Thursday, December 4, 2008

On an Australian Bill of Rights,25197,24747400-16382,00.html

Moves towards an Australian Bill of Rights are back in the news. “The Federal Government is set to begin a consultation process into what the document should look like next week,” reported yesterday’s Sydney Morning Herod. Today’s Herald editorial took a favourable view of the possibility, though it noted that

we could end up with a long list of fashionable causes that (apart from looking dated in 10 or 20 years time) would repel a large proportion of the population. At the risk of coming up with a rather bland document, it is probably better to err on the side of caution. The sorts of rights that are important but uncontroversial include the freedoms of expression, movement and association, and protection from torture and cruel treatment.
My preference was for The Australian’s rather more pessimistic view, however. What the Herald editorial failed to notice was what The Australian pointed out immediately:

THERE is one inescapable flaw in the case for a bill of rights: it would alter the balance of power within our system of government. Those clamouring for some form of bill of rights have been unable to explain how the community will benefit by stripping power from elected politicians and handing that power to unelected judges.
It goes on to note that

The logic of the charter lobby is that ordinary Australians sometimes make the wrong decisions when choosing their lawmakers. Instead of remedying these mistakes at the polls, the charter lobby would prefer to hand real power to wise, all-knowing judges who are far removed from the grubbiness of the political process.

The arrogance of such an approach is exceeded only by its naivety. Parliamentary democracy is by no means a perfect system of government, but its one redeeming feature is that Australians still get to sack politicians whose performance is found wanting. That is not the case with judges.
Clearly, then, what this amounts to is an upsetting of the balance of legislative and judicial power, and all for no good reason. And that’s without even thinking of the particular ‘rights’ that the usual suspects will be clamouring for, as the Herald rightly notes: one expects ‘reproductive rights’ (code for the right to kill one’s own child, so long as he or she is concealed within the womb), ‘gay rights’ (code for the right to go around sodomising people), you name it. Naturally a bill of rights will also ignore the question of when these rights are supposed to kick in: conception? Birth? When? Recall Fr. Brennan pointing out, regarding the Victorian Bill of Rights, that

Section 48 [of the Charter of Human Rights and Responsibilities] provides that 'Nothing in this Charter affects any law applicable to abortion or child destruction'. It was included in the Charter to accommodate the concerns of Professor [George] Williams and his colleagues that the Charter not purport to resolve the question of when life begins for the purposes of defining the right to life.

One predicts that the underlying principles for a Federal bill of rights will be positivism (people claiming whatever right they care to concoct, regardless of their relationship to a corresponding duty or to natural law) and Pyrrhonism (a refusal to pin down at one point in one’s life one begins to enjoy these rights). Like the republic débacle, it will be a waste of time and money, and probably end up failing anyway.

Reginaldvs Cantvar
Feast of St. Peter Chrysologus, Bishop, Confessor, 2008 A.D.


Crane said...

With 99% of what you say, I would agree; and so, surely, would any other Catholic. The 1% which has me concerned is this.

In America, the only reason Catholics are able to survive - and to enjoy an intellectual life which is the envy of the rest of the world - is that First Amendment. For as long as the First Amendment exists in the States, Catholicism (by which I mean real Catholicism, not liberal and ecumenical lavender-water) cannot be altogether extirpated.

This was not, heaven knows, the intention of the Bill of Rights' authors. Yet it has turned out to be the reality.

Take that First Amendment away, and American Catholics would be put into the same situation which their antipodean counterparts now occupy. In other words, they would be as we Australian Catholics now are: powerless; voiceless; an object of the most complete contempt from the mass media; despised similarly by our bishops; and, for the most part, too clodhoppingly unintelligent even to perceive our own pariah status.

If we could have a Bill of Rights that restricted itself to guaranteeing freedom of speech (without also guaranteeing abortion and other horrible things), then - and only then - I, for one, would be inclined to support it, for the specific reason given above.

Louise said...

Someone at The Oz had their thinking cap on.

But spot the glaring irrationality in the logic of the charter lobby:

The logic of the charter lobby is that ordinary Australians sometimes make the wrong decisions when choosing their lawmakers.

Australians sometime make the wrong decisions when choosing their lawmakers?

By what standard do they make this judgement?