Constitutional rights and ‘divisive’ issues

Some bloggers were unimpressed with this justification from Attorney-General Robert McClelland for not proposing a charter of rights:

Let me say at the outset, that a legislative charter of rights is not included in the Framework as the Government believes that the enhancement of human rights should be done in a way that, as far as possible, unites rather than divides our community. [emphasis added]

Guy Beres thought that the ‘absence of any legal bedrock on human rights in Australia is a fairly considerable source of division and uncertainty’. Kim at LR agreed.

The charter itself would have been within the usual range of ‘divisive’ issues, ie those issues on which significant opposing groups both feel strongly. It would have flared for a while, but probably not have entrenched significant on-going conflicts or resentments. The losing side would have had a chance to present its full case, and would have been left with an opportunity to raise the issue again in the future.

But presuming that the charter was just the first step (or the first part of the slide down the slippery slope, depending on your perspective) towards constitutional rights protection then I do think it has significant implications for the way we handle ‘divisive’ issues.

The difficulty with constitutionalising ‘rights’ is that it tends to undermine the mechanisms democracies have for dealing with social conflict. By displacing social conflict resolution from the parliament to the courts, it reduces the scope for people to have their say in the outcome – courts are necessarily constitutionally set up so as to be able to ignore public opinion. While people can still express their views on the subject, a dispute resolution process rigged against them is likely to add a new layer of resentment to whatever arises out of the core controversy.

Constitutional court decisions are also difficult to change, leaving the losing party feeling like it has no or very limited future opportunity to have its views or grievances dealt with. American judicial appointments are so controversial because the individuals appointed will have essentially unreviewable power for potentially decades to come. Constitutions can be changed, but in Australia like the United States this is very difficult.

In the US, for instance, the constitutionalisation of abortion rights has contributed to the issue being far more divisive and distorting (of judicial appointments) than the parliamentary approach here. On one issue I have written about over the years, gay marriage, I’m not sure that the judicial path taken in some US states is the correct one. The dispute is fundamentally about the legitimacy of gay relationships, and for that reason I think the democratic path to legal equality is the preferable one.

Even without a charter or bill of rights, my perception is that the growing emphasis on ‘human rights’ is already tending to have an unfortunate effect on political debate in Australia. A claim of ‘human rights’ is really an attempt to close down the argument; a reason not to take the other side’s views seriously but to dismiss them without further consideration as morally deficient.

One of the strengths of democratic politics is that you need to win people over, and in the process of doing so you have to make an effort to understand other people’s concerns and, if possible, deal with them. The listening and compromises of democratic politics rarely produces first-best policy outcomes from anyone’s perspective, but it gives far more people a stake in the process and the outcome.

13 thoughts on “Constitutional rights and ‘divisive’ issues

  1. One of the strengths of democratic politics is that you need to win people over, and in the process of doing so you have to make an effort to understand other people’s concerns and, if possible, deal with them.

    Agree with this Andrew, but I do wonder whether this also means that winning reform is made very difficult indeed for minorities, particular minorities for which there is some antipathy in the general community. The major political parties – the only ones realistically with the power to do anything too much – are permanently predisposed towards ignoring the concerns of minorities. In this sense I would tend to view a charter of human rights as a mechanism for not only providing fundamental protections to all, but a publicly visible marshaling point for people who want to debate human-rights related topics.


  2. Guy – On the other hand, our political system clearly responds to the interests of minorities, because they make a persuasive case (or have one made on their behalf) and/or because you don’t need to be a majority or anything like it to have electoral power. With general elections typically won or lost on a few % of the total vote political parties chase, or to try to avoid alienating, even small groups of voters.


  3. “and for that reason I think the democratic path to legal equality is the preferable one.”
    Alternatively, one could take the view that the democratic path simply allows the majority to oppress the harmless minority in these circumstances. If, for example, the government decided mixed-race marriages were not going to be okay (or mixed religion, or wearing head-scarfs in public, or whatever controversial groups/topics you want), is that going to be okay? You might argue that the democratic path is better, but if the democratic path takes decades, then those on the losing side would have every right to feel aggrieved at the process — and if enough people are aggrieved at the political system in general, then it seriously undermines it.


  4. Guy and Conrad

    The issue of repression of minorities is real and clear. It is perhaps a flaw of democracy itself that a minority has to suck it up unless and until it can mobilise sensitivities or the majority in such a way as to act on its behalf.

    That said, how much worse to set any undesirable form of insensitivity in stone, in black letter law, so that a minority has to first change public opinion and then change the law (and in the meantime suffer the consequences).

    The lawmakers are selected by the democratic process, and if they are not representative of minorities then the laws they produce may not be either. Also, the laws will be products of their time, exhibit one being the former clauses in our Constitution relating to full blood Aborigines. Only took 70 odd years to clean that one up. Exhibits two and three are the French legislation forbidding the display of religious items in schools, clearly aimed at preventing Islamic schoolgirls from wearing the burqua, and the Swiss legislation preventing the construction of mosques on the basis that Muslims have a shoddy history with women’s rights (no mention of child abuse and Catholics, I note).

