Oh, I’m very happy. Not that I thought of this criterion in advance – in part because it never occured to me that it would be met – but who could be more ideal as head of the federal charter (oops, human rights) consultation but a Victorian who isn’t a Charter groupy It’s the perfect mix of experience and independence. And his non-groupiness isn’t based on under-the-radar politicking, but simply some outspoken views about how rights should work that doesn’t fit the usual line.
[EDIT: Victorian? Nope. Why don't I check these things? He's based at ACU's North Sydney campus, not its Melbourne one. Still, he's clearly engaged with events in Victoria. Thanks to Andrew Bartlett for pulling me up.] [DOUBLE-EDIT: But, now I look at it, his phone numbers are Victorian! Or is that just the phone number of the ACU's Institute of Legal Studies Fitzroy campus? His various degrees are spread along all the Eastern states.]
Most obviously (to me anyway) is his contribution to the major political debate on the Charter to date: the abortion bill, its non-conscience clause and Charter s. 48:
The Williams committee stressed that such a provision was ‘not intended to make a statement on when life begins. That question has significant moral and scientific aspects and is not a question that the Charter seeks to answer. Indeed, the key reason for including this clause is to ensure that an outcome is not imposed by the Charter, but is left to political debate and individual judgement.’
They made what must now be seen by their political masters to be a remarkably misconceived observation: ‘In coming to this view, we emphasise that the Charter will expressly preserve all other rights, including any rights that the law gives to the unborn child in other statutes and the common law.’
Unless the Victorian upper house acts to amend those provisions of the bill which presently negate the freedom of thought, conscience, religion and belief of health professionals, the matter will need to be resolved by the courts.
Meanwhile the Catholic hospitals and conscientious health professionals opposed to abortion on demand are well justified in taking their stand against an unjust law which carries the hallmarks of totalitarianism. Any self-respecting civil libertarian should support them, regardless of their views on the morality of abortion on demand.
Some of the details are inaccurate, but the basic point is a suspicion of the human rights movement as engaged in preferential treatment of some pet issues and the adoption of political exemptions that is both miserly and misguided. I can’t see him backing the kind of cherry-picked and manipulatable Charter that the good folks on the Victorian commmittee produced.
But he also has a fine ear to the costs of a rights-free system:
Without an overriding bill of rights, the judge does not have guidance from the legislature or the people about the priority of individual liberty and the common good to be applied to particular statutes or to discrete situations calling for a development of the common law. Without recourse to a bill of rights, the judge who has taken the oath to administer justice according to law must define the jurisdiction of the court and interpret the law without the benefit of a prior comprehensive, legislative endorsement of a hierarchy of rights and interests. The judge must find his way through an increasingly complex thicket of legislation which is not subject to any overriding codified set of rights and she must develop the common law where statute is silent with less assistance from judges from other jurisdictions whose decisions are increasingly guided by their own bills of rights.
That is, of course, the right answer to James Allan’s argument that rights turn judges into dictators. They are already dictators in the present system; a rights bill would at least give judges more scope for looking for some underlying values than common law history and the mysteries of local statutory interpretation.
How Brennan will walk the line between these two concerns remains to be seen, but I’ve no doubt that these are the key issues at stake in the rights consultation. As for the remainder of the Committee, I don’t know much about Tammy Williams, Mary Kostakidis or Mick Palmer, but the latter’s presence may offset a major problem with the Victorian one: an apparent lack of experience, attention or knowledge about what is likely to be the major area of effect of any rights law: criminal justice.
But what about the other components of today’s announcement: the terms of reference, the background paper, the Committee’s role, the support staff and timelines?: Continue reading