A Frank consultation

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?:

The terms of reference are, unsurprisingly, wide open:

  • Which human rights (including corresponding responsibilities) should be protected and promoted?
  • Are these human rights currently sufficiently protected and promoted?
  • How could Australia better protect and promote human rights?

That’s basically the traditional list of questions, and an appropriate one too. But, while I can see both sides to this, I’ve never much liked asking the questions in this order. The issue, to me, is about how to protect rights, not whether or not they should be protected (and which ones.) So, coming up with new or refined legal and other mechanisms for rights protection seems like the place to start. After that, looking at what sort of rights are amenable to those mechanisms seems appropriate. And, finally, after all that, what changes (if any) the mechanism would lead to. It’s worth noting that Cabinet obviously had its eye on the final term of reference:

The options identified should preserve the sovereignty of the Parliament and not include a constitutionally entrenched bill of rights.

No surprise there. Not that it will prevent endless submissions for and against this non-starter of an option.

The ‘background paper‘, thankfully, turns out not to be the dreaded ‘statement of intent’ or the frickin’ draft bill that preceded the WA consultation. Rather, it’s a lame ‘get to know your rights and the law’ production. Here’s its treatment of the state/territory charters:

In addition to their anti-discrimination legislation, two jurisdictions in Australia have enacted human rights legislation. In 2004 the ACT Government passed the Human Rights Act 2004. Victoria followed with its Charter of Human Rights and Responsibilities Act 2006. The main features of these laws are that they

  • both set out the human rights that are protected in these jurisdictions
  • do not enable courts to invalidate legislation, but instead enable them to tell Government if legislation is not able to be interpreted consistently with human rights, and
  • in the ACT (although not in Victoria) the legislation, from 1 January 2009, provides for a direct right of action to the courts for individuals who believe their human rights have been breached.

Well, none of that’s wrong. But, it’s a pretty incomplete list of main features. What about parliamentary scrutiny, the interpretation mandate, the conduct mandate? The latter point gives pretty damn short shrift to Charter s. 39. Of course, the less anyone knows about that disaster the better, as there’s surely no chance of anyone independently making the same hideous mistake as Victoria? Also given short shrift: the WA and Tasmanian consultations.

The Committee’s role involves the inevitable community meetings – Broome? Norfolk Island? – and submissions, framed as community-based, but of course the lawyers and academics will weigh in and have the biggest influence. Of interest is the Committee’s assigned job in response to all of this:

The Committee will report to the Australian Government by 31 July 2009 on the issues raised and the options identified for the Government to consider to enhance the protection and promotion of human rights. The Committee is to set out the advantages and disadvantages (including social and economic costs and benefits) and an assessment of the level of community support for each option it identifies.

The first sentence sounds like a law reform ‘discussion paper’, rather than a ‘final report’. But the second sentence is a damn big task involving a lot of complex empirical work. It’s not clear to me that the Committee has this expertise, so a lot will depend on the support staff.

Which takes me to that staff, who are most likely already some way in to writing the Committee’s final report:

The Consultation Committee is supported by a Secretariat in the Attorney-General’s Department.

Meh. The Victorian experience, where Victorian Solicitor-General Pamela Tate was the legal adviser, has me worried about the danger that the public service, and notably the government’s legal team, can start to see a human rights law as their baby, rather than the product of the will of the people or even the parliament. The result, alas, may well be defensiveness, both in the framing of the proposal and in their stance in the courts and publicly once the bill becomes law. It’s certainly a pity that the Secretariat is faceless and nameless.

Finally, some tea-leaf reading on timelines. The 31 July 2009 deadline is a little longer than the Victorian and WA consultations, which were six months, but it sounds pretty tight to me given the demand for empirical assessments. Expect an extension. And it seems highly unlikely to me that the federal government will respond any quicker than a year after the report comes out. So, there’s very little chance that a new charter will be on the federal books before the next federal election. Does that mean we’ll be having a rights election sometime in 2010?

4 thoughts on “A Frank consultation

  1. Pingback: One chance to strengthen the rights of all of us

  2. “who could be more ideal as head of the federal charter (oops, human rights) consultation but a Victorian who isn’t a Charter groupy”

    I could have sworn Frank Brennan was a Queenslander – must have have got him confused with his father. Not that it will matter of course – I’m sure he won’t be parochial about this task

  3. Well one could apply state of origin rules to lay claim to Frank Brennan’s Queenslanderness (although I couldn’t actually ascertain for sure that he was born in Qld), but given his record and history, I think he could qualify first and foremost as a citizen of the globe in any case.

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