Endeavour Forum - Newsletter, No.129, February 2008
The Wrongs of the WA Human Rights Act
Dr Augusto Zimmermann teaches Constitutional Law and Australian Legal System at Murdoch University School of Law, W.A.
The Government of Western Australia wishes to enact a Human Rights Act that is based on a particular model similar to those existing in the United Kingdom , New Zealand , the Australian Capital Territory and Victoria . In doing so the WA Government “believes that introducing a WA Human Rights Act would help to establish a human rights culture in this State because it would create a political and administrative culture in which the need to respect human rights is understood and acted upon”.
But in contrast to what this government suggests, the protection of basic human rights does not require any human-rights declaration. Actually, even Nazi Germany and the Soviet Union possessed bills of rights, although, as Charles Francis points out, “these bills of rights proved of little avail, because there was no separation of powers”. Indeed, as Sir Harry Gibbs once commented: “The most effective way to curb political power is to divide it. A Federal Constitution, which brings about a division of power in actual practice, is a more secure protection for basic political freedoms than a bill of rights.”
One of the main problems with human rights documents is that such documents are vague creatures that leave plenty of scope for wonky judicial interpretation. According to law professor Gabriël A. Moens, “the possibility of attributing different meanings to the provisions of a bill of rights creates the potential for judges to read their own biases and philosophies into such a document, especially if the relevant precedents are themselves mutually inconsistent. Indeed, in most rights issues, the relevant decisions overseas are contradictory. For example, rulings on affirmative action, pornography, ‘hate speech’, homosexual sodomy, abortion, and withdrawal of life support treatment vary remarkably. These rulings indicate that judges, when interpreting a paramount bill of rights, are able to select quite arbitrarily their preferred authorities… Since a bill of rights will often consist of ambiguous provisions, judges can deliberately and cynically attribute meanings to it which are different from the intentions of those who approved the bill – in Australia ’s case the electorate”.
When the courts make bad decisions their rulings are extremely hard to be corrected due to the entrenchment of precedents. However, as law professor James Allan notes, “bills of rights are usually accompanied by interpretative techniques which do not constrain judges to deciding in accordance with the original intent of the enactors nor to the original understanding at the time of passage. Instead, such instruments are often interpreted as ‘living trees’, where judges pay heed to what they think are ‘contemporary values’… The result is an interpretative regime that places few, if any, constraints on the judiciary”.
As for its specific clauses, Article 20 of the WA Human Rights Act bill has been specifically designed to concede ‘group rights’ for ethnic, religious, and gender groups, which are supposedly discriminated against. Unfortunately, there are serious problems with such ‘rights’ as human rights are not a single indivisible entity. They can and do conflict. In fact, too much emphasis on group rights may eventually result in reduction of individual rights of non-members of those privileged groups.
By granting special privileges to ethnic, religious and gender groups, ‘group rights’ may lead to the marginalisation and even the persecution of less-favoured groups or individuals. The situation is disturbingly similar to that which occurred in Nazi Germany, where the group was everything and the individual nothing. According to sociology professor Alvin J. Schmidt, “political, economic, and religious freedom can only exist where there is liberty and freedom of the individual. Group rights that determine a person’s rights on the basis of belonging to a given ethnic or racial group, as presently advocated by multiculturalists and by affirmative action laws, nullify the rights of the individual. Group rights greatly reduce the freedom of the individual in that his rights stem only from the group; if he does not belong to the group, his rights are greatly curtailed… When group rights get the upper hand, gone are the ‘inalienable rights’ given to the individual by his Creator so admirably expressed in the American Declaration of Independence”.
Article 7 of the draft Bill prepared by the Government of Western Australia is also particularly disturbing. The clause in question says that every person acquires the right to life only “after he or she is born”. In other words, the right to life is not applied to human beings before their birth. Under the terms of this Article, therefore, judges could easily find ‘legal’ grounds to invalidate any statutory prohibitions of abortion, thus leading to the legalisation of barbaric practices such as “partial abortion”, where a baby as much as nine months of gestation is killed by sucking out his or her brains soon before birth is completed. Such an attack on the right of defenceless individuals contravenes, among other international laws, the 1948 Declaration of Human Rights, which explicitly declares that pre-born children have basic rights to be protected by the rule of law.
There is no good reason why Western Australians need a Human Rights Act and many reasons to believe its enactment will tragically and ironically serve to reduce some of our most fundamental rights. The introduction of this Act may for instance provoke the interference of judges in crucial political issues of society, including abortion, euthanasia, parent-child relations, immigration, and religious freedom. Moreover, the modern emphasis of these recent bills of rights on the idea of so-called ‘group rights’ represents a clear discrimination against people who are members of the non-favoured groups. To conclude, once enacted, such Act will inevitably exacerbate a self-indulging mentality of rights without responsibilities, and limit our democratic rights and freedoms to the expression of opinions which are acceptable only by the cultural elite.