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Your right not to have a Bill of Rights

By Mirko Bagaric - posted Friday, 23 December 2005


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.

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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.

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Article edited by Natalie Rose.
If you'd like to be a volunteer editor too, click here.

A shorter version of this article was published in the Herald Sun on November 8, 2005.



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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is dean of law at Swinburne University and author of Australian Human Rights Law.

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