Dragged kicking and screaming: towards an Australian bill of rights

With the national parliament and press largely pre-occupied with the local response to the global economic crisis and global climate change, it’s perhaps been easy to forget that far away in the Australian political wilderness, in a seldom visited place somewhere between the Australian republic and Aboriginal reconciliation, another less dramatic policy issue with nonetheless wide ranging policy implications has been simmering away, patiently awaiting it’s 15 minutes in the political spotlight.

The issue I’m speaking of is the question of whether Australia should adopt a legislative charter of rights and responsibilities. To this end the Attorney-General’s Department has been running a National Human Rights Consultation, chaired by Father Frank Brennan, to consult with the Australian people concerning what rights they feel should be protected, whether rights are currently sufficiently protected in Australia, and how we can better protect rights in the future. The consultation closes next week, and the final report from the Consultation Committee is expected by the end of August.

For those who hoped that the election of the Rudd Government meant a temporary hiatus, or perhaps even an end to the divisive culture wars that marked the Howard years, “debate” concerning the charter of rights has, and will continue to prove otherwise.

What is clear is that, since last December News Limited, and The Australian in particular, have picked up their culture war cudgels, and spearheaded the unofficial campaign against the charter on behalf of the Opposition. The Liberal Party, with the exception of George Brandis and Bronwyn Bishop, has been noticeably silent on the issue. Clearly, within the Liberal Party human rights remain a potentially divisive wedge issue between neo-liberals and small “l” liberals. A wedge that may have ramifications for Malcolm Turnbull’s tenuous leadership of the Party should Labor move towards adopting a charter of rights and responsibilities.

The Australian has editorialised vociferously that the inevitable result of a federal charter of rights will be the transfer of power from elected politicians to unelected judges. The “inescapable flaw” with this take on the charter of rights is that it seems to be focused on a constitutionally entrenched charter transferring power to the judiciary, when the terms of reference of the consultation process clearly state that: “The options identified should preserve the sovereignty of the Parliament and not include a constitutionally entrenched bill of rights.”

Now this confusion could simply arise from the editors not being overly familiar with the finer details of constitutional law, or the intricacies of the various alternative models that are being advocated through the consultation process. Then again maybe it’s the unavoidable result of the carte blanche adoption of the views of conservative think tanks and bloggers from the United States, where they have a constitutional entrenched bill of rights.

Whatever the case it seems much more convenient to whip up a scare campaign drawing reference to perceived permanent changes in comparison to a “legislative dialogue” model that can be repealed by a simple majority of parliament. The political reality is that Australian politicians are unlikely to ever introduce legislation that limits their own legislative power. Given the models that are able to be considered by the consultation committee, and those that are being suggested by charter advocates, it is highly unlikely that any model proposed by the committee would result in any tangible increase in judicial power.

The somewhat creative method used to bridge this reality gap has been to argue that constitutional and legislative bills of rights are somehow one and the same thing. That a legislative bill of rights that preserves the sovereignty of parliament will be a “Trojan horse” or “super statute” that will have the same eventual consequences as a constitutional bill of rights. Adopting this line of argument Janet Albrechtsen had this to say about “crusading elitists” like Geoffrey Robertson QC:

Rather than propose a constitutionally valid power for judges to correct explicitly the human rights failings of politicians, they now seek an indirect way of reaching that same result by subterfuge.

How introducing a charter of rights where parliament retains sovereignty will lead to the clandestine or eventual implementation of the equivalent to a constitutionally entrenched bill of rights is not made clear. It has all the hallmarks of arguments that smoking cigarettes leads to heroin addiction. Suggesting that the courts will have the power to invalidate inconsistent legislation is simply speculating about the shape and form of the model that will be arrived at by the consultation committee, assuming it recommends a Federal charter of rights at all.

Again, it is highly unlikely that any preferred model will contain features that give it the effective form of a constitutional bill of rights. So the scare campaign is well and truly underway, and don’t let the facts get in the way of a good old fashioned beat-up.

Paradoxically, commentators such as Helen Irving and Bob Carr have argued that a charter will result in increased powers for judges, while also claiming that judicial statements of incompatibility would be unconstitutional.