Yesterday, Paul Kelly dug into the entrails of the Australian chook and correctly diagnosed a constipated democracy, he also helpfully points to what the blockage looks like.
Since 1975 Australians have had two serious debates about constitutional governance. The first was over reform of the Senate and the second was over a republic. Neither has been brought to a satisfactory conclusion. The third such debate has now started.
And that debate is a bill of rights. But for the life of me I cannot reconcile the Kelly claim that Howard views such a bill as incompatible with our current constitutional and parliamentary democracy, when he goes on to note the three most relevant examples where they co-exist quite nicely, thank you.
The issue here is whether Australia follows Canada, New Zealand, South Africa and the United Kingdom to embrace a bill of rights and accepts the evolving international norms.
He describes Howard’s philosophy this way.
His philosophy is that social and economic changes must be shaped by governments and parliament, not judges. In Howard’s hands this debate is re-defined. It becomes the right of the people to determine their own destiny and to avoid the consignment of fundamental protections to the judiciary.
In other words Howard defines the peoples will as the mandate his government receives at an election, and bugger the complexities, and he reads that mandate as a comprehensive one allowing him to run roughshod over all obstacles. Howard, filled to the brim with his one way version of mutual obligation, is to individual rights what Tonya Harding was to Nancy Kerrigan.
But this claim of policy being shaped by the judiciary in the wake of a bill of rights is a false one because a well crafted bill is an enabler for the people of a diverse democracy to determine their own destiny by challenging for their social and economic rights thereby bolting on new and emerging aspects of culture and society (as long as they meet the criteria of the bill) to what should be ever evolving democratic institutions. It is us who are the ultimate crafters when we are given this tool, we challenge, the judges don’t.
I’m also puzzled by the hypocrisy of this government denying us the personal responsibility of maintaining our rights while proclaiming our abilities in other important areas, but I guess Howard gets to cherry pick what our democratic responsibilities are, even though most of these revolve around us sitting down and shutting up when he blows his whistle. Seen this way, scaremongering about unelected judges is nonsense at best.
In fact the Canadian Charter of Rights and Freedoms ends this way.
Nothing in this Charter extends the legislative powers of any body or authority.
So in other words, a judiciary cannot assume any powers it does not already have, and in fact there are very few, if any instances where high courts in these example countries have stayed the hands of it’s legislators in any unreasonable way, I would argue that the chief justices in Kelly’s example countries have gone out of their way not to be seen to be usurping the traditional role of parliaments, understanding, more so than parliamentarians, the limits of their position. The countries mentioned by Kelly appear to be doing quite well by most measures and have had their own traditional political, cultural,social and economic distinctiveness maintained, if not extended and protected under a bill of rights, so I’m not sure what Kelly means when he says that Howard wants to Australianise our institutions and processes, is Canada, the UK or NZ any less than what they already are for a bill of rights?
In fact the one example given by Kelly, that of asylum seekers, shows the judiciary handing down an opinion that favoured the governments position, it also shows they are mindful of parliaments place in policy making, and exhibit a very democratic awareness with their dissent opinions which is all to the good. In the other scenario the opposite outcome would probably result, but then, in an environment that included a bill of rights the government would be unlikely to press for such an egregious politically inspired policy outcome knowing it wouldn’t stand the test, so maybe that’s the problem. All in all it’s hardly an example of judicial activism, just a commonsense interpretation of the facts in relation to the existence of a bill of rights.
Of course there is nothing wrong with a common law interpretation of rights, it has served the constitutional and parliamentary democracies well for decades, but in an increasingly diverse nation, we need newer and more modern mechanisms with which to serve us. Old fashioned notions of father knows best are well past their use by date.
Anyone who talks about tonia Harding is skating on thin ice!
There are so many contradictions in Howard’s position, it would be impossible to mention them all.
What role does he really assign the parliament, for example? Obviously a trivial one when it comes to the leglislative body opposing the executive.
As for judge-made law, watch the I/R legislation for some choice contradictions. In this case, Howard is trying to extend the corporations power into constitutional places it has never been before (just as in Mabo and Wik with respect to the common law), but this time he will be reliant on an ‘activist court’!!! (Jeff Shaw mentioned a little of this in releasing the new Evatt book on Friday – his speech notes are here).
