The Hon. Bob Carr, former Premier of New South Wales, has an opinion piece in today’s Sydney Morning Herald in which he describes how advocates of an Australian charter of rights propose to obviate the barrier posed by the High Court’s incapacity to issue ‘declarations of incompatibility’. He speaks of
the scramble to come up with another version at a meeting in April convened by the Australian Human Rights Commission [A.H.R.C.].
This new model may be constitutional. Michael McHugh thinks it is. But it is politically indigestible. In it the Human Rights Commission boldly claims for itself a role in forcing the reshaping of federal laws. To quote its website, "The commission would be empowered, at the request of a party to the proceeding or of its own motion, to notify the attorney-general of a finding of inconsistency."
It goes on to say the attorney-general would be required to table this opinion in Federal Parliament and the government to respond within a defined period. That is, an elected government would be required to legislate to over-rule the objection served on it by the Human Rights Commission.
In other words, the only way of rendering a charter of rights constitutional is to give the Australian Human Rights Commission a role in effectively striking down laws. This recasts it as an annexe to the High Court. As the state Attorney-General, John Hatzistergos, put it, the commission - an administrative body - would become "a kind of Clayton's court".
The web page to which Mr. Carr refers is here.
Ember Friday of Pentecost, A.D. 2009