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Progressive unease with Bills of Rights

By Joo-Cheong Tham - posted Monday, 30 June 2008


With counter-terrorism laws, for example, the process of justification becomes narrowed down to whether the laws meet the tests set by the courts. Arguments that go to the merits of these laws that cannot adopt the form of legal reasoning become illegitimate in this process. As a result, crucial issues will be missed and valuable perspectives lost.

Also, as the intensity of public involvement and scrutiny diminishes so will the level of rights protection. Because human rights literacy will be seen as the preserve of lawyers, the burden of ensuring compliance with human rights principles will fall upon a narrow stratum of society. With popular participation in human rights debates, on the other hand, these principles will not only be owned by the public but also will be enforced by a more numerous body of citizens.

Worse, it is marginalised groups that will likely bear the brunt of the legalisation of human rights. Those unable to afford legal representation will be deemed human rights illiterate and consigned to the periphery of human rights debates. Those able to afford lawyers will find it hard to match the resources available to their adversaries: there is hardly “equality of arms” when a Muslim community organisation assisted by a community legal centre comes up against a security agency and its battery of lawyers.

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All this explains why the charge of a Charter of Rights like the Human Rights Act being undemocratic is not conclusively answered by pointing out that it is not an “American-style” Bill of Rights that allows courts to strike down legislation. The health of a democracy turns on the distribution of political power. This is shaped by institutions and political discourses. Even without formal exclusions, citizens can be effectively disenfranchised by cultural and social barriers.

To conclude, we should then be sceptical and wary of the claims made by advocates of Bills of Rights. If their campaigns succeed, we will most likely witness the increased legalisation of human rights where public reasoning on these questions becomes straightjacketed into legal categories; rigid court processes gain ascendancy over more open and fluid political processes; and the disadvantaged are still left by the wayside. And, worse of all, the wisdom of an elite trumps the wisdom of the multitude.

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First published in Right Now June 2007.



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About the Author

Joo-Cheong Tham is a senior law lecturer at Melbourne University. With Sally Young, senior lecturer in media and communications at the University of Melbourne, he is the co-author of a report on Australian political finance for the Democratic Audit of Australia. His forthcoming book on political funding in Australia will be published by UNSW Press.

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