Fr. Brennan on the National Human Rights Consultation Committee

http://www.theaustralian.news.com.au/story/0,25197,24831528-7583,00.html

Rev. Fr. Frank Brennan S.J. A.O. has an interesting piece in today’s The Australian on a charter of rights and the work of the National Human Rights Consultation Committee, of which he is the Chairman. It begins by reminding the reader that

The Government has asked the four-member committee to consult the Australian community on three questions:

Which human rights (including corresponding responsibilities) should be protected and promoted? Are these human rights currently sufficiently protected and promoted? How could Australia better protect and promote human rights?

The first question is, though: what do the Government and its collaborators mean by a ‘human right’? In an age in which the Sex Discrimination Commissoner can make the inexplicable, but apparently unchallenged, assertion that ‘there can no longer be any doubt that paid maternity leave is a basic human right’, and the Victorian charter of rights explicitly excludes coverage of child destruction and abortion, one has to begin by clarifying just what are human rights, and when exactly does a human begin to enjoy them?

It’s interesting to note also that Fr. Brennan says that

Any options for change "should preserve the sovereignty of the parliament and not include a constitutionally entrenched bill of rights".

It’s interesting that the word ‘sovereignty’ is used, rather than saying instead something like ‘should preserve the power/influence of Parliament’. As students of political science know well, there is ‘soft power’ and there is ‘hard power’, and it’s hard to see how a legislated bill of rights could avoid transferring power and influence to the judiciary from the legislature.

And I was a little surprised to read Fr. Brennan writing that

During the abortion debate in Victoria this year I argued that politicians, public servants and some civil libertarians showed scant regard for the Victorian Charter's right to freedom of conscience when they insisted that the new abortion law include compulsory referral of a patient by a doctor who had a conscientious objection to abortion.

I thought interference with the doctor's right could not be justified because the intended purpose of the interference could be met by the state providing the patient with information about available abortion providers.
(my emphasis)

But I would have thought that interference with the doctors’ right could not be justified simple because it is involved an explicit directive to defy one’s conscience, regardless of whatever alternatives might have been available.

Fr. Brennan goes on to provide some data on support for a legislated bill of rights. He notes that submissions to inquiries on the matter largely supported human rights legislation, but Father fails to note what proportion of these submissions came from activists rather than citizens with no explicit political/activist affiliations, or what proportion of citizens even bothered to participate in the inquiries. I was surprised, though, to read that

A public opinion survey revealed that 89 per cent of respondents believed that WA should have a law that aims to protect the human rights of people.

It would have been interesting to know exactly what the survey question was. Not at all surprising, though, was Father’s observation that

The result has been the passage of human rights laws in Victoria and the ACT without any strong, broad-based community opposition.

But a lack of “strong, broad-based community opposition” is probably just a sign of apathy, not approval.

Fr. Brennan gets to the crux of what he would view as the case for a charter here:

From my 27 years of involvement in issues relating to human rights and civil liberties, I am convinced our existing arrangements are most under strain in three instances: when the major political parties acting in the "national interest" agree to overlook the basic rights of a powerless minority; when the government of the day controls the Senate; and when the majority of High Court judges cannot see their way clear while interpreting a statute to uphold long-treasured common-law rights and freedoms.

What exactly he means by ‘powerless minorities’ is not clear; if he is referring to refugees then there is clearly a whole range of other issues to consider that aren’t relevant to the question of how to balance the liberties of local citizens with their duties to the common good. Meanwhile on the domestic front one can imagine that the Sodomites’ League would be only too happy to claim for itself the title of ‘powerless minority’ and demand its confected ‘rights’ by appeal to this status. As for problems with the High Court, this is connected to Fr. Brennan’s interesting observation that

Those who oppose bills of rights in any form face a novel problem. In the past, Australian judges could refer to decisions by their colleagues in Britain, Canada and New Zealand. Those jurisdictions now have their own bills of rights, with the result that their judicial decisions are less likely to be useful to judges who continue to work without the aid of a bill of rights. This judicial isolation is compounded by internal judicial fragmentation, with Victorian and ACT judges deciding cases through a bill of rights template while other judges do not.

But the argument that ‘they have one, so let’s get one too’ could have done with a bit more elaboration by Fr. Brennan; I would have been interested to see the implications of this teased out.

Reginaldvs Cantvar
22.XII.2008 A.D.