No Human Rights Charter – much ado about not very much

April 22, 2010 |

The National Human Rights Consultation was a deeply flawed process.  Frank Brennan took the Committee around Australia and got plenty of air time.  But the process was so predictable.  The GetUP crew and pro charter people organised mass mail ins giving the impression that there was huge support for a Charter of Rights. But it was so obvious that it lost impact.  Their excitement  about the effectiveness of the Charter model surprised me.  It is an anaemic and ineffective model. On the other side the shrill and hysterical write ups by the Australian and burnt offerings by conservative columnists tended to the apocalyptic.  The obsession about “unelected judges” subverting the Parliament became embarrassing, especially when falling from the pen of lawyers.  Did the concept of the common law escape their attention.  And did they avert their eyes from the somehow miraculous operation of the judiciary in the American context.

The Federal Attorney General’s response to the Brennan Report is as insipid as the process.  No Charter of Rights, no bill of rights but an Australian Human Rights Framework.  Sounds good.  But less impressive in practice.  It is, in the AG’s words:

Today, in response to the Committee’s report, I am launching Australia’s Human Rights
The Framework focuses on:
• reaffirming a commitment to our human rights obligations;
• the importance of human rights education;
• enhancing our domestic and international engagement on human rights issues;
• improving human rights protections, including through greater parliamentary
scrutiny; and
• achieving greater respect for human rights principles within the community.

Sounds good  But no mention of liking puppy dogs and being a big supporter of happy families. But what does it mean beyond the platitudes.

The Framework includes an internal process to vet legislation in light of Human Rights obligations, the AG saying:

The Government will introduce legislation to establish a new Parliamentary Joint Committee on Human Rights (JCHR) which will have representation from both Houses of Parliament. It is envisaged that the new Committee will operate in a similar way to the Joint Standing Committee on Treaties.  In particular, it will have the power to initiate inquiries into Bills, existing Acts and delegated legislation as well as conduct broader human rights inquiries.  And it will be empowered to conduct public hearings when the Committee believes it would benefit from submissions from the public or particular expertise.

This will be the first time that we will have, at a Federal level, a parliamentary committee dedicated to human rights scrutiny in such a comprehensive way.

A separate but related measure is the introduction of Statements of Compatibility.  The Government will introduce legislation to require Ministers, when introducing a Bill into Parliament, to present a statement of human rights compatibility. The obligation will also apply to delegated legislation.  Again, compatibility will be assessed against the seven core human rights instruments to which I have referred.

The statements of compatibility will not detract from parliamentary sovereignty.  Rather, they will inform Parliament of human rights considerations to assist its deliberation and ultimate determination of legislative outcomes.

Specifically, the Statements will assist Ministers explain the purpose and intent of the legislation, to contextualise human rights considerations, and where appropriate, justify restrictions or limitations on rights in the interests of other individuals or society more generally.

In turn, by providing information about human rights compatibility, the Statements will assist the parliamentary process and aid the consideration of relevant issues by the Joint Parliamentary Committee on Human Rights.

It is a very insipid process driven box ticking exercise.  A bit more work for the Attorney Generals Department but really nothing significant. Legally it means nought.

The usual suspects come out, Bob Carr, resident sceptic at the Australian,  against the Charter of Rights with Three cheers that we won’t have charter of rights and Sara Joseph with a glass half full piece in the Age Stance on human rights has everything – except a charter.  Both are examples of ordinary analysis.  Carr says everything as about as good as it can get today and we all dodged a bullet of “rights fundamentalism”.  The reality is that the legislature flinches from necessary rights based reforms until there is no alternative, sometimes even then that is not enough.  In Australia judges are not given to creating law on the run.  Look at the approach taken by the High Court, even at its most active.  Sara Joseph’s piece is the usual retort to the Carr like commentary.  The point is that a Charter is not going to advance rights. Criticisms from the bench about whether legislation complies or not means little.  The Victorian Government has already worn criticism and batted it away (on knives).

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