Uncharted waters

Uncharted waters Paul Kelly THE Rudd Government has pressed the button on plans to change Australia's governance to entrench protection of human rights and minority interests by giving fresh authority to judges. The panel announced this week by Attorney-General Robert McClelland is geared to this outcome. It will mandate a bill of rights or a variation of this model, or create new mechanisms to give judges influence over the legislative process. It is a defining moment for the Labor Party. There is only one issue: how far Kevin Rudd allows the new rights agenda to penetrate his brand of Labor government. It is a powerful genie that Rudd and McClelland have unleashed. McClelland's panel and his slanted terms of reference suggest it is fanciful to believe that the status quo is an option. Rudd will commit to serious change that alters Australia's constitutional foundations and brands Labor as the party of minority interests, or he will engage in an elaborate gesture along the lines of the recent Victorian laws that will achieve little but risk much. Anything less and Rudd will be mocked for a craven retreat on human rights after putting the issue on thetable. Rudd and McClelland are playing with fire. They are playing with the authority and integrity of Australia's High Court. McClelland's statement this week was shallow, unconvincing and misleading. Former chief justice Murray Gleeson has previously told The Australian that the British bill of rights model has altered "the relations between the judiciary and executive government". This will be welcome news for many of McClelland's supporters; they seek a change in power and constitutional relationships. Much of the Labor Party push for human rights protections is focused on the Victorian model after Victoria became the first Australian state to enact a charter of human rights in 2006. This rejects the US model of having courts strike down laws that contradict such rights and requires only that courts issue a non-binding declaration or opinion that laws are inconsistent with the legislated rights charter. The onus then lies on the executive and parliament to amend the laws or stand as human rights abusers. Former chief justice Gerard Brennan, a strong supporter of the Victorian model, flagged last March that the application of this model at a national level may run into the obstacle of the constitutional prohibition of the High Court giving advisory opinions. Speaking of the proposal that the High Court make human rights declarations, University of Sydney associate professor Helen Irving says: "It is very likely the High Court would be constitutionally unable to perform such a function." There is no gainsaying this dilemma. The architect of the Victorian model and human rights champion George Williams says: "This problem only applies at the commonwealth level and that is because of the rigid separation of powers. Will the Victorian model be viable at the federal level? We just don't know the answer to that question. It depends entirely upon what happens when such an issue comes before the High Court. There is an uncertainty whether the 'declaration of incompatibility' mechanism can be successfully included in a federal charter of rights." Such comments highlight the obvious: the bill of rights has the potential to affect our institutions, governance, High Court and constitutional traditions in fundamental ways. McClelland is a passionate believer of long standing who has backed strong change. In his June 2000 speech as shadow attorney-general, he called for a legislated charter of rights, attacked the founding fathers for bigotry over not including such measures in the Constitution, dismissed any notion of common law safeguards, mocked the idea of a democratically elected government being sufficient to safeguard rights, warned that majority law-making had the potential to be "just as hard and oppressive as any totalitarian regime" (yes, this man is now Australia's Attorney-General) and declared that inadequate health, education and employment conditions in country regions were also issues "of fundamental human rights". Declaring that 'there has never been a greater need" for a legislated charter of rights, McClelland backed a system of "advisory opinions" from courts based on a charter with the onus for correction residing in the parliament. This would be buttressed by new committee arrangements to advise parliament on the extent to which bills comply with the charter of rights. McClelland believes, as he said in 2000 and implied this week, the charter "will be doomed to fail unless the Australian public regard(s) it as being a document by and for them". Herein lies the problem. It is the potentially insurmountable obstacle for the legal and human rights coalition seeking such reform. They have never given much credence to public opinion. This change bolsters minority interests at the expense of the public interest. In the vital migration jurisdiction, it bolsters the interests of non-citizens at the expense of citizens and the border security policy. And within the system of governance, it shifts influence (and probably power) from elected politicians to non-elected judges. These are unpopular ideas with most Australians but championed by special interest groups (refugees, gays, human rights lobbies) that generate huge publicity for their causes. In this context, the choice of Frank Brennan to chair the panel is brilliant. Brennan is a scholar deeply versed in the issues with the personal integrity to give all sides a