Charter of Rights – Increased Freedom or Loss of Freedom – Make Up Your Own Mind
The NSW Bar Association has committed its members to the support of a charter or bill of rights.
Such political action does not seem to be within the objects for which the Association was formed.
But whether that is so or not the membership have not been given a vote on the issue and in so doing has probably breached its own version of the Charter or Bill.
It also gives one some idea of how matters will proceed once a Charter is enacted.
The Council of the NSW Bar Association has also adopted a very lengthy, professionally competent, but very mechanical, paper.
And dodged the main questions.
The following is and extract from tis submission to the National Human Rights Consultation (slightly amended for what seem to be textual intrusions):
“13. The Bar Association supports the inclusion in an Australian charter of all of the rights
contained in the ICCPR and ICESCR. In particular, the following list of rights is
recommended for incorporation into an Australian charter of rights:
• the right to self determination;
• equality before the law and freedom from discrimination;
• the right to life and the right not to be arbitrarily deprived of life;
• the right to liberty and security of the person;
• protection from torture and cruel, inhuman or degrading punishment and
treatment;
• the right to humane treatment in all forms of detention, including recognition
of the special needs of juvenile detainees;
• the right to privacy in all its forms and protection from unlawful attacks upon
a person’s reputation;
• freedom from slavery, servitude and forced or compulsory labour;
• freedom of expression;
• freedom of association;
• freedom of peaceful assembly;
• freedom of movement;
• freedom of thought, conscience, religion and belief;
• the right of Australian citizens to vote and be elected to public office;
• fair trial rights applicable to civil and criminal proceedings;
• the right not to be tried or punished more than once;
• protection from retrospective criminal laws;
• protection of the family and children;
• the right to marry;
• the rights of indigenous peoples;
• the right of persons belong to ethnic, religious or linguistic minority groups to
enjoy their own culture, to profess and practice their own religion, and to use
their own language in community with the other members of their group;
• the right to asylum;
• the right to work and to just and favourable conditions of work;
• the right to an adequate standard of living;
• the right to the enjoyment of the highest attainable standard of health;
• the right to education; and
• the right to participate in the cultural life of Australia.
14. In those jurisdictions where bills of rights operate, while the executive and legislature
play a central role in interpreting human rights in broad policy terms, courts and
tribunals also play an important role in their interpretation and in determining their
application to a given set of facts. Some human rights, such as the right to a fair trial
or the right not to be tried more than once, focus on procedural protections, and may
be informed by local procedural laws. The jurisprudence of international courts and
committees and national courts suggests that understanding of the precise content of
human rights will develop over time. The Bar Association supports an approach that
encourages Australian courts and tribunals that may be called on to interpret and
apply human rights to have recourse to international and comparative jurisprudence.”
Peter Costello MP (SMH 28 07 09) is worried that there will in time be a successful attack on religious schools on fake discrimination grounds. That is very likely but it is not the main worry.
The main worry is that the Courts and Special Tribunals that will be set up will gain the powers of a Supplementary but Supreme Legislature to determine the practical day to day content of the rights of citizens.
Each time a new ruling is made a new law will be made which will determine the future rights of the citizens.
Parliament will have no practical right to intervene as the rulings are likely to be myriad.
The practical effect of a Charter will be to set up a layer of law lying between the Constitution and the lower level common law and statute law.
The contents of the Charter will be almost certainly wholly abstract just like the international covenants.
Some of the provisions have obvious inherent contradictions. But virtually all of them are potentially mutually contradictory.
Nothing is said in the above list of the right to own one's own home or the right of parents to make decisions as to the welfare and education of their children.
The right to “favourable” working conditions pre-supposes a situation where having made a lawful bargain with an employee a Court or Tribunal could find that the conditions agreed upon were not sufficiently favourable and order the payment of money out of one's person's pocket and put it into another.
A money judgment is always an appropriation even if not always successful.
Thus an order could be made on the basis of a “law” brought into existence solely for the purpose of making a defendant pay and which did not exist before the ruling.
No such power should be given to anyone.
So Peter Costello's worry that some highly usual (for Australia) rulings about religiously affiliated schools seems justified.
But anything at all could happen in any area of life.
There is little reason to have confidence in the the human rights industry. The whole industry is funded by government subsidies one way or another and their funding is likely to go on forever. So the cases will go on till they get the rulings they want.
What is going to happen when that industry supports the right of a woman to have child aborted 24 hours before it is due to be born because she has the right of self determination.
Quite plainly nothing like that should be allowed to occur.
It is also time to mention that the category of “human rights” is a misnomer. There really is no difference between a human right and any any other sort of right. They all have to be sewn into the one fabric of human life. There is almost nothing to cavil with in the international covenants in their abstract form.
The problem is to sew them in to the ordinary law.
That seems to be uniquely a matter for Parliament.
The idea that there should be a Joint Committee of both Houses of the Federal Parliament has already been mooted.
My suggestion would be that the extra step be taken of setting that committee under an Act and that the Chair be given the rank of an additional Deputy Speaker or Deputy President depending on which house he or she comes form and the salary of a Minister.
It would have the duty of scrutinizing all new legislation and of receiving and holding hearings on petitions with a view to recommending legislative action to the Governor General, which in practice means the Cabinet. This would be wholly additional to the usual rights of each House.
In such a system the Courts and Tribunals would apply the law in the usual way and confidence in them would be preserved.
And the free press would see that all the oddball proposals get full public scrutiny.
David Nelson
Barrister
Sydney