1. Kelly: Reining in the human rights horse (AFR, 8/3/74)
2. McG: Rights in the wrong hands (SMH, 19/1/95)
3. McG: Put in the dock to face the court of world opinion (SMH, 29/5/97)

1.
A Modest Member of Parliament [Bert Kelly], “Reining in the human rights horse,” The Australian Financial Review, March 8, 1974, p. 3.

Mavis is getting all steamed up about my image. She complained:

You are not appearing enough as a statesman, dear.

It’s not enough to continually talk about tariffs and floods and mundane matters like that.

That may satisfy people like Fred or mollify arid economists like Eccles, but you ought sometimes to project yourself as one who thinks of higher things.

Now, I have been reading about the Human Rights Bill which Senator Murphy has introduced. Surely here is a subject for eloquence, a really high-stepping horse to ride.

So I had a look at the Human Rights Bill and it certainly looked hopeful.

It ensures freedom for almost everyone to do almost everything, and it has attached to it the International Covenant on Civil and Political Rights.

So it was clear that I was, for a brief period at least, about to breathe purer air than usual. I knew that this would be a strain for me but I would benefit in the end.

And then I heard that all the best people were doing it — that 108 of the 147 independent countries of the world had a Bill of Rights or its equivalent.

Let’s have one, too, I thought. I’m not sure what it is, but it must be a good thing, and popular too.

It is true that I am not used to riding these high-stepping horses, but I thought I ought to be able to flog this fellow into at least a trot.

But, on reflection, I’m not so sure. I understand that the US has similar legislation and it doesn’t seem to be a particularly happy place in which to live.

And the Russians have too, yet Solzhenitsyn was booted out, and a lot of other queer things happen there.

I understand that the French had something similar, even before the Terror. And the Chinese have also, yet freedom can hardly be said to flourish untrammelled there.

The plain fact is that I don’t feel any less free than the citizens of these countries, although I may not have the protection of their legislation.

The sad truth is that you don’t make people different just by passing laws.

When I was a boy saffron thistles were declared noxious weeds in our district.

I heard my father discussing this with some friends and I went to bed that night expecting that I would find all these thistles dead in the morning. But they weren’t — they looked as healthy as before.

The trouble with this legislation is, once you try to define within legal limits the freedoms that are to be inviolate, you must draw a legal line and some freedoms will later be found outside the line.

Each time that happens the law would have to be altered yet again. The British common law system seems much more flexible and effective.

I tried to get Fred interested in the subject in order to take his mind off the super subsidy, but it only annoyed him.

For a moment he thought he would be free of income and road taxes, or the obligation to fill in the fearsome forms that farmers are heir to.

When I told him that this wasn’t what Senator Murphy had in mind but rather that he was to have freedom to vote, to demonstrate, to associate, to move around, to marry, to think what he liked and so on, he replied sourly that he could do all these things now if only he had the time and would I please go away.

And Eccles was far from enthusiastic. He has a mean, envious streak in him.

One profession which he regards with particular suspicion is the law and he thinks lawyers are the fattest cats in the community.

“Not like economists,” he says. He thinks that this legislation is part of a plot to make lawyers even fatter, that it should be called the “Lawyers Benefit Bill.”

But what made me decide to get off the human rights horse before it lay down with me was a comment made by Professor Lane of Sydney University.

You know the RSL motto is “The Price of Liberty is Eternal Vigilance.”

Professor Lane made the pungent paraphrase that under this legislation “the price of freedom would be eternal litigation.”

If that comment gets around, I’ll be surprised if Senator Murphy can get the human rights horse out of a walk.

***
2.
Padraic P. McGuinness, “Rights in the wrong hands,” The Sydney Morning Herald, January 19, 1995, p. 12.

It is a truism that while it is easy to talk about rights, it is much harder to talk about responsibilities. Rights are attractive — every time there is a discussion about the importance of, say, a bill of rights, various people start to invent different things to which they think they, and the other people they favour, should have rights to. Not surprisingly the Australian Education Union (one of the many aliases under which the teachers’ unions go) has with its usual low intellectual standards decided it might be able to climb onto this gravy train.

