Peter A Clarke

Attorney General McClelland has cloaked himself in deep symbolism, the 60th anniversay of the Universal Declaration of Human Rights by launching the National Human Rights Consultation, whatever that means.  The press release is a marvel of good feeldom:

• Father Frank Brennan SJ AO (Chair)
• Mick Palmer AO APM
• Mary Kostakidis, and
• Tammy Williams

Mr McClelland said the consultation implements another Rudd Government election commitment and provides an opportunity for all Australians to share their views on how human rights and responsibilities can be better recognised and protected.

 “The consultation does not presuppose any outcome, although the Government has made it clear that any proposal must preserve the sovereignty of Parliament. We want to encourage broad community debate on a range of human rights issues, not only on whether a Charter or Bill of Rights is necessary.”

Cutting through the waffle, it is a lightweight committee filled with do gooders but with very little in the way of analytical skills or intellectual muscle.    A transcript of a press conference by the Attorney General was released about an hour and a half ago.  Why release this meandering stream of conscience is beyond me.  You judge:

 

 

 

ROBERT MCCLELLAND: Today I have the great honour of announcing a National Human Rights consultation. It’s going to be chaired by Father Frank Brennan, also assisted by Mick Palmer, Mary Kostakidis and Tammy Williams, all distinguished Australians, all bringing a variety of perspectives and I’m sure they will perform an outstanding role in canvassing the views of the Australian people on those three issues.

                                           What fundamental rights and freedoms do Australians regard as requiring protection? Secondly, are those fundamental rights and freedoms sufficiently protected, and thirdly, should we be doing something to further promote and protect those fundamental rights and freedoms?

                                           The Government has no pre-conceived views, and indeed, I think it’s fair to say that the chair, Father Frank Brennan has no pre-conceived views on the matter. He has indicated that he is very much a fence sitter on some of the important aspects including, in particular, what has been an issue of controversy, and that is whether or not we recommend or shouldn’t recommend that consideration of a bill or a charter of rights.

                                           The other members of the committee bring their own skills – obviously each is highly competent. Each will have their own views on varying aspects, but their main role is to engage in a dialogue with the Australian communities. That dialogue, in short, we believe, will not only canvas the views of the Australian community, but will also have a degree of a positive effect in terms of just a dialogue with the Australian community, as to the significance of fundamental rights and freedom, how they are, I believe, part and parcel of the fabric of our community, and should we be doing more to enhance, promote and protect those fundamental rights and freedoms. But, I’m very happy to answer any questions that people might have on the process or the committee.

QUESTION:                        [Inaudible question]

ROBERT MCCLELLAND: For that very reason, [indistinct] not only for that very reason, but the fact that he has declared himself as a fence sitter was a most attractive, a most attractive aspect aside from his tremendous service to our nation. He has a genuine interest and is a person who genuinely has been promoting throughout his life the fundamental rights of those in the community, particularly Indigenous Australians, but the fact that he has no pre-conceived views, I think he is particularly significant in his role as chairman.

QUESTION:                        [Inaudible question].

ROBERT MCCLELLAND: Well again, the Government has no pre-conceived views on it. I should say that the committee itself will be proposing to the Government, various options. They will be [indistinct], in so proposing various options, they will be outlining strengths and weaknesses of those options, but at the end of the day, it’s going to be very much up to the Government as to what view we take in terms of the protection of human rights.

                                           Again, I’ve been at pains to point out that the Government has no pre-conceived views on the outcome that will flow from the process.

QUESTION:                        [Inaudible question]

ROBERT MCCLELLAND: The issue is of controversy. I mean, just picking up the papers today, the issue as to whether a bill or a charter of rights would shift the focus of political power to the  judiciary as opposed to the parliament. This is always an issue of controversy.

                                           I should say in that respect that the Government has made clear that we would not favour an outcome that resulted in the loss of sovereignty for the parliament to determine these issues of crucial national policy making. But that aside, we’ve got very much an open mind as to what the outcome of this process will be.

