It’s not often that I agree with Bob Carr, the former Labour Premier of New South Wales. He’s a pro-abortion, pro-embryonic stem cell research and small ‘l’ liberal. (Why do so many small ‘l’ liberals join the Labour party? BTW, I really don’t need this question answered.) But I think in ‘Rights charter like a dead parrot’, he gets it spot on.
There has been a concerted push in recent times for Australia to adopt a human rights charter. It’s supposedly designed to ensure that “Australia joins the rest of the enlightened world by enacting comprehensive human rights legislation” (see: humanrightsact.com.au). It is, of course, anything but a way of ensuring that human rights are preserved in Australia.
The reasons that it would fail are manifold, but the most significant one is raised by Carr at the end of his article. A human rights charter ends up legislating liberalism and allowing no room for conscience. Or, in other words, it forces everyone to adopt exactly the same moral position as the authors of the charter.
Carr points out that under current laws, a nurse or doctor with a conscientious objection to performing an abortion is currently allowed to not perform the procedure. However, under the proposed charter, that freedom would be removed. The reason for this is that much of what passes for liberalism is, in fact, a front for dictatorial autocracy. The move is always from “let’s allow these two opinions to co-exist” to “you are no longer welcome in our society if you believe that”.
If you’ve followed any of the shenanigans with the legal action being pursued by the Anglican Church of Canada against Bible-believing pastors and their congregations in New Westminster, you’ll know that it works exactly the same way in the church as it does outside. No-one’s allowing any room for conscientious objection to the Anglican Church of Canada’s same-sex marriage proposals.
Liberalism nearly always becomes dictatorial because once you reject God, who’s left in control? The answer is sinful human beings. This gives you two problems: (1) Sinful human beings being in charge and (2) No final righteous judgement—so if I don’t demand my rights now, I will never be vindicated. In other words, I have sinful human beings who have no option but to fight for their position tooth and nail. It’s not pretty.
So I find myself, rather oddly, in agreement with Bob Carr, hoping that our national charter of human rights ends up as a dead bird. (I’m also praying that another liberal institution has as much courtroom success as a parrot pining for the fjords!)
On the other hand, at present there is no formal protection for freedom of speech, religion, or association (among other things). And I wasn’t aware that the intended wording for this charter had already been settled?
Just submitting a comment so I can follow the discussion – which promises to be interesting.
It’s hard to see what the “Human Rights Charter” will actually guarantee – and it’s very worrying that it will remove “tolerance”.
Mike
Dear Paul;
I very rarely disagree with postings on the Sola Panel. But I have to express some concerns about this one.
I have given a fair bit of thought to this, as an evangelical, Moore College trained, person who is currently lecturing in law at a secular Uni. (I don’t lecture in human rights law, though.) I was also initially sceptical about a Charter of Rights proposal.
But I have now come around to the view that a Charter would be a good thing. Luke’s comment hits one important point- there is no formal protection for freedom of religion in Australia (s 116 of the Constitution is very limited.) And I think Christians ought to say (1) it is an important principle that a person should not be discriminated against where it is not relevant what their religion is; (2) a person’s religious convictions ought to count in taking into account how they are obliged to recognise other people’s rights.
In other words (summarising a complex debate, but hey, Bob Carr is an expert at that!) unless Christians support freedom of religion I think that we may find a charter of rights of some sort will happen which ignores the issue of religion.
Can I also say that I find Bob Carr not very convincing in the points his article makes. There are constitutional problems with a court over-ruling legislation based on a Charter; that has been acknowledged by the HRC, and the model suggested would simply allow a court to trigger the HRC asking Parliament to have another look at legislation to see if it can be improved taking rights into account. That is not giving excessive power to judges, in my view.
I would encourage people to think about this a bit more carefully before opposing the idea.
Neil F
Hi Paul,
As an ex-farm boy currently living in the Western Suburbs, beating up on the inner-city types/liberals comes naturally to me. But if I’m to be honest, I have to admit the passion and desire for justice that drives many of those who advocate for some form of a Bill of Rights.
