Writing in Rights: Australia and the Protection of Human Rights. (Books: citizens or litigants?).

by Hilary Charlesworth, University of NSW Press, 2001, $24.95.

HERE IS YET ANOTHER sermon on the need for an Australian bill of rights. Professor Hilary Charlesworth's thesis will be familiar to those acquainted with Brennan's Legislating Liberty (1998) and Williams' Human Rights under the Australian Constitution (1999) or A Bill of Rights for Australia (2000). The plot may be shortly stated thus,

The Australian Constitution is incomplete because it does not protect human rights--it contains no bill of rights. The drafters of the constitution failed to include a bill of rights primarily because they were "concerned to allow racial discrimination". Human rights in Australia remain unprotected. The Australian people, despite efforts by various experts, have rejected attempts to entrench human rights in the constitution. Further attempts to entrench human rights are unlikely to succeed and hence, as a first step, federal parliament should legislate a statutory bill of rights to be replaced, in time, by a constitutional bill of rights.

The world's a simple place, really!

Reading Professor Charlesworth's Writing in Rights, one cannot but agree with Jeremy Bentham's strictures about rights talk--that it is nothing more than "mischievous nonsense". Charlesworth does not state up front which fights she claims ought to be protected, or the basis for her claim. As well as political and civil fights, Charlesworth sees an Australian bill of fights as encompassing economic, social and cultural fights. But what are these fights exactly? If they are to be constitutionally protected, surely they first must be listed.

Charlesworth maintains that "human fights are the product of the notion of human dignity', and that "human fights are concerned with the conditions of a worthwhile human life". Human fights, according to Charlesworth, are about "the basic conditions of a life worth living". But, one does not need to be much of an historian or philosopher to appreciate that in different times and in different places, human beings have put forward numerous versions of the "worthwhile human life". Indeed, put ten people in a room on any given day and ask them to describe the "worthwhile human life" and see if you get ten identical descriptions. The notion of human fights being based on the "worthwhile human life" or "human dignity" is, therefore, meaningless. Or, adapting William Hazlitt on reason, the worthwhile human life, "with most people, means their own opinion". Charlesworth also slips subtly from talk about individual human fights to talk about group fights. Which groups have fights and what those fights might be, however, are left unexplained. A majority in a community might be said to constitute a group, but somehow I don't think Charlesworth has this group in mind. And what happens when individual and group fights come into conflict?

Charlesworth criticises the misguided view that parliament is the proper protector of human fights, and states that this view is based on the ideology of utilitarianism. After noting Bentham's ("the `father' of utilitarianism") aversion to the notion of fights, she suggests that, as utilitarians are concerned with the happiness of the majority, they have no concern for minority groups. In the same breath Charlesworth cites prisoners as an example of a minority group. This may seem pedantic but most law students, if they ...