QUESTION:                        [Inaudible question]

ROBERT MCCLELLAND: I don’t want to get into the pros and cons of a charter, but there are various models around the world. There are a range of options, I suppose, you could be looking at, you could look at, and the committee will look at, obviously their own range of options, but I would think they will look at the issue of whether there should be a charter or bill of rights. They will look at the issue as to whether we have sufficient scrutiny of our legislation before it is passed by the parliament. It’s been suggested, for instance, that one view may well be along the lines of the Treaties Committee of the Federal Parliament that currently looks at provisions of treaties and indeed canvasses the views of Australians as to whether < ?xml:namespace prefix =”” st1 ns =”” “urn:schemas-microsoft-com:office:smarttags” />Australia should ratify important treaties before they’re adopted by the parliament. That has been suggested as one option, an enhanced scrutiny of bills process.

                                           Other options include – should there be provisions in the Acts Interpretation Act or some other Act that requires courts to have a regard for fundamental rights when they’re construing the provisions of legislation or regulations. That’s also an issue for debate. Another issue for debate is whether our anti-discrimination acts are solid – whether there is more to be done to unify those. Other issues will be, is enough being done by governments at all levels to engage Australians in the concepts of human rights and just what does this mean in terms of a cohesive society?

                                           These are all important issues.

QUESTION:                        [Inaudible question]

ROBERT MCCLELLAND: Yeah, I might give a long-winded introduction, because it’s something I feel strongly about. We’re celebrating today, the 60th anniversary of the Universal Declaration of Human Rights. That was entered into by very hard men, so – very few women on the international political stage at that time. They were very hard men, but as a result of the traumas of World War II they recognised that the absence of respect or human rights was one of the factors that led to the conflagration of two world wars.

 

 

 

 

 

                                           These were hard people. These weren’t pacifists. These had been men leading countries at war, they knew protecting and promoting human rights was fundamental to world peace. I think those principles, while we don’t confront the challenge of totalitarianism these days, I think the principles underlying the bill of rights is just as important.

 

 

  In terms of the threat of radical extremism and radicalism, I think the principles of the Universal Declaration of Human Rights are just as relevant today. All research suggests that one of the most potent antidotes to radicalisation or the development of violent extremism is promotion of religious tolerance and fundamental human rights. And I think these principles are just as relevant to protecting people in this day and age as they were 60 years ago.

                                           In terms of the immediate issue, clearly the issues of development and comments and so forth are a matter for individual agencies and I won’t get into the details. But obviously the Government and I think the Australian people, and without judging these comments have been made or not, but certainly I can say that the comments that have been attributed to the individual, both the Government and the Australian people would find offensive and completely contrary to the ideals of the Universal Declaration of Human Rights that we celebrate today some 60 years after it was adopted.

QUESTION:                        [Indistinct] before any public funds going [indistinct]?

ROBERT MCCLELLAND: I can’t comment on the terms of the details of applications and so forth, but the goal of the Government is to encourage respective religious tolerance and the ideals of the Universal Declaration of Human Rights. And we will not be putting any resources into any organisations that do other than promote social cohesion.

QUESTION:                        [Indistinct] human rights [indistinct] in Australia?

ROBERT MCCLELLAND: I think we are entitled to pride ourselves on the fact that for the best part of 60 years [indistinct] we have been a leading proponent of human rights around the world. And I think fundamentally we pride ourselves on being a country based on the principle of a fair go.

                                           But equally I think there are areas where we could do better. I think the fact that we are seeing just completely outrageously unacceptable levels – no level of violence against and children is acceptable. But what we’re seeing is outrageous and unacceptable. We’re seeing in our region, again, unacceptable treatment of women, whether it’s education, whether it’s social opportunity, employment opportunities, deaths during childbirth, in the worst case scenarios human trafficking. Much more we can do in our region.