The only way you can resolve all the contradictions in the consitutional position of His Darkness is with the idea that if Howard is prime minister with a majority in both houses, he thinks he should be able to do whatever he bloody well likes and everyone else should just bugger off.
Rubbish! Howard believes freedom and democracy are best served by an inherited ethos, rather than some Stalinist manifesto beginning with ‘The People’s Socialist Democratic Republic of… He believes that is self evident in liberal democracies and finds its best expression with free and critical oppositions and the press to hone and adapt it constantly to evolving challenges. The left now prefer us to defer to their utopian manuals to tyrranise us with eventually as they always do when given free reign to implement their rules. Bill of Rights my arse. They want their Bill of Lefts because they think they know what’s best for us all.
From the NZ example, there’s been no incompatibility at all. We have a Bill of Rights Act, and Parliament is definitely still supreme. But then, we have a unitary state, where the idea of the judiciary overturning legislation is not well established, rather than a federal one where its an essential mechanism for enforcing the different roles of the states and federal government.
What the BORA has been good for is providing a signpost to parliament about what laws are acceptable, and to the courts on how to interpret them. And it has worked quite well.
Oh, and Observa, I hardly think that basic rights such as freedom of expression, conscience and religion, the right to a fair trial according to international standards, and the right to life, liberty and freedom from torture count as “utopian”. Quite the contrary: these are the minimum standards we should expect from any decent government, and the fact that they are not properly protected in Australian law is a condemnation of the Australian system.
Idiot/Savant
No Right Turn – New Zealand’s liberal blog
Zimbabwe’s bill of rights works well.
This a chilling statement:
First the bill of rights, then the lockstep acceptance of “evolving international norms.” Mmm. No mention of the Australian people there. All three of those countries, of course, have recently experienced severe cultural and racial strife. Multiculturalism has destroyed the unity of Canada and turned it into a soft Bizarro World Balkans.
The David Williamson left has always wanted a bill of rights because they regard the Australian people as backward rednecks who don’t respond sufficiently ‘correctly’ to their agenda. Far easier to ape the American Roe vs. Wade, for example, if you sneak it into some kind of ‘reproductive rights’ placitum. Same goes for illegal immigration and gay marriage.
The left’s most cherished desire is to turn Australia into a Kirbocracy where feted luvvies on the bench put the parliament (representing rednecks) in its place.
And what has brought this on again anyway? Nowadays, security treaties aren’t signed in secret and the Prime Minister actually attends parliament. Elections are still held and Labor has to win one of them.
Ah yes, there’s the problem.
”seen this way, scaremongering about unelected judges is nonsense at best.”
A point of absolute nonsense given 1) judge made Common Law and 2) the Acts Interpretation Act 1901 and the s15AA purposive approach (which covers legislation which is sloppily drawn up by the minions of His darkness for example), and 3) the existing constitutional implied rights of political communication which can only be advanced by constitutional Chapter III judges.***
A truckload of contempt based on the ignorance of people to judge made law, extends by implication to our learned judges themselves, so one wonders how those Federal/High Court judges feel about those ‘scaremongering’ tactics.
***In the case of Theophanous v Herald and Weekly times, such an implied right overrode NSW defamation law. Doubtless His Darkness approved on that one occasion because it was a Labor polly who was allegedly defamed. Moral for His Darkness: Codification that the implied right is negated only if a “Ruling Party” polly is defamed. (Can’t leave natural justice rulings to the judges now, can we?)
As Howard would say Peter, there’s no guarantee democracies can’t make bad laws or bad Bills of Rights. The problem with the latter is, once declared they are too easy to hide behind. We can all imagine who wants to hide behind a motherhood feelgood statement of rights like- ‘Australians of all cultures must be respected and cannot be discriminated against on the basis of their particular culture.’ We know which Kirbocratic(love it CL) NT judge, would like to hide a certain decision of his, behind that little steaming pile of leftist manure now don’t we? We old hands are not going to be buggered quietly like 15 yr old girlies. Same with the workers at Safeway, who don’t want to work with Fundy bovver boys either.
CL: All three of those countries, of course, have recently experienced severe cultural and racial strife
Really? I must have missed it. Unless you consider our regular arguments over the role of the Treaty of Waitangi to be “cultural strife” rather than the ordinary workings of a democratic society hashing out its disagreements.
