[governance] The RBA Road

[yehudakatz at mailinator.com]

The RBA Road

I found this Journalist-OPINION an intresting real-world paralle to the thread:

"rights based approach to the Internet"

Where today Citizen's of Australia are considering a 'Charter of Rights'

Wishing for a RBA [RIGHTS BASED APPROCH to the Internet]
may have the effeect of transfering an enormous political 
power away from the people to a group of unelected officials.

"pray for the courage to endure the scorn of the sophisticated world"
  Antonin Scalia

--

OPINION

Against an Australian Charter of Rights
By JANET ALBRECHTSEN 
FROM TODAY'S WALL STREET JOURNAL ASIA
April 18, 2008

Art. Ref:
http://online.wsj.com/article/SB120846108288723747.html?mod=opinion_main_commentaries

Print:
http://online.wsj.com/public/article_print/SB120846108288723747.html
-

SYDNEY

A great danger is headed Australia's way. For years, we've been rebuked by a
vocal group of domestic elites as being rather backward for failing to adopt a
federal bill of rights. The United States, Canada, and Britain all have one, in
one form or another. Even New Zealand has one.

Prime Minister Kevin Rudd is moving quickly to correct this "problem." This
weekend, the country's highest human rights body, the Human Rights and Equal
Opportunity Commission, will make a formal submission to a government summit
calling for a federal charter. Advocates argue that Australia needs one to
protect human rights. Wrong.

 
David Gothard  
Australians don't suffer from a lack of checks and balances. Our Parliament
decides political questions and legislates accordingly. The courts generally
stay out of politics and confine themselves to interpreting the law. When the
High Court has entered the political realm, as in the 1988 landmark case
concerning indigenous native land rights, Mabo v. Queensland, many Australians
balked at the judicial interference. That aside, a fundamental separation of
powers has delivered the checks and balances behind one of the world's oldest
continuous democracies.

Advocates argue a charter is necessary to protect against high-profile
administrative mistakes, such as the wrongful detention of a mentally disturbed
woman, Cornelia Rau, and the detention of Indian-born doctor Mohammed Haneef
last year. Upset, too, by more stringent antiterrorism laws, charter
enthusiasts say Australians' human rights are endangered. Unfortunately,
nothing protects against these kinds of mistakes – and the remedy proposed
would fundamentally alter the nature of Australia's democracy.

Charter enthusiasts want a federal document modelled on those already in
practice in the state of Victoria and the Australian Capital Territory, where
enshrined rights include the right to freedom of association, movement,
privacy, freedom of thought, conscience and religious belief, the right to
liberty and security. It has never been demonstrated that those charters were
necessary, nor that rights in those areas are under threat.

If anything, the movement for an Australian charter of rights smacks of
political, not humanitarian, motivations. Almost every legal body, from the Law
Institute of Australia to the New South Wales Bar Association, now favors a
charter. Little wonder: A charter would stimulate all sorts of lawsuits – and
fees.

The marketing pitch behind the charter movement also raises red flags.
Enthusiasts such as legal academic George Williams, who has been leading the
charter push, and former Labor politician Susan Ryan, point to the detention of
stateless asylum seekers as reason to support a charter. They aim to have
courts effectively sideline areas of government policy they find distasteful.
The logic runs like this: No reasonable person can be against human rights;
human rights are legal matters on which all reasonable people can surely agree.

But this isn't necessarily true. Human rights are not absolute. Even that most
basic right – the right to life – is highly contestable: consider the U.S.
Supreme Court's ruling on abortion in Roe v. Wade, which has divided an entire
generation of Americans. Reasonable people can and do disagree on the
definition of rights and their ambit. When they do so in countries that have a
charter of rights, the judiciary – an unaccountable body – decides the
matter. In countries without a federal charter, like Australia, the people
decide.

Handing political questions to the judiciary does not convert them into legal
questions. Take the example of Britain. There, former Prime Minister Tony Blair
enacted the Human Rights Act to "bring rights home." He realized his blunder
after liberal British Courts used the Act to ignore immigration laws and
welcome radical Muslims into the country. Current Prime Minister Gordon Brown
has recently proposed amending the Human Rights Act to create a new bill of
rights and responsibilities that will detail "not just what people are entitled
to but what they are expected to do in return."

The U.S. experience also shows that vaguely crafted provisions transfer
enormous political power to the courts. In 2002, the Court ruled in Atkins v.
Virginia that the execution of a mentally retarded criminal was "cruel and
unusual punishment" prohibited by the Eighth Amendment. Charters also tempt
judges to create rights that haven't been written into the charter or approved
democratically. Relying on a "right to privacy" not explicitly in the
Constitution's text but "read into" the text by earlier judges, the U.S.
Supreme Court, in 2003's Lawrence v. Texas, overturned a Texas law prohibiting
sodomy. Both are issues better decided by the public, not judges.

The Australian charter movement aims to transfer power away from the people to
a group of unelected officials. This logic is often clearly – and publicly
– articulated by our judges; one of the most prominent being Ninian Stephens,
a former High Court judge who once remarked that Australia's "primitive and
handicapped legislature" is "ill-equipped" to decide major social issues.

Confronted by the democratic deficit of a charter of rights, Australians
should, to coin a phrase from U.S. Supreme Court justice Antonin Scalia, pray
for the courage to endure the scorn of the sophisticated world. Our system of
responsible parliamentary government and the common law have served Australians
well for more than 200 years. Once it's been released, there is no putting the
political genie back into the judicial bottle.

Ms. Albrechtsen, a lawyer, is a columnist for the Australian

-30-
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