                                           In the area of disabilities there’s much more we could be doing. In the area of the treatment and the living standards of Indigenous Australians, clearly there’s much, much more we could have been doing and should be doing. And I think all these issues are issues that legitimately should be part of the dialogue.

QUESTION:                        A bill or charter, how would you change that situation [indistinct]?

ROBERT MCCLELLAND: Well, again, without getting into the merits of the particular issue, I think the dialogue should be around these things – areas where we can, should and need to do better. Again, a bill or charter may be one recommendation. Equally, a scrutiny of bills process may be another. A range of issues will arise in that discussion but I specifically want to avoid commenting on the pros and cons of any of those options prior to the discussion occurring.

QUESTION:                        What about offshore processing the [indistinct] critical of what they describe as a [indistinct] on Christmas Island.

ROBERT MCCLELLAND: Chris Evans, who’s the Minister for Immigration – giving him a plug – I think he’s one of the really solid and unsung performers of the Government. I must say that one of the first acts he did as a minister was to dismantle the Pacific Solution.

                                           The Pacific Solution cost about $310 million on the basis that people, including men, women and children, were detained on Manus and Nauru – for an average period of 500 days.  It cost in the order of $189,000 per person for the Pacific Solution. That was dismantled by the Government. We have maintained however the excision of islands, and as part of that detention process we have maintained the facilities on Christmas Island, and that detention facility still remains operational and indeed any person seeking unauthorised entry to Australia from an unauthorised boat arrival will be taken to Christmas Island.

QUESTION:                        [Indistinct], you’ve talked about in the bill [indistinct] that it’s important to obtaining parliamentary oversight [indistinct]. What form should that take?

ROBERT MCCLELLAND: Okay, again, I’ve got to leave that very much to the committee. I don’t want to…

QUESTION:                        Why is that important, because you talked about it before in the past?

ROBERT MCCLELLAND: The Government’s philosophy is that the parliament is democratically elected by the people of Australia to obviously introduce their policies and their programs consistent with their electoral platforms and commitments, and we don’t want to see the centre of gravity shift from the democratically elected parliament to, as competent as they invariably are, to the judiciary, where they don’t face that same accountability to the parliament.

                                           Obviously in applying, construing, interpreting legislation they’ll have – they’ve have regard to, important provisions. How that’s done I’ll leave to the committee.

QUESTION:                        [Inaudible question]

ROBERT MCCLELLAND: Again, these matters, as the extent to which the committee believes the judiciary should have a role in the oversight of fundamental human rights and freedoms, is something that they’ll obviously consider.

 

 

The immediate media response has been fairly predictable, from both ends of the spectrum.  Steven Freeland’s Our fundamental human rights can’t be taken for granted is a soft sort of endorsement of some form of instrument.  Janet Albrechtson has rewarmed her earlier offerings on the evils of activist judges and bills of rights and offered up Keep power with the people.  Her arguments start at spurious and race towards shrill fueled with a tankful of assertions.  It is worth a view:  

ANALYSING calls for so-called reforms should always start with a few golden rules. Follow the money. And follow the power. This week both paths lead you straight to the legal profession and to the heartland of politically driven activists. Like pigs sniffing for truffles, lawyers can smell the enticing waft of money and power in the air as they push open new legal industries. For the activists, it’s about influence as they seek to move from the irrelevant fringe of political life to the centre of the action.

Ah, the conspiracy theory.  There is an organised movement of greedy, grasping solicitors and barristers plotting and scheming to open up the chest of gold coins that will come with rights based litigation.  Perhaps an explanation might be that lawyers are often the activists on this issue because they see the inadequacy of the law as it now stands protecting their rights.

To coincide with the 60th anniversary of the Universal Declaration of Human Rights, today the federal Government will announce a process to introduce a legislative charter of rights. Lawyers will be smiling. They will profit the most from the inevitable rights litigation unleashed by a charter. Inevitable because a charter is deliberately drafted in such vague language that only litigation will determine the ambit of the rights.

