Australian Bill of Rights
The Age Sunday, August 24, 2008
Dear Editor,
I question Justice Michael Kirby’s advocacy of a new Australian charter of human rights (Age 23 Aug 2008). Australia is already a top country for peace, prosperity and pluralism. It is no wonder that many want to live here. But we should not delude ourselves that our good fortune is simply the fruit of our own cleverness.
Many nations have with huge effort and sacrifice made major changes to their legal foundations – only to reap new kinds of tyranny. Nation-building is not an exact science. The alchemy that produced modern Australia involves Aborigines, convicts, English language, immigrant cultures, wide open spaces, mineral treasures, and who knows what else.
We should think twice about any attempt to seriously alter our constitution. It is not a school science experiment. A charter of rights may sound as sweet as motherhood and apple pie – until you wonder why we’ve done so well without it.
Michael bemoans Australia’s injustices against women, aborigines, Asians, homosexuals and religious minorities. But this is simply acccusing the past for wrongs that were not yet seen as wrongs. If you want to judge Australia, you must compare us with the rest of humanity. The whole point is that, without a human rights charter, we have moved ahead of the vast majority.
How could a charter go wrong? Well if you write precisely how people must be treated, some will use that as a justification to lower their standards to that level. Our existing protections based on precedent, the concept of reasonable behaviour and public reaction, have served us well.
What about the many failures in the past to uphold human rights? Public opinion decides when the time has come for a right to be defended in law. Public discussion reacts to law that is out of date. I suspect that this process is both faster and safer than a charter.
Perhaps too a charter would move the evolution of rights away from the public arena into a lawyer-driven industry. More lawyers, more “rights” for those who can afford them, and law moving dangerously away from its cultural base. If it ain’t broke, don’t fix it.
Philip O'Carroll