Rights aren’t always right

What do you have a right to? Free speech? A vote? A fair trial? Well, in Australia, none of these. If you thought you did, you may have been watching a little too much Law and Order. Because, like Britain, France, Canada, and just about every other country in developed world, America has charter of rights. But Australia doesn’t. In Australia, you don’t have rights.

Which is why the Federal Government is considering introducing a charter of rights.  And why not? It sounds like a great idea. Why wouldn’t you want freedom and a fair trial (not to mention a gun in your handbag)? But actually, I think an Australian charter of rights is a really bad idea. Here’s why.

In Australia, laws are made by parliament, which is made up of people we elect. Every three years we get to decide if we like the laws they made, and get rid of them if we don’t. So the parliament makes good laws.

The laws are then applied by the courts. If you break the law, a court decides which law you broke, and how badly, and what should be done about it. So courts get to interpret laws, but they never get to change them.

The only exception is the High Court. The High Court protects the constitution (the one law, the law to rule them all), so if any law made by parliament contradicts the constitution, the High Court can get rid of it (i.e. decides that the law is illegal).

A charter of rights changes all this. An Australian charter of rights would work a bit like the constitution – it would be above all laws, another law to rule them all. If we had a charter of rights, it would be the High Court’s job to decide not only whether a law is constitutional, but also whether it contravenes our rights.

This sounds ok, until you think about how it would work in practice. A charter of rights would mean that the High Court could take any law parliament made and decide that it was against our rights. Say parliament made a law that religious schools were allowed to employ only members of their religion. The High Court could then say, no, Australians have a right to equal employment opportunities. The law is against that right, so it has to go.

That’s not a problem in itself – maybe Australians should have equal employment opportunities. The problem is that a charter of rights gives the High Court, a group of seven judges, the power to decide what becomes law in Australia and what doesn’t. High Court justices are not elected, and once they’re on the bench, they’re there for life. I’m not saying that the justices would necessarily abuse their power. But in a democracy like Australia, it should be up to our elected representatives to make the laws, not the judges.

This is why High Court appointments in Australia aren’t really a big deal. When the government appoints a new justice, it may get twenty seconds on the TV news, or an opinion piece in the paper, but not much more. In the US, the appointment of a Supreme Court justice is talked about for months. Newspapers, blogs, talk shows and commentators discuss in the most minute detail every possible idea in the head of every possible candidate.

Americans do this because they know that a new Supreme Court justice is a new law-maker, with more power than most elected officials in Washington. The Supreme Court can knock down any law the American government makes, and they do it all the time. And they can do it because of the Bill of Rights.

We don’t need this in Australia. We are protected without a charter or rights. We enjoy as much freedom as anyone else on earth. We elect the people that make the laws, and then get rid of them if we don’t like it. That’s the way it should be.