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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Saturday, May 16, 2009

The Statute of Liberty - Chapter 8 and Epilogue

Okay, Robertson really gets to the point in Chapter 8 (and the brief, reflective, Epilogue). He lays out his entire proposal for a charter of rights, explaining his rationale at each step.

I must say that his drafting is elegant and as clear as anyone could expect with such a difficult task. It lives up to his reputation as an outstanding legal scholar and practising lawyer. Perhaps some of this material can be used in whatever instrument might ultimately emerge from the current human rights consultation process. This material alone would make the book worthwhile.

But do I agree with it? No. First, he tries to write what amounts to a constitutional preamble, even though there is no intention of including it in the constitution at this stage (but Robertson clearly hopes that the charter he imagines will one day be given constitutional force). His preamble is as well-written as might be expected, but any attempt to lay out values comprehensively in a preamble is doomed to failure for the simple reason that we live in a pluralistic society. Any statement of common values has to be quite minimal or it will exclude some people who don't share some of the values it contains. I think that trying to draft a document like this is a futile exercise, no matter how skilled the author may be.

Second, the content is far broader than that contained in similar charters (those of the UK, Canada, the ACT, and Victoria) and vastly broader than the Bill of Rights in the American Constitution. It gives the impression that Robertson wants to use the document to push his entire political agenda, but that should not be what the exercise is about. To be sure, he does make some attempt to avoid the inclusion of positive rights giving licence to the courts to make funding decisions and to control the detail of government policy on such things as health and education, but he still ends up with something more like a party platform than a charter of rights.

The trouble with positive rights isn't that we shouldn't have them. I do want legislation to provide for a range of rights to health, education, workplace standards, and much else. However, once you start setting out people's legal rights to government resources, including the use of resources to control other people's behaviour (as with anti-discrimination law), you soon find that there are complex questions that can only be resolved by complex drafting. This drafting needs to be open to amendment from time to time, in order to deal with problems or anomalies that arise, to alter standards as needed, and to balance the various interests involved. Getting the detail right is inevitably a matter for day-to-day politics. You can't resolve it all in advance in the concise words of a charter of rights. International conventions can give broad guidance, but fully fleshed-out legislation is then needed to get the details right in domestic law.

Negative rights against the state are different. Of course, some difficulties arise, but nonetheless we can concentrate on codifying the boundaries of the state's power, without getting involved with the complex issues of exactly how the state should use its power, within those boundaries. There is already a vast body of legislation that deals with the positive claims of the citizens of the citizens on the state (e.g. social security law, health law, education law), but what is missing is an adequate statement of what the state can't do. What negative demands do we make against the state to keep out of our lives? What aspects of our lives, here in Australia, are out of bounds to the legislature and the executive?

That is a difficult enough set of questions, but greatly less difficult than the issue of how state resources should be used, which requires many volumes of legislation. Let's concentrate on the real gap, and on what a bill or charter of rights can do fairly easily.

Even here, note that the absolute legal limits to what the state can do will not exhaust all issues of what it should do. It's one thing to expect the state to honour freedom of speech and to write this into a constitutional document. It's another to expect it to honour something like the Millian harm principle. We should not try to write that principle into a constitutional document but we should still invoke it in political debate.

The point here is that a charter of rights does not contain every principle that should restrain government action, but only those limits that are very widely agreed, readily justiciable, and have few plausible exceptions. In fact, there's a danger that the more comprehensive we make a charter (and a possible preamble), the less we will look credible if we rely on principles that are not contained there. If we really must have a preamble, as Robertson claims, we somehow need to refer to the Millian harm principle: the important principle that the government will not criminalise our actions unless they lead to direct, significant, secular, and wrongful forms of harm to others. Note, though, that even this statement of the principle shows how difficult it might be to draft it in a form that could be widely agreed in the Australian community.

In the end, Robertson's book contains much useful material, including some effective refutation of arguments against a charter of rights. However, it tries to do too much. It's as if he, and some other advocates of a charter of rights, can't resist the opportunity to pursue a very broad political agenda through the exercise of designing a charter. That, however, is too divisive and too cumbersome. We'd be better off, and more likely to get something useful out of the reflection currently going on in Australia, if we narrowed our ambition to something narrower and more practical.

I've made suggestions in my submission to the Human Rights Consultation, but there are other models. The possibilities open up if the problem of the unconstitutionality of advisory opinions can be overcome, though Robertson doesn't offer much to deal with this, and it would be risky to go ahead with a model that will be very expensive - only to have it struck down as unconstitutional.

If that problem can be overcome, I could live with the provisions of the ACT charter, which is relatively narrow in what it seeks to achieve, relatively concise, and not hacked around (like the Victorian charter) with too many qualifying words to negate its protections. But over-enthusiastic supporters of a charter may spoil the possibility of an outcome like that if they continue to pursue every issue that's on their minds, rather than concentrating on the realm of practicalities.

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