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.

When the Summit panel voted, one of the one hundred persons appointed actually turned out to be opposed to a republic. Since one other member abstained, the government endorsed proposal only received 98% support. This is the sort of result we used to see in the Soviet Union. 

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.

In any event, the proposed human rights charter will make such vast changes to the role of parliament and the courts that it should first be submitted to the people for approval.

This is so whether or not this is  constitutionally necessary. 

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[ The Constitution and the Bill of Rights means precisely what we want it to mean: US Supreme Court 1973 ]




...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?



...tortuous artificiality....


Paul Kelly says Father Brennan's fallback alternative, which brings the issue back to parliament for "correction", still depends on judicial reasoning.

"The "bottom line" throughout this report is judicial action. In an exercise of tortuous artificiality, the committee asserts that parties to the court case or the Australian Human Rights Commission could be given the power to notify the parliamentary committee whenever a court's reasoning "indicated non-compliance" with the human rights act.

"This typifies the distortion of administrative and judicial process that will be entertained in the campaign to achieve a human rights act.”

Paul Kelly concludes with the observation that in advocating a human rights act it wants coverage to include all people in Australia, not just Australian citizens.

“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.”



...Coalition oposed, Labor divided....


Opposition spokesman on legal affairs George Brandis, former NSW premier Bob Carr and NSW Attorney-General John Hatzistergos were opposed.  Senator Brandis told The Australian’s Michael Pelly (9/10) that a charter would that improperly involve the courts.

"This recommendation is the ultimate triumph of the elites. The government should reject it. If it proposes to adopt it, it should put it to the people," he said.

"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.”



....report entirely predictable...

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.

“That is the same as saying it heard from 0.2 per cent of the Australian population, or hasn't heard from 99.8 per cent of us.

“And those it heard from were disproportionately from charter cheerleading lobby groups.

“This report is entirely predictable.” 



...referendum essential....



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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[The Founding Fathers of the United States intended the judges apply the law, not make it]