So here we go with the bill of rights debate again.
Frank Brennan, Mick Palmer, Tammy Williams and Mary Kostakidis are to lead a consultation process to establish what human rights are important to Australians and how they should be protected. The only approach off-limits is a constitutional bill of rights.
Greg Barns yesterday was correct to warn that some of our more reactionary commentators are already whipping up a scare campaign. When it comes to a bill of rights, the biggest bogeyman for the Right is the activist judge — that self-loathing liberal anxious to expiate his guilt at being born white, rich and male by imposing his own trendy lefty views on the rest of us. And we all know that leads to rapists, terrorists and murderers walking our streets.
As the American experience suggests, conservatives don’t normally mind activist judges when they’re activist in the right — Right — way, which usually involves protecting the right to life of those not yet born and undermining the right to life of those who have been. It’s only liberal activist judges that upset them.
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But you don’t have to be a dill like Janet Albrechtsen to regard a bill of rights as problematic. Evidence that a bill of rights can protect human rights is mixed at best. As conservatives never tire of pointing out, the Soviet Union had an extensive bill of rights. The British Human Rights Act has done nothing to stop the Blair and Brown Governments from enacting draconian anti-terrorism legislation that systematically breaches basic legal rights, in a similar manner to that introduced by the Howard Government and retained by the Rudd Government here. The US Bill of Rights did not prevent the Bush Administration’s abuse of US citizens’ rights in the USA Patriot Act, or for that matter, the excesses of the Digital Millennium Copyright Act under the Clinton Administration. It certainly hasn’t prevented the systematic, frequent and egregious abuse of the rights of non-citizens since 2001.
George Williams today says a bill of rights might have been an obstacle the Howard Government’s sedition laws. Unfortunately, the sedition laws were the least worrying aspect of Australia’s repressive anti-terrorism regime.
The logic of a bill or charter of rights is to re-balance power between the judiciary and government to enable the former to better protect the rights of individuals from the latter. The fundamental problem is the lack of accountability for judges. You don’t have to have an obsession with Michael Kirby to prefer that politicians make the fundamental decisions about human rights rather than appointed officials.
The best way to protect rights is to prevent laws that breach them in the first place. A genuine parliamentary review process that scrutinises legislation for its impact on basic rights, both before and after passage, would be both a more democratically accountable and effective mechanism for protecting rights, and identifying where laws might breach those rights, than empowering judges and lawyers to head off on shopping expeditions of their own to try to find breaches of human rights.
Whether the debate gets this far under the panel announced by the Government remains to be seen. For a Government that has — mostly — displayed exemplary judgement in its appointments, the consultation panel is a shocker. Mick Palmer’s credentials are unimpeachable, but the remainder look like the Labor appointees from central casting:
Frank Brennan is ostensibly neutral on the rights issue, opposing a constitutional bill of rights but supporting some form of statutory protection. Tammy Williams is a young barrister and indigenous representative. Those three are lawyers. But quite what former newsreader Mary Kostakidis is doing there is a mystery, although inevitably yesterday we were told about her many and varied board roles and the fact that she has — naturally — a long-standing interest in human rights. Kostakidis is a bit of a go-to woman for Labor, having served in 1993 as one of Paul Keating’s hand-picked nominees for his Republic Advisory Committee — although to be fair, Keating also picked some unknown called Malcolm Turnbull as the chair.
Given Kostakidis’s strongly-expressed view yesterday that a charter of rights was necessary, it seems that when it comes to mechanisms to protect rights, the consultation panel, in the manner of that bar in The Blue Brothers, plays both country and western.
One small matter you won’t find mention of in the Government’s announcement is the connection with the 2020 summit. Back at the summit in April, a number of Get Up types and bill of rights advocates like Williams pushed hard in the Governance stream to recommend a bill of rights. Only a belated pushback from some of the limited number of conservatives present prevented it, and in the end the group settled for recommending a national process to consult as to how best to protect human rights — which is what we’re now getting — and a statutory charter or bill of rights “or an alternative method”.
For reasons best known to itself, the Government has dropped any reference to the 2020 summit. Perhaps in these straitened times, the summit now looks a bit self-indulgent.
That Governance group also grappled with issue of addressing both rights and responsibilities, and that, too, has been picked up as part of the National Human Rights Consultation. The process will be consulting about both rights and responsibilities. It has the potential to generate as much heat as the issue of human rights protection. Conservatives might feel a lot more comfortable talking about responsibilities than about a bill of rights.