The experience in Victoria and the ACT is that the Charter of Rights will drive most counsel to the poor house if they chose to specialise in this area.  I am sure there are a few lawyers who have pocketed a shekel or two but the scope of action is fairly limited.  Consider how weak the Charters are.  There is a massive gap between the Bill of Rights in the USA or the Human Rights Act in the UK and the insipid legislation in Victoria and ACT.  The legislatures of Victoria and ACT have little to fear from activist judges or rapacious on this score.

Hence the Law Council of Australia and just about every law group across the nation have been at the forefront of pushing for a charter.

 

And……………? ????? Perhaps the Law Council of Australia and other representative groups are motivated in rights rather than as a guild seeking out further work.   A bit of flesh on the bones of this argument wouldn’t go astray.

  Not just a charter of rights that duplicates the International Covenant on Civil and Political Rights but also the much more ambitious International Covenant on Economic, Social and Cultural Rights. More on that in a moment.

 

Talk about putting words in the mouth of the evil activists.  Mmmmmm……More on that in a mo……

Not far behind the lawyers are equally delighted political judges who relish the chance of having greater power to call the shots about these rights. And third in the queue are the happy activists, finally able to secure their political agenda via the courts instead of having to battle with tiresome old democratic processes in parliament. Political because delineating the reach of so-called rights is, in essence, a political, not legal, issue.

Here is where it gets all very weird.  Janet believes that Kirby J is just the tip of the iceberg of rampant judicial activism.  She perhaps should have a look at the decisions coming out of the appellate jurisdictions of Australia in the last decade, starting with the High Court.  Wild movements and activist law making from the bench is an anathema to the bench.  Pushing the envelope on contractual and tortious issues is at best a slow frustrating process, as it should be in the normal course (until the justice requires a real tectonic shift).  What I never understand about Albrechtson, the lawyer, is her ignorance of how common law operates.  Change is gradual but constant.  She seems to think the Australian legal system has swung to the the civil code, based soley on legislation.

Take a look at the Covenant on Economic, Social and Cultural Rights. Its motherhood statements are meaningful only when we decide on the detail. But who gets to decide the exact meaning of “safe and healthy working conditions” or the “rest, leisure and reasonable limitation on working hours” as mandated in the covenant? We, the people, as part of the cut and thrust of democracy? Or a handful of unaccountable judges who think they know better than us?  

How is this at all relevant to anything? What is the gossimer thread that links a Charter of Rights to the Covenant.  A Charter or a Bill is the sum of its provisons.  That a waffly Covenant is full of motherhood statements is hardly anything new.  But how does that relate to the law of the land.  

The charter being proposed will allow judges to second-guess the decisions of elected politicians and only a brave politician will reject a judge’s determination once it is draped in the deceptive language of protecting a “human right”.

There are plenty enough politcians who are more than happy to have a whack at judges.  The whole law and order debate is an oblique attack on the bench’s approach to sentencing.  The conservative side of the aisle ran through the Thesouras in giving the High Court a thumping over the Mabo and Wi k decisions.   

If you doubt that a charter of rights will involve a fundamental transfer of power to lawyers, judges and activists, ask yourself this. Would these champions of a charter be so energetically supporting a charter if it didn’t transfer power to them? Would High Court Justice Michael Kirby be eager for a charter if it did not boost judges’ ability to socially engineer a better society according to them? Likewise, the activists. Their glee is driven by the new power they will wield as they seek out like-minded judges only too willing to cement their political agendas into law. 

 

 There is no judical lobby pushing for a Charter of Rights.  There are a few who call for it, namely Kirby.   Albrechtson drags Kirby to the fore as the living and breathing .   

