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August 27, 2009
Australia has traditionally lacked a strong ‘rights’ culture and this lack is noticeable in an ‘age of terror’. The Australian Constitution contains no guarantee of freedom of religion or freedom of conscience. Indeed, it contains very few provisions dealing with rights. Many of those in political and media authority--especially conservatives associated with the Murdoch Press--are deeply opposed to a Bill of Rights.
Last night John Howard, the former Prime Minister argued in the 2009 Menzies Lecture at the University of Western Australia that a Bill of Rights would lead to unelected judges making decisions that should only be made by parliaments. Howard understands his task to be one of:
preventing Australia going down the misguided path of embracing a Bill of Rights in the totally false belief that such action would expand our individual liberties...Tonight we can be certain of one thing, however. If Menzies were still with us he would most assuredly be passionately opposed to a Bill of Rights for Australia. It would have been against the instinct of every bone in his common law body. Moreover, it would impinge on his deep reverence for parliament,...Our Party’s founder also wrote, “…that the best guarantee of human rights in the future is to be found in our system of responsible government, where Ministers sit in Parliament, can be questioned, and give answers, and the government itself may be turned out if parliament feels that it is doing things which violate the proper rights of individuals.”
Howard adds that those are surely sentiments that all Liberals and many others would readily endorse adding that the essence of his objection to a Bill of Rights is that:
contrary to its very description, it reduces the rights of citizens to determine matters over which they should continue to exercise control. It does this by transferring decision making authority to unelected judges, accountable to no one except in the barest theoretical sense. I had always thought that a member of parliament was a decision maker and not a buck-passer. I have always held to 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 the courts. That sentiment is at the heart of my objection to a Bill of Rights.
I'm unclear how a BIll of Rights reduces the rights of citizens to determine matters over which they should continue to exercise control---the self-determination of citizens? Surely, a national Bill of Rights (protecting civil and political rights) would substantially enhance our democratic system of government (and respect for the rights and dignity of the individual) rather than weaken it by promoting a culture of respect for human rights and human dignity.
There is no argument in Howard's passage to provide reasons for his claim that a Bill of Rights reduces the rights of citizens to determine matters over which they should continue to exercise control.
The argument he brings forward is that a Bill of Rights will weaken the liberal democratic process and transfer power to unelected judges. Rights adjudication would involve judges in deciding issues which are political in character, thereby eroding parliamentary sovereignty and politicising judges. Howard goes to say that:
A Bill of Rights would further diminish the prestige of parliament; it would politicise the appointment of judges; it would increase the volume of litigation and it would not increase the rights and protections now available to Australian citizens In the Australian context the adoption of a Charter or Bill of rights would represent the final triumph of elitism in Australian politics – the notion that typical citizens, elected by ordinary Australians, cannot be trusted to resolve great issues of public policy, and that the really important decisions should be taken out of their hands and given to judges who, after all, have a superior capacity to determine these matters.
This seems to be a defence of Parliament and politicians not an argument for the self-determination of citizens. It is all about Parliamentary sovereignty. So the wisdom of the politicians is a shield for our rights.
At a Bill of Rights Conference in Canberra August 2009) entitled Cultural and Religious Freedom under a Bill of Rights Sir Anthony Mason argued that:
There is a popular perception that politicians are disconnected from the concerns of the people, that politics is all about gaining and maintaining power at all costs and that the political process is exploited by powerful lobby groups and stakeholders in their own interests. In addition, there is perceived to be an unhealthy relationship between the media and politics, a relationship in which politicians vie with each other for media attention and the media sensationalises and trivialises politics. In such a climate, there is little or no incentive for politicians to take action to protect the disadvantaged minority or the individual, unless to do so offers the prospect of political mileage. Unfortunately, very often that may be no more than a remote prospect.
So we have the Howard as voice of authority really being concerned that a Bill of Rights will expose the exercise of power to greater scrutiny and lead to a possible erosion of authority.
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It sounds like Howard is thinking of certain conservative critiques in the US of the post-Warren court. Also his argument reminds me of the exchange of letters between James Madison and Jefferson regarding the pros and cons a bill of rights (circa 1787--sorry I have no link).