That’s me in the corner… On the question of s116 of the Constitution #auslaw

The Guardian was lovely enough to publish one of my articles arguing that Australia should avoid having a Bill or Charter of Rights.  The argument there is fairly straightforward.  Despite popularising the Bill of Rights, the United States has a shocking human rights record (the example I chose was McCarthyism); thus, Bills of Rights aren’t terribly effective.  Secondly, because the Bill of Rights is very broad, it has resulted in perverse outcomes (the example I chose was the Westboro Baptist Church’s picketing of funerals — the First Amendment protects them but not the family burying a loved one).  Further, because we lack a Bill or Charter of Rights, Australia has been able to score some impressive legal victories, such as the Plain Packaging Tobacco legislation which isn’t possible in other jurisdictions.

The point is summed up here:

When society lost interest in upholding the lofty rhetoric of rights, the First Amendment didn’t come to the aid of the heretics. A Bill of Rights has not stopped the US trying to find a new definition of pain and suffering in the belly of offshore detention centres. Conversely, when the Australian Government sought a referendum to acquire the power to pass anti-Communist legislation, Australians voted it down. The best rights protection will always be an engaged and critical electorate, not a parliament with rusted on training wheels.

This doesn’t sit well with a lot of people.  Challenging the assumptions behind human rights legislation is ipso facto a difficult task.  Our culture ideologically prepares us to accept rights as legal norms, making it difficult to even express the idea that human rights are problematic.  Thus, I’ve had quite the interesting range of feedback.  Some people thought I was attacking human rights out of a libertarian campaign to take people’s property.  Some people thought I was making an anti-Indigenous statement.  And one person pondered whether or not I was actually Andrew Bolt.

A few commentators and a few e-mail correspondents had some interesting responses, particularly in relation to this paragraph:

Our constitution also fails to defend religious freedom. In Snyder v Phelps, SCOTUS discovered this right protected the Westboro Baptist church’s right to protests at military funerals. Our deficiency has meant Australian courts might consider other priorities, such as the welfare of children. In a 1978 case called The Marriage of Paisio, the family court found that “certain practices, albeit given a veneer of religious justification, are in fact so positively harmful to the welfare of the children that they must be removed from the influence of those who advocate such practices”.

One person took umbrage with this in fairly strong terms: ‘Section 116 of our constitution explicitly protects religious freedom. It is worded almost identically to the US religion clauses – though Australian courts have read them somewhat differently. I wonder if you would correct your blatant error of fact.’

I’ve written about s116 before but, in the interest of not writing turgid legal essays, I kept away from drilling into a thorough analysis of the section. So let’s go on an adventure through the wonderful world of s116 of the Constitution and why it’s not what you think it is.

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