Tuesday, 21 December 2010

Charter of Rights of Responsibilities For Tasmania

Why Tasmania Does Not Need A Charter of Rights and Responsibilities

“We hold these truths to be self-evident 
that all men and women are created 
equal, that they are endowed by their 
Creator with certain inalienable rights, 
that among these are Life, Liberty, and 
the Pursuit of Happiness”
-American Declaration of Independence 

“A right is so because it is natural. It is not the arbitrary preference of the majority. It is a right because it is a right. It should never be confused with a privilege. Rights carry minimal responsibilities whereas privileges demand responsible stewardship.”

The Tasmanian Attorney General is to be congratulated for wanting to make our State a more respectful, inclusive, and fair State. But is A Charter of Human Rights & Responsibilities the way to ensure these positive outcomes?
The Case For
The case for a Charter of Rights seems to be-
  1. Specific Human Rights are currently not enshrined in Law within Tasmania
  2. A Charter of Rights is needed to provide the legislative framework for Parliamentary, Civic and Judicial decision making
  3. A Charter of Rights is necessary to serve as a Statement of Values for Tasmania
  4. It would prevent discrimination
  5. It would ensure fairness against inequality.
To support this case the Department of Justice’s Discussion Paper cited several international examples where a Charter, or Bill, of Human Rights was already enacted- namely South Africa, the United Kingdom and the United States of America. The Discussion Paper also cited United Nations’ Treaty and Declaration statements regarding Human Rights. It concludes with anecdotes of how the respective Charters of Rights have played out. 
The Model proposed lists 28 rights to be enshrined in the Tasmanian Charter based largely on the Victorian and ACT Charters (with two exceptions included in the Tasmanian Charter, but not both included each of the Victorian and the ACT Charters). 
The Discussion Paper argues a Charter of Rights would reduce litigation as Courts will no longer have to arbitrarily decide individual cases, as the proposed Charter will circumvent the need for litigation. 

An Examination of The Case For
There is no compelling argument presented for a Charter of Rights. There is some anecdotal references to people who were “indignant” to learn that they had no enshrined rights-
Again and agin the Institute’s consultation process discovered Tasmanians who strongly believed that our rights are protected and would quote  those rights, only to become indignant when it was explained that in fact the rights they understood were protected were diminished by the lack of law to provide that protection or the complexity of the process they would need to go through to assert those rights.
Discussion Paper, page 14 “Personal communication to project manager by Ms Terese Henning, TLRI Board
But this is not quite accurate. We do have rights now - without a Charter of Rights. Added to this, those rights, which we as a society have felt necessary to enshrine in legislation, have been. 
The Discussion Paper accurately refers to the history of Human Rights beginning around the 18th Century in Europe. Integral to its formulation was the concept of “Natural Law” which undergirded the American Declaration of Independence (“we hold these things to be and the Post-World War II Nuremberg Trials where Nazi SS Officers were charged with, “crimes against humanity” (which led to the establishment of the Universal Declaration of Human Rights). 
Secondly, of the 28 Rights listed seem to ‘invent’ certain rights. For example, Right #19, The rIght to the freedom of movement. There are some places where only certain people have a right to go and this is perfectly acceptable. This illustrates a point that will be made repeatedly: some things assumed to be “rights” are actually “privileges”. Do we have a right to travel within or leave Tasmania now? Absolutely! But it is within reason - after all, commercial airlines and sea-farers have a right to charge a fee for their services.
Thirdly, our society is ordered by (i) Legislation created by Parliaments, (ii) Courts which interpret that Legislation, and (iii) and Statutory Authorities which administer Regulations. Each of these societal orderings are framed with necessary human rights protected. To argue that a Charter of Rights will decrease litigation in society is not supported by the evidence in those countries which have introduced a Charter (or Bill) of Rights. Indeed, it might well be argued that the United States of America is actually the most litigious country in the world and deals with arrogate litigation continually. Introducing a Charter of Rights in Tasmania could actually take us down the same litigious pathway as the United States of America! 
In summary,
  • Necessary human rights are already enshrined in existing Law. (Where they are not, Laws reflecting those legitimate rights should be enacted.)
  • Natural Law and Common Law have undergirded existing legislation and have served well to currently protect human rights. A Charter of Human Rights would only add a further layer of unnecessary legal Bureaucracy to our governmental processes at each level of government.
  • A Charter of Rights may well serve as a Statement of Values, but it is not necessary to have A Charter of Rights to do so. A Statement of Values is better presented as a stand alone document.
  • A Charter of Rights will not prevent discrimination especially since some discrimination is reasonably necessary and those forms of unfair discrimination are already legislated for. The Discussion Paper never describes discrimination as either “fair” or “unfair”. It seems to commit the error of assuming that all discrimination is unfair. But we should discriminate in matters of societal good, for example, when it comes to - age (such as, drivers’ licences, voting, medical treatment instruction) qualifications (such as, medical doctors should be qualified, school teachers should be qualified, judges and lawyers should be qualified), citizenship (such as, those who hold Public Office should be citizens).
  • There is already mechanisms in place for countering unfairness without the need for a Charter of Rights.
The Case Against
There are two very troubling aspects to this proposal for a Charter of Rights and Responsibilities. Firstly, it hands governmental power away from elected officials to unelected appointed bureaucrats. Ironically, how people are governed is arguably a human right, and democracy seems to be the best form of how people prefer to be governed. Establishing a Charter of Rights gives pseudo-legislative power to unelected judges and commissioners.
Secondly, rather than articulating Natural Law, it seems likely based on both the ACT and the Victorian experiences, that certain privileges will be interpreted as rights
Thirdly, certain existing rights will almost certainly be removed under the guise of more liberal rights. For example, the right to life (#13) is interpreted in the Criminal Code to encompass the pre-born in the case of a pregnant mother being murdered resulting in the murderer being charged with two murders. Yet it is strongly suspected (since the ACT and Victorian Charters of RIghts are used for the Tasmanian Model) that the rights of the pre-born to life will be completely removed in favour of their rights commencing once they are in a post-birth stage and location. Again, there is great irony in this as Human Rights should not be attributed to a person based on their size or location, yet this is probably what the Tasmanian Charter would unreasonably enshrine.
Fourthly, the case for a Charter has not been made. The reasons given in the Discussion Paper are not persuasive or convincing. We already have adequate legislative scope with our Parliament to ensure that all fair and reasonable human rights are upheld.
Based on the experiences of the U.K., Canada, and the U.S.A., a Charter of Rights does not reduce litigation. In fact, it then opens the way for Judges to reinterpret the Charter of Rights which creates a new radical understanding of a right that was never intended and actually creates unfairness. 
Establishing a Tasmanian Charter of Rights and Responsibilities raises the question about non-Tasmanians rights while in Tasmania, or Tasmanians rights while outside of Tasmania. These two potentially dire problems are entirely avoided by relying upon legislation rather than a Charter of Rights.
Of particular concern is how this proposed Charter will interpret fair and reasonable human rights in an unfair and unreasonable manner. Right #20 pertains to the expression of religious beliefs. Yet the equivalent right in Canada, but also in the U.K., actually diminishes the right of certain religions to publicly express their convictions. This is very concerning.

It is recommended because of these avoidable difficulties that our State Government should not proceed with a Charter of Rights. Where fair and reasonable rights are not provided for, they can be through legislation. This would maintain that our State is governed democratically rather than tribunally.
Therefore, on behalf of my fellow constituents I ask that we do not proceed wit a Charter of Rights.

Dr. Andrew Corbett

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