|Human Rights: referendum essential|
|Written by Professor David Flint AM|
|Saturday, 10 October 2009|
The government’s panel has predictably recommended the adoption of a Human Rights charter. As with the 1993 Republic Advisory Committee and the 2020 Summit governance panel, only those believed to be supportive of the desired conclusions were appointed.
By contrast the choice of the appointed delegates to the 1998 Constitutional Convention - apart from the parliamentary delegates - was clearly based on merit and the need for balance. The result was that the prime minister chose delegates most of whom were opposed to his position.
...HR panel chairman concedes proposal unworkable....
In an extraordinary admission, panel chairman Father Frank Brennan SJ admits the core proposal, having the High Court is proably unworkable.
He told Paul Kelly of The Weekend Australian (“Human rights report poisoned chalice” 10-11/9 )"My own view is that I think this provision is not going to be workable. That's why we have outlined in the report a fallback provision."
"If the Rudd government was to consider this 'declaration of incompatibility' provision it would need to engage the High Court in a discussion on this issue first and also seek further advice from the Solicitor-General."
"I think that while the declaration of incompatibility may be constitutional there are enormous practical problems with it that mean it may not be viable."
Paul Kelly suspects Brennan would have discussed this issue with former High Court judges. (His father is former Chief Justice Sir Gerard Brennan.)
“There allows only one interpretation: there are dangers for the High Court as an institution in this course of action,” Paul Kelly says.
“Given this, how stupid would the Rudd government be to tamper with the court's standing when the chairman of the report believes the pivotal provision in his own recommended "dialogue" model cannot work?
“This means our system of government will be changed partly to secure the human rights of people who are not citizens. It illustrates the human rights mindset. The more Australians understand this issue, the more suspicious they will become.”
"Any statutory charter of rights would bring about the most important de facto alteration to Australia's system of government in our history, by transferring the ultimate decision-making power on a wide range of politically controversial issues from elected parliaments to unelected judges."
“Think of it as a wish list created by your typical self-styled human rights lobby group,” writes Professor James Allan. “Throw everything at the wall - a reading down provision, a declarations power, a compulsory statement of compatibility and a lot more - then see what sticks.”
“What you don't see is all that much intellectual rigour.”
The report confirms why it is important to make submissions to these inquiries. ” The committee makes much of the fact it received 35,000 responses, with another 6000 odd people attending its round-table sessions,” says Professor Allen.
“And those it heard from were disproportionately from charter cheerleading lobby groups.“This report is entirely predictable.”
If adopted, the Charter would significantly change our constitutional system. Indeed it is arguable that granting federal courts a power to make declarations of incompatibility is unconstitutional and would offend the separation of powers doctrine. The Solicitor General has provided the panel with an opnion that the proposed role would be valid. Of course only the High Court can decide this.
Valid or not, the democratic way of proceeding would be to seek an amendment to the Constitution proposing that High Court have such a power and to let the people decide that in a referendum.
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