Friday, June 10, 2011

Charter's quest for utopia imperils existing freedoms

Human Rights are supposed to be one of those motherhood and apple pie ideas that enjoy universal support without qualm nor question.  At least, that's the theory.

But in the reality of 21st century politics, the term has been hijacked by the left and invested with a distinctly partisan tinge.  In contemporary policy debate, the rhetoric of human rights is routinely deployed as a polemical weapon.  And all too often, the spectre of a bigotry allegation is enough to intimidate into silence those whose views deviate from politically correct orthodoxy.

Now that the Victorian Charter of Human Rights and Responsibilities is up for its quadrennial review, we've been treated to a surfeit of such moral posturing.  Former British attorney-general Lord Goldsmith blew into town on a brief visit to give us a tuppence worth of hectoring and lecturing.

His Lordship primly instructed us that we must renew the charter as ''the hallmark of a civilised, democratic society''.  Apparently, anyone who harbours misgivings about the charter is both uncivilised and anti-democratic.

Liberty Victoria president Spencer Zifcak made claims of similar pomposity, arguing that the charter established a ''floor beneath which a life of dignity can no longer be led''.  Presumably, before the enactment of the charter in 2006, we were all eking out an infelicitous existence of vulgar barbarism.

But I refuse to be cowed by a left-leaning human rights industry that brazenly attempts to arrogate the moral high ground in the debate over the charter.  I will step up to express my reasoned concerns about the pernicious impact of the charter on Victoria's democracy and political liberties.

I want the laws that govern my life to be written by people who are answerable to me at the ballot box.  Like Thomas Jefferson, I believe that governments are instituted among men, deriving their just powers from the consent of the governed.

But the charter is all about transferring power from our elected parliamentary representatives to a coterie of unelected judges beholden only to themselves.  It injects the judiciary with a dose of political steroids, tempting it to become an active player in the dance of legislation.

The charter entitles the Supreme Court to declare a law ''incompatible with human rights''.  And while Parliament may override such a declaration of incompatibility, the intervention by unelected judges into the business of our elected legislature entirely distorts the political dynamic.  It offends against the separation of powers principle that is a foundation stone of modern democracy.

The empowerment of our own judges to meddle in affairs beyond their proper brief is bad enough.  But the charter also authorises the Victorian courts to predicate their incompatibility rulings on the opinions of non-Australian judges.  Section 32 (2) declares the judgments of ''foreign courts and tribunals relevant to a human right may be considered in interpreting a statutory provision''.

Think about that for a moment.

We live under a system of Victorian laws enacted by a Victorian Parliament chosen by the Victorian people to reflect Victorian moral sensibilities and standards.  But the charter invites activist judges to cherry pick foreign judicial rulings in order to foist alien legal fads and fashions upon us.

While our judiciary is not directly answerable to the people, at least the Victorian governments that appoint judges must front up to the ballot box every four years.  But when it comes to the foreign judges whose rulings are authorised for use in Victoria by the charter, we are deprived even of that indirect influence.

Thus the charter is doubly anti-democratic.  It rewards the pretentions to power of an unelected local judicial elite.  It also encourages a reliance on rulings of foreign courts whose philsophy and values are alien to our system of common law.

The essence of representative democracy was encapsulated in a single sentence by Abraham Lincoln when he spoke of ''government of the people, by the people and for the people''.  But democracy is imperiled if an overseas court ruling can be used to negate the will of the Victorian people.

The charter is replete with many other serious shortcomings, most notably its failure to protect one of the most essential rights of all -- the right to own and acquire private property.  And a convicted sex offender exploited the charter to emasculate the Extended Supervision Orders that are designed to keep our children safe from sexual predators.

But the most profound flaws of the charter stem from something much more central to its philosophical core.  It was H.L. Mencken who observed:  ''The urge to save humanity is almost always a false-face for the urge to rule it.''

In a utopian quest for the perfect society, the charter imperils our existing democratic liberties and freedoms.

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