Should Australia have a Bill/Charter of Rights?

A friend of mine brought my attention to a Christian based web site opposed to a charter or bill of rights for Australia.  Australia should not “allow judges to determine if laws are incompatible with human rights.”  The web site is http://www.makeastand.org.au and makes for pretty interesting reading. 

Unfortunately, their “what’s all The Fuss About” article is full of a lot of standard conservative rhetoric with equally standard lack of factual checking.  Despite this, the question of whether Australia should have a charter of rights is an important question for this country.

I am a United States and Australian citizen currently residing in Australia, so I think I have a good perspective on this question.  I will not address the points in the web site’s article or petition per se, because frankly, they are beneath notice for the most part.  What I will do is try to present a balanced view of the question.

I am in favor of a charter of rights because, speaking from the American experience, it has done far more good than harm, although I acknowledge there is always the possibility some things will be introduced that I do not like.  That, however, is the nature of a democracy.  In a democracy, most of the people are mostly satisfied with the political structure, but no one is completely satisfied.  We need to keep this in mind when discussing this issue because we cannot, nor should not, expect any political body or legislation to satisfy us completely.  If that is what you wish, move to a totalitarian state and support the ruling regime. 

If you have a bill of rights, the following caveats must be in place for it to work.

1. It must come into existence through amendments of the constitution.  In most countries, including Australia, this requires a substantial vote of support by the people.
2. Only Australian political bodies should have the right to interpret that bill.

The fact of the matter is, courts interpret laws all the time or, to use the phraseology of the makeastand web site, judges decide whether laws violate human rights all the time.  Judges also decide whether interpretations of the law violate human rights.

What is at issue here in Australia is whether a human rights commission can interpret the charter of rights.  If this is granted, the human rights commission could strike down some laws because those laws violate its conception of human rights.  This would violate the second of my caveats.  Australia has a legislative and a judicial branch of government, and sort of an executive branch for all practical purposes.  It is the courts, and only the courts who should deal with matters of interpreting Australian law in accordance with the constitution and with separation of powers.

Courts or human rights commissions should never create amendments to the constitution.  This belongs to the people, in conjunction with legislative processes controlled by Australians and run by and for Australians.  If this can happen, then a charter of rights is a good thing.

Why?  The simple reason is that a charter of rights lessens ambiguity and makes the basic rights of citizens very clear.  In the United States, for example, the first amendment, which is also the first article of the American bill of rights, guarantees freedom of religion and freedom of the press.  Are these bad things?  Absolutely not.  It also guarantees freedom of speech.

Suppose I preach a sermon in a church of Religion A and in that sermon I state my opinion that religion B is no good.  Should I be prosecuted?  Absolutely not because I am guaranteed the right to express my opinion.  If, however, I slander religion B by saying things about them that are false, or if I encourage violence against religion B, that is another matter.  But the reason has nothing to do with, or should have nothing to do with vilification laws.  The reason I should be prosecuted in this instance is because I encourage the limiting of the freedom of adherents of Religion B.  This violates the First Amendment in the United States.

I will give a concrete example of this in action.  In the United States David Koresh was a religious leader who took girls as young as 10 to bed and he wasn’t reading bedtime stories to them either.  He did this in the name of religion.  I was in a position to know about this and I publically called him out and in doing so, thoroughly trashed his religion.

the courts of the United States rightly interpreted that statutory rape under the guise of religion is not protected by the First Amendment.  When my allegations were definitively and unquestionably proven to be correct, I was free from any backlash prosecution.

It is precisely the function of judges both in the United States and in Australia to interpret the law, whether a charter of rights exists or not.  This is the purpose of courts.

I will give another practical example.  A blind man in California successfully sued the state for not allowing him to own a gun.  He argued correctly that the second amendment of the US constitution (article two of the bill of rights) said clearly every citizen has the right to bare arms.  It does not qualify this in any way.

A lot of people laugh at the seeming absurdity of this ruling which was handed down by the courts.  Those who advocate gun control should realize their stand against this court ruling does, in fact, deprive blind people of their constitutional right.  I am speaking, of course, of the United States.

I am alive today because I happened to have a gun handy when I was attacked by someone on a certain state’s most wanted list.  The two men came to the place I was staying and I changed their mind when I pointed the .223 I had at their head.  How were they to know I am legally blind?  In that case, I could see just enough in the semi-darkness.  Thus, the ruling in favor of the blind man owning firearms is a good thing and I am alive today because I had one ready to use when I desperately needed it.  (I was not the blind man who brought the lawsuit). 

People said “you cannot let a blind man have a gone because he might shoot and kill an innocent person.”  The same holds true for anyone.  You cannot deny someone his freedom because he “might” do something.  Of course the caveat to this is the person applying for gun ownership cannot be under psychiatric care.  Although the second amendment does not directly make this provision, I think this is implied and that is the way the courts see it.

In short, if handled correctly, a bill of rights is a good thing overall.  It provides the people with a short, concise, easy to understand explanation of their basic rights.  It limits the power of the courts to do what they want because many things are unambiguous.