The Australian Human Rights Commission, assisted by numerous radical lobby groups, is paving the way for the Rudd Government to enact a national bill of rights. However, as Charles Francis QC warns, a bill of rights could mean, paradoxically, that Australians end up with fewer human rights.

When Fr Frank Brennan, chairman of the Australian Government's national consultation committee on a bill of human rights, opened a consultation meeting in Melbourne, he indicated that his committee welcomed all opinions and submissions including those opposed to having a bill of human rights at all.

However, these are not the "vibes" coming from the (taxpayer-funded) Australian Human Rights Commission (AHRC), which is lobbying strongly for such a bill, and which has even sought expert judicial opinions on the compatibility of such a bill with the Australian Constitution.

The AHRC is not neutral on this issue, nor has it acknowledged that any suggestion Australia should have a bill of rights fails two fundamental tests. First, there have been no identified abuses of human rights within Australia which indicate any need for such a bill. Second, there is singularly little demand for a bill of rights within the Australian community.

Bills (or charters) of rights may do little to protect human rights. Indeed, there is a considerable body of evidence which suggests that bills of rights not only fail to assist the promotion of human rights, but may in fact damage a democracy and its human rights.

In 1936, the Soviet Union under Josef Stalin, at the height of the Great Terror, adopted a new constitution which purported to enshrine human rights, including freedom of speech and religion. In reality, it did nothing of the sort. It was incapable of guaranteeing human rights because, under Stalin's communist dictatorship, there was no separation of powers. The Soviet judiciary was entirely subservient to the executive, so the only judicial rights which were recognised were those which the executive permitted the judiciary to exercise.

Today some of the worst abuses of rights in the world occur in China and Sudan, yet these countries, unlike Australia, boast glossy bills of rights.

The present campaign in Australia for a bill of rights does not reflect any deep-seated community need for one, but comes from small but vocal special-interest groups and some academic lawyers, one of the leaders being Professor George Williams, who played an active part in the introduction of the Victorian Charter of Human Rights and Responsibilities 2006.

Prominent in this campaign is the AHRC which appears to be bypassing the consultation process and is using its resources (i.e., taxpayers' money) to strongly lobby for such a bill.

Opposed to this self-interested group are a number of very distinguished lawyers, including Professor Gabriël Moens, Professor James Allan, Professor Mirko Bagaric, Dr Augusto Zimmermann, Peter Faris QC, and federal Liberal shadow attorney-general, Senator the Hon. George Brandis, SC.

One strong opponent of a bill of rights was the late Sir Harry Gibbs, one of our greatest chief justices. Sir Harry Gibbs pointed out that rights are best protected by a proper separation of powers in which the executive, the legislature and the judiciary each plays its respective part and does not encroach on the functions of the others.

Sir Harry said, "If society is tolerant and rational, it does not need a bill of rights. If it is not, no bill of rights will preserve it."

In Australia we have the British common law, which is the equivalent of a vast bill of rights and which has been devised over more than 800 years by the finest legal minds in the English-speaking world. Common law is likely to be incomparably wiser and better than any bill of rights prepared by some supposedly expert government committee.

In a lecture delivered to the University of Virginia law school in 1966, Sir Robert Menzies said: "I am glad that the draftsmen of the Australian Constitution, though they gave close and learned study to the American Constitution and its amendments, made little or no attempt to define individual liberties.

"They knew that to define human rights is either to limit them, for in the long-run words must be given some meaning, or to express them so broadly that the discipline which is inherent in all government and ordered society becomes impossible."

The wisdom of what Sir Robert said has been more than adequately demonstrated in the United States during the last 50 years.

For the first 150 years the American Bill of Rights created few problems for the American people; but after the advent of the Earl Warren Supreme Court in 1953 a number of activist judges began to find within the American Bill of Rights new meanings which those who drafted the bill certainly did not have in mind.

From the Bill of Rights US Chief Justice Warren began to spell out new rights which overturned established laws about criminal procedures, prayers in schools, internal security, obscenity and legislative re-appointments.

US judges allowed a torrent of obscenity to engulf the movies, television, the theatre, books and even classroom curricula.

This was achieved by an entirely new interpretation of the First Amendment free speech clause which was originally designed simply to protect freedom of political speech.

The US courts suddenly "discovered" in this amendment that pornography and a wide variety of other assaults on decency were to be elevated to a First Amendment right.

What happened at that time indicates just how dangerous it can be to have judges determine the meaning of words in a bill of rights.

Human rights activists in Australia have high regard for the Canadian Charter of Rights and Freedoms (enacted in 1982).

However, the Canadian Supreme Court has found in its provisions "legal" grounds to invalidate all laws against the killing of babies in utero.

The court has also used the charter to protect tobacco advertising and to extend marriage laws to include same-sex relationships. Thus Canadian judges have become major political players.

As pointed out by Australian lawyer and historian Hal Colebatch, human rights legislation in the UK which seeks to enforce diversity and political correctness is turning Britain into "the first modern soft totalitarian state". There are now "thought police" with unprecedented powers to dictate ways of thinking and to snuff out heresy, and there can be harsh punishments for dissent. ("Thought police muscle up in Britain", The Australian, April 21, 2009).

Over the past 10 years there have been dozens of cases of Christians and others who hold traditional moral views being targeted by police and other government agencies for their beliefs. Two cases are illustrative:

• A primary schoolgirl, who asked to be put in a different group for a class project because all the other girls in her assigned group only spoke Urdu, was suspended and later investigated by the police at her home - presumably for racism.

• Grandparents, in their mid-40s, were denied custody of their two young grandsons because they were considered to be too old. (The boys' mother was unfit because she was a drug addict). The boys were given for adoption to a homosexual couple. The grandparents were told they would not see their grandsons on access visits, even twice a year, unless they abandoned their "homophobia" of considering homosexual practices sinful.

Such problems are likely to be exacerbated with the trend for governments to appoint judges not solely on the basis of their legal skills but because of their "empathy" with certain groups, e.g., women, ethnic minorities and homosexuals.

If a bill of rights is enacted in Australia, there will be little to stop future governments or local authorities interpreting "equality" and "diversity" in different ways to silence other groups.

What has occurred in the US, Canada, the UK and New Zealand demonstrates just how a bill of rights can shift political power from legislatures to the judiciary, thereby seriously damaging what was previously a proper separation of powers.

The seductive brochure produced by Australia's National Human Rights Consultation Committee invites the Australian community to indicate which human rights should be protected.

However, there is an element of danger in this invitation; those human rights which are infrequently mentioned in submissions may be downgraded.

In these circumstances, it is better for people in their submissions to indicate clearly that they do not want any bill of rights in Australia at all.

Inviting any government to frame a bill of rights implies that government has the power to determine what our human rights should be.

However, as Thomas Jefferson pointed out, our human rights do not come from governments but are God-given rights which are inalienable. If we concede that the government has the power to determine what human rights we should have, then, equally, it would seem the government has the power to take away those rights.

The most basic human right

The most basic human right is the right to life itself, from conception until natural death. If we are to have any Australian bill of rights, then this right should be at its forefront.

The Rudd Labor Government, however, not content with funding abortion in Australia, has recently demonstrated its total contempt for the right to life by providing funds for abortion in overseas countries, even though no country requested such funding.

It was special interest groups in Australia - radical feminists and abortion-providers - who demanded this funding, some of which will increase the resources for coercive abortion programs overseas.

Australians need to ask whether any determination of human rights can be entrusted to such a government.

- Charles Francis, AM, QC, RFD, is a barrister and former member of the Victorian state parliament.