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All posts in English please and no hidden commercial advertising links or the posts will also be deleted. I have consistently deleted posts with commercial links , that is , that they direct you to a website selling something.

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Pat Coleman
www.cynicismcentral.org owner and editor

Campaign for charter of rights 'fraught with problems'

Michael Pelly | March 13, 2009
Article from: The Australian
http://www.theaustralian.news.com.au/business/story/0,,25178258-17044,00...

THE campaign for a federal charter of rights is "fraught with constitutional difficulties" and "should be abandoned", says former High Court judge Michael McHugh.

There were 10 "significant weaknesses" in the "dialogue model" Mr McHugh said, and it would result in "only marginally more protection" for human rights.

In a speech to the Human Rights Commission last week, Mr McHugh noted the ACT and Victorian models empowered a judge to issue a declaration of incompatibility if legislation was found to infringe charter rights.

The relevant minister must prepare a written response to parliament, which must then decide whether to change the law or leave it in its original form.

Critics say this amounts to the court issuing advisory opinions, when Section 73 of the Constitution says it only has the power "to hear and determine appeals from all judgments, decrees, orders and sentences".

Mr McHugh, who lamented the absence of a bill of rights when he was part of the majority in the 2003 case involving stateless asylum seeker Ahmed Ali Al-Kateb, was offering a critique of a federal bill drawn up by the organisation, New Matilda.

Federal Attorney General Robert McClelland has only committed the Government to an inquiry into whether Australia needs a charter of rights. However, his Victorian counterpart, Rob Hulls, has said he expects a federal charter will become law and it will be based on Victoria's Act.

Mr McHugh's comments come as the consultation group headed by Jesuit priest Frank Brennan continued a nationwide tour that has already visited Queanbeyan, Wagga Wagga, Dubbo, Bourke, Broken Hill and Penrith, in Sydney's west.

The group had already received more than 10,000 submissions and might conduct a school essay competition and public opinion polls, Mr Brennan said.

His final report, due on August 30, would address the constitutional questions raised by Mr McHugh and others, including his father, former chief justice Sir Gerard Brennan.

He would take up "separation of powers, advisory opinions, what do you do for example if someone is charged with a Commonwealth offence in a Victorian court, and what is the application of the Victorian Charter, those sorts of issues".

"Everything is on the table" he said, and he continued to be a "fence sitter" on a charter.

Those who had labelled him a supporter might have misread his writings since 2006 or missed his recent criticism of Liberty Victoria's stand on a conscience clause in new laws decriminalising abortion, he said.

It was important to "get a good read" on the benefits of the Victorian and ACT charters and the cost involved, Mr Brennan said.

Mr McHugh said he was "more pessimistic about the prospects of a dialogue model being upheld by the High Court than those who believed it would be constitutional if enacted at the federal level".

"Those who champion the dialogue model" may have overlooked a crucial difference with human rights legislation in Britain and New Zealand, Mr McHugh said.

"What may work effectively in a jurisdiction with an unwritten constitution and a single legislature may not work as effectively in a federal jurisdiction with a written constitution that incorporates the political doctrine of the separation of powers."

Mr McHugh's 10 faults include the effect of state laws, the absence of remedies for infringement of rights, and the time it would take for parliament to amend "incompatible laws".

He said federal Parliament should give effect to the International Covenant on Civil and Political Rights, which would entail all federal legislation being read subject to that human rights legislation.

"The result would be that private citizens would have judicially enforceable human rights that were not affected by state, territory or federal legislation inconsistent with those rights and would have immediate judicial remedies for breaches of those rights."

Mr McHugh said he was "conscious that my criticism of the dialogue model will provide ammunition for those who are opposed to the enactment of any form of a Bill of Rights, statutory or constitutional.

"I regret that this is so, but it would be a tragedy for the human rights movement in Australia if the dialogue model was enacted and the declaration of incompatibility provisions was struck down as unconstitutional. In that event, there would be no dialogue between the judiciary and the legislature and the executive."

Statute of Liberty
Sydney Morning Herald
February 28, 2009
http://www.smh.com.au/national/statute-of-liberty-20090227-8k97.html?pag...

Rights not capable of legal enforcement are not rights at all, but empty promises, argues Geoffrey Robertson.

There are, lodged in our consciousness, various beliefs about "the Australian way" of life, liberty and the pursuit of happiness, but they have not been synthesised or coherently articulated as a set of moral or legal values. We subscribe to the Universal Declaration of Human Rights, but these are minimal standards (necessarily, because they are universal) and we have not improved upon them. We require new citizens to pledge their loyalty to a country and a people "whose rights and liberties I respect", without defining these rights and liberties.

We have given our children nothing they can recite with pride, except the doggerel in the national anthem, whose second verse we have a mental block about singing, for fear its words might encourage asylum seekers.

This is regrettable for a nation that began its connection with the world as an open prison, and in due course made a "fresh start" without the burden of expectations created by long social evolution or violent revolution.

