Last night former Prime Minister John Howard argued that a Bill of Rights would lead to unelected judges making decisions that should only be made by parliaments. Howard thinks it’s outrageous that gay people, for example, should be allowed to go the courts, when the legislature fails them, to stop discrimination against them.
Delivering his Menzies Lecture last night in Perth, Howard said that:
… in the Australian context, the adoption of a charter or Bill of Rights would represent the final triumph of elitism in Australian politics — the notion that typical citizens, elected by ordinary Australians, cannot be trusted to resolve great issues of public policy and that the really important decisions should be taken out of their hands and given to judges.
This argument is not new, but it reflects a fundamental misunderstanding by people such as Howard of how our democratic system works.
A recent speech by the former High Court Chief Justice Anthony Mason represents an intellectually rigorous and experience-based rebuttal of the Howard line. Unlike Howard, Mason’s paper on August 13 at a Bill of Rights conference in Canberra, draws on his extensive experience over 40 years as a constitutional lawyer and appeal court judge. Where Howard has no direct experience of dealing with a Bill or Charter of Rights, Mason most certainly does.
For several years Mason has been a judge on the highest appellate court in Hong Kong, a jurisdiction that does have a Bill of Rights. And as he noted in his speech “if there was any substance at all in this argument, you might have expected it to arise frequently in Hong Kong. Yet I can say that, in my 12 years’ experience as a Non-Permanent Judge of the Hong Kong Court of Final Appeal, this is not the position.”
Howard’s precious defence of the unbridled power of politicians to play with people’s rights also ignores the reality of modern democratic societies and that is that unfortunately the political process is now so corrupted that vulnerable people without lobbying force get crushed. As Mason observed in his August 13 speech:
There is a popular perception that politicians are disconnected from the concerns of the people, that politics is all about gaining and maintaining power at all costs and that the political process is exploited by powerful lobby groups and stakeholders in their own interests. In addition, there is perceived to be an unhealthy relationship between the media and politics, a relationship in which politicians vie with each other for media attention and the media sensationalises and trivialises politics.
In such a climate, there is little or no incentive for politicians to take action to protect the disadvantaged minority or the individual, unless to do so offers the prospect of political mileage. Unfortunately, very often that may be no more than a remote prospect.
It is extraordinary that John Howard should be given any credibility when it comes to criticising judicial protection of rights. His government’s treatment of asylum seekers alone is testament to what happens when the parliament and not the courts are left to deal with human rights.
Howard’s argument also fails to acknowledge that a Bill of Rights would curb the excesses of the Executive and, if comprehensive, of the public service and of private bodies, which would be at least as important as curbing the excesses or Parliament.
The idea that John Howard is a typical citizen elected by ordinary Australians is ludicrous,- or any other politician for that matter. The selection of candidates for office seems to be the gift of the political party machine, and the voters are given the choice of Tweeduldum or Tweeduldee ,who will slavishly follow the party line in the Parliament. The two party (or 2 and 1/2 parties in the Senate plus odds and sods) system we have, although workable, is far from democratic and getting less so with time, as John Howard’s style of government typifies.
These people need a powerful brake placed on their power grabs; fortunately we have the High Court but a Bill of Rights would do much to maintain what we have come to believe are our rights as Australian Citizens, such as freedom speech and assembly etc.
hear hear Gavin. I read the words of the disgraced former PM and nothing has changed, the old rat has learned nothing from his sacking in Bennelong and the Parliament. Now he trollops himself around the country, charging tens of thousands of dollars to spout the evil nonsense that had the electorate throw the used by date rodent out originally. (That should get the rat pack going).Howard had no regard for peoples rights when he led his boot swinging thugs for 12 years, now he expects his pathetic proposals to be embraced. Fat chance. The sooner this clown realises he is a yesterdays person and only those libs, praying for a return to his days of division and greed are interested in the rubbish he talks. A few of them dwell here, at least some add points of debate. This topic is bound to be one of them.
As Greg Barnes points out, Howard has never come to grips with domocracy. His version was an according to Howard variety, as was most of his 12 years in power. Nov 2007 was the time the electorate said enough is enough of him and his Coalition mates. Nothing has changed since.
I recall the day when Howard knew that Barnaby Joyce had the last? Senate seat in the 2004 election, which meant that the Coalition had a majority. Ron Boswell told Howard via mobile phone, and it was aired on ABC TV. Boswell let slip the words ‘open sl…..’ (yeah it’s ‘open slather now, or words to that effect) and he must’ve been silenced by Howard, but it was plain to hear what he intended to say. I observed with great interest, that any time that segment was shown, that particular part was never shown again? Very telling!
Howard, of course went on to show a complete lack of interest in the “prestige of parliament” to quote his article in SMH today. He rammed the Worst Choices legislation through the Parliament using the gag and the guillotine; he abused human rights by removing the Anti-Racial Discrimination Act in order to invade the NT, and was the first PM to disallow debate prior to a decision being made to invade another country using those very people that he professes to be concerned about, those who elect their representatives – losing their rights? Obviously, killing and being killed doesn’t qualify for his concern or sense of upholding democratic ideals, having any respect for those ordinary people who elect “their representatives”.
Howard also used his position, and the bigoted views of his government members to tread all over the democratic voting rights of the Territories, when he overturned both the Euthanasia legislation in the NT, and the rights for gay couples to marry in the ACT – so much for the fact, that the elected representatives they’d voted for had the support of the majority of voters on both of these issues. Of course his actions re asylum seekers as mentioned by you Greg, were just appalling. How a person who purported to support and uphold “traditional family values” could jail women, kids, the elderly and those traumatized in their own countries, or driven medically mad by his horrific policies, could even have the temerity to preach democratic principles or human rights to the rest of us, just amazes me. His arrogance knows no bounds.
The same applies for accountability. Not only did he not think that we were owed any accountability as to his actions, he protected, if not encouraged his government Ministers and others to do the same. Having the numbers meant, that he could do as he pleased regardless. The AWB fiasco is a great example of the type of government he ran – at least 65 articles of a varied assortment of correspondence re govt ministers, employees etc is evidence of this disgraceful situation, but he bluffed his way through using his favourite ‘tool’ – arrogance and having the numbers? Interesting, that nobody has even been charged as a result of the recommendations made by Justice Cole? Perhaps, those who may be charged would start to ‘sing’ in order to defend their roles?
There’s enough evidence available now, that points to the roles played by the three ‘coalition of the willing’ participants, which also allegedly points to active knowledge and consent for actions in contravention of the Geneva Conventions, in both Iraq and Afghanistan. Howard, drunk on his relationship with the ‘big boys’ didn’t believe that he had to comply with the rules laid down by certain bodies, of which this country had been a signatory to. His so-called concern for human rights didn’t extend to those who were illegally killed in wars, or were allegedly illegally detained, or were treated and tortured in contravention of the GC. (Abu Graib is but one example). Howard’s view of democracy, decency and respect for our parliamentary bodies has little resemblance to mine, and I applaud the debate re a Bill of Rights for this country, that would be tough enough to counter another Howard, and his disgraceful brand of democracy and human rights!
Well said, Greg!
Well said Liz45 it encapsulates all that was rotten with John Howard and his sycophants, but at least what’s left of our democracy was enough, not only to turf his crowd from office, but he also became only the second Prime Minister to lose his (what had been a safe) seat in Parliament.
He now has the hide to try to parade his purported wares as a “statesman” – he still doesn’t get it does he?