Wednesday, December 10, 2008

Bill Of Rights, Or Villains' Charter?

As the world observes the 60th anniversary of the United Nations Universal Declaration On Human Rights, Australians are considering the question of whether or not we need a Bill of Rights. In some respects, it is odd that we don’t already have one, given the central role Australia played in the creation of the Declaration in 1948. And yet, many of the freedoms that we take for granted are not actually guaranteed in our own laws. Instead, our freedom depends upon the democratic process which has thus far actually worked rather well.

Some critics of the idea of enacting a Bill of Rights suggest that rather than safeguarding freedom, a Bill of Rights might conceivably limit those freedoms. The suggestion is that anything not specifically guaranteed in the Bill could come to be viewed as not a right at all. There is also the concern that a Bill of Rights could also be misused to protect criminals and terrorists from efforts to end their activities. Indeed, there is actually some frustration with this very effect in the United Kingdom where a Bill of Rights was introduced ten years ago.

In Britain it has been referred to as a “villains’ charter”, and the man who introduced the Bill, former Home Secretary Jack Straw, has said that he has become greatly frustrated with the interpretation of the Courts. This highlights the concern that many people have that a Bill of Rights both constrains the power of the Parliament to make laws, and increases the power of the Judiciary in ruling on those laws.

Of course, many of those effects can be seen as the result of defects in the drafting of the Bill in the first place. A bill which guarantees a range of vaguely defined rights without also requiring recognition of responsibilities and observance of the law is a recipe for creating problems. But that doesn’t mean those problems are inherent in the idea of a Bill of Rights. Proponents of such a Bill in Australia insist that it should be drawn up in such a way that remains subject to the sovereignty of the parliament.

There is also the question of just what rights ought to be enshrined in a Bill of Rights. The obvious fundamentals are the rights to freedom of movement, freedom of association and freedom of expression. Also on the list of obvious choices are the right to a fair trial, the right to religious freedom, and the right to political freedom. There might be others, such as the right to profit from free enterprise, and such things will no doubt arise in the debate.

But the real challenge would be to define those rights in such a way as to not limit them, and at the same time, not provide shelter to the very people, such as terrorists and criminals, who would seek to attack our rights, or bring us harm.

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