We have inherited the best things about Britain - its institutions, its common law (however patchwork) and certain of its liberal traditions, including the Enlightenment preference for rationality over dogma.

The Australian people emerged from a polyglot mixture of nationalities and races: a kind of human minestrone. What distinctive moral vision have we attained from the struggles and sacrifices of our forebears?

This is a question usually answered in generalities by politicians and prelates at services on Australia Day or Anzac Day, by academics in seminars on "Australian studies" or by teachers at school assemblies. It is not normally perceived as a question that might be put to lawyers. But if our values are to be a living and working part of Australian lives then law must come into it. If we are to preserve that part of our heritage to do with freedom, we must write down clearly the entitlement of every citizen in the only way that politicians and public servants will understand and respect: that is, they must be written into law.

If rights are not capable of legal enforcement then they are not rights at all. They are empty promises. A right must by definition be enforceable, which means it must be capable of assertion by lawyers and adjudicated by judges.

Other advanced countries enshrine in a constitution the rights for which their people have fought. But when Australia came into existence as a political entity in 1901 an attempt to insert into the constitution an important right to be fairly treated - a US-style "due process" clause - was rejected for fear it might allow Chinese immigrants entry into the country.

At the 2020 summit a thousand articulate members of the community came down in favour of a republic, a treaty and a charter of rights. The republic is inevitable, and a more satisfactory settlement with Aboriginal Australians will undoubtedly be worked out. But the third element in this civic trifecta remains extraordinarily controversial.

Extraordinary to me, at any event, because in all the years I have worked with bills of rights in Britain, Europe and the Commonwealth I have only ever found them a useful guarantee to citizens of what they can do without government interference. They provide, at a technical level, a modern and effective tool for courts to interpret legislation and to develop the common (that is, judge-made) law in ways compatible with contemporary notions of fairness and human dignity.

This means justice for people whose particular plight would never be noticed by parliament, or prove interesting enough to be raised by newspapers or by a backbench MP. Far from undermining democracy by shifting power to unelected judges, it shifts power back to unelected citizens: democracy from its inception has relied on judges ("unelected" precisely so they can be independent of party politics) to protect the rights of citizens against governments that abuse power.

There is now ample evidence from Britain showing that bills of rights improve democratic governance by making liberty a concern of politicians who would otherwise forget about it, and of public servants who might otherwise act arbitrarily or unfairly. As for the beneficiaries, they are all of us - children abused at school, old people who are not cared for properly, patients in hospitals, or vulnerable people suffering from mental illnesses. People who would otherwise be neglected and discriminated against, or treated with incivility by officialdom.

Of course, rights to human dignity may sometimes help a prisoner or an asylum seeker, but a true test of whether a society is civilised is whether it treats its most wretched members with a modicum of humanity. The most beneficial function of a charter of rights is to educate the people and to increase their awareness of the struggles and sacrifices that have produced the liberty it enshrines.

There is a good deal of evidence from the US and Canada that such a charter strengthens both national identity and pride in liberal democracy.

The "no" case, on the other hand, is presented in broadbrush slogans by clever wordsmiths who may not know what they are talking about, but who talk about it in popular newspapers in dramatic terms. They begin with a free kick: they argue that since many proponents are lawyers, they must be in it for the money. This image of fat-cat lawyers promoting a bill of rights to further their own greed is developed with great gusto by the former premier of NSW, Bob Carr, and by newspaper commentators and editorials in The Australian. In fact, the lawyers who generally take on human rights cases are employed in law centres or trade union offices or Aboriginal legal centres or universities, and they are paid much less than Macquarie Bank consultants or newspaper editors.

I must confess to being a proven lawyer, founder and head of the largest human rights chambers in Britain. I have spent much of my life arguing in courts around the world for men and women whose liberty is in peril from governments that abuse their power. As a result of many years' experience acting for victims of bad government in Britain and the Commonwealth, I became convinced of the importance of supplementing the common law with a bill of rights.

Whenever I return to Australia - several times a year - there is always an article written with edgy hysteria on the theme "Beware, bad judges".

These articles are full of misstatements of fact and misinterpretations of law. It may be that few read them, but I do not see why my fellow citizens should debate on the basis of mistaken facts or opinions that have little connection with reality. They are answered, usually by the calm and correct professors George Williams or Hilary Charlesworth, but their measured language lacks the excitement of articles about mad tyrant judges on the verge of seizing power.

The argument against a bill of rights was similar in Britain: in other words, "our liberties are safer in the hands of politicians than entrusted to unelected judges". That is an absurd argument, because parliament does not deal in individual cases and is not equipped to remedy every - or any - particular case of ordinary citizens treated unfairly by the public service.

