Bob Carr was on RN’s Law Report today, repeating his case against statutes like the Charter. While the core of his case is the familiar claim that human rights law lets judges decide things that should be exclusively for parliament, his argument gets its teeth from two anecdotes:
- “British Columbia came up with a scheme to encourage doctors to practise there, with a finely tuned system of incentives. The provincial Supreme Court struck it down, citing section 6 (“mobility rights”) and section 7 (the “right to life, liberty and security”) of the Canadian Charter of Rights and Freedoms. Canada’s rural population is still under-served by doctors, thanks to judges who want to write society’s rules.”
- “[P]olice and bureaucrats in Britain anticipate getting overruled on human rights grounds and start to shape their responses. Pity the factory owner who, this month, had to pay pound stg. 20,000 to bailiffs to remove 40 Gypsies who had torn down a 2.4m fence and occupied his factory land. The police refused to act so as not to breach the travellers’ human rights.
To the Law Report’s credit, it interviewed Brian Walters SC who (unlike Carr) identified the relevant British Columbia case and pointed out that the scheme – designed by a Commission, not parliament – was struck down on the basis that it gave preferential treatment to British Columbians (by grandfathering anyone in BC when the scheme was introduced.) So, the issue was not freedom of movement, but discrmination on the basis of residence.
Some further points about the British Columbian case are also worth making. First, contrary to Carr’s claim, the BC Supreme Court, far from ‘citing’ section 7 of the Canadian Charter, instead found that the scheme did not breach any of the doctors’ rights to liberty. The Court of Appeal, without giving the issue much consideration, agreed with the lower court. Second, the BC decision is not applicable under the Victorian Charter, because Victoria’s right against discrimination is limited to specific grounds, which do not include residence of a state. However, third, the BC scheme would almost certainly be struck in Australia under s. 117 of the Commonwealth Constitution:
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
So, Carr’s BC example isn’t an argument against the Charter; it’s an argument against the Commonwealth Constitution.
And that’s no surprise, because his other example – the one about gypsies – echoes a familiar objection that was aired about the Commonwealth Constitution. Note that the gypsy example doesn’t mention any decisions, but rather a claim that the police are too scared to do anything about invading gypsies. Nice. On the Law Report, Carr attributes this claim to a mate of his in the UK parliament. See, it’s not Carr who’s being a racist! This is presumably the same mate who Carr refers to in his article in the Australia:
A friend of mine who sits in the House of Commons says when his constituents talk about loutish behaviour in the streets or around housing estates, they say: “I suppose the police can’t do anything about it because of their human rights.”
To think I used to defend Carr as a canny (if somewhat Machiavellian) politician willing to pander to law-and-orderism to achieve other more legitimate aims, rather than lose everything to wedge politics by the opposition. And yet here he is peddling the same bottom-feeding nonsense now that he’s left politics. Egg on my face.
Anyway, it’s true that there is a decision of the ECtHR that held that an eviction of some gypsies from land was contrary to their right to home life. But that decision concerned land that the gypsies were legitimately on and had lived on for over a decade as legal tenants. Their landlord accused them of being a nuisance, but rather than proving those claims, the local authority simply gave them 28 days notice, as gypsies had long been excluded from general provisions providing for security of tenure for tenants. The ECtHR, noting that the original justification for that exclusion – the constantly moving life of gypsies – was obviously no longer valid, ruled that the lack of procedural protection – the gypsies were denied judicial review of the decision – was disproportionate to the state’s goals. Maybe there are some cops who say that this decision means that gypsies can’t be evicted from illegal occupation of land, but they – and certain former Labor premiers – are either misinformed or are peddling falsehoods for some other end. Back in 1900, similar falsehoods were peddled about the Constitutional barriers to controlling Aboriginals and coloured people.