Your right not to have a Bill of Rights

Just when we thought Christmas was looking rosy, the Victorian Attorney General has announced he’s going to give Victorians an unwanted present: A Bill of Rights.

A Bill of Rights for Victoria despite its superficial attraction would be a mistake. An Australia-wide Bill, which is where the momentum is headed, would be an ever bigger mistake.

There are several reasons for this. The most obvious relates to the function of a Bill of Rights. The ultimate purpose of a Bill of Rights can only be to enhance the flourishing of Victorians. There is no evidence that we need a boost to our quality of life - certainly not the type that can be provided by a Bill of Rights.

Victorians probably enjoy the highest standard of living in the world. Two separate studies several weeks ago showed that Australians are the happiest people in the world and that Melbourne is the second most liveable city in the world. If rights documents have anything to do with flourishing, the few remaining unemployed Victorians should consider selling shredders to the rest of the Western World.

We also need to bear in mind that Rwanda, China, South Africa and Sudan all have glossy Bills of Rights - doesn’t seemed to have helped those citizens much.

Rights worshippers keep rolling out the tired old line that we are the only Western democracy without such a document. This argument barely needs to be repeated to highlight its failing. Truth does not follow consensus and it is OK to be a tad different - as we were when we were one of the first nations to give women the right to vote.

The best protector of important human interests is not signing up to abstract ideals, but a robust democracy with a free press. As history has shown us, absent these conditions rights documents are worth less than the paper they are written on.

Apart from the fact that we don’t need a Bill of Rights, another reason against such a reform is that rights are, as Jeremy Bentham taught us about 200 years ago, “nonsense on stilts”.

Rights have no foundation. Rights theories cannot provide coherent answers to central issues such as: How can we distinguish real from fanciful rights? Which right takes priority in the event of conflicting rights?

Without answers to the above questions, our politicians will almost certainly botch it up if we allow them to develop a catalogue (let alone a hierarchy) of rights.

The emptiness of rights theories has led to a huge increase in rights claims.

Not too long ago, the Australian Prime Minister stated that “each child has the right to a mother and father”. In a similar vein, Greek soccer supporters, frustrated by the fact coverage of the European Soccer Cup was only available on pay TV, were asserting a right to “watch their team on free TV”. We can’t blame too much Ouzo for that one. More likely they were fuelled by Article 25 of the Universal Declaration of Rights which claims we have a right to “rest and leisure”.

Given that rights have no justification, when they clash the winner is the person that yells the loudest - the antithesis of a moral code. While rights seek to “atomise” people, the reality of the human conditions is that we can’t flourish without the involvement of others and the actions of one person (exercising his or her rights) can have a negative effect on the interests of others.

If you want to know what interests we have, the answer is simply. It is a matter of biology and sociology, not misguided social and legal engineering. To attain any degree of flourishing we need the right to life, physical integrity, liberty, food, shelter, property and access to good health care and education. After that it is time to speak of responsibilities and the common good. No need for a Bill of Rights to entrench this - we already have it pretty good on these measures.

The last reason you don’t want a Bill of Rights is that it gives judges more power to determine the hierarchy of human interests. Rights documents are always vague, aspirational creatures and give no guidance on what interests ranks the highest. This leaves a lot of scope for wonky interpretation.

Important decisions that affect our flourishing are best left in the hands of the politicians. Like them or hate them, the great thing about a democracy is that we get to show what we think about them every four years. Not so with the judges, who are appointed until they reach a comfortable retirement age. There’s also nothing to suggest that judges are higher up the IQ food chain than politicians.

Even Bills of Rights that don’t allow judges to veto laws but rather allow them to declare laws incompatible with the Bill (as is proposed in Victoria) end up giving judges too much power. A similar model in the UK has resulted in all ten declarations of incompatibility being acted upon by the government, due to the misplaced emphasis that ends up being placed on such high sounding documents.

And don’t be fooled into thinking that a Bill of Rights will protect us from draconian laws. Most countries, including Singapore, that still execute supposedly serious offenders have glossy Bill of Rights documents, with the right to life enshrined in fancy ink, and sometimes even capital letters.

While politicians and judges both do their best to make decisions in the public interest, important decisions need be made by politicians because they are closer to the our democratic sentiments than judges. As Winston Churchill once remarked, democracy is the worst form of government save for all the alternatives.

It is a pity that the Victorian Government is moving Victorian towards alternative B when we are flourishing under Plan A.

The anti-democratic nature of rights documents is evident from calls by civil libertarians that we need a Bill of Rights to protect us from the counter-terrorism laws recently introduced by Federal Parliament in response to the terrorism threat. The fact that opinion polls showed that most of us supported the laws obviously hasn’t prompted them to reconsider their analysis of the laws - just like democratic ideals will continue to be discarded by future decision makers trying to make (non)sense of a Bill of Rights.