Peter A Clarke

The legal section in today’s Australian produces three separate offerings on the Charter of Rights debate (if that is a correct assessment).  The banner story is Turmoil hits drive for a bill of rights, basically highlighting the varying degrees of support for a Charter of Rights with some querrying its constitutionality.  There is hardly going to be consensus amongst the various Bars and Law Societies so to that extent the article is not surprising.  The next article is the con, subtley titled The pro-bill of rights hoodwinkers’ handbook It is a fairly blunt straw man article.  Attribute a proposition to one’s foes in fairly stark and clumsy terms and then proceed to knock it down.  That is not to say the proposition doesn’t partly encapsulate some of the propositions but it is in the main, good old fashion misrepresentation.  I can’t let Propositions 3 and 4 to pass without comment:

Ploy No 3: Deliberately elide a) giving judges more powers and b) getting more protection of human rights. Branson says: “Every other Western democracy has more comprehensive protection of human rights than Australia.” Garbage. Look at the scope you have to speak your mind here, and then compare it with Canada and Britain (where they have powerful bills of rights). You can say more here.

• What tosh!  The US Bill of Rights gives far greater protection to freedom of speech than Australia.  The defamation laws are severely circumscribed.  The Canadian Charter of Rights is problematic because it seeks to establish by laws what are desirable cultural norms.  Unfortunately the courts have been more than keen to attend to such social legislating.  It really comes down to what the Charter says rather than its existence per se.

Ploy No 4: Systematically undersell what sort of powers a statutory bill of rights hands to the judges.

Branson says giving a power to read other statutes consistently with what the judges (or a majority of them) think is consistent with human rights “would enhance the accountability of our elected representatives”. Rubbish. It simply gives judges the power to rewrite statutes if they so wish. Then there are these declarations of incompatibility that Branson’s hand-picked group thinks will not be unconstitutional. The Law Society of Western Australia, and many others, disagree.

• This is a reworking of the Albrechtson line.  The judges will trump the Parliament and run riot.  Where is the evidence for all of this?  Judges already interpret statutes, sometimes limiting their operation and sometimes taking a more expansive apporach.  History of the High Court gives little cause for concern,  The Mason High Court of 1987 – 1995, one of the most liberal and activist, was careful when it ventured beyond the black letter . And often for the better. The current High Court is too buttoned down and lacking in vision.  It also embarks upon its own brand of conservative activism when it so chooses.  As for the consitutionality of a Charter there is clearly some issue.  But that is not to say it is unconstitutional.  The drafting is important and, lets not forget the High Court. It is only those 7 souls who determine the constitutionality.  The irony is delicious, Allen cites the claims of unconstitutionality as a plank in his argument but only judges of the High Court will decide that.

In fact, given the extra money a bill or charter of rights puts in the pockets of lawyers, a surprisingly large number of them disagree with Branson and bodies such as the Law Council on this constitutionality issue.

• This is just a cheap debating point.  Most lawyers don’t embark upon a rights based practice.  Most barristers don’t run around wanting to create no areas of practice.  There is nothing surprising in lawyers disagreeing about legislation, and even less about legislation which has philosophical underpinnings.  There are fault lines on issues in medicine, science, accounting and any number of professions.  Those differences don’t always go to money.
  

To provide some sembelence of balance the Law Council have put in an article  Our charter would not politicise the courts. It is a “by the numbers” defence of a Charter of Rights.  Hits all the right notes but is typically restrained. 

There are a few other articles of recent note in the truly dull debate that is being played out in very slow motion, most notably Phillip Lynch’s National charter of rights will protect the disadvantaged which I found utterly unconvincing .  It was a challenge to Bob Carr’s equally unconvincing attack on a Charter in May. Carr’s article follows the traditional line of attack, pointing out:

• Soviet Russia had a bill of rights and look what happened there;
• the US has a Bill of Rights and look what happens there with the death penalty;
• our legislatures have behaved admirably, eg Slavery abolition
• the common law has evolved to protect rights

Where his argument falls over badly is on the one hand lauding our common law system in protecting rights (eg Haneef case) but then complaining that a Charter of Rights takes the power from the wise legislators and leads to judges making law as they chose.  He then correctly points out that rights conflict, such as the right to freedom of speech and the right to privacy and … so he argues… it is fit and proper to have the legislators to work out that balance.  The only problem is that legislators rarely engage in such exercises.  The nature of political discipline in Australia means that Government is essentially managed by the Executive and the opposition is guided by the Shadow Ministry. Neither engage in such exercises.  I mean the legislature takes no interest in a right to privacy per se.  What Carr doesn’t know or chooses to ignore is that judges do not step out to support rights and fill gaps as a matter of course.  The High Court has made that clear. In the common law system changes is incremental by and large.  Yes there are exceptions but they are just that.  With some framework the judiciary can address those issues.

Lynch correctly points out that far from the shrill claims, there have been a trickle of litigation out of the Charter of Rights in the ACT and Victoria.  Where he goes wrong is to claim that the Charter is something of a backroom instrument to force changes to iniquitous acts stating, by way of example:

You won’t have read, for example, that the Victorian charter prevented the eviction of a single mother and her kids from public housing into homelessness, or that it assisted an elderly woman with brain injury to get access to critical medical assistance. Or that it helped a woman with cerebral palsy and children with autism to obtain support services.

Who is this single mother, who is this elderly woman and what were the circumstances?  How do we know that plain old fashion lobbying didn’t achieve the end result.

The debate  is utterly anodyne and the main reason is that the supporters of a Charter are so reluctant to show their wares.  The first problem is that the Charter structure is only guaranteed to excite  politicians who want human rights credentials but don’t want to be bothered by litigants who may want to enforce rights and turbulent judges who might oblige.