Progressive Unease With a Bill of Rights

By Joo-Cheong Tham
Photo of old law books

By Joo-Cheong Tham

This article is part of our April theme, Human Rights Critiques. It will also be appearing in Poetic Justice, our upcoming anthology which will be launched as part of the Emerging Writers’ Festival on May 29.

The appeal of having a charter of rights at the federal level seems almost irresistible. After all, wouldn’t it bring Australia in line with other Western English-speaking democracies? More than this, wouldn’t it signal Australia’s affirmation of human rights and bring about a robust culture of rights?

We should pause a little before accepting these claims. Australia may be the only country among Western English-speaking democracies not to have a bill of rights. But it is also the only one in this group of nations to have compulsory voting and an award system in industrial relations. So if the argument is one based on harmonisation then the abolition of compulsory voting and the award system should come hand in hand with the enactment of a charter of rights.

Sometimes it seems that a charter of rights is invested with elixir-like qualities that will banish all the woes that Australia experiences in areas as diverse as immigration law, Indigenous affairs, counter-terrorism laws, rural deprivation and homelessness. But there is no magic bullet to address these disparate challenges to human rights. Matters are stubbornly complex and whether a charter of rights will enhance the protection of rights in any area should be carefully assessed rather than presumed.

Much the same can be said of treating the most recent abuses of executive power as self-evident arguments for a charter of rights. Cases like those of Dr Haneef and Cornelia Rau should be deplored and condemned. This, however, says very little about what needs to be done to avoid their recurrence. The lengthy detention inflicted upon Dr Haneef, for example, was permitted by extensive arrest powers accompanying overly broad “terrorism” offences. In this situation, repealing or amending these laws would serve the cause of civil rights far better than any charter of rights.

Arguably, the most appealing argument for a charter of rights is that it will promote a culture of rights. Yet this may be too glib. A culture of rights already exists in Australia, if by rights we mean the entitlements of citizens including limitations on state power. So much is reflected in the debates relating to recent counter-terrorism laws that implicated fair trial, rule of law and democratic principles. It is also apparent in debates surrounding WorkChoices—not least because of the ACTU “Rights at Work” campaign.

The argument then is not that a charter of rights will promote a culture of rights but that it will result in a particular culture of rights. This perhaps brings us to the nub of the issue: the real risk of a charter of rights like the UK Human Rights Act is that it could increase the legalisation of human rights politics.

This is likely to result from the codification of human rights in statute and the granting of an increased role for courts on these questions. Under a charter of rights, human rights arguments will tend to be couched in terms of statutory provisions. Court decisions will be seen as the repository of wisdom on questions of human rights. As a consequence, human rights debates will increasingly privilege legal material and expertise. This runs counter to the notion of a democratic political culture. Such a culture implies accessible politics where ordinary citizens can participate in debating and resolving key questions that confront them as a community. These must include questions in relation to their rights as human beings and as citizens. The increased legalisation of human rights politics is, however, likely to reduce popular participation in such debates. Human rights may be seen as peculiarly the province of (human rights) lawyers and courts.

Ironically, this may also impair the protection of rights. Rather than being dealt with on their substantive merits, issues relating to human rights will be analysed through the lens of statutory provisions and case law. With counter-terrorism laws, for example, the process of justification becomes narrowed to whether the laws meet the tests set by the courts. Arguments that go to the merits of these laws that cannot adopt the form of legal reasoning become illegitimate in this process. As a result, crucial issues will be missed and valuable perspectives lost.

As the intensity of public involvement and scrutiny diminishes so will the level of rights protection. Because human rights literacy will be seen as the preserve of lawyers, the burden of ensuring compliance with human rights principles will fall upon a narrow stratum of society. With popular participation in human rights debates, on the other hand, these principles will not only be owned by the public but will also be enforced by a larger body of citizens.

Worse, it is marginalised groups that will likely bear the brunt of the legalisation of human rights. Those unable to afford legal representation will be consigned to the periphery of human rights debates. Those able to afford lawyers will find it hard to match the resources available to their adversaries; there is hardly “equality of arms” when a Muslim community organisation assisted by a community legal centre comes up against a Commonwealth security agency and its battery of lawyers.

All this explains why the charge against a charter of rights like the Human Rights Act being undemocratic is not conclusively answered by pointing out that it is not an “American-style” bill of rights that allows courts to strike down legislation. The health of a democracy turns on the distribution of political power. This is shaped by institutions and political discourses. Even without formal exclusions, citizens can be effectively disenfranchised by cultural and social barriers. We should be sceptical and wary of the claims made by advocates of bills of rights. If their campaigns succeed, we will most likely witness the increased legalisation of human rights where public reasoning on these questions becomes straight-jacketed into legal categories; rigid court processes gain ascendancy over more open and fluid political processes and the disadvantaged are still left by the wayside. Worst of all, the wisdom of an elite may trump the wisdom of the multitude.

Joo-Cheong Tham is an Associate Professor at Melbourne Law School.

This article originally appeared in the June 2008 issue of Right Now Magazine.