As Christians, we have to admit that democracy, just like any other human institution, is flawed & sinful. The majority is capable of using their power to abuse the rights of minorities, something that God tells his people throughout the OT to avoid.
For example, a good example is the Federal Governments’ policy towards refugees. From 2001, I felt that I, as a Christian, could no longer support the Federal Coalition because of their policies towards refugees. Yet these policies in this area were supported by the majority of voting Australians. This position has had a personal cost for me, as many in my family are enthusiastic Coalition supporters in this area. Another example is the Stolen Generations, or the White Australia policy.
So I can understand why those who support some form of a Bill Of Rights do so. They seek to impose a restraint on the inherent sinfulness of our system of government. Of course, as Paul’s pointed out, the Bill of Rights would also be written by sinful human beings, and so is not a universal panacea. We should maintain a healthy scepticism towards the Bill of Rights advocates, but the same should also apply towards those who are its’ opponents.
I guess the Canadian model is what scares me. It makes unelected judges very powerful.
But, even if the bill of rights is worth opposing, I wouldn’t like to be thought to be opposed to much of the good things that a bill of rights is aimed at protecting. And opposiion that is too strident may indeed communicate this.
Thanks Roger and Michael, good points. One thing worth keeping in mind is that my impression is that the whole concept of rights that someone has because merely of their humanity is closely linked to the Biblical view that being made in the image of God makes all people fundamentally valuable and worthy of respect. Historically a charter of rights is about protecting the weaker groups in society.
I agree that the Canadian model, where the court directly over-rules Parliament or the previous common law based on the charter, is not a good model and has produced bad outcomes in Canada. But that is not the model being presented at the moment for Australia.
Christians ought to be supporting recognition of the rights of people from different religions to have a say and not be treated badly on irrelevant grounds. Many of the things people are concerned about, in my view (the Catch the Fire case in Victoria, lack of a conscience clause in Victorian abortion legislation) are arguably things that might be corrected if there was a strong freedom of religion right (appropriately balanced with freedom of speech). The Catch the Fire case was decided before the Victorian charter of rights. I have not seen any argument to suggest that a freedom of conscience right under the Victorian charter was considered in the abortion legislation. (Open to correction if anyone knows different.)
Just wanted to bring your attention to a collection of essays published against the Bill of Rights:
http://www.mrcltd.org.au/publications/index.html
Thanks for kicking this one off, Paul.
I think my deepest objection to the idea of a Bill or Charter of Rights is not the Charter itself and what it might say, but the fact that it will unavoidably be interpreted, applied and enforced by unelected judges. And the decisions that these judges make will reflect their own particular worldviews and moral frameworks, not those of the people, nor of God, nor even of those who framed the Charter. (The US experience here is salutary!)
Neil, you know more about this than I do—why can’t protection for religion or any other freedoms or rights be achieved through legislation? And if the law turns out to have unforeseen and harmful consequences, or if a majority of the people change their mind, then the law can be changed (by people being voted in who will change it). Wouldn’t it be much more difficult to change a Charter?
If the answer is that some things are hard to legislate on because they are so politically divisive and controversial, then are we really saying that the solution is to hand the power of decision over to 7 or 9 judges? The history of the abortion question in American is testimony to the failure of this approach, it seems to me.
Roger, I sympathize. But the history of Charters/Bills of Rights is that a perfectly right, reasonable and widely agreed “restraint” that is imposed today will also turn out to be the grounds for a tendentious, unreasonably and highly divisive “restraint” in the future, as future judges interpret the provisions of the Charter in their own way and according to the controversies of their time.
It’s undoubtedly a bit ‘messier’ without one, but the negative consequences of having a Charter of Rights aren’t worth the gains in my view.
TP
Hi All,
Thanks for a very stimulating discussion (and sorry not to comment before now. I spent yesterday, very happily I might add, with my kids and didn’t get to the computer).
I think that Tony’s points sum up the main thrust of my thinking. One of the things that occurs to me is that if such a charter had been drawn up according to the prevailing views of rights at say the turn of the 20th century, all sorts of people who now want the charter would, I suspect, be howling very loudly about how bad the charter was.