There are all kinds of rights which might be claimed. What about a right to beer drinking? There is a permissive right to this, in that it is the inalienable right of adults to indulge in whatever activity gives them pleasure. However, this is a liberty, rather than a positive entitlement. (English is one of the few languages, incidentally, which makes possible a clear distinction between the concepts of liberty and freedom.) Nobody has a positive right to beer drinking, but every adult has a presumed right (liberty) to spend their money on beer if they want to. This liberty is of course hedged around with many restrictions. Civilised people accept that no-one is free to get disgustingly and violently drunk in a public place.

Less civilised people hedge around the right to beer drinking with other restrictions, like stupid licensing laws. New-age moralists want to penalise people who drink beer by depriving them of medical treatment which is financed out of general tax revenue (much of which comes from beer drinkers). A family quite rightly tries to modify the behaviour of a member who drinks to excess. And so on. That is, there is no such thing as a positive right to beer drinking — it is a liberty which everybody enjoys, but which has to be modified in some respects especially when its enjoyment harms others.

Most of the rights listed in traditional bills of rights are in fact liberties, rather than positive rights. That is, they are political liberties. The idea that there are entitlements of a positive kind is a relatively recent invention — it owes a lot to President Roosevelt’s notion of the “four freedoms”, including freedom from hunger. Since then it has been developed into all kinds of “rights” to which human being are supposedly entitled — the right to a job, the right to a minimum standard of living, the right to welfare, the right to describe one’s relationship with others however deviant as a family, the right to compensation in the event of accident, the right to demonstrate on behalf of black lesbian whales … the list is infinite. Whatever anybody wants, there are those who invent a “right” to it. Thus there is the right of homosexuals not to be discriminated against, and the right now commonly claimed to discriminate against non-homosexuals.

And there is now a huge legal industry devoted to the invention and elaboration of rights which, as is the wont of lawyers, pays little attention to either political liberties or the cost of granting these supposed rights. A good example is the supposed right of disabled people to have access to public buildings. In Queensland, this has now been talked up by lawyers into a requirement that special facilities should be provided at the front of buildings for wheelchair access, regardless of cost. Now while I have every sympathy for the wheelchair-bound, there has to be some kind of cost-benefit analysis here.

Not unrelated to this is the whole product liability movement, which in the United States has reached absurd proportions and which in Australia is also a growing milch-cow for the legal profession. The essence of this is that people have the “right” not to be injured by manufactured products, even if the manufacturer has not been guilty of intentional injury or negligence, and have the “right” to be compensated for such injury. A good example is asbestos. This has proved to be a very dangerous substance (even though its dangers have been grossly exaggerated by the building unionists); if a company knowing that it was dangerous continued to produce it without proper safety measures, then indeed it should be penalised. But if, as in Wittenoom, production is continued only because of the demands of the unions involved, to say that sufferers have a “right” to recover against the company is hardly sensible.

However, the lawyers are nothing if not balanced where the right to earn a buck is concerned. Thus we have been warned by an eminent judge that the time is not far off when there will be cases mounted against schools and teachers by those who feel that they have not been properly educated. Thus if you cannot read and write, it must be a teacher’s fault. This might be a matter not just of deliberate negligence but also of incompetence. There are no excuses — when I studied physics in my final year of school, I had a teacher with a peculiar quality of voice that sent me instantly to sleep. To a rational person the fact that I did not get as high a mark as I would have liked is nevertheless my fault: I could always have studied harder at home. But to the new rights movement the teacher would be at fault. The absurdity of a system in which dissatisfied students could sue their teachers is apparent; reform of the education system is not being achieved by such means.

Yet this is also an implication of the notion that education should somehow be a kind of right, into which could be written conditions about the standards of school equipment and even class sizes. Perhaps this is an attempt to pass the buck to the authorities on the part of incompetent and inadequate teachers. Unfortunately the law as an instrument of social reform has a nasty habit of biting the hand that feeds it.

Of course it would be nice if we spent more money on education, and gave children a better education. But this will not necessarily be achieved by implementing the wish list of the teachers’ unions — in fact to do that is more likely to do children irreparable harm. Why should anyone have a positive right to education — any more than beer drinking? We are likely to have a better society when basic education is treated as a fundamental requirement, so long as at some stage it is accepted that not all people have the same capacity to benefit from education. But it is not at all clear that this fundamental entitlement implies universal public education delivered by an incompetent bureaucracy and corps of teachers who have in general the lowest university entrance cut-off score of any occupation.

