cynicismcentral.org - TOWNSVILLE AUSTRALIA

Addressing the time wasting arguments of pollies against a bill of rights.

On 14/8/08 Senator George Brandis came to Townsville to tell the people of Australia that the Liberal Party of Australia will not support Australia having a bill of rights. Excerpts from a draft of his speech appears in an article by Glenn Milne in the Australian (11/8/08) (1). George Brandis should know better as a lawyer than to try and use legal arguments about changes to the relationship between the parliament and the judiciary and about a bill of rights being a limitation of the power of parliament. He is quoted as referring to Chief justice Spigelman of the NSW Supreme Court who was talking about the change the UK Human Rights Act may have had there. Brandis states that BOR proponents have failed to show why we need one.

He stated that the parliaments are best placed to decide what rights should be developed or qualified by competing interests, and quotes former premier of NSW Bob Carr who says that- "Parliaments are elected to make laws. In doing so, they make judgments about how the rights and interests of the public should be balanced. Views will differ in any given case about whether the judgment is correct. However, if the decision in unacceptable, the community can make its views known at regular elections. This is our political tradition. A bill of rights would pose a fundamental shift in that tradition."

The other argument you will find come up again and again that is used by both major parties is that a BOR will be a “lawyer’s picnic” (2). This was repeated by John Howard.

None of the legal arguments against a bill of rights holds water. The English Tradition has been different to ours since 1901 when we got a rigid constitution and since 1986 when the English no longer wanted the power to pass laws for us though they still could. The English Parliament, though bound by the ECHR cannot bind itself without a rigid and entrenched constitution. Our High Court has repeated that our system is the same as the English where the courts cannot find anything in the constitution to strike down legislation, parliamentary supremacy means “absolute despotic power” (3).

The 2 major parties control who our votes go to at federal elections through the compulsory allocation of preferences. Their policies are dictated by market forces and not the public interest. The high court has said on a number of occasions that it will not overstep its territory and into the political domain. That is implied in the separation of powers doctrine (4) .

The Court has stated in Ha v NSW that under the Constitution they will determine rights and issues as they arise regardless of the consequences (5) “A hallmark of the judicial process has long been the making of binding declarations of rights and obligations arising from the operation of the law upon past events or conduct. The adjudication of existing rights and obligations as distinct from the creation of rights and obligations distinguishes the judicial power from non-judicial power”.

What George Brandis and all other labor/liberal opponents of a bill of rights are trying to do is to draw attention away from the fact that Australia’s politicians cannot be trusted with the protection of human rights . The NSW Council of Civil Liberties website carries a list of his previous government’s violations of the ICCPR as long as your arm (6).

George Brandis and co have no leg to stand on in arguing against a bill of rights. People should now try to get the real answers from him and his ilk.

(1) Article : Liberals aim to wedge Labor on bill of rights , Glenn Milne , The Australian , Monday 11/8/08 http://www.theaustralian.news.com.au/story/0,,24158142-33435,00.html

(2) Qld Legal and Administrative Review Committee Report no. 12 1998 The preservation and enhancement of individuals' rights and freedoms in Queensland: Should Queensland adopt a bill of rights” http://www.parliament.qld.gov.au/view/committees/documents/lcarc/reports...

(3) Kartinyeri v CTH at pars [12]-[13]
http://www.austlii.edu.au/au/cases/cth/HCA/1998/22.html

(4) See Dietrich v R http://www.austlii.edu.au/au/cases/cth/HCA/1992/57.html online version , decision of Brennan J at pars [4]-[10] See also the decision of the High Court in Kable v DPP http://www.austlii.edu.au/au/cases/cth/HCA/1996/24.html

(5) Ha v New South Wales [1997] HCA 34; (5 August 1997) http://www.austlii.edu.au/au/cases/cth/HCA/1997/34.html

(6) http://cynicismcentral.org/node/19