Moreover, a statutory bill of rights does not empower judges to overrule elected representatives, but merely to interpret their laws as consistently as possible with human rights. Under the procedure devised in Britain and copied in Victoria and the ACT, parliament remains sovereign. All a judge can do is issue a "declaration of incompatibility", which invites parliament to look again at the statute. He or she cannot strike it down. The US Supreme Court regularly does that, in the greatest democracy in the world, where liberty has constitutional protection. In 2008, for example, it struck down a Bush law, which had been approved by Congress, denying habeas corpus - the right to be released unless the legality of your detention can be immediately established - to inmates of Camp Delta at Guantanamo Bay.

A statutory bill of rights, or charter, does not empower judges to override laws made by elected representatives.

The Human Rights Act in Britain exposed numerous gaps in the common law - especially for disadvantaged groups. The main beneficiaries, however, have been ordinary citizens, given additional protection against unfair treatment. There has been no undermining of democratic governance. The separation of powers at the heart of any true democracy entrusts policy to parliament, and its fair and efficient implementation to a judiciary strictly independent of government. Nor has there been a flood of litigation - human rights arguments have actually replaced longer submissions based on endless old cases and precedents. The most important effect has been educational - teaching public servants how to protect human dignity when they deal with vulnerable people.

Studies by the British Audit Commission and the Department of Constitutional Affairs have concluded that the act has encouraged "new thinking" and has contributed to problem solving in welfare services. It has not been a "get out of jail free" card for prisoners, and it has been effective most often in respect of homelessness, mental handicap, education, immigration, aged care and disability services. In these cases, the areas that should most gravely concern a prosperous and advanced society, it has made a measurable contribution to good government. There is some evidence that the first Australian charters (in the ACT and Victoria) are beginning to have a similar effect.

The adoption of a statutory charter would provide an opportunity for Australians to incorporate some of their struggles and achievements in the advance of human freedom, and to reflect traits that (optimistically perhaps) we regard as self-definitive.

Part of that distinctiveness is what can loosely be termed our heritage, including the stock of political rights and freedoms that forebears have battled or bargained for, and which have inspired our democratic institutions and ideals. Any charter we pass now should be infused with modern Australian standards: it should celebrate the best of our past as well as lessons from the worst; it should express our hopes for our future. It should be a guarantee to our children of the treatment they have a right to expect from government during their lifetimes: not just the minimal treatment that governments everywhere are expected to afford their citizens, but standards that Australian governments proclaim to be inherent in Australian citizenship, drawn from the history and character of our people.

Many of those who argue against a bill of rights think we live in the best of all possible worlds, but they should think again. We may live in the best of all geographic locations, but the way we live - the life that we allow our poor, sick and vulnerable to live - is far from perfect. If the evidence shows that their lives can be measurably improved by a charter that draws on the best of our history and makes amends for the worst, surely we should embrace it.

Geoffrey Robertson, whose latest book The Statute of Liberty will be published on Monday by Vintage, will speak at a Herald/Dymocks literary lunch on March 31. Bookings on 9449 4366.

"In Federal Commissioner of Taxation v. Munro((340) [1926] HCA 58; (1926) 38 CLR 153, at p 178), Isaacs J. said that "the Constitution is for the advancement of representative government, and contains no word to alter the fundamental features of that institution". " applied by McHugh J in Australian Capital Television v The CTh at Par [14] of that online decision http://www.austlii.edu.au/au/cases/cth/HCA/1992/45.html .

Though the court in Lange said that the constitution should be interpreted in light of historical circumstances and contemporary needs and realities , and though more rights may be implied from ch3 of the constitution , from the "nature of the exercise of judicial power" in an international human rights environment the affects the judicial process (including habeas corpus) , the fact is , our constitution lacks the words and inspiartion for our judges to grab onto.

Thus, we need a bill of rights .

The "former" Australian Democrats Bill of Rights Bill 2001 , it was unworkable for a large number of reasons.
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%...

Human rights charter is doomed: Carr
Samantha Maiden, Online political editor | December 10, 2008
Article from: The Australian
http://www.theaustralian.news.com.au/story/0,25197,24780185-601,00.html

BOB Carr has predicted that the Rudd Government's flirtation with a charter of rights for Australia is doomed to failure despite support from Labor luminaries.

The former NSW Labor premier, who has previously warned that a bill of rights would lead to litigation over ``naked strollers'' and ``vegetarian menus'', has urged Kevin Rudd to dump the idea.

The Prime Minister has selected a bill of rights sceptic - priest Frank Brennan - to lead a panel shaping new laws to protect human rights.

Also announced on the panel today are former television news presenter Mary Kostakidis, barrister Tammy Williams and former federal police commissioner Mick Palmer.

One of the architects of the British model yesterday claimed it had become a "villains' charter".

"(But) I just don't think it will take off, politically,'' Mr Carr told The Australian Online today.
"Either a bill of rights or a charter, both proposals represent a shift in power from elected parliaments to unelected judges.

"Moreover, the Australian people are unlikely to endorse any such proposal. Last time it was put to the people in a referendum in 1988 it was soundly defeated.

