I feel sorry for Frank Brennan

Okay, I've been nasty about the choice of a Catholic priest to head up a consultation into the protection of human rights in Australia. The choice worries me because the Roman Catholic Church takes many stances that are in opposition to human rights (however defined). Currently, it is opposing a UN resolution against what should, on any definition of the term, be considered a crime against humanity: the use of the criminal law to persecute homosexuals. The Church hierarchs claim that they do oppose the criminalisation of homosexuality, but they fear pressure for acceptance of gay marriage.

I hardly know where to start with that kind of reasoning - surely there is a huge gap between the state ceasing to persecute homosexuals with criminal laws (with the death penalty attached to them in seven countries!) and the state going further and recognising particular kinds of intimate relationships as "marriages". Indeed, my own position is that the state should, ideally, get out of the marriage business altogether and simply provide adequate laws for the protection of children and the distribution of property when relationships involving mingled property rights break up. Meanwhile, and subject to such exceptional issues as people knowingly putting each other at risk of contracting the HIV virus, all sexual conduct between consenting adults or sufficiently mature minors should be perfectly legal.

Brennan himself is on the record as saying that heterosexuality is preferable to homosexuality - or at least he would prefer his friends to have a heterosexual orientation - but let's give the man some credit. He also favours gays having strong rights to protect them from state persecution. His position on all this leaves a fair bit to be desired, but it's about as mild as possible for someone who does not actually wish to leave the Church, and I must always remind myself that (genuinely) moderate religionists are not my enemies even if I think they are sadly mistaken on important issues.

Unfortunately, Brennan also manages to find ways to deprecate the importance of free speech, to oppose the availability of euthanasia, and to limit abortion rights (though even here his view appears to be quite moderate, at least by the standards of Catholic religionists).

Overall, he deserves respect as a person of intellect and good will. It's unfortunate that his commitment to the teachings of the Church biases him in certain directions, but he is no religious fanatic or narrow dogmatist. His general approach is very far from that of other prominent Catholics in Australia such as George Pell. Let's cut him at least a bit of slack.

I've been criticising him as someone who opposes a constitutionally-entrenched Bill of Rights, something I have long supported (though I would want it to focus tightly on guarding our fundamental freedoms, such as freedom of speech, not to give us Orwellian "rights" to have the government control us for our own good or to protect us from being "offended" by other people's free speech ... my main worry about a Bill of Rights is that it could end up being a horribly wrong Bill of Rights).

I do stand by this criticism of Frank Brennan. It seems anomalous and unsafe that Australia does not have broad constitutional protection of rights as fundamental as the right to freedom of speech. The limited constitutional protection of free speech that we do have is not justified by principle and is far too narrow. To me, Brennan is too dismissive of the value of a Bill of Rights, and his arguments against, in particular, constitutional entrenchment of freedom of speech strike me as far-fetched and contrived. Still, this may not matter in practical reality because I accept that there is no prospect of obtaining an amendment to insert entrenched and enumerated rights in the Australian Constitution. In the real world, we need to look for other approaches, at least for now.

Which brings me to why I feel sorry for Brennan. He can't win. While I berate him on this blog for his settled opposition to constitutionally-entrenched rights, he is continually attacked from the political Right as a proponent of mechanisms (such as a non-entrenched charter) that would give some additional protections to our rights. The way The Australian carries on, you'd think this gentle, rather conservative, but reasonably open-minded, religious scholar was some kind of raving zealot dedicated to undermining the constitutional order. Give it a rest, guys!

Meanwhile, I'm planning to spend much of the Australian summer working on a detailed submission (I'm envisaging 20,000 words or so) to Brennan's human rights consultation. This will be tersely-argued, and could easily be loosened up and expanded into a book (though I have no idea who would publish it). I'm groping my way to some thoughts about what rights need protection and how this might best be done short of a constitutional amendment. I'm not a big fan of non-entrenched charters, since they can be overridden so easily, but perhaps they have their place. Anyway, I welcome your ideas.