For the people's sake, we must reject a bill of rights

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This was published 14 years ago

For the people's sake, we must reject a bill of rights

By John Howard

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 who, after all, have a superior capacity to determine these matters.

The three great guarantees of Australian democracy are a robust parliamentary system, an independent and incorruptible judiciary and a free and sceptical press.

Our parliamentary system has many flaws but ultimately it sets the tone of national debate and ought to be the ultimate decision maker. It is the identifiable and collective representation of public opinion.

For as long as I was in Parliament, and I am sure it will continue, there was a periodic concern about a perceived decline in the public's respect for the institution of Parliament.

The explanations were many and varied. Politicians were only interested in themselves; they misbehaved at question time; they were too partisan; there were too many professional politicians with a diminishing number having had real-life experience in business, genuine community service, a profession or a trade.

Members of parliament, understandably, were sensitive to these criticisms. I continue to think that many, but not all of them, were unfair and unjustified. If politicians, throughout Australia, want the institution to which they belong to retain current levels of respect then they should resolve, from this day forward, not to surrender to others power to make the decisions which they have been entrusted to make by their fellow citizens.

This plea of mine is central to my distaste for a bill of rights. If adopted it must further weaken the role of Parliament and therefore, in a very basic way, the quality of our democracy.

In my time as prime minister I railed against proposals from ministers which involved transferring ministerial decision-making to statutory authorities.

I never ceased to be amazed when I heard the argument that it would be a good idea for a non-elected official to take a decision, rather than the minister, because then it would be removed from political influence. The reductio ad absurdum of that would of course been the progressive transfer of as many decision-making roles as possible to officials. It would certainly reduce political influence, but it would also reduce democracy in the process.

I strongly believe ministers and parliamentarians should take all of the controversial decisions. They should take them transparently and, naturally, they should be fully accountable for them.

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In many cases the real reason why some parliamentarians wish to hand decision making to independent statutory authorities is to escape the opprobrium of unpopular decisions. Nothing could be more self-defeating.

My experience has been that Australians bring earthy common sense to their appreciation of political decisions. They will support unpopular decisions if the government of the day clearly establishes that there is a public benefit to be gained from the decision, and that the impact of the decision is fairly spread through the community.

Every time Parliament hands over power to a non-elected body, the views of the sceptics that Parliament is composed essentially of unworthy people is bolstered.

I often wonder whether it has occurred to the proponents of a bill of rights that free votes on issues requiring social or moral judgments would largely become a thing of the past if we were to go down the bill of rights path. Decisions on many of these issues would pass to the courts.

If the US and Canadian experience is a guide, issues such as abortion and gay marriage would not be resolved by our elected representatives but the courts.

Comparing the Australian and Canadian approaches on gay marriage is illuminating. In Australia, the government which I led decided in 2004 that the Marriage Act should be amended to define marriage as a voluntary union for life between a man and woman to the exclusion of all others, thus precluding the possibility of recognising same-sex marriages.

In Canada it was not so simple. In a series of decisions the courts had declared that prohibitions on gay marriage, enacted by some provinces, were contrary to the Charter of Rights and Freedoms. Only by Parliament passing a law expressly overturning those decisions could the provincial prohibitions have been revived. This was a theoretical power only. In practice it was not a realistic option.

Thus it was not Parliament which expressed the will of the Canadian people on this sensitive social issue, it was the courts. Surely that was wrong. Irrespective of the views one might hold on the issue, don't the people, through their elected representatives, and at all stages, have the right to decide those issues?

I am guided by the success of Australian democracy to date. It has flowered and has often led the word. Ours is an open society, with little to be ashamed of on the world stage.

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We pride ourselves on the egalitarian character of our society. Let us not deny that great heritage by embracing an approach based on the belief that the great mass of the Australian people, properly represented in our parliaments, and property advised by a free and sceptical press cannot decide the great moral and civil issues of their time and get it right.

This is an edited extract of Menzies Lecture delivered in Perth last night by the former prime minister John Howard.

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