"No one can object to a process of consultation but Australia is one of the freeest countries in world and our freedom rests on the common law tradition, freedom of speech and the healthy give-and-take parliamentary democracy. "

Liberal frontbencher George Brandis, the Opposition's attorney-general spokesman, said he did not see the need for the debate.

"It's an idea that has filtered down from law school common rooms and activist judges,'' he told The Australian Online.

"In jurisdictions where there is a bill of rights, they have effected a very significant rebalancing of the constitution away from elected parliaments and towards unelected judges."

Senator Brandis said it was ironic that the senior British MP Jack Straw who championed the idea had recently declared it had been a grave mistake.

But Australian constitutional law expert George Williams, who prepared a report on the opinions for the ALP, said the Government had an open mind.

"This is a genuinely uncertain political process. It's not one where a government is trying to bring in preconceived idea,'' he said today.

"There are differences of opinion within the Labor Party just as there are in the Liberals and the Nationals. I think the Government has knocked out any idea of a US-style bill of rights.

"But under the charter model I favour, judges cannot strike down laws. We say can we inject human rights into decision making in parliament."

Queensland Liberal frontbencher Steve Ciobo has previously backed debate on a charter of rights, as has former prime minister Malcolm Fraser.

Kostakidis named on human rights charter panel
Paul Maley | December 10, 2008
Article from: The Australian
http://www.theaustralian.news.com.au/story/0,25197,24780101-601,00.html

FORMER television news presenter Mary Kostakidis, barrister Tammy Williams and former AFP commissioner Mick Palmer will join Jesuit priest Frank Brennan on a Government consultation panel on whether the country needs a charter of rights.

The panel, which was announced today by Attorney-General Robert McClelland, will advise the federal Government on community views about Australia's human rights policies and laws.

Ms Kostakidis said today Australia must create a code covering the civil, political and human rights its citizens are entitled to.

But she emphasised that her role on panel is to listen, not to preach.

“This is an opportunity for Australians to tell their government which human rights they believe need to be protected and promoted and what’s the best way to protect them,” Ms Kostakidis told The Australian Online.

She said she would subjugate her own views in the interests of filtering the views of ordinary Australians.

In particular, Ms Kostakidis said her role would be to listen to those with opposing opinions.

“It’s more important to listen to the people who disagree with you,” she said

Ms Kostakidis said the debate about a charter of rights had so far been conducted in overly alarmist terms.

She said the government had ruled out a bill of rights – a constitutional amendment that would codify rights and whose ultimate interpretation would be in the hands of the courts.

But Ms Kostakidis said a charter of rights – an act of parliament codifying rights - was a more realistic approach.

“One of the major criticisms of a bill of rights is that it would transfer power from politicians to unelected politician,” she said.

“A charter would not do that because what a charter would enable is for a law to be shown to be inconsistent with a charter. But should parliament choose to they could proceed o enact that law in its original form.”

Kevin Rudd's bill of rights sceptic Frank Brennan to avoid villains' charter

Paul Maley and Matthew Franklin | December 10, 2008
Article from: The Australian
http://www.theaustralian.news.com.au/story/0,25197,24778071-5013871,00.html

KEVIN Rudd has selected a bill of rights sceptic - intellectual priest Frank Brennan - to lead a panel shaping new laws to protect human rights, as one of the architects of the British model yesterday claimed it had become a "villains' charter".

Attorney-General Robert McClelland is expected to today name the Australian Catholic University law professor as head of a panel of four charged with gauging community attitudes towards a charter of rights.

The announcement comes as the man behind Britain's Human Rights Act, former home secretary Jack Straw, said he had become "greatly frustrated" by the way the act had been interpreted by British courts.

Mr Straw, who instituted the act 10 years ago, said he understood why it was often referred to as the "villains' charter", adding that there was a need to rebalance it with a statement of responsibilities requiring obedience to the law and loyalty to the country.

"There is a sense that it's a villains' charter or that it stops terrorists being deported or criminals being properly given publicity," Mr Straw said.

"I am greatly frustrated by this. Not by the concerns, but by some very few judgments that have thrown up these problems."

Father Brennan, a bill of rights sceptic, is considered one of Australia's pre-eminent public intellectuals.

In 1996, he publicly attacked a US-style constitutional bill of rights following a trip to the US.

He said that giving judges the final say in weighty moral issues such as abortion and gay rights encouraged frivolous behaviour among politicians, who could safely issue extravagant promises knowing they would be struck down by the courts.

"I am not convinced that the complex issues of the day need to be constitutionalised, taken completely out of the hands of politicians, and reserved exclusively to judges who will go to great lengths in judicial reasoning to avoid simply having to apply their own values in weighing the conflicting claims," he said.

But on the question of a statutory bill of rights, which enshrines rights in an act of parliament rather than the Constitution, Father Brennan is considered more neutral. In recent years, he has warned that Australia is increasingly isolated in not having such an instrument.

"Like the British, we may find that a statutory bill of rights is a needed additional institutional pillar on which can rest a modern democracy true to our traditional values," Father Brennan said last year.

