Category: Rights and freedoms

Should there be a charter of rights referendum?

~ Andrew Norton ~ 12 Comments

In the SMH, law academic George Williams rejects the idea that there should be a referendum on a charter of rights. He says that

Referendums are held to change the constitution, and have never been to approve an ordinary act of Parliament.

I’m not convinced by this point. The Australian constitutional system is much more than just the formal document called the Constitution. It includes all the laws, conventions and judicial decisions that establish and set out the relationships between the key institutions of government.

In this broader sense of a constitutional system, a charter of rights is an important change in the relationship between the executive and the judiciary, and represents a major shift in how the rest of us consider issues covered by the charter. The substantive rights and wrongs of various issues will become secondary to the legal arguments for and against, which are often much harder for ordinary citizens to understand. The judicial decisions made are likely to lead to conclusions which majorities do not support.

In this context, a referendum is not a silly idea. It’s not like having a vote on an ETS, as Williams suggests, or any of the other issues parliament considers each year. It’s about the rules of the political game, about who gets to decide what. It is a constitutional question, even if not an amendment to the Constitution.

Will a human rights charter be popular?

~ Andrew Norton ~ 13 Comments

The public opinion research accompanying the report of the National Human Rights Consultation suggests that those proposing a charter of rights have a tough task ahead.

These days, only bastards and people who know a little political philosophy are likely to question the whole idea of ‘human rights’ (‘nonsense upon stilts’, as the utilitarian philosopher Jeremy Bentham memorably called them). So on questions about parliament paying attention to human rights or increased education on human rights only one or two percent of respondents express opposition.

But only 7% of respondents disagreed with the proposition that human rights are adequately protected (with a large 29% not expressing a view).

Worse for the main advocates of putting general human rights into legislation or the Constitution, the public isn’t in general very sympathetic on some of the issues that are driving the human rights push in the first place. Continue reading “Will a human rights charter be popular?” →

Two very different ways of arguing for gay marriage

~ Andrew Norton ~ 9 Comments

The Australian and The Age both ran opinion pieces yesterday favouring gay marriage, but the two articles were contrasts in tone and argument.

In The Age, Tim Wright preached to the converted. None of the concerns people might have about gay marriage were addressed. Rather, gays should be allowed to marry because it is a ‘basic human right’. Opposition to it comes from personal flaws: it is senseless, inhumane, mean-spirited, the product of fear, a cave-in to conservative lobbies.

In The Australian, Tim Wilson took a more conciliatory path. Picking up on Tony Abbott’s covenant marriage argument, he argued for pluralism in marriage contracts – letting gays marry and also letting religious people have stricter forms of marriage.

The Wilson approach seems much the better one. Opposition to gay marriage cannot be put down to the left’s standard cast of villains. While I personally think the case for gay marriage is strong, even from a secular conservative perspective, the arguments are counter-intuitive. People need to to be taken through them, not insulted.

Tim Wilson’s argument also highlights that gays and conservative Christians have more in common politically than either probably realise. They are both cultural minorities with the same threats from an homogenising state.

Wright’s article is an example of how an emphasis on rights damages democratic discourse. It encourages people just to assert entitlements, rather than to engage with other people’s views and perhaps reach a compromise on some evolutionary position. Winner-take all politics brings unnecessary rancour and division to civic life.

Are human rights based on love?

~ Andrew Norton ~ 20 Comments

According to The Australian, the new girlfriend of David Hicks, Aloysia Brooks, ‘writes poetry on human rights issues’. Thankfully the paper spared us any quotations from it. But we were not so lucky in escaping ex-Justice Michael Kirby’s imaginative musings on ‘human rights’:

In an article published in The Age last week he told us that:

The essential underpinning of fundamental human rights is love. Love for one another. Empathy for fellow human beings. Feeling pain for the refugee; for the victim of war; for the prisoner deprived of the vote; for the child dying of cholera in Zimbabwe. We can imagine what it must be like to be a victim because, as human beings, we too feel, and yearn for, life, freedom and justice.

That’s quite a segue from ‘love’ to the pity we feel for a kid we’ve never met and never will meet dying of cholera. Putting ‘love’ as the underpinning of human rights seems to me to have things the wrong way around. It is because we don’t love each other, because positive emotions of any kind are in finite supply, that we need social norms and legal and political institutions that seek to protect us from others and to manage conflict in a peaceful way.

Judith Shklar, a fine Harvard political theorist and escapee from the Nazis as a girl, had it right in her famous essay on the ‘liberalism of fear’: that liberalism – which provides much of the ideological basis of ‘human rights’ – begins with the evil of cruelty, and the desire we have to live free of fear.

Whether legally-entrenched ‘human rights’ are the best way to put limits on cruelty is a debate that we will again be having over the next six months. But it we had unlimited love no such legal rights, and no such debate, would be necessary.

Tolerance vs rights

~ Andrew Norton ~ 12 Comments

In my yet-to-be published debate with Alan Soble about The Peel’s pro-gay door policy for The Philosophers’ Magazine, I argue for The Peel being allowed to decide who it allows in, and he argues for a door policy that does not discriminate on sex or sexual preference.

I think there is a confusion in Soble’s position. On the one hand, he thinks that people should not be disadvantaged because they are gay or straight, or male or female. He supports anti-discrimination law to neutralise so far as possible any negative repercussions of these characteristics (though I am unclear how being straight can be a significant disadvantage, unless you count kids). On the other hand, using anti-discrimination law to prevent gay-only bars entrenches disadvantages of being gay, such as the difficulties involved in identifying and meeting other gay people. You can be gay, but you can’t have institutions that support that characteristic.

A similar confusion is found in VicHealth’s More than tolerance report. It chastises respondents to its survey who would be concerned about a close relative marrying someone from a Christian, Jewish or Muslim background – especially Muslim:
Continue reading “Tolerance vs rights” →