EDITORIAL THURSDAY 22.04.10.
With all of the attention directed towards the Council Of Australian Governments agreement on health reform over the past few days it would be easy to overlook the Federal Government’s announcement on the proposal for a Charter or Bill of Rights. After spending almost $3 million, and almost 3 years, on a public consultation process headed by Father Frank Brennan, a process which many people were led to believe would result in the creation of such a charter, the Federal Attorney General Robert McClelland this week rejected the inquiry’s recommendation for a Charter to be established. Instead, your human rights and mine will continue to be safeguarded by our elected politicians, aided by a new parliamentary committee which is supposed to assess proposed legislation for compliance with existing human rights obligations.
In making the announcement he said, "A legislative charter of rights is not included in the framework as the government believes that the enhancement of human rights should be done in a way that, as far as possible, unites rather than divides our community." The division to which he was referring arises from the view that a Bill of Rights which constrains the powers of Parliament would see a shift in power from our elected representatives, who by nature of their position remain accountable directly to the people, to unelected judicial officers, enslaving the Parliament to the whims of the senior members of the legal profession. Critics of the concept of a Charter of Rights also expressed the view that a Charter which defines human rights also risks limiting them.
While it certainly sounds appealing to have a Bill or a Charter which would guarantee such things as freedom of speech, freedom of movement, the right to fair and just treatment, the right to education, the right to decent healthcare and so on, the reality is that Australians already take these rights for granted. Even though they may not be specifically protected by any codified Bill of Rights, they have been and remain protected by our democratic process itself, along with the established principles of Common Law, stretching all the way back to the Magna Carta and King Henry I’s Charter of Liberties. While the clauses of those documents have been almost entirely replaced by modern law, the basic principles of fairness and just treatment remain at the heart of our legal system.
Our society operates on the simple assumption that everything is permitted, unless it is prohibited. This means that our human rights should be considered to be automatic. We are already free to speak our minds, to travel about the county, to seek our fortune, and to care for our families as we see fit. The purpose of a Bill of Rights would be to prevent politicians from creating bad laws which deny us our rights. But we have already seen that governments who pass bad laws will inevitably pay the penalty at the polls and lose office. And more to the point, the idea that passing a law would prevent bad laws from being passed ignores the simple fact that any government in a position to force through repugnant legislation could also force the repeal of any such Charter of Rights.
In that sense, a Charter of Rights would really provide only the illusion of protection.