Last night, Mr McClelland launched a consultation process on how best to protect and promote human rights following Labor's election commitment last year. "Australia is back in business on human rights," he said. The nationwide process would be an opportunity for all Australians to have their say on what has been a charged and long-running debate, Mr McClelland said in a speech at Sydney University.

"The consultation isn't just about whether we should or shouldn't have a charter of rights," he said.
"In fact, judging by some of the contributions to the debate so far, I expect there will be robust discussion on a broad range of possibilities."

Delivering the annual Evatt Lecture at the University of Sydney, Mr McClelland also said Australia was considering anti-torture legislation and would invite inspectors from the UN to audit our laws and ensure they complied with its Universal Charter of Human Rights.

Faith put in priest
COMMENT: Michael Pelly | December 10, 2008
Article from: The Australian
http://www.theaustralian.news.com.au/story/0,25197,24778075-7583,00.html

FRANK Brennan is no fan of a bill of rights, but he likes the idea of a charter.
That is the clever part about making "the meddling priest" - as Paul Keating once called him - head of the national consultation process.

Brennan will hose down any talk that we are going to get a US-style bill of rights, which enshrines measures such as the right to bear arms in the constitution. After all, men of the cloth don't tell fibs.

However, he is on the record as a supporter of "legislating for the federal protection of human rights " - which is code language for a charter.

This would no doubt please the charter-friendly Attorney-General, Robert McClelland, who is aware of the pitfalls in giving judges US-style powers to rule on contentious issues such as abortion and religious instruction.

Brennan believes "the balancing of right and the public interest should still lie principally with the people through their elected representatives while the judges maintain the rule of law and avoid politics smuggled into law". The key word there is "principally".

For those looking to the future, the comments of Victorian Court of Appeal judge Mark Weinberg at a recent legal conference are worth repeating.

"A national Charter of Rights, by whatever name it is called, will no doubt start off modestly. It will be characterised initially as nothing more than a guide to interpretation. When it is seen that such a law has few, if any, teeth, there will be pressure to make modifications to it ...

"The statute will be used as a peg upon which to challenge the actions of law enforcement bodies. It will be controversial. It will provide an opportunity for judges to engage in as much, or as little, activism as they may feel inclined to adopt."

Just what McClelland wants to avoid.

Keep power with the people
Janet Albrechtsen December 10, 2008
http://blogs.theaustralian.news.com.au/janetalbrechtsen/index.php/theaus...

ANALYSING calls for so-called reforms should always start with a few golden rules. Follow the money. And follow the power. This week both paths lead you straight to the legal profession and to the heartland of politically driven activists. Like pigs sniffing for truffles, lawyers can smell the enticing waft of money and power in the air as they push open new legal industries. For the activists, it’s about influence as they seek to move from the irrelevant fringe of political life to the centre of the action.

To coincide with the 60th anniversary of the Universal Declaration of Human Rights, today the federal Government will announce a process to introduce a legislative charter of rights. Lawyers will be smiling. They will profit the most from the inevitable rights litigation unleashed by a charter. Inevitable because a charter is deliberately drafted in such vague language that only litigation will determine the ambit of the rights.

Hence the Law Council of Australia and just about every law group across the nation have been at the forefront of pushing for a charter.

Not just a charter of rights that duplicates the International Covenant on Civil and Political Rights but also the much more ambitious International Covenant on Economic, Social and Cultural Rights. More on that in a moment.

Not far behind the lawyers are equally delighted political judges who relish the chance of having greater power to call the shots about these rights. And third in the queue are the happy activists, finally able to secure their political agenda via the courts instead of having to battle with tiresome old democratic processes in parliament. Political because delineating the reach of so-called rights is, in essence, a political, not legal, issue.

Take a look at the Covenant on Economic, Social and Cultural Rights. Its motherhood statements are meaningful only when we decide on the detail. But who gets to decide the exact meaning of “safe and healthy working conditions” or the “rest, leisure and reasonable limitation on working hours” as mandated in the covenant? We, the people, as part of the cut and thrust of democracy? Or a handful of unaccountable judges who think they know better than us?

The charter being proposed will allow judges to second-guess the decisions of elected politicians and only a brave politician will reject a judge’s determination once it is draped in the deceptive language of protecting a “human right”.

If you doubt that a charter of rights will involve a fundamental transfer of power to lawyers, judges and activists, ask yourself this. Would these champions of a charter be so energetically supporting a charter if it didn’t transfer power to them? Would High Court Justice Michael Kirby be eager for a charter if it did not boost judges’ ability to socially engineer a better society according to them? Likewise, the activists. Their glee is driven by the new power they will wield as they seek out like-minded judges only too willing to cement their political agendas into law.

Make no mistake. The push for a charter depends on a deceitful process aimed at duping the people. Academic and charter king George Williams, in his best comedy skit, says: “Any Australian who wants to should have a say.” Yet Williams has presided over so-called independent consultative committees that decided from the outset that Australia needed a charter. That is not consultation. That is the first step of the charter charade, where activists can do an end run around democracy.

