Monday, December 26, 2011

"Panic" by David Marr: on John Hatzistergos

David Marr | SMH | 17 April 2008 

That this is the last civilised nation not to guarantee its citizens' rights counts for nothing. We don't have foot and mouth disease or video games for grown-ups. So what's to stop us quarantining Australia against bills and charters of rights?

The Attorney-General, John Hatzistergos, has been thundering against them lately in the best traditions of NSW Labor. Bob Carr was one of the wittiest and most determined opponents of handing out rights we could enforce in court. It's something one-party states never willingly allow.

"We do not live in a perfect society and never will," Hatzistergos solemnly informed the Sydney Institute last week. "There may well be laws perceived by some to be unjust in our community. It is however wrong to suggest that they can be remedied by enacting charters with wide-ranging values and all will be well."

If only our grim-faced Attorney-General had been around in 1791 to tug James Madison's sleeve and stop him making the historic mistake of presenting the US Congress with constitutional amendments guaranteeing free speech and a free press; the freedom to assemble and the freedom to worship; the assurance that life and liberty will only ever be infringed by due process of law - and, alas, the right to bear arms.

Two-and-a-bit centuries later in Australia, the courts are all but powerless to prevent these rights being legislated away. And a good thing too, says Hatzistergos: "Transforming social and political questions into legal ones … forces the courts to start making decisions … for which they do not have democratic legitimacy."

That's American talk. America gave the world the great model of entrenched rights and lately America has bred mighty rhetoric attacking the courts as undemocratic for protecting them.

The wisdom of experience? Yes and no. Hatzistergos and his tribe are mouthing the words of those sore losers whose democratic sensibilities are offended by the secular, decent revolution pulled off by the US Supreme Court in the last half century that began in 1954 with Brown v Board of Education of Topeka, ending racial segregation of schools.

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