I certainly want to live in a society where freedom of religion is real and where many who feel oppressed and under-valued are cared for by our laws (and so I take Michael and Roger’s points very seriously). I am just not sure that a charter of human rights doesn’t become a weapon to oppose dissent. I am very interested in hearing Neil’s response to Tony’s question.
Grimmo.
Dear Tony and Paul;
Yes, it is true, as you say Tony, that a Human Rights Act or whatever will be “interpreted, applied and enforced by unelected judges”. But who do you think currently does that for ordinary legislation? I get a bit disturbed by this phrase “unelected judges” being thrown around as if it were something bad. The Westminster tradition, if I can put it that way, is that we appoint judges to administer the law rather than elect them. We certainly don’t want to move to the position in the States of having judicial elections!
So, what is meant I guess is that we are happy to have judges interpret “ordinary” legislation, especially since if they get it wrong we can, on the whole, choose to change the law later. Well, that is the proposal that seems to be in current favour for recognition of human rights in Australia. The HRA would set out some principles which would guide the courts in interpretation. If they found that legislation could not be interpreted in light of the HRA, they would say this, and the HRC could then draw it to Parliament’s attention for change if Parliament chooses to do so. Then our elected representatives get a go.
I suppose you can achieve the results you need by piecemeal legislation instead of a Charter, but I wonder if this is what we want. With piecemeal legislation you get the laws that work in favour of the group with the loudest voice at the moment. As I noted before, this is arguably what has happened with the Victorian anti-vilification law and abortion law. If there were a strong “freedom of religion” right in those cases there would, I think, have been a chance of a better outcome. So the overall balance of introducing a charter replicating, say, the UN Declaration of Human Rights, has many advantages.
Notice please that I do not support a Canadian “courts have the last say” model. But at the moment it seems highly unlikely that this model would be the one we get here.
Regards
Neil F
It has worried me over recent weeks the amount of scare-mongering done by some Christian groups over the issue of a human rights charter. On the one hand, I can see there are some legitimate and sincerely held concerns. But on the other hand I think some of those concerns are exaggerated, and I don’t think their case is strengthened by a failure to concede that there might be any benefits to such a charter, particularly for protecting individual citizens against the neglect or malice of their own government. (Listen, for example, to this interview with Geoffrey Robertson.)
I actually put a lot of confidence in our judicial system in Australia to eventually get these things pretty right… but not in the first instance, and not without great expense. For example, with the “Catch the Fire” case in Victoria, the Victorian Supreme Court really squashed many aspects of the earlier Tribunal’s decision. That earlier decision was just plain silly, and the Supreme Court basically said so.
Too often lower courts make poor decisions, and appellants are forced to spend large amounts of money helping our democracy come to a more nuanced position, and refining the law which does not give enough clarity in how to interpret the law in practice. The law is often far too general for people to know what it means and how it will be interpreted. It can be a lottery. Will pastors be prevented from preaching against homosexuality? I doubt it. But there is uncertainty.
But the second problem is that courts do not want to be arbitrating on ‘truth’, or even assessing what might be considered ‘reasonable’ when it comes to matters of religion. In just about every other area of life, they will investigate and give their opinion based on the evidence and arguments before them. But they are very reluctant to get into matters of religion. So the legislature, if it wants to create rights of freedom of religion, needs to take that reluctance into account, and spell out more clearly what they mean in the area of religion.
By the way, has the Social Issues Executive of the Sydney Anglican Diocese done anything on the proposed charter of rights, does anyone know?
Just on ‘unelected judges’. I think the inference is that people are anxious about ‘activist’ judges who ‘create’ laws somehow, and so take on a power that we like to think is reserved to the ‘elected’ legislature. It’s that combination of loosely drafted legislation, and activist judges interpreting it, that worries many people I guess.
I am on the side that tends towards concern regarding a proposed bill or charter or rights.
But to answer Ian’s question, the 2008 session of the Synod of the Anglican Diocese of Sydney received a report entitled Human RIghts, Legal Frameworks and Christian Responses, which looked into this matter. It was an interim report which gave some thought to the theological questions and reported pros and cons, and recommended further work. This work has been underway throughout 2009, and I think the results will be available at Synod.
