Two weeks ago, federal Labor’s Josh Burns defied anti-Israel protesters to deliver this year’s Alan Missen oration at Melbourne University’s law school. It was an occasion that provided important lessons about fundamental rights. And the most eloquent of those messages was not delivered by Burns, but by the university. By refusing to succumb to demands to cancel this Jewish politician, Melbourne University’s law school distinguished itself at a time when lesser institutions have been embracing appeasement.
This should not be forgotten.
Burns also deserves praise - not for the content of his address, which was flawed - but for staring down a mob that tried to prevent an elected member of the House of Representatives from arguing his case in public.
He used his address to argue in favour of a national charter of rights - or human rights act - something that was recommended in May by a parliamentary inquiry under his leadership.
Here’s where his address hit trouble.
He noted that religious organisations had raised concerns during the inquiry about the way religious freedom would be treated under a charter. He said religious organisations “wanted the United Nations wording of protections of the rights of people to hold and practice religion to be adopted, instead of the slightly modified language proposed by the Australian Human Rights Commission”.
“The committee agreed to those recommendations and drafted our example bill with that in mind,” Burns said.
Nobody with an interest in religious freedom should be satisfied with that. It skates over the committee’s failure to endorse protection for the right to manifest religious belief that meets the stronger international standards.
The UN’s terminology, which would have provided strong protection, has been relegated to a mere legislative note.
So does a legislative note achieve the sort of protection religious organisations were seeking?
No. According to legal academic Mark Fowler of Notre Dame University, that note is not a binding part of the proposed charter. The Burns committee should be judged by what it actually did, not what it kept in mind. It relegated strong protection to a non-binding note.
Instead, it has included a binding mechanism in its “illustrative” draft charter that would make it easier to restrict public manifestations of religious relief such as the management of religious schools.
It’s as if this committee tried to satisfy two irreconcilable interest groups: those who believe freedom of religion is a fundamental right, and those who do not.
The result is incoherent.
The committee’s second recommendation says human rights should be protected in ways that are “consistent with international human rights law”. But it also asserts that a national charter of rights should “broadly reflect” the model charter drawn up by the Human Rights Commission. The problem is that those goals are inconsistent. This was pointed out to the Burns committee during its inquiry. The model drawn up by the Human Rights Commission, which is broadly in line with the Burns committee’s draft bill, is based on the commission’s revision of the text of the International Covenant on Civil and Political Rights.
So because the commission departed from the wording of the ICCPR, and the Burns committee’s draft broadly reflects the commission’s model, it is quite a stretch to describe the proposed charter as “consistent” with international law.
Legal academic Paul Taylor of the University of Queensland told the committee the Human Rights Commission had extensively redrafted the text of the ICCPR for no adequately accounted reason.
Taylor warned that if the Human Rights Commission’s revised wording were reflected in a federal charter it would establish a radically different ordering of ICCPR rights. It would be in conflict with Australia’s obligations under that treaty.
The real problem with human rights is about drawing boundaries. Sooner or later most rights come into conflict with other rights and someone has to decide which right prevails.
Under our system of government, the task of drawing the boundary between conflicting rights falls to parliament which is answerable to voters. It’s called democracy.
Sometimes this task proves difficult as it requires politicians to make hard decisions that alienate interest groups that believe their views should prevail.
This might explain why the government this week abandoned its promised religious discrimination laws and why some politicians see benefits in handing the judiciary difficult political questions about conflicting rights.
Under a charter system, the task of drawing boundaries between conflicting rights falls to judges. They apply the broad value statements contained in charters to individual circumstances.
So what could we expect under the Burns committee’s proposed charter?
The draft bill would permit restrictions of religious freedom that a judge considers to be reasonable, justified, legitimate and proportionate.
Those terms are broad, open-ended and capable of accommodating an vast number of restrictions.
The more tightly worded ICCPR takes the opposite approach.
If enacted in Australia, it would only permit restrictions on religious freedom in limited circumstances: when it is necessary to respect the rights and reputations of others, to protect national security, public order, public health or morals.
It is not open-ended and is designed to maximise religious freedom.
The Burns charter, by contrast, would make it easier for governments to wind back public manifestations of religious belief that are the distinguishing characteristic of religious schools. Religious freedom would suffer but politicians could wring their hands and lay the blame on the judiciary.
We elect politicians to make hard calls on rights and freedoms - which are, in essence, political issues. If they get it wrong, they can be voted out. We cannot do that with judges.