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Opinion: National Debate Welcome

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Cite as: (2008) 82(12) LIJ, p.29

After the Australian Labor Party’s victory in the 2007 federal election, the ALP committed itself to conducting a public consultation about a federal Charter of Human Rights. This was followed by April’s 2020 Summit when one of the reported recommendations was that all Australians should be engaged in a national consultation about human rights protection with the view to enacting a federal Charter of Human Rights.

It is expected that consultation will begin this month and in anticipation of this, the LIJ invited federal Attorney-General Robert McClelland and his opposition counterpart George Brandis to articulate their parties’ positions on a Charter.

This month, the Rudd government is expected to announce the start of a public consultation process on the issue of whether there should be a federal Bill or Charter of Rights.

The opposition is deeply sceptical about the necessity for a Charter of Rights and has serious misgivings as to how such a Charter would work.

Despite our scepticism, the opposition is looking forward to participating in the national debate.

At the outset, I should make it clear what this debate should not be about. It should not be a debate about whether Australian citizens should enjoy the full range of civil, political and other rights which are the defining characteristics of modern liberal democracies. That issue is uncontroversial. Rather, the debate is about means, not ends.

In particular, it is about two things: first, whether the protection of our rights would be better served by the enactment of a Bill of Rights than they are under the existing law; and second, whether the debate on the question of what substantive rights Australians should enjoy takes place in the open forum of elected and accountable Parliaments, or is determined by unelected and largely anonymous judges in the cloisters of the courts.

Those issues will be ventilated more fully as the national debate progresses. Scepticism about a Charter is shared by both sides of politics, as witnessed by the scathing critiques essayed in recent months by former Labor Premier Bob Carr and NSW Attorney-General John Hatzistergos.

The proposal has attracted considerable criticism from the senior levels of the judiciary, including Ian Callinan, the Queensland Court of Appeal’s Pat Keane and NSW Chief Justice James Spigelman – the latter having revised his earlier support for the idea.

The nature of the government’s intentions remains obscure. Is it intended that a Charter will be a source of new rights? If so, what are they to be? If, as seems more likely, the Charter is intended merely to be a codification of existing rights, what rights are to be included and which omitted? The experience with the two existing Charters, in Victoria and the ACT, has suggested an essentially ideological approach to the “recognition” of certain rights but the disregarding of others, notably property rights. What are the consequences of such omissions? Will a hierarchy of rights be created and, if so, according to what criteria? And will the result be more efficacious than the existing protections of human rights by Australian law?

Another matter which the proponents of the Charter must meet is the charge that the effect of such a Charter will be the creation of public policy through litigation, by relocating argument about policy outcomes from elected Parliaments to the courts. For example, the Canadian courts have struck down an incentive scheme to attract doctors to rural areas as a violation of “mobility rights”.1

Are these the types of decisions which judges should be making?

There are two related vices in subjecting decisions about resource-allocation – the core function of the political process – to judicial determination. First, it changes the discourse from an argument about how best to allocate resources to serve the interests of society as a whole to an argument about the (asserted) rights of a particular individual. It changes an argument about social benefit to an argument about individual claims. And so, it decontextualises what should be a decision about public policy, in which the claims of all stakeholders are weighed against each other and placed in the context of overall social benefit, and replaces it with a litigious process in which all such considerations must yield to a claim of right, once established, and in which there are no – or very limited – opportunities for the voices of other interests to be heard.

The second vice follows from the first: it means that decisions which determine social policy outcomes are transferred from the elected government, answerable to a representative Parliament, to a judiciary which is neither elected nor representative.

This leads to yet another problem: by charging judges to apply the law’s traditional decision-making techniques to what are, often, properly matters of public policy, it risks exposing judges to the complaint that they are acting politically, not judicially, and thus potentially undermines the courts’ reputation for neutrality.

To entrust this role to Parliament is not to be indifferent to individual rights. Rather, to take rights seriously it is vital that they be balanced and weighed against each other in the most open and responsive forum in our democracy.

GEORGE BRANDIS SC is the shadow federal Attorney-General.


1. Waldman v British Columbia (Medical Services Commission) (1997) 150 DLR (4th) 405 (BCSC), Referred to in Carr, “Lawyers are already drunk with power”, The Australian, 24 April 2008.

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