From the publicly available reports regarding Standing Committee meetings, I can quote from April’s meeting…
thanks everyone for your comments – it’s been good to hear some intelligent discussion.
I’m (obviously) a philistine when it comes to the bill of rights charter.
A couple of questions:
1) What extra protection does it give us?
I note that we seem to have a fair amount of freedom anyway, which has been vigourously defended at all levels. And fairly successfully.
2) Related to the first, taking the USA as an example, do they have better protection then we do? How so? What about United Kingdom? Do they have a bill of rights?
3) Legal mumbo stuff – I’ve heard a bill of rights will just create a whole bunch of extra work for lawyers, with no real gain. Is there any truth to this?
Mike
Mike
I think to answer your third question, the purpose is really to give greater legal leverage to citizens for their protection in basic matters of life and liberty. A right to be treated with dignity in a nursing home, for example.
I suppose you could say it creates more work for lawyers. And perhaps some lawyers will exploit that for their own gain. But I would say, rather, that it creates causes of action that in many cases should be there to protect people, but aren’t (or that need to be fudged by the courts to achieve them).
In the end, the charter hopefully takes on a more educative than litigious purpose. That is, once people see that the charter gives rights to people in nursing homes, people don’t need lawyers anymore; the nursing homes lift their game because they know their legal obligations and liabilities.
Geoffrey Robertson certainly argues that this has been one of the positive effects in the UK (in the interview I cite above). But I guess you can also point to the excesses in the US as a possible down side.
Neil, Thanks for those useful comments. It sounds like it will depend very much on what sort of Charter or Bill we might end up with, and the relationship it envisages between the judiciary and the parliament.
This can get confusing for the non-specialist, because on the one hand we keep being told “Every other civilized nation in the world has one of these things!” and yet when the very real problems that ensue are pointed out, the answer is “Well of course, our unique sort of Charter won’t have those problems!”
I remain sceptical, but thanks for helping me realise that I need to do some more reading and investigating.
Tony
Neil & Ian,
I am really interested in understanding what it is that is currently not protected that a charter would protect. I am sure it’s probably not simple, but is there anywhere we can go to find the specifics about what hasn’t been protected that should be? (I am interested for example in Ian’s areas of judicial fudgement – so to speak).
I too have concerns about such a bill of rights, most of which have already been expressed by others in this debate.
I’d like to know why, in the case of nursing homes, such a bill is needed to lift standards.Surely passing appropriate legislation and setting up a body to police standards would have the same effect.
Why do we need a bill of rights? What problem is it solving that cannot be solved without such a bill?
I’m not sure I want to be seen as the promoter of the charter of rights on this forum. I do have reservations. And I’m certainly no expert.
But Philip, I would have thought that it is extremely hard to legislate for all the different contexts in which a person’s right to basic human dignity might be breached. Let alone policing all those different contexts.
I think there probably are some general rights that we ought to say publicly are rights we all agree are basic to a moral society that cares for all its citizens, particularly those who are powerless. Even in spelling those out, we are making progress in setting new expectations for our care of each other.
Further to my last post, readers may be interested to read the Hon Justice Michael Kirby’s speech on this topic of a charter of rights. (I know many of us disagree with Justice Kirby on a number of ethical matters, but there is no doubting his experience and ability as a jurist and his considerable intellect.)
In the speech he deals with many of the arguments put forward against the charter of rights. Here he addresses Philip’s issue:
[Emphasis added by me]
Why is the talk today about our “rights” as individuals? Whatever happened to our “responsibilities” as a society?
Rather than demanding the rights of boat people refused entry to the country, should we not be exercising responsibility toward people less fortunate than ourselves?
Should we not have a responsibility to treat each other with love and respect, as opposed to doing whatever the heck I want to… because it is my right?
On the question of “unelected judges”, I tend agree with Ian Carmichael. This should not be regarded as a bad thing. They are unelected so they should not be influenced by media, politicians or the whim of public opinion.
However, allowing the judges to interpret our rights would seem to send us, rather more hastily, along the path already trod in the US where Supreme Court judges are often chosen for their politics and views of abortion rather than their wisdom.
