Beware the galloping imperialist judiciary
Janet Albrechtsen
DO not mistake the unseasonal rush of warmth over the weekend with global warming. Put it down to those advocating a charter of rights for Australia at the 2020 Summit in the nation's capital.
Their aim is to bathe us in the warm language of human rights so that, ultimately, we will soporifically sign up to a new federal charter of rights.
The heat will be cranked up over the next few years.
Having found a good friend in the Rudd Labor Government, and buoyed by success in Victoria and the ACT where charters already operate, charter enthusiasts have finessed one heck of a sneaky strategy to seduce us.
What is at stake is Australia's traditional democratic deal where parliaments make laws on behalf of the people and judges interpret those laws. Charter enthusiasts have a different post-democratic model in mind. This class of lawyers, human rights activists and academics distrust the people as too unenlightened to embrace their preferred social agenda.
Hence they want to vest power to decide major social issues in an unelected group of guardians of the greater good: the judiciary.
Armed with a charter, these social engineers can seek out a sympathetic judge to legislate their agenda from the bench, unfettered by the messy business of taking their agenda to the people. Here is their strategy. First, promise public consultation, as Kevin Rudd has done. If genuine debate follows, that will be a fine thing.
Unfortunately, as we know from Victoria and the ACT, the so-called independent committees entrusted to consult with the people were stacked with so many charter supporters, they operated like one-way steering committees. Neither Victoria nor the ACT trusted the people's view enough to put the charter to a referendum.
And keep your eye on academic and Labor aspirant George Williams. Having slogged away at a charter for years, he oversaw Victoria's charter of rights. Ditto Hilary Charlesworth, another charter lover who chaired the ACT committee. If they pop up on the federal committee, I'll bet my house on the outcome. Talk that Malcolm Fraser may join them only confirms the one-way debate in store for us.
That "debate" goes something like this. "How can a reasonable person be against a charter of human rights?" they ask rhetorically. Human rights are not controversial, right? Wrong. A moment's reflection reveals that rights are as diverse as people themselves. And this exposes one of the greatest con jobs practised on us by the modern human rights industry: the assertion that human rights are universal, clear and immutable.
Even that most basic right - the right to life - is highly contestable. Defining what is a right and the ambit of those rights is where reasonable people can and do disagree.
The charter raises one simple question: when deciding these contestable issues, should we count the votes of the Australian people or those of a handful of judges? It's a no-brainer. These are political questions for the people to determine. Sending political questions to the judiciary does not transform them into legal questions.
Relax, say the charter advocates. A charter of rights is a tame little law, a modest one which will not transfer power from the people. Just look at Britain, they say. Britain has a special provision in its Human Rights Act to ensure parliament is not stripped of power: that there is simply a "dialogue" between the judiciary and parliament. Courts in Britain can only issue a declaration of incompatibility, telling government that a law offends their Human Rights Act. On paper, that's right. Governments can ignore the courts. However, the political reality is different.
Only a brave government will ignore a declaration of inconsistency from a court. And as NSW Attorney-General John Hatzistergos said a few weeks back, the only meaningful dialogue for parliament should be with the people, not judges.
By all means take a close look at Britain. In Britain, after enacting the Human Rights Act to much fanfare, former PM Tony Blair changed his tune, promising a battle with the judiciary when British courts put out the welcome mat to radical Muslims, using charter rights to ignore British immigration laws. More recently, present PM Gordon Brown canvassed the need for amendments to the HRA to include responsibilities because the rights fetish was taking Britain in the wrong direction.
Not to worry, say the charter supporters. Look to Canada, they say, where a special provision in their Charter of Rights and Freedoms allows governments to specifically exclude charter rights from a specific law if that is their intention. In other words, the power of parliament is preserved. Look a little closer at Canada, I say. This clause has never been used, not once since the charter was introduced more than 20 years ago. Yet, this clause was the clincher when the charter was being proposed to Canadians. Charter advocates in Canada said it would protect parliamentary sovereignty.
Sound familiar? In fact, it has been politically untouchable for a government to draft legislation which apparently infringes the "rights" of Canadians in the charter. Williams knows that. He has written about it. And why do you suppose most Canadians now express a desire to elect their judges? The Canadian charter has siphoned power away from the people to unelected judges. Nothing modest about it.
These are not obtuse legal wrangles. They go to the heart of how Australia will be governed: by the people or by judges. The real stealth bomb in a charter of rights is the interpretation clause. Hang in there if it all sounds a bit dry. Charter advocates will hope you start tuning out right about now. Section 3 of the British Human Rights Act - more or less repeated in the Victorian Charter - says that "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." This is an open invitation to judges to ignore even the clearest of parliament's intent. The House of Lords has said so, describing this innocuous little "reading down" provision as "dangerously seductive", and "unusual and far-reaching in character".
Charter devotees are all in favour of a galloping imperial judiciary; it is integral to their postmodern democratic model where power is stripped from politicians they regard as too stupid and too slow to mould the perfect world. Done under the guise of protecting human rights, this power play where the lawyer class triumphs over the masses is just the most recent reminder of H.L. Mencken's warning that the "urge to save humanity is almost always a false front for the urge to rule". Remember that when the charter bandwagon comes to a town near you.