No charter, but too many ‘rights’

The government has decided not to introduce a charter of rights. Instead, they will introduce greater human rights scrutiny into the legislative process and increase human rights education campaigns.

While on balance I think that no charter is the right decision, the process of drafting and debating it would have had one distinct advantage over the chosen policy path. This would have been to focus attention on which interests and freedoms really deserved to achieve quasi-constitutional status as ‘human rights’, and which were things that should be the stuff of ordinary political debate.

Instead, the government has decided that ‘human rights’ are all the contents of the seven international rights treaties that have been signed on our behalf by various executives (this is not a democratic process; treaties do not require ratification by parliament). New legislation and delegated legislation will need to have a statement that ‘assesses its compatibility’ with these treaties.

The International Covenant on Economic, Social and Cultural Rights in particular has provisions that are, as Jeremy Bentham famously described rights, ‘nonsense upon stilts’. It is a social democratic wish-list. Take for example this one on higher education:

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

Or this one on maternity leave:

2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.

Both these issues involve complex trade-offs, which legislators should make in the context of current social science evidence and competing priorities. They are not sensible things to include in an international treaty, and they are not ‘human rights’. Yet presumably under the government’s new policy legislative provisions authorising fees will score an adverse compatibility with human rights report. These ‘rights’ could also be included in the national curriculum (yet another reason it is a bad idea).

I think the Opposition should reject even this compromise unless the government draws up a shorter, more defensible, list of ‘rights’.

5 Responses to “No charter, but too many ‘rights’

  • 1
    Australian Government refuses to implement a Human Rights Act « Woolly Days
    April 21st, 2010 21:09

    […] the blogosphere, reaction to the announcement was mostly scathing. Classical Liberal Andrew Norton agreed with the decision not to include a charter but said it would have focussed attention on […]

  • 2
    April 22nd, 2010 19:21


    I don’t know if you have read it, but if you haven’t I highly recommend Jeremy Waldron’s collection papers entitled “Liberal Rights”. As you probably know, Waldron is no friend of constitutional entrenchment of rights (as far as I know he opposes it in all contexts). But he offers an interesting defence of describing economic and social rights as human rights. He also makes some strong rebuttals of Bentham’s out-dated arguments (e.g. about vagueness) in his afterword to the “Nonsense on Stilts” collection.

    I agree with you about the language of the articles in the ICECSR, but I think we can still defend the use of rights-talk in economic and social contexts. I think all rights involve trade-offs: political rights as well as economic and social rights. But maybe this just means I am a social liberal and not a classical liberal.

    Interesting post. Thanks.


  • 3
    Andrew Norton
    April 22nd, 2010 20:18

    Robert – I am so old that I read most of the chapters in Waldron’s book as their original journal articles:) But it was all a very long time ago so I should look at some of them again. I have a copy of the book.

    But reading the government’s HR document yesterday I was again struck by how the concept of rights added nothing to the more specific and widely-supported ideas that already govern the circumstances described, eg:

    “The practical implementation of human rights occurs in our everyday lives. Children learn about respect for each other in our schools. … We all have an obligation to ensure that our senior citizens and people with disabilities are treated with dignity and respect.”

    People knew about respect long before anyone started thinking about rights.

  • 4
    Andrew Carr
    April 23rd, 2010 07:58

    Hi Andrew

    I’m wondering why as a classical liberal you don’t support a bill of rights ? Is it the likely content as with the above education/maternity leave examples (I agree with you on both) or the concept entirely?

    One unfortunate thing about this debate is plenty on the right have rejected the idea because of content rather than concept, but without proposing an alternative path. That’s a lot of work, but would let the country debate the details rather than misleading discussions about judicial tyranny which have dominated.

  • 5
    Andrew Norton » Blog Archive » Classical liberalism and bills of rights
    April 26th, 2010 19:00

    […] Carr asks why, as a classical liberal, I do not support a bill of rights. My political identity survey last year found that among classical liberals only about a third […]