Wednesday, December 17, 2008

More from Prof. Irving on an Australian Bill of Rights

Prof. Helen Irving of The University of Sydney had a letter published in The Australian yesterday in which she challenged (rather more mildly than I would have) the arguments of Prof. George Williams, a bill of rights advocate:

Recognising such doubts [regarding proposed High Court ‘Declarations of Incompatibility’], [Prof. George] Williams suggests that the best way to proceed is to legislate for such a model, and see what the High Court says. To promote an Act that might be struck down before it begins can hardly be satisfactory, either for advocates or for the Government’s credibility. Williams also argues that New Zealand provides a suitable alternative model for Australia. The NZ Bill of Rights Act only requires courts to interpret legislation consistently with the rights and freedoms it contains. It prohibits the courts from ruling that any laws are invalid or unenforceable for inconsistency with these rights. This will not satisfy most Australian rights’ advocates. It may also impact adversely on the High Court’s constitutional powers to rule on the validity of other laws.
I had been wondering how a legislated charter of rights could possibly have any value (other than as a symbol) if it did not provide for ‘Declarations of Compatibility’. Now we know: there could be a requirement for the High Court to interpret future laws according to the legislated Charter. But clearly this raises problems of its own, as Prof. Irving suggests. Also, I thought that the High Court’s role was to interpret legislation according to the Constitution—not according to other pieces of legislation! Wouldn’t this be unconstitutional too? This is all very baffling. It is becoming clearer by the day that the human rights mafia does not have a leg to stand on in this matter. But that hasn’t stopped it on other occasions, I suppose.

Reginaldvs Cantvar
17.XII.2008 A.D.

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