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December 21st 2011 print

James Allan

All I want for Christmas

Those in this country pushing for a bill of rights never tire of looking for backdoor ways to get some part of one in.


Those in this country pushing for a bill of rights never tire of looking for backdoor ways to get some part of one in.


The latest danger comes from the Prime Minister’s 22 person Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples. One of the things being hinted at is that this Panel will suggest that an anti-discrimination provision be embedded in our Constitution.

That is nothing other than the sort of vague, amorphous, indeterminate moral abstraction that is at the heart of any bill of rights, though bills of rights throw in a bunch more such as a ‘no unreasonable search’ provision, and a ‘freedom of religion’ one, and 9 or 10 others. But Canada’s Charter of Rights, one of the most potent and judicial-power enhancing on the planet, has a s.15 equality provision that is basically just this sort of anti-discrimination provision.

And all of these provisions, couched as they are in moral abstractions that finesse all reasonable disagreement, simply shift ultimate decision-making away from Parliament and to the High Court as the judges have to give these amorphous moral entitlements a specific content down in the quagmire of day-to-day decision-making. One can well imagine all the statutes that a future top court might decide have to be struck down because they infringe upon the sweeping notion of ‘no discrimination’.

If this sort of provision is in fact made part of the Expert Panel’s report and is suggested, then I would oppose it. We have loads of statutes in this country that properly deal with anti-discrimination and nothing at all is needed in our Constitution to further empower the judges.

So I can live with the minimalist option of a simple repeal of section 25 and section 51(xxvi). But add this sort of equality or anti-discrimination provision in and we all must fight to have the s.128 referendum defeated.

But notice how anyone who opposes this is likely to be branded a ‘racist’. And notice how Tony Abbott will come under pressure to support it, even though the Coalition is firmly against a bill of rights.

Frankly, I think a fair number of Coalition MPs will be vulnerable to the Siren Song of ‘you’re a racist if you don’t support this’. Still, I think that ultimately Tony Abbott will oppose this if they put in any such grandiose provision. But he will come under the sort of pressure that led a few months back to his bad decision to oppose the Prime Minister’s Malaysia Solution, a decision that has seen us give up trying to defend our borders.

The good news, though, is that I think that even with bipartisan support any s.128 referendum that included an anti-discrimination provision would lose. And it should lose.

So that’s all I want for Christmas.