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"...public opinion deserves to be respected as well as despised" G.W.F. Hegel, 'Philosophy of Right'

national charter for human rights « Previous | |Next »
December 11, 2008

The Australian's response to the movement to a national charter human rights is pretty negative. It says that supports human rights as a cornerstone of our national life, However, Australia doesn't need it or want a charter of right. The argument is that human rights are:

best protected by democracy and the rule of law. As Jesuit lawyer Frank Brennan and his panel set about consulting Australians about human rights policies and laws, the weight of evidence against a bill or charter of rights is compelling. Paradoxically, it would be more likely to undermine democracy and personal liberty than enhance them, at vast expense, as lawyers enjoyed not a picnic, but a banquet. A week ago, The Australian pointed out that those clamouring for a charter of rights have been unable to explain how the community would benefit by stripping power from elected politicians and handing it to unelected judges. Since then, the arguments advanced by proponents of a bill or charter have been unconvincing.

The position conservatives defend is the supremacy of Parliament which, to all intents and purposes means executive dominance. The position the conservatives attack is a countering of that power through the legal system so as to give some substance to the checks and balances on political power.

The conservatives cover this with fog. Thus Cardinal Pell,

The push for a charter of rights springs from a suspicion of majority rule, a preference for judicial decision-making on fundamental questions, the imperatives of the particular social and political agenda that a charter of rights serves, and the elitism of privileged reformers."

Majority rule pulls a cover over executive dominance whilst elitism covers over the liberal concern for individual liberty against executive dominance. Therefore it is bad to have checks and balances on "majority rule"

| Posted by Gary Sauer-Thompson at 7:07 AM | | Comments (4)
Comments

Comments


It is a sad day when the Aristotelian grandeur of "supremacy of parliament" (polis) reduces along such an arid trajectory to exclusively and narrowly, "executive dominance" of the sort we saw evolve under Howardism.

Paul,
the authoritarian conservatives are about the authority of the state. For them it is bad to undermine that authority, which is paramount. Hence their hostility to a charter of individual rights. This issue discloses the deep differences between conservatives and liberals. The latter start from the position that the state represents an
invariable threat to individual freedom.

For conservatives the balance between the strong state, the economy and civil society is one in which the strong state rules, freedom is granted to the economy and civil society is crushed whilst criticism and dissent is strangled. Strong state and free economy.

Paul Kelly in The Australian comes out with all guns firing at a charter of human rights. He recognizes that the proposal rejects the US model of having courts strike down laws that contradict such rights and requires only that courts issue a non-binding declaration or opinion that laws are inconsistent with the legislated rights charter. The onus then lies on the executive and parliament to amend the laws or stand as human rights abusers.

Then he delivers the broadside:

The broad McClelland-Brennan view seems to be a charter of rights that can be depicted as upholding parliamentary sovereignty while investing judges with new authority that shifts the political culture and intimidates the executive from laws that infringe human rights in the national interest.

"Intimidates" the executive, when the onus lies on the executive and parliament to amend the laws so they are consistent with human rights legislation?
This brings us to the real heart of the conflict: the "charter of rights" culture that almost totally infects Australia's legal system, from university tuition to the High Court. This corrosive culture cannot conceive that representative democracy is the best means of guaranteeing human rights. Distrust of elected government, hostility to executive authority and ignorance about the vast array of measures in Australian governance that safeguard human rights typifies the legal culture.

Utilitarianism , which underepins, representative democracy in Australia, is quite willing to sacridice the minority for the interests of the majority.

Peter,
reading Paul Kelly's op -ed indicates what he is defending--executive dominance which is what holding parliamentary sovereignty actually means in Australia.

Utilitarians do not like rights at all. You are right. Utilitarians are quite willing to stomp all over the rights of minority groups in the name of majority rule---the greatest happiness is happiness of the greatest number.