Peter A Clarke

Father Frank Brennan’s National Human Rights Consultation Report has been released. Let the “debate” begin.  It will be a boon for conservative commentators.  Janet Albrechtson will be running a piece every 3 weeks or so on the evils of a bill of rights (which this report is not even close to advocating.  Miranda Devine, Paul Sheehan, Glen Milne and a few other conservative commentators will get all rather excited.  A few non conservatives will all get a guernsey, Bob Carr the nominal Labor man (and someone who has long loathed the legal processes and the practitioners) and a few judges, Heerey being the most prominent. The Australian is fast out of the block.   The usual arguments will get dusted off being:

• The judges will subrogate Parliament.  Judges will rule the land.
• With the elites making the law democracy is thwarted.
• The elites will impose their form of morality and political viewpoints on the polity of the nation via the judge made law.

The proponent run the gamut of the centre to the left. George Williams is a pretty active operator along with any number of other social commentators.  Their arguments are equally predictable and simple (when boiled down to their essence):

• the rights are universal;
• it is fundamental to recognise them;
• The rights to be recognised are necessary to inform legislation;
• it is consistent with the universal convention on civil and political rights;

..and a few other issues .

The problem is that both sides adopt simplistic and usually inaccurate arguments.  With the exception of Canada a Charter of Rights has not led to any social engineering. In the US the legislature has long lived with strictures of the Bill of Rights.  The Supreme Court has waxed and waned in its enthusiasm for the Bill of Rights and its willingness to expand its scope.  The proponents are not entirely up front in explaining how weak a Charter or Rights/Human Rights Act will be.  It is a very anaemic form of legislation.  I have had people from the Victorian Government tell me how influential the bill is within the departments.  But so what!  That is a secondary and incidental benefit.  The Act/Charter should clarify, specify and protect the rights of citizens not the internal processes of the administrative units of the body politic. It is an artificial debate.