians recognise it is not in the best interest of our state to deliberately create a class of children who either have no father or no mother. In 2005 the Herald-Sun Voteline showed 74.6 per cent were opposed to I.V.F. for lesbians.
Where the laws are created by legislation there is, at least the opportunity to get rid of the government at the next election, but where the laws are created by activist judges there is no ready solution, and we are unable to rid ourselves of these judges until death or retirement.
Charters of rights may in fact operate in an undemocratic manner in that they can be used for attainment of social agendas contrary to the majority approval. Professor Gabriel Moens, who has demonstrated a remarkable grasp of human rights issues over more than 20 years, has said “those who favour a bill of rights may delight in the vagueness of these documents for they sometimes assume that its very ambiguity will enable them to achieve, through judicial decision, what they have been unable to achieve through Parliament”.
It is against this background it is now proposed to examine some of the other specific features of the Committee’s proposed Charter of Rights.
An examination of the Consultation Committee’s Report makes it apparent that the administration of the Charter will be both complex and expensive and will require the employment of a number of additional public servants to carry out all the duties entailed in the function of the Charter.
Some of the new duties and/or requirements which inter alia will arise under the Charter are the following —
(i) Where decisions need to be made about new laws or major policies, submissions to Cabinet need to be accompanied by a Human Rights Impact Statement;
(ii) A Bill introduced into the Victorian Parliament will be accompanied by a Statement of Compatibility presented by the Attorney-General setting out with reasons whether the Bill complies with the Charter;
(iii) The Parliament’s Human Rights Scrutiny Committee is to have a special role in examining these Statements of Compatibility and will advise Parliament on the human rights implications of a Bill. (This will obviously require a larger Committee and/or staff or both);
(iv) Where a court or tribunal is applying the Charter, both the Attorney-General and the Victorian Human Rights Commissioner will have the right to intervene to put submissions on behalf of the government and the public interest. Community and other groups may also be given leave to intervene. This will mean exercising a close watch over all proceedings under the Charter in order to determine when there should be any such intervention;
(v) With each regulation tabled in Parliament information should be provided in an appropriate form regarding the compatibility of the regulation with the charter;
(vi) The Scrutiny of Acts and Regulations Committee is to be conferred with additional terms of reference to consider and report on matters arising under the Charter and is to be provided with sufficient resources to ensure that it can provide an appropriate level of advice and support to Parliament. The Committee is also to allow for input and submissions from the public. (This can only be done where there is a proper and appropriate advertising t o the public to enable input and submissions).
(vii) Public servants are to have access to human rights training and education.
(viii) Judges and tribunal members are to have access to training and education;
(ix) Parliamentarians and their staff are to have training and education provided by parliament;
(x) The provisions of the Victorian Human Rights Commissioner with a number of specified duties;
(xi) The creation of a Department of Justice, Human Rights Unit with a number of specified duties; and
(xii) subsequent reviews of the Charter.
Whilst it is impossible to estimate the time and money to be spent upon implementing all the requirements of the Charter, it is apparent that the Charter will set up new bodies and bureaucracies with vast scope for further expansion, the cost of which will be many millions of dollars the Victorian taxpayer each year.
Even more worrying is the creation of the new Human Rights Commissioner. What is proposed in the Charter suggests that the Commissioner may well be one of the most powerful persons in Victoria. There is no reason whatever why human rights should not simply be enforced through the law courts s have many of our rights been the subject of judicial adjudication.
Consequently the question arises does the government genuinely want a Commissioner who will act entirely independently, or does it want a Commissioner whose determinations will be made in accordance with particular libertarian philosophies.
This question has already been raised by Andrew Bolt in an article “A small tribe of friends” 11 in which he points to the three judicial appointments made by Attorney-General Hulls from members of Liberty Victoria, a body with strong left-wing activist agenda in relation to such matters as drugs, euthanasia, abortion and feminism. One might therefore well ask will the Commissioner too come from Liberty Victoria?
In many ways in so far as the Committee’s Report seeks to indicate what rights will be enforced the Report in general terms is somewhat vague and very unsatisfactory. It is clear that many of the rights which most Victorians would want protected are not included. Most Victorians want the right to say “No” to the Charter and the right to vote “Yes” or “No” to any identified rights in the Charter. However, it seems clear that Victorians will not be given those important rights.
This suggests to me that the Victorian Government prefers to give us only those rights which it thinks we ought to have rather than letting we the people determine what rights we want. It is important to bear in mind when one is conferring particular rights on some persons, there is often at one and the same time a resulting deprivation of the rights of other persons. Typical of this is the last 30 years of operation of Equal Opportunity Acts, whch have often deprived employers of the right to determine who they want to employ they want to employ in particular jobs. Whenever affirmative action is applied some people will be deprives of jons which they should have obtained on merit and which they would have obtained if the employer had been free to exercise his own discretion.
Many rights have been lost to Victorian citizens over the last thirty years but the Consultation Committee’s Report does not suggest it will attempt to restore the lost rights. Indeed in Recommendation 7 it is proposed that there should be a subsection similar to the section 19 (2) of the New Zealand Bill of Rights 1990, which provides that special measures be taken to assist disadvantaged groups do not constitute discrimination. In other words there is an express right to discriminate against the ordinary Victorian and the injustices of affirmative action will continue.
That the Charter will be discriminatory is further supported by the wording of Recommendation 4 which provides the preamble to the Charter should recognise the special significance of human rights to indigenous peoples as the traditional owners of the land. The term indigenous is not defined in the Report but presumably the Committee had in mind Australian aboriginals. The Oxford dictionary defines “indigenous” to mean something naturally produced in a region or belonging naturally to the soil etcetera of that area.
Where a white family has lived on a particular area of land for generations which they own or over which they have exercised control, strictly speaking they are indigenous to that area but presumably it is not the rights of white traditional owners which the Committee has in mind to recognise. Recommendation 4 is extremely vague in its meaning and all sorts of acts and injustices could be perpetrated on the basis that they were simply recognising the special significance of the human rights of the indigenous peoples. Peter Faris Q.C. indicates the whole purpose of the Charter is to give even more rights and privileges to minority groups including Aborigines.10 The vague wording of Recommendation 4 lends support to this view.
Recommendation 7 has been already mentioned briefly, but to me it raises most fundamental issues of human rights. Of all rights the most fundamental is the “right to life” and from the moment of conception we have a new human being with human rights.
Although many Australians believe in certain circumstances a mother’s rights supersede the rights of the unborn child, they still recognise that the child has rights which, at least should be considered.
This recommendation breaches Australia’s obligations under the Universal Declaration of Human Rights 1948, the Convention on the Prevention and Punishment of the Crime of Genocide 1948, the International Covenant on Civil and Political Rights 1966, the Declaration of the Rights of the Child 1959 and the Convention on the
BrookesNews.Com
Monday 20 March 2006