Has Joe Hockey Missed the Point on Human Rights?
In a recent speech to the Grattan Institute in Melbourne, Federal Opposition Treasury spokesman Joe Hockey argues why he's a true believer in individual rights but wont support a Bill of Human Rights in Australia (extract from the Australian here). What struck me most upon reading this was the inherent contradiction in his position, a contradiction echoed by many who call themselves Libertarians.
On the one hand, Hockey claims to be inspired by the work of Mill, most notably his argument that collective power should only be used against the individual to prevent harm to others. Interestingly, he cautions against the growth in state power and argues that the subversion of individual rights that occurred under the Howard government of which he was a minister should be rescinded as quickly as possible.
Yet on the other hand, Hockey rallies against a Bill of Human Rights for Australia, arguing that it will imbue the Judiciary with too much power and undermine the independence of the courts. Judges, he argues, will be making political, not legal decisions and this is undemocratic.
This position is contradictory on a number of counts however. The Judiciary exists in part to provide a check against the power of the Legislature. They are the safety value that helps ensure the Libertarian ideals of Mill are not consumed by an overreaching State. They have always interpreted laws and made decisions on contestable issues that some in the legislature disagree with. Far from being undemocratic, a Judiciary that is able to declare laws passed by Parliament unconstitutional lies at the very heart of our democracy.
Contrary to what some may think, the Judiciary do not make laws - that power is limited to Parliament. If Hockey is concerned about Judges making contestable decisions about conflicting human rights, then the issue lies in the contents of a Bill of Rights, not in the existence of a Bill itself. As a Member of Parliament, this problem is wholly within Hockey's power to solve. Individual rights can only be protected by the law. They must be made explicit if their protection is to be enforced.
A Bill of Human Rights, one that explicitly documents our fundamental rights and freedoms, only serves to enhance the Libertarian ideals that Hockey espouses. The individual freedoms and rights that he holds so dear will only be strengthened by a formal Bill of Human Rights explicitly stating what they are and a strong Judiciary that can enforce them.
