Chasing the Norm

Australian academic and blogger on politics, international relations, and culture

The Right and the Bill of Rights

In (yet another) back down, the Rudd Government recently abandoned its call for a bill of rights. Instead it is introducing a ‘Human Rights test’ for all legislation, leading to much rejoicing by many liberal and conservative Australians (which I’m labeling here right wing, with left wing liberals tending to support Rudd’s -original- push for a Bill of Rights as I do). Yet their joy is somewhat surprising given that the Australian Right wing tend to define themselves (rhetorically at least) by their desire to restrict the reach & power of government and encourage individual freedom. Which is exactly what a bill of rights is designed to do, hence its position at the heart of the US constitution, the most liberal document in history.

Andrew Norton helpfully tries to explain this apparent contradiction in a good post over at his blog:

In a democratic system, classical liberals will tend to be more sceptical than social democrats and the median voter of actual and proposed regulation by the state. But I don’t think this is inconsistent with believing that classical liberal freedoms should be achieved within the persuasion-based, evolutionary and open democratic system. Even within a pro-freedom perspective individual rights and freedoms can conflict – let alone all the conflicts with other values that people hold – and there is little reason to believe (as many opponents of bills of rights have argued) that courts will do a better job of deciding on the trade-offs than democratic politics.

a distinction can be drawn between an in-principle opposition to constitutionalising some rights and a tactical judgment that the bill of rights we would end up with would not support the classical liberal conception of individual freedom. I think this does help explain the lack of enthusiasm for bills of rights among classical liberals, even where they might support constitutionalising a limited list of rights or freedoms. Aided by the various UN treaties, the concept of ‘human rights’ has expanded way beyond what classical liberals have ever supported, to make them the basis for big rather than small government.

While the arguments about risking giving too much power to the courts are valid, and one should always be skeptical if modern politicians can reach the wisdom of political philosophers such as Jefferson & Adam’s, Norton’s comments still seem to me somewhat partisan. His main concern seems the content of a Rudd/Gillard(or Abbott?) introduced Bill of Rights, rather than the concept as such. That it is, had a classical liberal Prime Minister introduced a bill of rights, I expect he would be significantly more inclined to support it. Which leaves me wondering why none on the right are proposing to write their own Bill of Rights?

There’s two good reasons they should: First, if there was a right wing version on offer, the debate would shift from the rhetoric of angry partisans (like this) towards debating which principles and the specifics. A debate about how to code a protection of free speech, or whether the government can compulsory acquire private land would be a useful debate.
Second, if those on the right support the concept (as opposed to their concerns over Rudd’s specific version) then now is the time to propose an alternative. The campaign for a Coalition government to implement economic liberalism didn’t just spring from nowhere in 1996, but was pushed & argued over throughout the 1980’s and maintained until the time was right (whilst critically giving support to the ALP Government when it agreed with this approach). With Joe Hockey the likely candidate to take over the Liberal Party once they lose the upcoming election, liberals have a good chance to gain a leader who will at least listen to their views. Assuming the ALP stay in office for another two terms, by 2016 a Coalition Government could win office and pledge to implement a Bill of Rights which has been around for 5-6 years in public debate (removing the fear factor) whilst adhering to a strict ‘negative’ set of limits on government/society, rather than the more left wing desirer for positive rights to food/shelter/support etc.

I believe a Bill of Rights has a fundamental worth, that will unite people of all political philosophies across the left and right. Guaranteeing free speech, restrictions on discrimination, and basic rights of people who fall under the watch of the security apparatus of the state would help ensure that the ‘democracy of manners’ which rules Australia does so within confines that do not trample over the individual. For those of a liberal persuasion, both the Howard and Rudd governments have infringed individual freedom and shown little concern about doing so, in economic, social and security area’s. There are legitimate concerns about increasing court influence to deal with, however the High Court has already involved itself in these issues (such as ABC v Lange 1997 on free speech). A carefully constructed negative set of rights could infact help clarify what the public want, rather than allowing the much freer interpretation available today where lawyers and judges can draw on all constitutional and legislative documents.

Having an alternate proposal (while a lot of work) would increase the quality of the debate, let those on the right set the terms of what a bill of right should be (helping dispatch poor/unworkable ideas such as a right to an income) and far more than any comparison with UN treaties, let Australians debate and define the basic freedoms we as a people insist on for a good society. Given the move to presidential prime ministers, increasingly invasive technology options for the government and centralising federalism, sitting back and hoping all will be ok is not a sensible option.

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  1. Andrew – Thanks for your response. Perhaps part of the story too is that infringements of the classic negative rights have not been widespread and are often genuine hard cases (terrorist suspects, for example). In my view, the risk of a genuinely oppressive government in Australia is very low, and that we have a system for correcting the occasional excesses. The exercise would strike me as being a little like the recent banning of the non-existent and politically as dead as Ronald Ryan death penalty. Why worry about things that probably won’t go wrong when there are plenty of things that are wrong and can be fixed?

    Many on the left are pursuing a rights agenda because they don’t think they can win a decisive victory on issues they think are important if they have to persuade people of their point of view; from that perspective the bill of rights is a Trojan horse for them.

    While Australia will never be a classical liberal country, most classical liberals still believe reforms can be achieved democratically.

  2. Cheers for the reply

    I agree the rights of an oppressive government are low, but I believe in a government of laws and not men, and Australian democracy as great as it functions, is clearly of the latter form. While the cases of actual terrorists are v.hard, the Howard government’s anti-terrorism legislation placed severe restrictions on the freedom of the press, of lawyers and the flow of information from government to the public. Indeed Freedomhouse rates Australia 38th in freedom of the press in this country, not horrible, but we could do much much better.

    While I somewhat agree the left struggles to get these issues up democratically, the Rudd opposition made it clear it wanted such a bill before the 2007 election, (the so called “mandate”), any bill would likely have not been ready before facing a 2nd election, and if it was going to be a constitutional bill, it would have to pass a specific national referendum. A much higher standard of democracy, so I don’t think its plausible to argue this is an anti-democratic move. Australia has never been a pure democracy (with everything liable to change at the publics whim), we already have the high court viewing some personal freedoms as guaranteed through the constitution, so a bill of rights would only firm this up.

    While these reforms can and are being achieved democratically, a bill of rights would let us focus the debate more specifically than normal and hopefully encourage the speed of their adoption. Australia isn’t hostile to personal freedoms, but we spend so little time thinking about them that when controversial cases occurs we don’t have a good prepared answer or guide, and let circumstance dictate rather than principles. That’s the inherent pragmatism of Australia, but it could be stiffened up principally too, without any significant shift in the usual business of our government.

    Finally, what about the idea of a bill coming from the right. Say Hockey won in 2016 do you think many on the right (given the way ‘freedom’ peppers their rhetoric) would come around to discussing and perhaps support a bill?