Peter A Clarke

It takes a hoary rehashing by Albrechtson about the evil of judges becoming our leaders by default to get me to blog again.  Today’s dreadful article Crusaders rely on lies is enough to get one’s juices going. 

She covers the usual complaints.  More like assertions than argument.

The transfer of power conspiracy

The first falsehood is that an Australian charter would not transfer political power to judges because human rights are essentially self-evident, absolute and uncontestable.

Define “political power.”  Funnily enough the Supreme Court wields a huge stick when it needs/wants to but politics goes on and the focus is on Congress or the President when it comes to political power.  So, no, Janet, a Charter of Rights does not ipso facto lead to a transfer of power.  It is not self evident, certainly not absolute (whatever that means)  but is definitely contestable. I hear tell that Ms Albrechtson is a lawyer by training.  So why is it hard for her to understand that a Charter of Rights has the powers that the legislature (by statute) or the people (by referendum) give it.  No more, no less.

The rights in issue

Rights are, according to this ruse, legal in nature and the corollary is that any limitations, conditions or quirks in their application will be minor, obvious things of a technical nature that could easily be sorted out by judges, with no need for political involvement.

It is hard to tell what will come down the path.  Sometimes a technical issue, sometimes a major issue.  Whether they are sorted out by judges is not at all certain.  Sometimes a judge may not act.  What is missing in this drivel is that the legislature can be involved.  Let’s call it passing an act or making a regulation. But her comments are essentially waffle. 

Yet even the most obvious candidate for an unchallenged, absolute right – the right to life – demonstrates the magnitude of this lie. In many countries, the right to life is a deeply political issue, with abortion, euthanasia and capital punishment the key battlegrounds.

Good point,. as far as it goes.  I think waffly statements do not help anyone.  I prefer a Charter/Bill of Rights similar to that in the US Constitution rather than the interminable drivel that exists in other jurisdictions, such as Canada and South Afirca. No codes. Sure enough there will be some cases touching on these subjects.  So what!  The legislature avoids these issues when at all possible. 

Why are lawyers so special

The content of our rights, their limits and conditions is the very essence of political debate. Lawyers have no more moral right or expert skill to decide these things than any other profession. Delegating power to courts to settle the finer details of human rights set down in broadly sweeping platitudes makes no more sense than delegating this power to the Royal Australasian College of Surgeons, the Australian cricket team or any other unelected body. Our rights – and their precise content – are matters for us, to be determined by those we elect to make decisions on our behalf.

Here’s the thing Janet.  Usually litigants are not lawyers. Lawyers prepare and run the cases.  Judges (yes lawyers) hear those cases…according to law…. Who else will resolve a legal dispute but a judge or someone holding the authority to make a ruling.  I agree with Albrechtson’s concerns about broadly sweeping platitudes but that goes to drafting not the existence of a Charter of Rights per se. 

Charter of rights puts the decisions into the right hands – the elitist argument

 An honest argument for a charter would go like this. By definition, politicians are elected by the majority and pay insufficient attention to the rights of the minority. To get elected, politicians pander to populism, to our base instincts and lowest-common-denominator politics. Even worse, they are too dimwitted and slow, too afflicted by venality and imprisoned by self-interest to care about human rights. They either pass bad laws or refuse to pass the laws they should.

These defects require correction by wise, experienced, unelected people not subject to the vagaries and shortcomings of the political process: those who know what we want and how to engineer a more just society. These people are judges. And you won’t be surprised that many judges and lawyers share this view of judges as the people’s saviours.

This argument that unelected wise men need explicit power to correct the folly of politicians is honest but suffers from one serious flaw. Australians don’t buy it. Or at least they haven’t in the past when referendums were proposed in 1944 and 1988 to give judges broad powers to interpret new constitutional rights to free speech, freedom of religion and trial by jury. Rights advocates know this, though publicly they put it down to Aussie apathy.

Witness Robertson’s pompous prose, revealing his disdain for Australian voters: “When the sun shines and the beach beckons, a better world is difficult to envision and too much bother to build.” Crusading elitists such as Robertson never admit that the way Australians vote at referendums may reflect cautious wisdom rather than complacency.

Knowing that they can never win using honest arguments, they once again give the debate a much less honest turn. 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.

Academics such as Hilary Charlesworth describe a charter as a modest little garden-variety law that will leave parliament supreme. Judges have the minor role of filling in the blanks: settling the technical stuff, stuff that apparently should not concern us mere mortals. Stuff such as: how far does a bikie’s right to freedom of association stretch?

Excuse the purple language, but that’s more dishonest baloney. A statutory charter would become, and is intended to become, a super statute against which all other laws are measured.

Take the anti-bikie laws that apply in South Australia and are soon to come into force in NSW. Civil libertarians claim these laws are egregious breaches of the right to freedom of association found in the Victorian and ACT charters of rights. No doubt they are right. And of course Cameron Murphy, president of the NSW Council of Civil Liberties, would say that “this is exactly the sort of tactic that is used in fascist dictatorships to alienate groups or political parties that the government doesn’t like”.

If, as the Victorian Police Association fears, drug-dealing bikies swarm across the border into Victoria to set up shop in Prahran instead of Petersham, could Victoria enact legislation similar to that in NSW? Technically, of course it could. Any lawyer would tell you that a specific anti-bikie law passed by the Victorian parliament after the charter takes precedence over the generally worded charter to the extent of any inconsistency.

But here’s where a charter morphs into a super statute, changing the ordinary rules. It is deliberately constructed to hamper the operation of later laws. Assuming that bikie fans don’t win in the first round by simply pointing to the charter as reason enough why such laws should not be passed, then it’s on to the second round when such laws are passed.

Judges, and even civil servants, are directed by the super charter to interpret all laws as far as possible consistently with charter rights. So they have a broad power to re-interpret new anti-bikie laws as they deem fit. Remember, they get to fill in the blanks. The last line of attack under a super charter is that a Murphy-type judge or civil servant can issue a declaration of incompatibility, declaring the laws to be Third World instruments of oppression that breach charter rights. Only a brave government will ignore such a judicial sanction about some lofty “human right”. Meanwhile the big blokes in leather will thank their lawyers – and the present crop of charter crusaders – for their right to freedom of association.

Dishonest tricks aside, can those pushing for a charter now try telling us with a straight face that a charter is not a super statute that will transfer political power to the judiciary? Didn’t think so.