But then lawyers and activists have never had much time for democracy, and nothing thrills them more than indulging their disdain for democratic processes while locating the next gravy train to fill their pockets.
Here’s the next bonanza. If you thought climate change was solely an issue for scientists, religious-minded green activists and governments, think again. The legal profession is busily working out how best to get its snout in this trough, too.

Late last month Stephen Hockman QC, a former chairman of the Bar Council in Britain, proposed an international court on the environment to mirror the International Court of Justice in The Hague. This new international court would enforce a “convention on the right to a healthy environment” and allow individuals and non-governmental organisations to protest against environmental injustices. “The time is now ripe to set this up and get it going,” Hockman said. British Prime Minister Gordon Brown is considering it. Actor Judi Dench loves the idea. Well, that settles it.

Hockman is full of reform ideas. Last week he suggested that sharia law be written into English law. Perhaps we could intermix his innovative ideas. In the spirit of mutaween, the Arab world’s religious police who enforce sharia law, the new international carbon police - the greenween, perhaps - can impose a sharia solution to reducing the evil carbon footprint: cut off the feet of climate change sinners.

As tempting as it is to kid about Hockman’s reforms, he is no fringe dweller. The International Bar Association has also jumped on the global warming bandwagon as a new legal growth industry.

So, too, has barrister Peter King, the former member for Wentworth who now has some time on his hands.

Addressing the NSW Bar Association last week, he encouraged lawyers to get more involved in a debate about rights in climate change law. Predictably, the activists love the idea of a new environmental human right enforced by an international court.

Like a charter of rights, international law has become the lawyers’ and activists’ version of Second Life, that weird cyber space game where you get to live out your grandest fantasies. International law allows them to operate in a parallel universe, unfettered by boring constraints of democracy and national sovereignty, dictating to nation-states how they should be governed. It’s done under the grand auspices of law. But it is really about power and influence of the worst kind. A group of globe-trotting, self-appointed guardians of morality get to hijack the domestic political agenda of nation-states.

Whether we are talking about a charter of rights or an international court to enforce some newly concocted right to a clean environment, the critical issue remains the same. Who should determine the ambit of these political issues so seductively couched as rights? One need only watch the Rudd Government grapple with climate change to realise this is a political, not a legal, issue.

Even a cursory look at the looming charter rights reveals these are unsettled political questions, not legal rights set in stone. If we are unhappy with how our Government responds to these issues, we can respond at the ballot box. That is the power of the people. But lawyers and activists prefer to vest power in a smaller group of people: themselves.

Critics read rights act over bill of rights panel
Paul Maley and Christian Kerr | December 11, 2008
Article from: The Australian
http://www.theaustralian.news.com.au/story/0,25197,24782927-601,00.html

PROMINENT historian Geoffrey Blainey has warned Kevin Rudd not to run the looming debate about an Australian charter of rights in the same narrow way Paul Keating presided over the republic issue, urging mainstream views be represented.

As Attorney-General Robert McClelland named the three Australians who, along with Jesuit intellectual Frank Brennan, will sit on an advisory panel charged with canvassing support for a national rights charter, the selection drew fire for not representing mainstream opinion.

Mr McClelland named former SBS newsreader Mary Kostakidis, former Australian Federal Police commissioner

Mick Palmer and indigenous barrister Tammy Williams to sit on the panel with Father Brennan.

But Melbourne QC Peter Faris attacked the consultation process as "political correctness" and former NSW premier Bob Carr predicted the push for a charter of rights would fail as the bill of rights debate erupted, with former High Court judge Ian Callinan opposing the move and former prime minister Malcolm Fraser backing it.
Ms Kostakidis told The Australian she supported moves to codify rights, as the nation's current arrangements did not provide adequate protection.

"One of the major criticisms of a bill of rights is that it would transfer power from politicians to unelected judges," she said.

"A charter would not do that, because what a charter would enable is for a law to be shown to be inconsistent with a charter. But should parliament choose to, they could proceed to enact that law in its original form."

Ms Kostakidis emphasised that her role would be to listen to the community, not preach to it.

Mr Palmer said he had an open mind, but Australians already enjoyed robust human rights protections. "We are one of the best-protected countries in terms of our legal framework," he said.

"But no one's perfect, and I think it really is important to impartially, objectively and unemotionally, if you can, assess what the good, the bad and the ugly is."

Mr McClelland's selection drew fire from opponents of a bill of rights, who said the panel was not representative.

Mr Callinan opposed a bill or charter of human rights. "The questions that arise tend to be political or have a large political element in them, and should not be decided by appointed judges," he said.
Even a charter of rights would give courts a disproportionate power in relation to essentially political questions.

"The abortion debate in the US, which still simmers away, is a classic example. You see the way in which the courts in the United States are really inclined to find infringements of the bill of rights in all sorts of extreme ways," Mr Callinan said.