    As legal measures, they are inappellable, which is why I agree with Andrew. Better something that is at least capable of change and responsiveness, if you need something at all.


  5. Conrad – On the other hand, I don’t think there is a correlation between formal protection of rights and satisfaction with the political system. I think in the US the Bill of Rights has on balance added to the dysfunctionality of the political system, without delivering US citizens significantly greater personal freedoms than those of citizens in other Western countries.


  6. I think it’s hard really contemplate what the US would be like without their bill of rights, so whether they would be better off with or without it over time and especially into the future I think is almost impossible to say.
    Also, whilst I’ve got some sympathy for 2 tanners position that we don’t want crappy laws stuck in stone forever, I think the first amendment is really beneficial, since it works against authoritarian governments and paranoia (indeed, I can’t think of any time in the history of the US it would have been detrimental, not that I know much about US history — but it would have been fine in Aus also).
    I also wonder if such an amendment also has a causal effect on the way people think — on casual observation, it seems to me that if you always allow freedom of speech, people become far more tolerant of what others say, and issues of conflict get resolved earlier rather than later (and stereotypes broken), which is generally beneficial, versus things getting swept under the carpet, which appears to be one of the effects of political correctness and the repression of free speech. I’d be happy to have that amendment here (I think it protects minority groups, with the small price of having to ignore idiots abusing it now and then), and if the government got out of most social issues (and especially social engineering projects) then issues like who can and can’t marry wouldn’t arise since the government wouldn’t be responsible for it.


  7. Sooo glad this rights policy got scuttled. You only have to see the effects in Canada, UK or even our ACT to see the harmful effects. It just seems a way of busy bosies to tell others what to do. I dont want to raise bolt again (I dont want to upset conrad too much), but I like his points that a human rihgts charter is being pushed by those from a particular political bent. These people can’t seem to get their polcicies up from a democratic perspective, so they wish to do it by stealth using this human rights bill.
    As for the US constitution, i’m not an expert, so might refrain from expressing strong sentiments, but it does appear to be a little loony. I don’t know how the judges could possibly read abortion rights from it. But at least it entrenches the right to a gun. It might sound a little wacky to us, but gun rights make some sense. They keep the government somehwhat scared of the people. And I think thats a good thing.
    On another note, I saw that the Aussie government is banning the foreigners from buying up Australian land. Yippeee! Good to see someone is listening to me!!!


  8. Conrad – I think the Bill of Rights has become part of American culture in a way that European rights law doesn’t seem to have; there it does seem like the top-down imposition (like the European project more generally) on local social and political cultures. The current serious proposals to tell Muslim women how to dress suggest that their political culture has a rather different concept of what should be a matter of free choice than prevails here. The Victorian charter of rights is still just a lawyer’s document; I doubt most Victorians know it even exists let alone regard it as bestowing important rights on them.


  9. Andrew, not sure about your point on electoral power. While it is true that elections are usually decided by certain relatively small slice of the electorate, its probably quite rare that the slice also happens to be what we would normally consider to be a ‘minority group’ with a bone to pick.


  10. Guy – Take the group who have had the most legal discrimination against them in recent times, people in gay relationships. They often live in marginal seats (whether Lib/Lab or Lab/Green). While electoral influence has probably only been a minor factor in legal change for gays, this is a good example of a lot being achieved in recent times despite gays overall being only 2-3% of the population.


  11. Australia, like any country, has its own history, institutions and political culture. So we should not automatically assume that was occurs in other countries with or without human rights in their constitutions would or would not occur here. For example, the US right to abortion found in Roe v Wade emanated from the 14th amendment. We have no constitutional bill of rights, yet women here are generally free to seek abortions. And despite out lack of a bill of rights, there is no ban on wearing headscarves in schools.
    In this context, I would like to better understand what practical existing (as opposed to historical) issues a human rights charter would address in this country. It is highly unlikely the government would suddenly seek to ban mixed-race marriages or mixed religions. It could conceivably seek to ban the wearing of headscarves in schools, true. Or it may potentially seek to ban the wearing of a full-face veil while driving, as a woman was recently fined for doing in France. But is this recent French case so clearly a case of human rights abuse? We ban people from using mobile phones while driving or smoking if there are children in the car, so there may be good utilitarian reasons for banning the wearing of a full-face veil while driving as well. (I’m not saying I personally agree with any of these rules, by the way.) Should these sorts of decisions be left to judges?


  12. This is a good point. One benefit of democracy is that it produces better decisions (at least than some alternatives), another is that it makes people like the decisions more both when they agree and when they disagree. Though I can’t find it at the moment Scott Sumner’s paper The Great Danes shows a correlation between life satisfaction and number of direct democracy referenda in cantons in Switzerland.

    Nonetheless, one of the benefits of a peaceful society where government decisions are perceived to have great legitimacy is that you don’t have to worry too much about wasted effort going into internal conflicts like this. If it were the case that a human rights bill and a strong and unaccountable judiciary were good ideas, even though they disempowered the public, we could get away with implementing them in Australia in a way you just couldn’t in a more divided society.


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