Jeremy Bentham famously declared that the idea of human rights was “nonsense on stilts”. Bentham was reacting to the notion that there was something ‘natural’ or ‘universal’ about human rights. Bentham recognized that the idea of human rights is a human construct, a concept that we have created and one that can be reasonably disputed.
It is important that in developing an Australian bill of rights that we do not lose sight of the fact that human rights are a human construct. Any bill of human rights will always be an expression of the core values that we believe are essential to the effective functioning of a cohesive society. A bill of rights is a deliberate attempt to shape the political landscape so that it more closely aligned with our hopes and aspirations. As different battles are won new priorities will emerge.
For this reason legislation protecting human rights will need to be under constant review. In the proposed Bill promoted by the Centre for Policy Development we have a set of clauses dealing with the human genome. The developments in this field could not have been anticipated by Thomas Paine or even by the authors of the United Nations Declaration of Human Rights. No doubt there will be other advances in human knowledge and understandings that may equally be a threat to the principles on which this bill is based. Hence provision will need to be made for amendments that build on the existing bill.
The development of an Australian Bill of Rights will need to take into account the values that appear to underpin Australian society and protect those values from any attempts on the part of government to dilute or undermine them. They also need to take into account our growing awareness of values that will move our society forward.
Traditional human rights discussions tend to ignore future generations. Some political philosophers will argue that future generations cannot have rights. Certainly existing human rights legislation in other nations makes no mention of the rights of future generations. However, when those bills were drafted, we were not as aware of the way human activity could impact on the opportunities that future generations would have to enjoy the quality of life that we take for granted.
Since every right also implies a responsibility and or duty it follows that considering the rights of future generations imposes a duty on every generation not to permit actions that may impact adversely on future generations.
Introducing a provision to safeguard the interests of future generations will serve to change our concept of private property in a subtle but significant manner. Our current tendency is to see us acting as if we have almost unfettered authority over our private property. We can dispose of it as we see fit. But if we have to take into account the interests of future generations than our notion of ownership will become more akin to being custodians, where our rights to deal with our private property as we wish is tempered by a need to have due regard for future generations.
Looking at future generations also creates an international dimension. To protect our environment we do not only have to consider the impact of our actions within our national borders but globally and conversely we have to acknowledge that some actions taken outside of Australia can have adverse impact on our environment. It follows therefore that our foreign policy will be shaped in part by the impact different actions have on the environment.
If this all seems excessive one needs to bear in mind that there are safeguards in the bill; there is a recognition that there will always be some constraints on our capacity to act as quickly as we might like. What the inclusion of the rights of future generations will do is to ensure that their concerns will be as much part of the discussion as our concerns for the rights of the present generation.
Consideration of the welfare of future generations does not imply that the concept of rights is extended to the unborn. Rather it acknowledges that within society there is continuity and that we have a responsibility to ensure that we have due regard for the impact our actions will have into the future.
Human rights are as Bentham stated “nonsense on stilts” if we do not acknowledge that the content of those rights needs to evolve along with our society. For this current generation it will be essential that we incorporate the notion of the rights of future generations. We are now feeling the consequences of previous generations failing to take into account our rights when they exercised their rights to clear land, leaving us with a problem of salinity; when they exercised their right not to invest resources into research to reduce our dependence on fossil fuels for our energy, leaving us facing a shortage of fuel to drive our economy, their rights to exploit the water resources of our fragile river systems leaving us with an uncertain water supply.
This bill of rights represents an opportunity not merely to protect our rights but also to safeguard the rights of the future.