But former prime minister and long-time human rights campaigner Malcolm Fraser said the common law had demonstrably failed to protect people from the overreach of the state. "There are too many people who have been mistreated or denied justice by acts of government or a government department, and nobody pays a penalty, nobody pays a price," Mr Fraser said.

"In that regard, I think the culture needs changing."

Earlier this week, the British Justice Secretary and Lord High Chancellor of Great Britain, Jack Straw, who is responsible for the courts in Britain, said a need had arisen to balance the British Human Rights Act with a statement of responsibilities, including loyalty to country.

"There is a sense that it's a villains' charter or that it stops terrorists being deported or criminals being properly given publicity," Mr Straw, one of the act's architects, said.

"I am greatly frustrated by this. Not by the concerns, but by some very few judgments that have thrown up these problems."

Professor Blainey, who is opposed to a bill of rights, warned against ignoring mainstream opinion. While not criticising Mr McClelland's panel directly, he said any report made with a perceived bias risked its credibility. "Mr Keating set up a committee to take us towards the first stage of a republic," Professor Blainey said.

"Everyone on that committee was a republican and that actually does damage to a cause, if an advisory committee represents too narrow a viewpoint."

Mr Faris slammed the Australian human rights consultation as "political correctness" and said he was sceptical about the makeup of the panel.

"There's no request for it. The public don't want it. No one's asking for it," he said.
Mr Carr, an opponent of a bill of rights, said that any push for a charter was likely to fail and had been rejected in a 1988 referendum.

The nationwide consultation process will begin almost immediately, with the panel expected to meet as early as next week. It will take submissions and hold town-hall-style meetings in about 30-35 cities and regional towns and report to Government on July 31 next year.

The panel has flatly rejected adopting a US-style bill of rights - a list of rights enshrined in the Constitution - the bete noir of rights opponents, who fear it would undermine the authority of parliament.

But it will consider a charter of rights, a list of rights recognised in an act of parliament.
Opposition legal affairs spokesman George Brandis dismissed the process as "the debate we didn't have to have".

Additional reporting: Samantha Maiden

A charter for the elites
Michael Pelly | December 11, 2008
Article from: The Australian
http://www.theaustralian.news.com.au/story/0,25197,24781415-28737,00.html

IF anyone has kicked along the bill of rights movement in Australia, it is Ali Al-Kateb. The stateless Palestinian came to Australia in December 2000, travelling by boat via Indonesia. After he was denied a protection visa, he asked to be sent to Kuwait (where he was born) or Gaza (from where his parents fled).

When no country wanted him, he asked to be released from South Australia's Baxter detention centre.

A Federal Court judge ordered his release in April 2003, but in August 2004 the High Court - by a 4-3 margin - said the government would have been within its rights to keep him in detention indefinitely.
Al-Kateb was not detained again and is now working in Canberra as an architect's draftsman on permanent residency visa.

One of the High Court's majority, Michael McHugh, even went as far as to advocate a bill of rights in his judgment, to prevent judges from being "called on to reach legal conclusions which have tragic consequences".

Al-Kateb made people feel uneasy in the same way that detainees Vivian Alvarez Solon and Cornelia Rau left people wondering about Australia's reputation as a leading light on human rights.
Victorian Court of Appeal judge Mark Weinberg says it was Al-Kateb who convinced him that the time had come to enshrine basic rights in legislation.

"I have in the past been sceptical of the need for legislative protection of human rights," he told the National Judicial College's Courts in 2020 conference in October.

"My views changed as a result of the High Court's decision in Al-Kateb v Godwin. It became clear that the common law could no longer be relied upon to protect even the most basic of values. I shall say no more about that judgment. I understand that there are strong and principled arguments against the introduction of bills of rights. They can give rise to many difficulties.

"However, given the choice of embracing such legislation or leaving those most vulnerable and least able to protect themselves to the tender mercies of bureaucrats and politicians, I know which way I would now lean."

Weinberg reflects the view of the legal profession and many activists that a charter of rights would be a safeguard against bad governments, or at least governments they believe don't respect human rights.

Law societies and Bar associations were falling over themselves yesterday to welcome federal Attorney-General Robert McClelland's announcement that there would be a national human rights consultation panel headed by Jesuit priest Frank Brennan.

Former SBS newsreader Mary Kostakidis, former Australian Federal Police commissioner Mick Palmer and Aboriginal barrister Tammy Williams will help Brennan conduct nationwide consultations next year. They have been asked to deliver a report by July 31, raising hopes that a bill of rights could be in place by the end of the Rudd Government's first term.

Brennan is overseas at present, but yesterday posted an article on EurekaStreet.com.au in which he wrote: "The time is ripe for Australians to conduct a national conversation about how best to provide the fair punt for all, making the state attentive to the still small voice of conscience, especially when the unpopular villain is being demonised in the public square."

