More from Prof. Irving on an Australian Bill of Rights

http://blogs.theaustralian.news.com.au/letters/index.php/theaustralian/comments/constitutionally_doubtful/

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.

More on an Australian Bill (or Charter) of Rights

http://www.smh.com.au/news/national/fencesitter-heads-charter-team/2008/12/09/1228584839248.html
http://www.theaustralian.news.com.au/story/0,25197,24778075-7583,00.html
http://www.theaustralian.news.com.au/story/0,25197,24780185-601,00.html
http://www.cathnews.com/article.aspx?aeid=10648
http://blogs.theaustralian.news.com.au/janetalbrechtsen/index.php/theaustralian/comments/keep_power_with_the_people/

http://www.smh.com.au/news/opinion/might-a-right-but-lets-not-bill-the-rest/2008/12/08/1228584738166.html?page=fullpage#contentSwap1

The Federal Attorney-General, The Hon. Robert McClelland M.P. has appointed Rev. Fr. Frank Brennan S.J. A.O. to head the Federal Government’s public consultation on the prospect of an Australian Bill or Charter of Rights. The Sydney Morning Herod notes that Fr. Brennan “calls himself a "fence-sitter" in the bill of rights debate”, but a report in The Australian points out that Fr. Brennan “is on the record as a supporter of "legislating for the federal protection of human rights " - which is code language for a charter”.

Meanwhile, Mrs. Janet Albrechtson has a very good (but very cynical) opinion piece on the whole topic in today’s The Australian. She writes that

ANALYSING calls for so-called reforms should always start with a few golden rules. Follow the money. And follow the power. This week both paths lead you straight to the legal profession and to the heartland of politically driven activists. Like pigs sniffing for truffles, lawyers can smell the enticing waft of money and power in the air as they push open new legal industries. For the activists, it’s about influence as they seek to move from the irrelevant fringe of political life to the centre of the action.

[…] If you doubt that a charter of rights will involve a fundamental transfer of power to lawyers, judges and activists, ask yourself this. Would these champions of a charter be so energetically supporting a charter if it didn’t transfer power to them? Would High Court Justice Michael Kirby be eager for a charter if it did not boost judges’ ability to socially engineer a better society according to them? Likewise, the activists. Their glee is driven by the new power they will wield as they seek out like-minded judges only too willing to cement their political agendas into law.
(http://blogs.theaustralian.news.com.au/janetalbrechtsen/index.php/theaustralian/comments/keep_power_with_the_people/)

I recommend that you read the whole thing; it is a trenchant and timely analysis of this latest outbreak of ‘human rights’ mania.

Perhaps the last word, though, should go to Prof. Helen Irving in yesterday’s Herald. She points out that

Paradoxically, the very attempt to protect parliament by empowering the courts to make "declarations" may itself prove unconstitutional. The commonwealth constitution prevents the High Court from giving advisory opinions. The court may only rule on actual legal disputes.

This hurdle may prove fatal. It will require close attention by the government.
(http://www.smh.com.au/news/opinion/might-a-right-but-lets-not-bill-the-rest/2008/12/08/1228584738166.html?page=fullpage#contentSwap1)

May prove fatal? It sounds to me like a total demolition of the very foundation of a potential statutory charter of rights. And given the historical reluctance of Australians to vote in favour of Constitutional amendments, there’s no chance of human rights (whatever they might be) being enshrined in the Constitution. What a mess this is shaping up to be.

Reginaldvs Cantvar
Feast of St. Melchiades, Pope, Martyr, 2008 A.D.