NZ now has race-specific parties and a race-preoccupied political discourse. A ‘rights culture’ has diminished the country.
Trollery again from CL
”All three of those countries, of course, have recently experienced severe cultural and racial strife. Multiculturalism has destroyed the unity of Canada and turned it into a soft Bizarro World Balkans.”
S Africa moved from Apartheid to a real democracy, not a seamless nor painless ongoing process but—’severe cultural and racial strife’. Interesting stuff that is CL, your need to go on mastermind with your special subject ”the bleeding obvious.”
New Zealand– yeah, Maoris with AK47s killing people left right and centre. Reality: Arguably the most peaceful place on earth that Yanks and Brits are flocking to because there’s no reason for terrorists to attack them. (Wonder why that is so ?)
Quebecans seem little different to many minorities in desiring autonomy or even a separate nation, but CL you say it’s like the Balkans, however so far, no evidence of rape camps etc?
If you have a point to make, support your implied assertion that if those 3 nations are so wicked and perverse, their respective Bill of Rights is 1) to blame and/or 2) inadequate in some way.
Anyone been watching the the contrast between the appoinment of a High Court judge in Australia and one in America.
Bet you would know the name of the SCOTUS nomination. Bet you can’t remember the name of the High Court appointment. That’s because our court is limited to the boring job (most of the time) of interpreting laws and that’s what they are paid to do. SCOTUS has found itself from time to time, making laws, which is something they are not paid to do.
CL: None of which has anything whatsoever to do with our Bill of Rights Act. Our “race-preoccupied political discourse” is based around the Treaty of Waitangi, common law, and false perceptions of Maori “privilege” – not the BORA.
But why let any of that get in the way of a perfectly good strawman?
observa, it might be best if you don’t write about dodgy smoko room fantasies in publicly accessible blogs.
The argument about Zimbabwe is of course absurd – as was the 1937 Constitution of the Soviet Union. A democratic culture and a vibrant civil society is a precondition for a workable Bill of Rights – and it’s precisely those two things that our increasingly authoritarian and arrogant Government is doing its best to destroy.
Joe C: Have you ever asked yourself the question as to who exactly makes the common law?
Peter, you should know by now that I have little time to discuss anything with the proponent of fascistic views on free speech. It’s to be hoped that you have no input into any bill of rights for this country.
Idiot Savant acknowledges NZ has a “race-preoccupied political discourse” and that Maoris have a false perception of “privilege.” Sounds very sad and the bill of rights has done nothing to ameliorate the situation.
In Australia, Mabo and Wik were majestically brought forth without a bill of rights. So too were environmentally advanced outcomes pursuant to section 51. So too was an implied freedom of speech – which, incidentally, Peter wants to abolish.
Something that Paul Kelly mentioned but didn’t elaborate on, and which seems to be a central part of the discussion on any Bill of Rights (from memory), is the question of whether the legislature has the ability to, say, order the maiming/killing of all first-born sons with blue eyes. (I’ve forgotten the actual phrase, but it’s something not dissimilar to this.)
That is, does the legislature have the ability to do whatever it wants (effectively) or are there limits to its powers. These limits, insofar as they deal with the Legislature treating individuals, may be encoded in a Bill of Rights. Recently, there was discussion on a Bill of Rights in Qld – EARC launched a discussion paper on the topic in 1992 (from memory). I don’t know if this document and the subsequent public submissions and report are available on-line, but they would be available in Qld University libraries.
This is a more pertinent question in the UK than Australia, but it is one that Paul Kelly doesn’t elaborate on, unfortunately.
It seems to me that it is dangerous to say that one can always trust the legislature in this matter.
CL, your vile misrepresentations are as usual a disgrace, for which you have been ‘censored’ here before.
How does vile name calling help your argument may I ask?
It substitutes for an argument, Peter.
Sorry, I should have said this in my post. “EARC” stands for the now-defunct Queensland Electoral and Administrative Review Commission, which produced a large number of reports on electoral reform, local govt reform, and administrative “stuff” in Queensland.
I’d forgotten about it until this discussion on a Bill of Rights.
Where’s Tom Round when we need him, Sach?
