Monday, December 15, 2008

Mr. Akerman and Mr. Kelly on an Australian Bill of Rights,22049,24781015-5001031,00.html,,24791480-12250,00.html?from=public_rss

Mr. Piers Akerman had a good opinion piece in last Thursday’s Sydney Daily Telegraph. Though I did not agree with all of it (particularly, I reject his assertion that “we have a common law system and parliamentary democracy which ultimately derives its power from us, the people”), it offered a timely reminder that

history shows that most Australians are far too sensible to want to remove the power they have entrusted to their elected representatives and pass it to unelected judges.

In September 1988, when proposals which included certain human rights measures were put to a referendum, they were comprehensively defeated in every state. …
The Australian Electoral Commission’s website has a bit more information on this ( There, we read that the defeated 1988 proposal sought

to extend the right to trial by jury, to extend freedom of religion, and to ensure fair terms for persons whose property is acquired by any government
In no State did a majority of electors vote in favour of it, and the national percentage of electors in favour of it was a mere 30.79. One suspects that, twenty years on, these results would only be reproduced if a similar proposal were put to a referendum. So given that Australians have rejected human rights being enshrined explicitly in the very Constitution of the Commonwealth, whyever would they bother having them recognised in a mere piece of legislation? But I suppose that the human rights mafia would answer that we just don’t know what’s good for us.

The Australian’s Editor-at-Large Mr. Paul Kelly had an even better opinion piece on the latest thrust for a bill of rights at the weekend, offering a comprehensive overview of the case against a rights charter. Again, I did not agree with all of (I don’t share his enthusiasm for democracy as the guarantor of rights, and we probably wouldn’t even agree on what a human right is), but it was particularly welcome for its amplification of the argument that an Australian bill of rights with an advisory role for the High Court would be unconstitutional (Mr. Kelly cited former chief justice Gerard Brennan and even Prof. George Williams, a vociferous advocate for a Federal charter), its reminder of how strongly pro-Charter the Federal Attorney-General is:

McClelland is a passionate believer of long standing who has backed strong change. In his June 2000 speech as shadow attorney-general, he called for a legislated charter of rights, attacked the founding fathers for bigotry over not including such measures in the Constitution, dismissed any notion of common law safeguards, mocked the idea of a democratically elected government being sufficient to safeguard rights, warned that majority law-making had the potential to be "just as hard and oppressive as any totalitarian regime" (yes, this man is now Australia's Attorney-General) and declared that inadequate health, education and employment conditions in country regions were also issues "of fundamental human rights".

Declaring that 'there has never been a greater need" for a legislated charter of rights, McClelland backed a system of "advisory opinions" from courts based on a charter with the onus for correction residing in the parliament. This would be buttressed by new committee arrangements to advise parliament on the extent to which bills comply with the charter of rights.
its pointing out the quandary that Fr. Brennan faces:

The intellectual contradiction on page after page of Brennan's book [Legislating Liberty, 1998] is his conviction that empowering judges is a fundamental mistake while he cannot envisage any other way to advance human rights.
and its demolition of the case for advancing Ahmed al-Kateb as a post-child for the need for a rights charter:

The lawyers enshrine the Ahmed al-Kateb case as proof of their cause. The point should be confronted. Al-Kateb, a stateless Palestinian, was an unauthorised boat arrival. He was not an Australian citizen, not a migrant and found repeatedly not to be a refugee. He was in breach of Australian law and the High Court upheld that law, which meant he was kept in detention. The claims by lawyers that this case of a non-citizen and non-refugee constitutes grounds for Australia to alter its system of governance are, frankly, preposterous. The Australian public would never accept this for a minute and they would be right. Al-Kateb was not going to be held in detention in perpetuity and the idea is ludicrous. The solution was going to come from Australia's democracy: the executive would negotiate a deportation or public opinion would force his release, and this is what happened.
It was also good for its description of

the "charter of rights" culture that almost totally infects Australia's legal system, from university tuition to the High Court. This corrosive culture cannot conceive that representative democracy is the best means of guaranteeing human rights. Distrust of elected government, hostility to executive authority and ignorance about the vast array of measures in Australian governance that safeguard human rights typifies the legal culture.
and of the rise of what Commonwealth Ombudsman Mr. John McMillan called "an entirely new framework for the control and accountability of state power", involving

the growth of auditors-general, ombudsmen, administrative tribunals, crime commissions, privacy commissioners, information commissioners, human rights and anti-discrimination commissioners, security and intelligence oversight bodies. Listed under the executive arm, their purpose is to check the executive.

[Prof. Helen] Irving affirms this argument. "Australia already has a strong record of legislation that protects rights (Sex Discrimination, Race Discriminations Acts)," she says. "We also have a range of common law rights. There are parliamentary committees that have a standing brief to examine legislation for breach of rights, for example, the Senate scrutiny of bills committee. Democracy is the best method of protecting human rights."
It’s a long article, but well worth reading in full. Interestingly, Prof. Williams had a letter published in today’s The Australian, in which he denied that a ‘declaration of compatibility’ was necessary for a charter, but failed to specify exactly what legislation that lacked such a provision would be good for! And, inexplicably, he thinks that despite provision for ‘declarations of incompatibility’ being hard to reconcile with the Consitution,

The best way forward would be to include the mechanism in an Australian law and to see what view the High Court takes. Only it can resolve the matter.
!!!!! So we should just push ahead with it, knowing that it’ll probably fail?! Mrs. Albrechtson’s pessimism is only becoming more and more appealing by the day: follow the power, follow the money, and, judging by Prof. Williams’s opinions, follow the ideological pre-occupations, regardless of whatever Constitutional barriers there might be. I only hope that the Rudd Government has the integrity not to rush whatever charter they concoct through Parliament without bringing it to an election first.

Reginaldvs Cantvar
15.XII.2008 A.D.

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