Like Canadian UQ legal academic James Allan, former NSW Premier Bob Carr is a vehement long-term opponent of a bill or charter of rights for Australia (or any State). A post on Carr’s blog only last week confirms that his attitude has not mellowed:
More judge-made law a fine thing for Australia? Endless litigation over the meaning of rights? The prospect of Australia being saddled with a charter of rights is continuing to recede, with Tasmania today announcing such a document is now off the agenda because of budgetary restraints.
The government has other reform priorities, according to Attorney General and former Premier, David Bartlet.
These attitudes are quite strange when you actually compare this rhetoric with the modest reality of the existing charters of rights in Victoria and the ACT, not to mention that Carr is an unabashed fan of just about everything else American. I used to be a moderate bill of rights skeptic myself, but more recently I’ve become a cautious supporter partly because of cases like that of Haneef and the continuing saga of abuses of migration detention in Australia. Last year I even lodged a submission to the federal Human Rights Consultation chaired by Father Frank Brennan, in conjunction with Colin McDonald QC and frequent Troppo commenter Patrick. We advocated a very conservative bill of rights enacted by ordinary federal legislation and merely extending existing Commonwealth Constitution rights to bind the States (where possible); and adding a general guarantee of due process and equal protection like the US Fifth and Fourteenth Amendments. We also advocated provisions against slavery, torture and capital punishment, which I doubt even Bob Carr would regard as dangerously liberal. However we strongly argued that broader social, economic and group rights should not under any circumstances be included.
The practical reality of Victoria’s Charter of Human Rights and Responsibilities is well described in a 2009 article by Labor lawyer and MLC Brian Tee. It’s subscription only but here’s a substantial extract:
When the charter was introduced it was criticized as being a “lawyers picnic” that would increase litigation, transfer power to an unelected judiciary and provide a legal shield that protects scoundrels, rogues and criminals from justice.
Two years later the scaremongering, which continues in some quarters, has proved to be without foundation. …
The charter acts as a restraint on the power of the executive by bringing human rights to the fore of the decision making process. Government departments and agencies,local governments, police, prisons, mental institutions all have to act in a manner which is consistent with the human rights of a citizen.
Parliament is required to consider and report on the human rights implications of legislation that it is considering; courts have to interpret legislation in a way that is compatible with the human rights charter.Where legislation cannot be interpreted in a way consistent with human rights the legislation is referred to the Victorian Parliament. The democratically elected Parliament then decides whether to keep or amend the offending legislation.
To date only 55 court cases have raised charter issues. Of those cases the Attorney General has intervened in 16 cases where significant human rights questions where raised. In six of the cases where the attorney intervened, the charter arguments were withdrawn or abandoned after submissions were filed. While four proceedings are currently on foot thus far no legislation has been held by the courts to be incompatible with the human rights charter.
Also see this article by Adam McBeth. In fact only a single declaration of incompatibility has to date been made by a Victorian court, and that was last year by the Court of Appeal in R v Momcilovic. That case is currently reserved on appeal before the High Court, a fact which has led the Murdoch media to drag out the predictable oppositional mantra that the Charter will “provide a legal shield that protects scoundrels, rogues and criminals”. In fact, it appears from my reading of the appeal particulars and transcript of argument that there IS a real chance that the case may result in many hundreds of drug trafficking convictions being overturned throughout Australia, but that will likely have nothing whatever to do with Victoria’s Charter of Rights. However I’ll consider the Momcilovic case in a separate post, because it raises numerous fascinating legal and constitutional issues worth discussing in themselves.
The general reality of bills or charters of rights simply doesn’t match the hyperbole of either strong supporters or opponents. A conservative, carefully drafted legislated model would not result in an avalanche of litigation, nor transfer power to “unelected judges” nor provide a haven for criminals. Nor is it a magical protection for human rights or even a critically important measure in my view. It would simply be a modest incremental improvement to the existing strong array of cultural, institutional and legal checks and balances which make Australia such a free, fair, prosperous and democratic society.