THE RULE OF LAW: by Charles Francis, AM, QC, RFDNews Weekly
What is wrong with a charter of rights?
, June 24, 2006
Why are charters or bills of rights seemingly so popular around Australia all of a sudden? The Australian Capital Territory government instituted one in 2004. The Victorian Bracks Labor Government is set to legislate for one. And now the governments of New South Wales, Queensland, Western Australia and Tasmania are actively considering the idea.Charles Francis QC
reveals the not-so-hidden agenda behind the Australia-wide push for charters or bills of rights.So far in Australia there has been singularly little demand for a bill of rights from the ordinary person. The demand appears to come primarily from judicial and social activists and from some vocal minority groups. These groups frequently have agendas which are contrary to what the majority of citizens want. Far too often the groups' agendas are those of a permissive society.Stability
When one compares Australia with most other countries, our institutions have not only exhibited remarkable stability, but have also constituted a most powerful force for ensuring the peaceful development of our nation within the context of maximum personal freedom.
In large measure this is due to our British heritage. It was from England we derived our democracy, our system of parliamentary government, our judicial system and the rule of law, habeas corpus, trial by jury and the common law, which underpins so well our human rights.
Although many activists and left wing academics now pour scorn on the common law, it is important to remember that the common law in fact is a vast bill of rights, which has been devised over more than 800 years by the finest legal minds in the English-speaking world.
The United States inherited the English common law. Most Americans do not believe that individual rights originate with the government, but rather that they are inalienable rights coming from our Creator and most rights may not be impaired without due process of law. This philosophy of government was spelled out in the American Declaration of Independence and also by implication in the United States Constitution.
Earlier this year, Peter Faris, a distinguished QC, claimed that if Victorians were allowed a referendum on the proposed Charter of Rights and Responsibilities, the majority would oppose it. "One right that Victorians will not have is the right to vote on the Bill of Rights," he said. "You will have it, whether you want it or not." (Melbourne Herald Sun
, February 24, 2006).
He pointed out that all Australian referendums on rights or bills of rights have been soundly defeated. The most recent, in 1988, proposed the incorporation into the Australian Constitution of certain supposed rights. However the proposal could have removed important existing rights. A constitutional lawyer described it as a "confidence trick". This referendum question was defeated by a massive 69 per cent "no" vote, which was the strongest defeat of a referendum proposal in Australian history.
In the Western world in the past, a system of checks and balances has usually been an important part of the protection of our human rights. Free nations establish a constitutional division of powers between the legislature, the executive and the judiciary.
|Sir Harry Gibbs|
As the late Sir Harry Gibbs, one of the greatest Chief Justices of the High Court of Australia, pointed out, the most effective way to curb political power is to divide it. He said that "a federal constitution which brings about a division of power in actual practice, is a more secure protection for basic political freedom than a bill of rights, which means those who have power to interpret it say what it means".
The Report of the Victorian Consultation Committee says expressly on its first page: "The Charter would also play an important role ... in the way in which courts and tribunals interpret laws."
What has happened in the United States in the last 50 years not only lends strong support to what Sir Harry Gibbs says, but also stands as a strong warning of the problems which may be created by bills or charters of rights.
The United States inherited the common law of England but also set out a Bill of Rights in its Constitution. While the common law has functioned effectively in the United States for more than 220 years, in the last 50 years its Bill of Rights has created problems never envisaged when it was adopted in 1791.
Phyllis Schlafly, in her recent book The Supremacists
, asserts that judicial supremacy in its present form emerged with the appointment of Earl Warren as Chief Justice of the Supreme Court in 1953.
From the moment of his appointment Warren was an activist judge acting as a politician rather than a judge. From the US Bill of Rights, Warren began to spell out new rights which overturned established laws about criminal procedures, prayer in schools, internal security, obscenity and legislative reappointments.
Thereafter US judges allowed a torrent of obscenity to engulf the movies, television, the theatre, books and even classroom curricula. This was achieved by an entirely new interpretation of the First Amendment's free speech clause, which was originally designed only to protect freedom of political speech.
The US Supreme Court suddenly discovered in this amendment that pornography and a wide variety of other assaults on decency were to be elevated to a first amendment right. Obscenity dealers were delighted.