I would suggest that a “charter of rights” could equally be named “a charter of responsibilities on our society and the individuals in it for the care of our society and the individuals in it”. But “charter of rights” is shorter!
I think that may be a little unfair on the US Supreme Court justices. You certainly don’t get to sit on the US Supreme Court without being a highly-respected jurist. And I suspect you don’t become a highly-respected jurist without a modicum of (human) wisdom.
Yes, their views on some key issues are taken into account—certainly not just abortion. But I guess those are some of the litmus tests that people use to assess a judge’s wisdom.
Often those litmus tests are woefully misguided though. Highly intelligent people have a habit of bringing some finesse to their decisions on different topics, such that you can’t always predict from, say, their attitude to abortion what their attitude might be, for example, to euthanasia.
Dear Friends;
Some good comments, sorry for not being around this afternoon to respond. Let me pick a few bits to commment on.
Some specific questions from Mike Doyle.
1) What extra protection does it give us?
I note that we seem to have a fair amount of freedom anyway, which has been vigourously defended at all levels. And fairly successfully.
I think other comments about the rights of minorities and the powerless are apt here. Not all of us have been able to defend ourselves.
But in particular I think it is important for Christians to have a right to freedom of religion and religious speech, to balance out other “rights” claims not to be “offended”, for example, as in vilification laws. I think religious anti-vilification laws are a bad idea, and one way they can be resisted is by arguing that believers have a right to their own religious views, which may involve critiquing other religious views.
2) Related to the first, taking the USA as an example, do they have better protection then we do? How so? What about United Kingdom? Do they have a bill of rights?
The US doesn’t do everything right here, but that doesn’t mean we shouldn’t try. On the UK, yes, they have human rights protection in the form of an obligation to implement a European Union Convention. Domestic action in the UK courts can be taken against their public authorities for breaching the Convention. But individuals can’t sue other individuals directly based on the Convention.
3) Legal mumbo stuff – I’ve heard a bill of rights will just create a whole bunch of extra work for lawyers, with no real gain. Is there any truth to this?
As Ian said. Hopefully a properly drafted provision will make the law clear so litigation can be avoided as much as possible. But no lawyers I know are pushing this for “more money”. Those who do support it, do because they believe it will help people who currently are badly off, be better off.
More in another post before I run out of words…
A couple of other points.
Thanks Ian for the quote from Justice Kirby. I agree he is one of Australia’s premier legal thinkers and he makes some good points here.
Paul said
I am really interested in understanding what it is that is currently not protected that a charter would protect. I am sure it’s probably not simple, but is there anywhere we can go to find the specifics about what hasn’t been protected that should be? (I am interested for example in Ian’s areas of judicial fudgement – so to speak).
Not sure if this is what you are after, but the usual “menu” of rights is contained in the UN Declaration on Human Rights- see here. http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/ahric/udhr.html?query=“Declaration on Human Rights”
(Not sure if that was the way to do a link!)
Let me add one more reason for Christians to play a positive role in a possible charter of rights. I detect a tone in some recent academic writing in this area which I’ve dipped into, that “freedom of religion” is really a very secondary sort of right, and one we could dispense with. A colleague of mine recounted attending a public meeting and being told openly “what we need is freedom from religion, not freedom of religion!”
My concern is that if Christians opt out of the debate here, the support for a charter from other groups will be so strong that we will get the worst option of all: a charter protecting other rights but either ignoring or watering down a person’s fundamental right to serve God.
So I plan to put in a submission to the current review (btw submissions close on 15 June if anyone is planning on making one) supporting a right to freedom of religion, but opposing laws on religious vilification (which do not automatically go along with a general right to religious freedom- see the UNDHR which does not even mention “vilification”.)
Regards
Neil F
I love it, Ian! If we must have a bill, or charter, let’s make it a charter of responsibilities!
Mind you, Neil, if some form of ‘religious vilification’ right gets through, there would be a relatively easy way to beat it. All the churches chip in and set up a ‘vilification watchdog’ that monitors all the major print and electronic media. We then initiate proceedings every time a Christian or Christianity is held up to contempt or ridicule. We’d have enough material after two weeks to be able to clog up the tribunals for years!
