I’ve heard a rumour from Ground Control. Oh no, don’t say it’s true… And ‘dog whistles’ aren’t just a right wing thing

Australian Policy Online is usually rather a good read.  Susan Ryan‘s recent article on the Australian Charter of Rights is instead notable for not being rather a good read.

Fortunately, the problem is easy to explain.

1. Ryan’s argument is that The Australian contains poor opinion pieces.

2. Just about everybody who can read agrees.

C. We should have a Charter of Rights in Australia.

Unfortunately, the conclusion doesn’t follow in any meaningful sense from the premisses.  The thing with these sorts of debate is that logic no longer matters.  You either agree that vulnerable people need protection, or you agree with everything that The Australian says.  Somehow — as if by magic — ‘vulnerable people need protection’ turns into ‘Australia must have a Charter of Rights’.  Basically, something needs to be done, this is something, therefore this needs to be done.

The problem with a Charter of Rights is that it doesn’t extend enough protection to the vulnerable and provides an opportunity for them to be screwed over instead.  Consider, for example, how frequently the Bill of Rights in the U.S. has been hijacked for the interests of the powerful (gun lobbyists, corporations, &c.).

Why do we want to give the wealthy more opportunity to secure legal privileges?

One example raised was the Al Kateb case in 2004.  If Ryan were familiar with how charters of rights worked, the Al Kateb case would not necessarily have had a different outcome.  Consider, for example, Charter of Human Rights and Responsibilities Act in Victoria.  Here’s the first section:

Purpose and citation

1. Purpose and citation

(1) This Act may be referred to as the Charter of Human Rights and
Responsibilities and is so referred to in this Act.

(2) The main purpose of this Charter is to protect and promote human rights

   (a)  setting out the human rights that Parliament specifically seeks to
        protect and promote; and

   (b)  ensuring that all statutory provisions, whenever enacted, are
        interpreted so far as is possible in a way that is compatible with
        human rights; and

   (c)  imposing an obligation on all public authorities to act in a way that
        is compatible with human rights; and

   (d)  requiring statements of compatibility with human rights to be prepared
        in respect of all Bills introduced into Parliament and enabling the
        Scrutiny of Acts and Regulations Committee to report on such
        compatibility; and

   (e)  conferring jurisdiction on the Supreme Court to declare that a
        statutory provision cannot be interpreted consistently with a human
        right and requiring the relevant Minister to respond to that

(3) In addition, this Charter-

   (a)  enables Parliament, in exceptional circumstances, to override the
        application of the Charter to a statutory provision; and

   (b)  renames the Equal Opportunity Commission as the Victorian Equal
        Opportunity and Human Rights Commission and confers additional
        functions on it; and

   (c)  makes consequential amendments to certain Acts.

Yup.  The Charter only applies to the judiciary and the executive branches of government.  If the legislature wants to pass a law identical to the one which snagged Al Kateb, they can (provided that it’s considered ‘exceptional’).

So charters tend to be paper tigers for the purpose of protecting the vulnerable and provide an opportunity for those who can afford expensive lawsuits to protect their interests.

The appeal of the Charter is emotional.  It feels good to support something with the word ‘rights’ in it.  Unfortunately, we need more than that to make it a sensible choice.  Instead of presenting a persuasive argument in favour of the Charter, Ryan decided to smear all opponents as ‘arch conservatives’ who worry about ‘gay marriage, more abortions, and forcing church schools to employ [undesirables]’.

The other articles on APO, on the other hand, are very good.  Read those instead.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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