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]
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.