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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-09-23 Daily Xml
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AUSTRALIAN CHARTER OF RIGHTS

The Hon. R.D. LAWSON (16:08): I want to speak about the proposed Australian Charter of Rights. The current federal government has announced that it proposes to introduce such a charter and established a consultative committee which is to report shortly. That committee is chaired by Father Frank Brennan, who has given varying signals as to his personal attitude in relation to the introduction of such a charter.

The model involves two elements which I will describe briefly—first, a description or an enumeration of the so-called human rights and, secondly, a procedure under which courts can make a judgment on the compatibility of parliament's legislation with so-called human rights. I, personally, have two major objections to this charter of rights. I am a little concerned that I seem to be in the same camp as the Attorney-General, the Hon. Michael Atkinson, and former Labor premier Bob Carr, but I do believe that these objections are principled and well founded.

First, I have concerns about the rights themselves which are to be contained in such a charter of rights, if it is based as expected upon the Victorian model or even on the model of a charter which currently applies in the Australian Capital Territory. Those rights themselves are expressed in vague and aspirational terms rather than in terms of a legal statute. For example, what the charter refers to simply as a 'right to life', without wider enumeration, elaboration or definition, leaves room for discussion, debate and controversy and does not really resolve the extent of that right.

Take also the right for the freedom of religion. My concern is that freedom of religion becomes freedom from religion, so that one cannot have a holiday described as a Christmas holiday because that is offensive to persons who are not Christians; one cannot mention God in an Anzac Day service because that is offensive to atheists; and one cannot have Easter holidays because that is offensive to Jews, Muslims and other persons. So, what is termed simply as freedom of religion becomes freedom from religion.

My second principal objection is that the charter invites the judiciary to make political decisions and, thereby, politicise the judicial process, and that will ultimately undermine confidence in the integrity and independence of our judiciary. I accept that there are many constitutional judgments which might be termed as political but they are not political in the same way that these are.

I commend to the council an excellent book recently published under the editorship of Julian Leeser, entitled Don't Leave Us With the Bill: the Case Against an Australian Bill of Rights. I do believe, however, that the appropriate mechanism for monitoring whether our laws measure up to the international norms (to which we aspire) is through the parliament itself. I personally favour using a parliamentary committee with members of parliament to examine legislation to see whether or not we are meeting what we believe to be appropriate levels of political and civil rights.

The advantage of this system is that the questions stay within the political process, where they appropriately reside. It means that the community, through its representatives (the people in the parliament), retains control over the debate and the political issues that ought to be debated in parliament rather than in our courts of law.

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