The Big Fix

Worse than I thought

The Consultation Committee on a charter or bill of rights for Australia has just had its report released yesterday. This is the Committee set up by the pro-statutory bill of rights Attorney-General; chaired by someone who was previously on the record as supporting a statutory bill of rights; containing no known sceptics as members; and whose terms of reference favoured a pro-bill of rights outcome.

To no one’s surprise the Committee recommended the enactment of a national human rights act, which is to say a statutory bill of rights. And down the line the recommendations are worse than any sceptic might have hoped. This Committee has urged a federal bill of rights. It has recommended a declaration of incompatibility power be given to the judges, no doubt inviting a challenge to this power on constitutional grounds.

On top of that it wants all Bills introduced in Parliament to be accompanied by a statement of compatibility, this despite the fact that overseas such a requirement has collapsed into a lawyer-driven exercise involving guessing what the judges, here or overseas, are likely to think about the Bill’s compatibility with the enumerated amorphous rights guarantees.

And perhaps worst of all it recommends a reading down provision be included, though this is described as an “interpretative provision”. There is a tiny bit of genuflecting towards those who point out the awful outcomes in the UK after just such a provision was enacted. The Committee recommends this provision be “more restrictive than the UK provision” (Recommendation 28). At the same time, though, it also recommends a form of words (Recommendation 12) for the same sort of provision should the government decide to forswear a statutory bill of rights. This provision would then go into the Acts Interpretation Act, and its wording is near on identical to the wording in the UK, save for a rider that mimics the one in Victoria. But that rider has done nothing, as the latest case law shows, to stop the judges there from looking to the awful UK precedents.

So down the line this Committee has recommended virtually everything that the most fervent bill or charter of rights (and the terminology is an irrelevant red herring) advocate could have wanted. It will revolutionise the relations between the unelected judges and the elected parliament.

Think of it as a wish list created by your typical self-styled human rights lobby group. Throw everything at the wall, a reading down provision, a declarations power, a compulsory statement of compatibility, and a lot more, and then see what sticks to the wall.

What you don’t see is all that much intellectual rigour. We get told the reading down provision should be more restrictive than the one in the UK. We don’t get told what that wording should be, at least not if the goal really is to achieve a more restrictive outcome as opposed to just saying so. Any wording is apt to let the lawyers and judges have their way in the end.

Then we get told what is being recommended is the dialogue model of a charter of rights, as in New Zealand, the United Kingdom and Victoria. But that label, “dialogue”, as soothing as it may be to the uninitiated, is disingenuous. No one can read the case law coming out of the UK and New Zealand, and more recently Victoria, and think the relations between judges and legislators is aptly described as being a dialogue. As a political scientist said, it’s a dialogue in the same way you’d have a dialogue if judges walked into a restaurant and ordered a meal from a legislator, which the legislator then brought them. It’s that sort of dialogue.

Last point. The Committee makes much of the fact it received 35,000 responses, with another 6,000 odd people attending its roundtable sessions. That is the same as saying it heard from 0.2 percent of the Australian population, or hasn’t heard from 99.8 percent of us. And those they have heard from were disproportionately from charter cheerleading lobby groups.

This report is entirely predictable. Indeed it is more or less what I did predict when the Committee was announced and why I refused to make a submission. It looked like a stitch up job from day one. And nothing in the report itself makes me think any differently now that it’s out.

Time for those of us who think this issue is too important to be left to a coterie of like-minded charter cheerleaders to speak up against this awful report and to demand that something this fundamental to our governing relations be put to us in a plebiscite or referendum.

Also published in The Australian, October 9, 2009