C.L., to keep people like you happy, the Canadian Charter of Rights and Freedoms has a clause called the notwithstanding clause, which gives the parliament the right to override court decisions over much of the document. The catch is that there’s an automatic five-year sunset clause, and parliament must specify which specific bits of the charter a bill is overriding.
Let’s assume a similar clause existed in an Australian Bill of Rights. If those evil activist judges start using the Bill of Rights to turn the place into a Kirbyocracy, parliament can override them. They just have to be prepared to explain what parts of the Bill of Rights they intend to override to do so.
Frankly, if a supermajority of people decide that marriage should be outlawed (to take a silly example of an abrogation of human rights), there’s nothing the judiciary could do about it – a way will certainly be found. What a Bill of Rights offers, however, is the chance for some of our best legal minds to act as a brake and a warning bell, so politicians think more carefully before abrogating our rights.
“Joe C: Have you ever asked yourself the question as to who exactly makes the common law?”
No one judge.
Sacha, proponents of bills of rights invariably reach for extreme hypotheses in order to ‘prove’ necessity. Trouble is, were there ever a government as morally deranged as the ones their examples presume for argument’s sake, no bill of rights would make any difference.
Good links here. For the contra case, see especially Bob Carr and Sir Harry Gibbs. Note Sir Harry’s remarks on the effect the Bill of Rights has had in the United States.
That’s right! My knowledge on these things pales into insignificance next to Tom’s!
I wonder what he’s doing nowadays? I’ll do a google search soon and find out.
Question: Is putting Zimbabwe, the UK , Canada and NZ in the same comment moral equivalence?
O:”Howard believes freedom and democracy are best served by an inherited ethos,”. What on earth is an inherited ethos? And who’s to guarantee whatever that ethos is will get passed on to the next generation. In fact, I’ve always tended to lean against the need for a bill of rights but these days I find myself thinking that perhaps there is a need for at least some basic bill.
Why doesn’t anyone mention the U.S.A. which unlike us, is a democracy. We are still a constitutional monarchy because the ethos we inherited wouldn’t let us speak with our own voices.
*sigh*
Mark, as usual you’ve ignored the fact that Peter started the name calling when all I was doing was participating thoughtfully in the discussion. Would you mind telling me why you continue to do this? Increasingly, you seem to want this site’s commenters to agree slavishly with the orthodoxy on offer.
By accusing me of “trolling” when all I was doing was putting my view, Peter has again demonstrated that he has no appreciation of, or respect for, free speech. His very presence in such discussions is laughable.
C.L. writes “Trouble is, were there ever a government as morally deranged as the ones their examples presume for argumentÄôs sake, no bill of rights would make any difference.”
If employees of the state (including the police and armed forces) acted in accordance with directions of a court, then one could use a Bill of Rights to prevent “terrible” things happening. If the employees of the state did not act in accordance with the directions of the court, then there is not much that one could do, and things would be very bad. In the former case, a Bill of Rights may be effective, in the latter, it would not be.
Years ago I thought having a Bill of Rights would be a way in which individuals could be protected from the state, but now my opinion is not as clear cut – I’m probably recognising the greater complexities than I had previously realised.
Peter asked you to support your assertions with arguments, C.L. I’m always happy to see debate and disagreement but that’s better done on the basis of well articulated arguments.
If you look back over past comments threads, I note that almost every time Peter makes a comment you start accusing him of stifling free speech. I could understand if he was a bit testy towards you for that reason. However, his comment seems to me critical of your mode of arguing rather than offensive towards you.
CL: Idiot Savant acknowledges NZ has a “race-preoccupied political discourse” and that Maoris have a false perception of “privilege.”
Actually, the perception is the other way round: many Pakeha tend to see Maori as privileged on the grounds that courts have ocasionally ruled in their favour, and the government is doing something to right past wrongs. Maori Party co-leader Pita Sharples pointed out how ludicrous this ws in his inaugural speech: Maori are at the bottom of pretty much any social indicator you care to name. They die ten years younger than Pakeha. If that’s “privilege”, then I am a hippopotamus.
But again, none of this has anything to do with our Bill of Rights Act.
They die ten years younger than Pakeha. If thatÄôs “privilege”, then I am a hippopotamus.
But again, none of this has anything to do with our Bill of Rights Act.
Precisely.
