Bill of Rights could make rights less certain

Bill of Rights could make rights less certain

The Queensland Parliament is considering creating a Bill of Rights. This fills me with fear because the greatest threat to individual rights is, ironically, a poorly thought out Bill of Rights.

Why is this so? In part because of inherent weaknesses in the way nearly every Bill of Rights is framed, and in part because of the vagueness about what constitutes a right, and how it is to be protected.

A Bill of Rights must set out how conflicts of rights are to be resolved, argues Bill O'Chee.


Real rights are something tangible, and certain. They must guarantee us freedoms which are secure, and a certain stake in the common wealth of our society. Anything less than this is an expectation or an aspiration, but not a right. 

For example, Article 10 of the UN Declaration on Social Progress and Development calls for: "The elimination of poverty; the assurance of a steady improvement in levels of living and of a just and equitable distribution of income." Exactly what is meant by a "just and equitable distribution of income"? How is this to be determined, and who is to determine it?


Vague though well-meaning statements, such as this, do nothing to create a certain system of rights. A right should be stated to be so clear in its meaning that it gives rise to little debate, and to little chance of being diluted.

This leads to another issue, which is the inherent weakness in the way nearly all Bills of Rights are constructed. Typically, they are declarations of rights which are deemed to be granted to citizens (as if citizens had no rights to begin with). The rights are then put in some sort of list. Often these lists are compiled by a sampling of various international treaties, even if they are at odds with each other.

But what happens when the exercise of my right, and your right come into conflict? At that point neither right is guaranteed, and both of us go off to court to seek some determination. Now neither right is certain.

Suppose our Bill of Rights says that we are all to have the right to freedom of speech, as well as the right to freedom of association. What happens if People for the Ethical Treatment of Animals decide to protest against feedlotting cattle, and stop people from entering a National Farmers Federation meeting? The farmers are seeking to exercise their right to freedom of association, which is guaranteed by the Bill of Rights. The protestors are seeking to exercise their right to freedom of speech, which is guaranteed by the same Bill of Rights. Whose right should prevail? How is the court to decide?

Under a Bill of Rights, such conflicts between competing individual rights will inevitably occur again and again, and each time they do, the very concept of a right as a freedom which is certain will be eroded away. In fact a Bill of Rights is almost an invitation to test each and every right time and again in the courts. Ultimately this puts them at risk.

By relying on courts and lawyers for enforcement, rights become the luxury of the educated and the rich. Rights, should, however exist for the protection of the marginalised and the poor.

How then can a Bill of Rights be made workable? How can we create a system of rights that is so clear that people instinctively know what is to be protected and in what situation? The answer can only lie in creating a hierarchy of rights.

We all know some rights are more important than others. The entitlement to drive on the highway is not as important as the safety of one's person. They must therefore give rise to rights which stand at different places in a hierarchy of rights.

A hierarchy of rights must reflect the relative importance of different rights. At the top of this hierarchy must be rights which are inviolable, and which by definition can never come into conflict with each other. These are necessarily few in number, but must include the right not to have one's life taken in any circumstance, the right to due and fair process before the law, the right to the safety of one's person, and the right to define one's identity and relationship with one's God. Beneath this will lie a number of other classes of rights which will be subject to limitations, both negative and positive.

A hierarchy of rights must also lay down principles for resolving conflicts within the same class of rights. This requires we must favour rights which are passively enjoyed rather than actively enjoyed. The farmers trying to have their meeting do not seek to impose on the rights of anyone, but the protestors seek to exercise their rights in a way which prevents the farmers enjoying theirs. In this situation, the farmers' right of freedom of association must prevail. The protestors can have their say in another fashion, but cannot impinge on the rights of others.

Creating a hierarchy of rights is essential, but it is sadly lacking in appeal to politicians and lawyers.

Politicians love the idea of a Bill of Rights because they see themselves as romantic freedom fighters leaving their mark for posterity. Preposterous as this sounds, I know from past experience with my political colleagues that this is often true.

As for lawyers, they have little reason for wanting to see principles of rights which are self-evident and clear. After all, there would be little business for lawyers.

A Bill of Rights is dangerous unless it clearly sets out how conflicts of rights are to be resolved. Moreover, we cannot afford a Bill of Rights which renders rights less certain by making them the playthings of lawyers and judges. Such grandiose ideas should leave us all afraid.

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