TP
Not only do they have one, but its contents strike me as potentially pertinent to the raison d’être of this site.
This has been a very interesting discussion to listen into as a British person living in the United States. I am obviously unaware of many of the issues of Australian politics so thanks for educating me
On a slightly tangential point – I thought what Paul had to say about the role of conscience was a good conversation starter in and of itself.
As we think about how the best way to govern sinful people – how do we a) embrace God’s common grace in giving each of us a conscience b) the fact that our consciences are calloused and corrupted though sin?
Because of a) its important that people be given freedom to function as moral creatures. Because of b) it is important to set restraints on the range of different moral compasses that are tolerated (the role of government is to punish evil and to commend good).
The essence of Paul’s opposition to the Charter seems to be that it violates the place that should be given to individual conscience in government.
At what point should the government set restraints on the range of different moral compasses permitted amongst its people? And who should decide what is and isn’t acceptable.
I was not planning on weighing back in here but was inspired by the last two posts.
Michael, a fairly “cheeky” link. You linked to the 1688 “Bill of Rights”- yes, still very important but not the subject being discussed here (more a constitutional document about who the sovereign is, not a statement of “individual” human rights.) I already noted above that the UK has a Human Rights Act 1998 which deals with these issues to some extent.
Mark, you raise a good couple of issues about the way Christians should view public law. I take it that at least a part of our response lies in 1 Tim 2:1-4 where Paul says
So Christians ought to argue (as they should pray) that the law will allow all of us to live in peace and godliness, and to freely proclaim the gospel of Jesus.
The UK Human Rights Act 1998 can be found here.
It’s purpose is to “give further effect to [some of the] rights and freedoms guaranteed under the European Convention on Human Rights” (which you can read here).
The articles in that Convention which Sola Panel readers may be interested in are:
Ian
Can you lawyer-guys tell me if this says what I think it says? It seems to be saying that we would have complete freedom of religion and expression, except for any laws that the Parliament might pass restricting that freedom in the interests of ‘democratic society’, including public health and morals, rights of others, public disorder, etc.
Isn’t that a rather broad exception clause? For example, what if Christians started to more actively evangelize Muslims, and a significant number were converted, and it led to protests, demonstrations and even violence. Would that constitute a threat to public disorder? Or likewise if we spoke out against the gay lobby?
Still scares me, I have to say.
TP
Dear Tony;
I think your interpretation is right. Under article 10 it would still be acceptable for the government to pass a law prohibiting things that led to public disorder. So in theory if active evangelism by Christians resulted in threats of violent demonstrations by any particular group, the Parliament might be able to pass a law restricting the evangelism.
But it is worth keeping things in perspective.
(1) A more likely response at least in Australia would be for the government to crack down on the violent protestors. This would seem to be a more reasonable and “proportionate” response to the problem, rather than attacking those who were simply peacefully preaching the gospel.
(2) Even if the government used this “out” under something similar to Art 10, at least they would have to justify it and it might face a challenge in the courts if a charter existed. Whereas at the moment a law forbidding evangelism because it leads to riots is completely possible and would probably not be able to be challenged.
(Actually there is a somewhat obscure constitutional right to “freedom of speech on political matters” which might be interpreted to cover religious speech under the present law, but its application would not be certain.)
So your example, in my view, neatly illustrates why a Charter might actually support the work of the gospel in some cases.
In any case, of course, if the government passed a law prohibiting evangelism I take it that this is one of the very rare cases where it would be my moral duty to disobey it (Acts 4:18-19).
Neil
The Sydney Anglican response to the National Human Rights Consultation is now online.
Could you seriously imagine a situation in which the Parliament could successfully pass a law forbidding evangelism though? Labor realised last election that in order to win they needed to put forth a Christian candidate. Part of John Howard’s success was in partnering with the Christian community in some areas. It’s because we are the majority, and fairly politically active, so any political party worth their salt is going to try and protect our rights.
I would trust a Parliament so much more to protect my freedom to evangelise than the values, opinions and interpretations of a judge.