Monday, March 16, 2009

Mr. Ackland and others on an Australian bill of rights

Mr. Richard Ackland had an opinion piece in last Friday’s Sydney Morning Herald on the prospective Australian bill or charter of rights. In this piece he reported on the pro-charter views of former High Court judge The Hon. Michael McHugh A.C. Q.C.:

Far better and constitutionally stronger [than a specified ‘dialogue model’ of rights legislation], McHugh says, to adopt the 1960 Canadian model of a legislative bill of rights, and use it to give effect to the International Covenant on Civil and Political Rights.

This would create a "judicially enforceable" regime with remedies for breaches of rights. However, politicians could still stay in charge by inserting "notwithstanding" clauses into legislation to remove provisions from the need to be compatible with a human rights act.
Now how bizarre is that—a human rights charter that Parliament can override at will. What could the point of such a charter possibly be if Parliament can override it with such ease?!

The next day the Herald published a letter from Ms Catherine Branson, the President of the pro-charter Australian Human Rights Commission, in which she mentioned a couple of other possible features of an Australian charter of rights, as well as the one that Mr. Justice McHugh mentioned:

A declaration of incompatibility is only one possible feature of such an act. Others include requiring Parliament to scrutinise the human rights impact of new laws; requiring courts and decision makers to interpret laws consistently with human rights; and providing enforceable remedies for actions of public authorities that breach human rights.
I suppose that the first feature—requiring Parliament to scrutinise the human rights impact of its legislation—is pretty unobjectionable, but even to a non-jurist such as myself the second proposed feature—requiring courts to interpret laws consistent with legislated human rights—seemed rather odd. The Australian’s letters section of the same day showed that I was not alone in my concern:

Such a move would destroy any certainty about the future meaning of any federal law.

A ruling by a possibly idiosyncratic High Court judge could decide that the plain meaning of a certain wording was incompatible with the ICCPR’s [International Covenant on Civil and Political Rights’s] interpretation, and therefore must be interpreted to mean something else. This has already happened in the UK and the ACT.
wrote one Roslyn Phillips. The third proposal—enforceable remedies for human rights breaches—also seems rather dubious to me, especially since, as Mr. Justice McHugh acknowledges, Parliament could simply opt out of it at will! It seems to me that the pro-charter lobby is already scraping the bottom of the barrel (and here we are only talking about how a charter of rights would operate—no-one even knows yet what rights such a charter would contain).

Reginaldvs Cantvar
16.III.2009 A.D.


matthias said...

I am always very careful when there is movement for a Bill of Rights because they seem to be more on what will not be Rights. I think of how the US SUPREME Court has become a defacto legislature when interpreting the various Civil liberties Amendments of the US Constitution. Bring on the Catholic confessional state -and I 'm a protestant. Oh Pole,Happy St Patrick's Day for the morrow ,and to my brother a happy Birthday.

Cardinal Pole said...

Thank you for your St. Patrick's Day wishes Matthias, and happy birthday to your brother.