The panel will go on the road from February to May with a series of town meetings that will discuss what rights should be protected and what should be done to protect those rights.

The opponents will come from both sides of politics, with NSW Attorney-General John Hatzistergos and former premier Bob Carr leading the Labor sceptics.

Hatzistergos has been especially vocal and even took recent aim at retiring High Court judge Michael Kirby, who referred to the attorney in a speech on the charter's critics.

He says "professional lobbyists and law school elites" are behind the push for what he calls "a charter of wrongs" and that "no one is ever elected judge to be able to go out there and institute social change, (which is) what a bill of rights effectively does". "We have democratically elected politicians with the capacity, the mandate, the authority, the skill and the experience to be able to reflect the values of the community and distil those into legislation," Hatzistergos says. "The judge's role is to interpret and apply the law of the legislature. It is not to be make it up as they go, the way they would like it to be."

McClelland says there are a number of options to be considered but they will not involve a US-style bill of rights, which is part of the constitution.

Indeed, those who favour a charter will be hoping the word bill disappears from the debate because of the potential it has to scare people off as they think of the right to bear arms or judges having control over abortion laws, as is the case in the US.

However, they still want legislative protection for certain rights, and that can only be achieved through a bill of parliament. Using the word charter makes it sound more benign, in the same way as that other statement of intent, the charter of budget honesty.

But that is not what people such as McHugh have in mind. Without any consequences such as judicial oversight and the ability to strike laws down, he says "it would be like a set of pious aspirations as to what a government should do".

Victoria and the ACT already have charters in place that allow the courts to make a "declaration of incompatibility" between a protected human right and another statute. The attorney-general is not obliged to adopt it but his response must be presented to the state or territory parliament.

However, there is a crucial difference between state and federal courts.

State courts are constituted under state legislation, which can define the scope of their responsibilities.

Federal courts are established under chapter three of the Constitution, which says they can be conferred only with judicial power. This includes the authority to decide a controversy between two parties, but not to give advisory opinions.

Brennan's father, former High Court chief justice Gerard Brennan, favours a charter but has pointed out that any court asked to rule on compatibility would arguably be giving advisory opinions and acting in breach of the Constitution. It is a hurdle some believe will kill off any move for judicial oversight.

The architect of the ACT and Victorian models, academic George Williams, accepts the wisdom of not involving him in the federal consultation. "If I was the Government, I would not appoint me," he says.

"I would have been the wrong person. You can't look to people who have taken a clear position on this."

McClelland sounds unconvincing when he says Brennan has not taken a clear position on a charter, given the priest's constant support for "legislative protection of rights".

As he outlined the options available yesterday, doing nothing was not one of them.

"Obviously they will look at the issue of whether there will be a bill or a charter of rights; whether we have sufficient scrutiny of our legislation before it is passed by the parliament," McClelland says. "One view may well be along the lines of the treaties committee of the federal parliament that looks at provisions of treaties and canvasses the views of Australians as to whether Australia should ratify important treaties before they are adopted by the parliament."

Another option, he says, would be to consider whether there should be "a provision in the Acts Interpretation Act or some other act which requires court to have regard to fundamental rights when they are construing provisions of legislation or regulations".

Those looking for clues as to a likely outcome will have noticed that a little later McClelland offered that "a bill or charter may be one recommendation, equally a scrutiny of bills process may be another".

Perhaps this will involve a beefed-up role for parliament's legal and constitutional affairs committee, which would be guided by non-binding charter.

He notes that "as competent as they are, in the judicial arm they don't face the accountability" of federal politicians and that the Government was not about to "shift the centre of gravity".

That is exactly what Britain's Secretary of State for Justice Jack Straw was complaining about as human rights lawyers, including Frank Brennan, gathered in London to mark the 10th anniversary of Britain's Human Rights Act this week.

In his Eureka article, Brennan says Straw "was sounding warning notes that the law does not get the balance right".

"I fully understand that (people) have concerns about the Human Rights Act," Straw says. "There is a sense that it's a villains' charter or that it stops terrorists being deported or criminals being properly given publicity.

I am greatly frustrated by this, not by the concerns, but by some very few judgments that have thrown up these problems."

Brennan notes the British law "is presently very unpopular with the man in the street" and that "democracies are still seeking the best means for providing a fair punt between the individual and society".

In another article after the 2020 Summit, Brennan wrote in favour of a statutory bill of rights as "an institutional pillar on which will rest an Australian democracy true to Australian values".

He says a bill of rights might have helped the Catholics in Ireland, but suspects none of the Australian models on offer would have been of any use to Al-Kateb.

"For example, under the Victorian charter, the immigration officials could argue that Al-Kateb's deprivation of liberty was not arbitrary detention and that it was 'in accordance with procedures established by law', and as he was not detained on a criminal charge, there was no need to bring him before a court."

As he travels across Australia, Brennan will speak up for the unpopular villain, but the plight of people such as Al-Kateb and Solon may be of more help to the charter cause.