Politics Without Consent
Think about it. Why would a government want a Bill of Rights. Perhaps it does not trust to the future an Opposition that may make decisions different to the ones it would make. Or perhaps it lacks the strength of its own convictions and would rather have the courts do its work. Either way it is really saying it does not trust the judgement of the electorate, and that it wants to bind the electors of the future to do something that may be against their wishes. That is the logic of a Bill of Rights.
Australia does not need a Bill of Rights, constitutionally entrenched or otherwise. Advocates for an Australian Bill of Rights (Christopher Wiltshire CM Dec. 9) seek to place a greater part of the menu of politics in the hands of an institution (the courts) ill suited to the task. Many of the problems they wish resolved are not amenable to legal reasoning.
The countries that have a Bill of Rights are precisely the ones that do not need them. The struggle to establish a liberal democracy, one where the leaders accept that they are as subject to the rule of law as the people who elected them, and that all are subject to the scrutiny of a free press is not to be lightly put aside. These countries have developed a formidable legal and institutional framework to secure the rights of their people, and reasonable abundance to secure their economic and physical security. Coming along after the fight and wishing to encode the result is not only an insult to the work already done, it fundamentally misunderstands the creation of a civilised society.
The bedrock of Australian democracy is consent.
Internationalists want 'politicians, public servants and judges' in Australia to be subject to various international covenants to which Australia is a signatory. If Australia chooses, with the consent of the Parliament, to amend its law so that Australia mimics propositions that occur in international treaties, then so be it. It must never sign a document that diminishes Australian sovereignty unless there is an explicit proposal put to the Australian people. This is not an issue of nationalism but of consent.
What rights would be in a Bill? The right to life and the right to defend oneself would be a good start. At present the majority opinion is clearly pro-choice and anti-guns. If a future court interpreted these rights as pro-life and pro-guns the staunch minority would have the whip hand in any referendum designed to undo the judicial folly. Alternatively, what if public opinion changed and the judges did not? The majority could change the Bill by way of referendum, but a majority of votes in a majority of states is difficult to achieve. Entrenched legislation is just that. Hard to undo.
Rights to income, jobs, shelter and so on are not rights at all. They are dependent on resources. You cannot use the constitution to even up the distribution of income in society. Judicial decision-making is good at determining individual cases where the financial implications are immediate and direct. For instance, an unfair dismissal case where the worker is dismissed because of gender or age where these are not essential to the task. But a court cannot determine that a worker must be given a job where none exists, or that someone is due a pension just because they are a citizen, or that someone has a right to a certain standard of living. A whole host of factors determine these. The extent to which our taxes are pooled and shared are matters for negotiation, subject to all the frailties and demands of the individuals who make up the society. The politics of 'who gets what' cannot be abolished.
The engineering students at my old university used to take the mickey out of the radicals by scrawling on the toilet walls, 'repeal the law of gravity.' Neither can 'the law of scarcity' be repealed.
On cultural matters the law can assist in the protection of a place of cultural significance or an artist's desire to be recompensed for creative work. But the law cannot provide a remedy if the significance of a place declines because no-one believes any more, or can stop the spread of creative ideas that are traded between artists, or preserve a language that has no users, or order the continual rebuilding of houses wrecked by the people for whom they are built. These are issues which have to be decided either by the people involved or, with the consent of the majority, with taxpayer assistance.
A Bill of Rights is politics without consent, it denies the right of future voters to make their own society.