fair say. He is supported by Mick Palmer, Mary Kostakidis and Tammy Williams. McClelland says there is no presupposed result. He wants debate "on a range of human rights issues, not only on whether a charter or bill of rights is necessary". He says any proposal "must preserve the sovereignty of parliament". This is code for the Victorian human rights model. McClelland's terms of reference focus on the human rights deficit and how to rectify it. The special interests that will dominate submissions to the panel will have one answer: legislate a charter of rights. For years, Brennan has been an eloquent advocate of a bill of rights for Australia. His support for the cause is beyond question. He wrote a book on this subject, Legislating Liberty, published in 1998, that rejected a US-style constitutional charter of rights (though he wanted constitutional safeguards for core rights) but backed a legislated charter of rights that would be exceedingly hard for any government to defy. The broad McClelland-Brennan view seems to be a charter of rights that can be depicted as upholding parliamentary sovereignty while investing judges with new authority that shifts the political culture and intimidates the executive from laws that infringe human rights in the national interest. The intellectual contradiction on page after page of Brennan's book is his conviction that empowering judges is a fundamental mistake while he cannot envisage any other way to advance human rights. This brings us to the real heart of the conflict: the "charter of rights" culture that almost totally infects Australia's legal system, from university tuition to the High Court. This corrosive culture cannot conceive that representative democracy is the best means of guaranteeing human rights. Distrust of elected government, hostility to executive authority and ignorance about the vast array of measures in Australian governance that safeguard human rights typifies the legal culture. Judicial activism is the exploding feature of Australian governance. Yet it has not and it cannot solve the problem. Resort to even more judicial activism will create a huge churn of red tape and fat lawyers. It will not assist human rights. This reality is obvious but neither the ego nor the self-interest of the legal profession will concede it. Some of the best insights into Australian governance during the past decade come from Commonwealth Ombudsman John McMillan, whose charge is explicit: the claim that judicial review leads to better administrative results and humanitarian progress is not demonstrated. It is repeatedly asserted by lawyers; it is not proved. For McMillan, "such arguments are too easily made and too rarely justified". McMillan explains that, over a generation, Australia has seen the creation of "an entirely new framework for the control and accountability of state power"; witness the growth of auditors-general, ombudsmen, administrative tribunals, crime commissions, privacy commissioners, information commissioners, human rights and anti-discrimination commissioners, security and intelligence oversight bodies. Listed under the executive arm, their purpose is to check the executive. Irving affirms this argument. "Australia already has a strong record of legislation that protects rights (Sex Discrimination, Race Discriminations Acts)," she says. "We also have a range of common law rights. There are parliamentary committees that have a standing brief to examine legislation for breach of rights, for example, the Senate scrutiny of bills committee. Democracy is the best method of protecting human rights." Yes, democracy is the best method, but in Australia today this has become a radical idea courtesy of the legal culture and the media that sustains it. It is a shame to see a great jurist such as Gerard Brennan declare in his March speech that "a brake on majoritarian tyranny is provided by raising public consciousness of the importance of human rights". Depictions of Australia's representative democracy underpinned by its Constitution, its laws and its administrative processes as a "majoritarian tyranny" reveal a legal culture alienated from public policy reality and deluded in its fixation about salvation through judicial influence. The lawyers enshrine the Ahmed al-Kateb case as proof of their cause. The point should be confronted. Al-Kateb, a stateless Palestinian, was an unauthorised boat arrival. He was not an Australian citizen, not a migrant and found repeatedly not to be a refugee. He was in breach of Australian law and the High Court upheld that law, which meant he was kept in detention. The claims by lawyers that this case of a non-citizen and non-refugee constitutes grounds for Australia to alter its system of governance are, frankly, preposterous. The Australian public would never accept this for a minute and they would be right. Al-Kateb was not going to be held in detention in perpetuity and the idea is ludicrous. The solution was going to come from Australia's democracy: the executive would negotiate a deportation or public opinion would force his release, and this is what happened. As former NSW premier Bob Carr says, genuine protection of human rights springs from the values of a society. These values are not absolute and they contradict each other. Trying to codify values with a view to asking judges to make declarations about them to intimidate politicians will be divisive, ineffective, damage Australia's judiciary and inflame public hostility, giving the next generation of Pauline Hansons new grievances to cultivate.