About Me

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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).

Sunday, April 25, 2010

Federal government wimps out on human rights charter

The Australian government has wimped out by rejecting the concept of a charter of rights to create quasi-constitutional protections at the federal level. This outcome renders the entire elaborate process of the Brennan committee's work last year essentially a waste of money - and of everybody's time. So much effort and public money to avoid any decisive outcome.

Instead, the federal government will introduce a new framework that requires bills to contain ministerial statements of human rights compatibility. These statements are meant to ensure that Commonwealth legislation complies with international obligations, most obviously the many UN conventions to which Australia is a party. That is unsatisfactory, because it provides no basis to test the veracity of these ministerial statements in the courts (or before some other suitably authoritative body). In addition, a parliamentary committee on human rights will be established. That's a joke - essentially we are relying on members of parliament to regulate themselves, when we know that MPs need patronage from higher-level politicians and we've often seen how tempted governments are to overstep the bounds. If ever there's an area where self-regulation is totally inappropriate, surely this is it. An independent and authoritative watchdog was required, whether or not it took the form of a Chapter III court.

To be honest, I had no high hopes for this exercise, especially when it became plain that most members of the committee didn't really get it: I think that Mary Kostakidis probably did, but I have little faith in the others. Frank Brennan, who headed up the consultation committee, is no great friend of individual liberty, and the committee was unwilling even to take note of a glaringly obvious fact: it was working in the year when civil liberties advocates were supporting the 150th anniversary of the publication of John Stuart Mill's On Liberty. That was something to celebrate and emphasise, but it never got a mention. (Was the committee prompted to mention it by anybody? Yes, it was prompted by me - but perhaps by no one it considered important.) Instead, there was a blinkered concentration on what currently happens to be in the heavily-compromised instruments of international law.

There was, moreover, far too much emphasis throughout the exercise on positive rights to resources from the government; the level of these should not, in my view, be justiciable. Its emphasis on positive rights to such things as housing made the committee unnecessarily vulnerable to the charge that it was (thinking of) handing power to unelected judges. Such an accusation is much more difficult to make out - indeed, it is fundamentally flawed - when purely negative rights are involved. The courts should not be deciding on levels of government benefits, but they certainly should be deciding when the boundaries of government authority have been overstepped.

What was desperately needed, at a time when individual freedom, including freedom of speech, is under constant attack from many sides, was a very strong recommitment to liberal principles - to individual freedom in general; to the separation of church and state; to limits on arbitrary government power to punish or detain; and, above all, to freedom of speech. Where these fundamental liberties clash with international human rights law (which provides inadequate protection to free speech, in particular), well ... so much for international human rights law.

Unfortunately, I seem to be the only person in Australia who is saying these things in public. Neither side of politics shows much commitment to individual freedom. There's nothing much that I can do about that by myself - believe me, I've tried my heart out with no real impact - so does anyone care to join me? Maybe someone with more access to publishers and the news media? Hmmm?


Sean Wright said...


I am amazed at the lack of coverage that this has got. The lack of outcry. Is this just the "she'll be right" attitude of my fellow Australians?

Russell Blackford said...

Yes, I know. It seems as if no one in politics/the media cares.

Sean Wright said...

They do tend to take advantage of the contempt with which the legal system is held in.

Much better to leave our fate in the hands of politicians who examine their own personal interests rather than the law