***
3.
Padraic P. McGuinness, “Put in the dock to face the court of world opinion,” The Sydney Morning Herald, May 29, 1997, p. 17.

While a great deal of fear and anxiety is expressed across the whole of the political spectrum about the threat to Australia’s independence from the globalisation of the world economy, the dominance of international financial markets of domestic economic policy, and the takeover of our economy by the influx of foreign capital, there seems to be much less concern about the now-continual appeals to international opinion as part of the political debate in Australia.

It has now become a commonplace when a group feels that it is not winning the debate in Australia, or when an elected government denies its claims, to appeal to world opinion — and more, to declare that Australia’s reputation in the world will be blackened and defamed unless it gets its way. This occurs in the most trivial matters as well as the greatest — thus an anti-airport group, concerned lest its domestic amenities be lessened by the construction of a new airport at Holsworthy, has threatened to attempt to sabotage Australia’s tourist trade if its own selfish demands are not met.

It happens in much greater things, too. Every time some groups of Aborigines do not get their way, or feel that their demands are not being treated with sufficient deference and respect, they threaten to appeal to world forums and to denounce Australia as the heir of South Africa in matters of race discrimination. To us this is simply absurd, especially if we know anything about the unhappy history of South Africa; few of even the most fanatical tub-thumpers in Australia genuinely believe that there is any official policy of apartheid, or anything approaching it, in our country. Nevertheless, there are those in other countries who, out of malice or ignorance, will pretend to believe such accusations, if only to strengthen the hand of those who make them.

And of course every month or two the threat to sabotage the 2000 Olympic Games in some way is trotted out. Very few Aborigines in fact think along these lines; the great majority are loyal Australians who certainly do not want to see their country denigrated. But as the rhetoric flows, someone will inevitably become sufficiently excited to start uttering threats.

It is not a matter of “world opinion” — which might be called the consensus of the international chattering classes — but of using, or misusing, the array of international treaties, conventions and other instruments to which Australian governments have subscribed in the past. Many countries have, like past Australians governments, subscribed to such treaties in the happy belief that they are like New Year’s resolutions: sincerely taken but of little immediate practical effect. Few countries have found their courts suddenly changing the significance of all these good resolutions by discovering that the external affairs power of the constitution is so much wider than was ever contemplated that it can be used to change both the law and the constitution.

There is an element of dishonesty in the approach to treaties. We know, for example, that there are two good reasons why it is unsafe to sign a framework treaty with the European Union (E.U.) with a “human rights” clause.

One is that the treaty was framed in such a way as to make it easy for the EU to denounce [renounce?] on simple accusations made against Australia (that is, the treaty would be worthless); the other is that such a clause would open the doors of the High Court to any dissident group in Australia which wanted to sabotage our international trade in pursuit of its own demands. The ACTU knows this, which is why it has so strongly supported such a clause. But proponents of the clause pretend that it would have moral force only.

The English constitution, unwritten as it is, has always had as one of its fundamental principles that no parliament may bind its successors. This is one of the sticking points for those who object to ceding sovereignty to the EU. By contrast, our Parliament, under a written constitution, is bound into the future until the people, or the High Court, changes it. However, by entering into a treaty, the Australian Government, even without the consent of Parliament, can bind it and future governments and parliaments. This is what the previous government tried to do when it explicitly appended international human rights and other instruments to our domestic laws.

As a result of the Vienna convention on the law of treaties, we are, moreover, bound not to denounce [renounce?] treaties unilaterally once they are entered into. Thus successive governments, and most of all the last one, constructed a net of unchangeable law which effectively means that a great deal of Australian sovereignty has been ceded to international bodies, not least the United Nations Human Rights Committee. This has been done with little public discussion, except in the esoteric journals of the academic international lawyers, and certainly without the full understanding of parliaments.

There is in all this a “democratic deficit”. On the one hand, future Australian governments and parliaments have been subjected to a body of law to which they have never consented but which they cannot change; on the other, various diplomatic and legal busybodies have run around the world attending conferences and academic discussions which have been designed to create a consistency [constituency?] of like-minded people elsewhere who can by used as instant moralists and agitators against Australian government and policy.

Such people have not been absent from the Melbourne Convention on Reconciliation — itself with no democratic credentials — and they have been given extensive coverage and credence, even against our elected prime minister.