Wednesday, August 20, 2003

Bang on the Drum (71)

Blog commentator and Albrechtsen Bingo addict dj will no doubt be thrilled by Janet's column in today's Oz. It marks a welcome return to form for Australia's foremost Berkean Conservative.

Commenting on ACT Chief Minister Jon Stanhope's plans to introduce a Bill of Rights for the ACT, Janet begins:

KEEPING up with the Joneses in the world community is a familiar strategy when activists push for law reform.

It worked last year. The Howard Government signed on to that legal leviathan, the International Criminal Court, because other nations had done the same. That same mentality is now pressing Australia to jump aboard the bill of rights bandwagon.

Before we do, let us throw down the gauntlet and test the mettle of those seeking a bill of rights. Rather than just catch up with the rest of the so-called sophisticated world with a copy-cat bill of rights, let us propose something even more sophisticated.

Given that rights carry obligations, let us recognise that in law, with not just a bill of rights as the US has, or a Charter of Rights and Freedoms as in Canada. Let us lead the world with a fashion first – a bill of rights and obligations.
[Original emphasis]

Janet goes on to enumerate the results we can expect from a bill of rights which bestows sophistication on a nation by shifting power from the parliament to the courts; once the ACT, "that peculiar enclave encircled by reality" has a bill of rights, it won't be long before Canberra's naturist community sues the ACT government for the right to emancipate themselves on the shores of Lake Burley Griffin. Looking to a number of overseas examples of rights gone wrong, Janet declares:

... rights are like rabbits. They breed quickly. Before you know it you have a constitutional right to procreate – as a Californian prison inmate claimed a few years ago. He wanted a doctor to come to his cell, collect his sperm and impregnate his wife. An American court agreed ...

You have to admit, that's a pretty damning indictment of how an out-of-touch legal system can turn a Bill of Rights into legal farce. It looks like a really great "only in America" story, until you get to the last sentence of the paragraph:

... Fortunately sanity prevailed when an appeals court rejected any such constitutional right to procreate.

Now for some more examples of Bill of Rights driven craziness and stupidity:

But elsewhere courts are hardly prophylactic institutions when it comes to interpreting a bill of rights ...

Yes, it's time for some examples of Humna Rights silliness from coutries outside the US. For a start, there's the US:

... As US award-winning columnist Charles Krauthammer noted, in a few short years, the US Supreme Court has cemented into law abortion on demand, racial preferences and gay rights – the "liberal trifecta", he says, "just about their entire social agenda, save shutting down the Fox News Channel".

But Janet quickly recovers from this false start, and in quick succession, gives us examples from the UK, Canada and New Zealand. We're now ready to deal with the subject of judicial activism:

Of course, activists pushing a bill of rights eagerly promote judicial activism because it is uncanny how judges, with a penchant for power and a disdain for the common man, tend to share the same Left-leaning world view.

All this we know. The really exciting question ... is how the
[ACT] will fare on the other side of the ledger – on the obligations side. That depends on how we frame the obligations. They should be written in the same ethereal language of rights. And if rights breed freely, we can only hope that obligations will too.

There's the rub: how will the lefty agitators for a Bill of Rights, or, more generally, better human rights protection in Australia, cope with an activist judiciary with a brief to impose obligations (mutual and otherwise) on the citizenry? Demonstrating how difficult it is to keep your tongue in your cheek while grinding your teeth, Janet makes a valiant attempt at satire:

What about an obligation to support yourself where possible? After all, someone has to pay tax to pay for the right to free education and a high quality health system. What about an obligation to take responsibility and pay for your own mistakes so that there is enough money for those in genuine need of compensation? And what about an obligation to care for your children and raise them as responsible law-abiding citizens? An obligation to save for your own retirement might also be in order.

After this short sally, Janet clearly recognises that irony is not her forte, and gives us an earnest finish, calling for an obligation driven revival of conservative values (and gives us a glimpse of her underlying authoritarianism in the process):

Rather than encouraging a generation of professional takers with an old-fashioned bill of rights, let us encourage a generation of professional givers. Let us change the one-way rights-driven traffic and offer an alternative agenda of obligations.

Let's be truly avant-garde and give conservatives on the bench something to work with so they too can engineer a better world. This is not a frivolous exercise. It might flush out the not-so-true-believers. Will supporters of a bill of rights be quite so supportive of conservative activist judges who play policymaker with a long shopping list of fine-sounding obligations?

This novel experiment in our nation's capital might prompt the activists to recall that, as has often been said, the unrestrained power to do good is inevitably an unrestrained power to do bad.

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