Because the Canadian Charter of Rights and Freedoms has been held up by the Victorian Human Rights Consultation Committee as a model, it is important to note what has happened in Canada under its (until recently) liberal government and this Charter.Unborn children
The Canadian Charter of Rights and Freedoms has enabled judges in Canada to strike down all statutory prohibitions on abortion - leading to the legalising of such horrors as partial-birth abortion, where a viable human being of as much as nine months' gestation may be killed by suctioning out its brains and crushing its skull just before the baby's head is born. Could this be why the Victorian Human Rights Consultation Committee, in section 8 of its draft bill, defined the "right to life" to begin only after birth?
The Canadian homosexual lobby considers the Charter of Rights and Freedoms a stunning success, because since its enactment same-sex marriage has been validated by legislation and same-sex couples have been allowed to adopt children.
Where laws are created by parliament, there is at least the opportunity to vote out the government at the next election; but where the laws are created by activist judges, there is no ready solution. We are unable to rid ourselves of these judges until death or retirement.
Former New South Wales premier Bob Carr has noted, among other things, that the Canadian Charter of Rights and Freedoms has led to greatly increased litigation. New Zealand has had similar problems.
Bob Carr wrote: "In the first seven years after the [NZ] Bill of Rights Act was enacted, it was invoked by the accused in literally thousands of criminal law cases, a large number of which were appealed to the Court of Appeal (the highest court in New Zealand). ...
"The Bill of Rights continues to be routinely used as a ground for attempting to overturn the admissibility of evidence, including confessions, evidence obtained under search warrants and breath-testing of drunk drivers. It gives lawyers a new source of technicalities to allow the guilty ... to go free. Bills of rights are notorious for being the last ground of the desperate in litigation."
Section 8 of the draft legislation negates any rights of unborn children by defining the right to life to begin only after birth. Although many Australians believe that a mother's rights supersede those of the unborn child in certain circumstances, they still recognise that the child has rights which should be considered.
However, section 8 implies that the unborn child is not a human person, thereby breaching Australia's obligations under the Universal Declaration of Human Rights 1948, the Convention on the Prevention and Punishment of the Crime of Genocide 1948, the International Covenant on Civil and Political Rights 1966, the Declaration of the Rights of the Child 1959 and the Convention on the Rights of the Child 1989.
Recommendation 7 envisages that the Victorian Equal Opportunity Act and its Commission would play a significant part in the functioning of the proposed Charter. Recommendation 23 would make a Victorian Human Rights Commissioner a member or chair of the Equal Opportunity Commission. This would not reassure those familiar with injustices perpetrated by the Equal Opportunity Commission since its inception in 1977 - such as the 2002 religious vilification complaint against two pastors, Daniel Scot and Danny Nalliah, whose 2004 conviction is being appealed despite enormous legal costs.
Recommendation 12 proposes human rights training and education for public servants, judges and tribunal members, parliamentarians and their staff and members of the legal profession. During their legal careers, judges will often have dealt with rights issues and would be more knowledgeable in this area than the government which now proposes to "educate" them. The sudden requirement for such training reeks of some vast social engineering program.
Section 3 of the draft charter bill defines "discrimination" to include "discrimination on the ground of sexual orientation". Would future Commissioners or tribunals disregard the right of a child to be brought up by a male and female parent in a normal environment? Would they insist that lesbians be provided with assisted reproductive technology in order to bear children with no fathers?The best protection
Human rights are best protected when there is a separation of the parliament (which makes laws) from the judiciary (which applies them). A charter of rights has the effect of transferring decisions on major policy issues from an elected parliament to judges who are not directly accountable to the people.
The proposed Victorian Charter of Rights and Responsibilities would lead to costly expansion of the bureaucracy, increased litigation - as has occurred in Canada and New Zealand. The proposed Victorian Charter omits important rights; those included are vague and uncertain. Experience elsewhere suggests that the interpretation of such a charter would be placed in the hands of libertarian zealots who would impose their prejudices against the wishes of the people.
As the late Sir Harry Gibbs once said, "If society is tolerant and rational, it does not need a bill of rights. If it is not, no bill of rights will preserve it." We should oppose any moves for charters of rights in Australia.
- This article is an edited extract from a longer paper by Melbourne lawyer and former member of the Victorian parliament, Charles Francis AM QC RFD. The full, original paper, complete with footnotes and references, can be found at: www.fol.org.au/rp-200605-charter-of-rights.pdf