Robert, a constitutional BOR cannot be amended by the government (not without a plebiscite pursuant to the formidable requirements of section 128); nor could a statutory BOR be amended if it was promulgated to give effect to an external affairs power – lest that head of power was adversely undermined by the amendments. If the constitutional BOR included a provision which stipulated that a law passed by parliament would trump any hitherto applicable placitum of the BOR, then the document itself would be essentailly worthless. Except, that is, insofar as the BOR might then have had multiple aplications to real situations and cases to the extent that the political/social culture was transformed in such a way as would militate against such parliamentary intervention. I would still argue that parliament – the people’s assembly – should be what Paul Keating called the “great clearing house” of the nation’s affairs and the nation’s cultural development – not the High Court. (Or the interest groups, monied interests and barristers who appear before it).
Respectfully, your assumption about parliament necessarily having the power or right to override a BOR in the Australian context is flawed for these reasons.
Should have read:
“Excepting, that is, the possibility that the BOR might by then have had multiple aplications to real situations and cases, to the extent that the political/social culture was transformed in such a way as would militate against such parliamentary intervention.”
C.L., there’s nothing to say that a constitutional bill of rights couldn’t have the right kind of parliamentary overriding clause. The constitution can be amended any way you see fit provided you get over the double majority hurdle. As to its meaninglessness, if the public thinks the High Court has it wrong, politicians will happily override its BOR decisions using the clause. If it doesn’t, well…if the majority of people are happy with it (and in Canada their BOR has got pretty overwhelming support), what’s your problem?
I would however want to greatly limit the extent of the bill of rights. Stick to the basic limitations on the power of government and that’ll do. That’s not to say that positive rights aren’t important, but I don’t think bills of rights are the best place to enforce them.
Re CL’s ”if the constitutional BOR included a provision which stipulated that a law passed by parliament would trump any hitherto applicable placitum of the BOR”— it needs to be kept in mind that any legislation whatsoever that purports to oust the jurisdiction of the High Court (to interpret legislation) is always struck down.
To incorporate such a constitutional amendment that a parliament could amend the effect of that constitutional amendment (at any time in the future) would therefore purport to make it effectively the same as ordinary statutory law and I think it would be struck down as not going through the s.128 amendment procedures. Once something is ‘in’ it’s impossible to bypass except by s. 128 changes. CL is correct on that score.
It is necessary to keep the demarcation lines of separation of powers clear—parliament has the right to legislate, but the High Court has the ultimate right to interpret that legislation, and in some cases to strike it down as unconstitutional, eg the Communist Party Dissolution Bill in 1949 if my memory serves me correctly.
A BOR not enshrined in the constitution is worthless, as CL said. This all illustrates the differences between the Canadian constitution and ours.
As I understand it, the Racial Discrimination Act 1975 has a clause which provides that other legislation must comply with it, and if it does not, this has to be specifically noted. That seems to me analogous.
I’d have thought the External Affairs Power, given that Parliament already legislates on a large number of rights-related areas (bits of the WorkChoices Bill also rest on it), would easily be able to provide justification for a parliamentary Bill of Rights.
As I understand it also, the Canadian Constitution gives more power to the provinces vis-a-vis the Federal government than the Australian Constitution.
I doubt there are insuperable legal/constitutional obstacles. Like saint, I used to be sceptical about the need for one, but now I’m persuaded.
Kim the RDA 1975 can override other legislation but was amended so that it doesn’t necessarily ‘cover the field’ in relation to state legislation (and thereby nullify). In other words, state legislation may fill ‘gaps’ that the RDA leaves out ie the Victorian anti-villification legislation.
Based on the Conventions Australia has signed, and even without them, there is no barrier ever to a government legislating for a referendum incorporating a bill of rights, or second choice, mere statutory law outside the constitution.
The only ‘insuperable’ obstacle comes down to political will. People may well be skeptical of it but for example, the suggestion of Julian Burnside that we do it first at state level so people, including pollies, are not afraid of the sky falling, seems to me to be a very sensible approach.
Sorry Kim, I glossed over your first point, your analogy with statute overriding other statute does not apply to the constitution which has to be read as a whole (ie one part can not contradict another part or if it ever did, a High Court case has most likely resolved the contradiction.)
The constitution is therefore regarded as akin to the ultimate statutory law which can never be changed by mere legislation, (only by the constitutions s.128 mechanism)