Make no mistake. The push for a charter depends on a deceitful process aimed at duping the people. Academic and charter king George Williams, in his best comedy skit, says: “Any Australian who wants to should have a say.” Yet Williams has presided over so-called independent consultative committees that decided from the outset that Australia needed a charter. That is not consultation. That is the first step of the charter charade, where activists can do an end run around democracy.

The US has a Bill of Rights.  Does anyone suggest that it is an end run around democracy.  There is a continual friction betwen the Supreme Court and the Congress., particularly when the court has an activist bent, but that has been factored in.  In reality the Court has had to carry issues which the legislature is more than happy to give up..  

But then lawyers and activists have never had much time for democracy, and nothing thrills them more than indulging their disdain for democratic processes while locating the next gravy train to fill their pockets.

You have to be joking Janet.  How may lawyers are in Parliament and how many are involved in political parties.  This is just a typical assertion and groteseque stereotype.  Even if it is just an opinion piece a little bit of supporting data would go  a long way to adding some credence to the argument.  

Here’s the next bonanza. If you thought climate change was solely an issue for scientists, religious-minded green activists and governments, think again. The legal profession is busily working out how best to get its snout in this trough, too.

There is a tiny proportion of the Bar and the profession generally that has any inclination to litigate in this area.  The bleak (or not so bleak) reality is that Human Rights litigation is poorly paid for the practitioners.  The bench is not particularly generous.    

Late last month Stephen Hockman QC, a former chairman of the Bar Council in Britain, proposed an international court on the environment to mirror the International Court of Justice in The Hague. This new international court would enforce a “convention on the right to a healthy environment” and allow individuals and non-governmental organisations to protest against environmental injustices. “The time is now ripe to set this up and get it going,” Hockman said. British Prime Minister Gordon Brown is considering it. Actor Judi Dench loves the idea. Well, that settles it.

Hockman is full of reform ideas. Last week he suggested that sharia law be written into English law. Perhaps we could intermix his innovative ideas. In the spirit of mutaween, the Arab world’s religious police who enforce sharia law, the new international carbon police – the greenween, perhaps – can impose a sharia solution to reducing the evil carbon footprint: cut off the feet of climate change sinners.

As tempting as it is to kid about Hockman’s reforms, he is no fringe dweller. The International Bar Association has also jumped on the global warming bandwagon as a new legal growth industry.

How is this the semi loopy waffling (assuming of course Albrechtson’s representations are accurate) by a UK QC is at all relevant to this debate?  I doubt he will have any impact on the debate beyond that of the right’s whipping boy. The International Bar Association is a glorified letterhead who will not cut through in the debate.  Assume it does dip its toe in the water, so what. 

So, too, has barrister Peter King, the former member for Wentworth who now has some time on his hands. Addressing the NSW Bar Association last week, he encouraged lawyers to get more involved in a debate about rights in climate change law. Predictably, the activists love the idea of a new environmental human right enforced by an international court.

If Peter King is the beach head of the . 

Like a charter of rights, international law has become the lawyers’ and activists’ version of Second Life, that weird cyber space game where you get to live out your grandest fantasies. International law allows them to operate in a parallel universe, unfettered by boring constraints of democracy and national sovereignty, dictating to nation-states how they should be governed. It’s done under the grand auspices of law. But it is really about power and influence of the worst kind. A group of globe-trotting, self-appointed guardians of morality get to hijack the domestic political agenda of nation-states.

Whether we are talking about a charter of rights or an international court to enforce some newly concocted right to a clean environment, the critical issue remains the same. Who should determine the ambit of these political issues so seductively couched as rights? One need only watch the Rudd Government grapple with climate change to realise this is a political, not a legal, issue.

Even a cursory look at the looming charter rights reveals these are unsettled political questions, not legal rights set in stone. If we are unhappy with how our Government responds to these issues, we can respond at the ballot box. That is the power of the people. But lawyers and activists prefer to vest power in a smaller group of people: themselves.