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Your right not to have a Bill of Rights

By Mirko Bagaric - posted Friday, 23 December 2005

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”.

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Article edited by Natalie Rose.
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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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