Australian Public Law
Latest Post
Cutting through the bill of rights hyperbole
Like Canadian UQ legal academic James Allan, former NSW Premier Bob Carr is a vehement long-term opponent of a bill or charter of rights for Australia (or any State). A post on Carr’s blog only last week confirms that his attitude has not mellowed:
More judge-made law a fine thing for Australia? Endless litigation over the meaning of rights? The prospect of Australia being saddled with a charter of rights is continuing to recede, with Tasmania today announcing such a document is now off the agenda because of budgetary restraints.
The government has other reform priorities, according to Attorney General and former Premier, David Bartlet.
These attitudes are quite strange when you actually compare this rhetoric with the modest reality of the existing charters of rights in Victoria and the ACT, not to mention that Carr is an unabashed fan of just about everything else American. I used to be a moderate bill of rights skeptic myself, but more recently I’ve become a cautious supporter partly because of cases like that of Haneef and the continuing saga of abuses of migration detention in Australia. Last year I even lodged a submission to the federal Human Rights Consultation chaired by Father Frank Brennan, in conjunction with Colin McDonald QC and frequent Troppo commenter Patrick. We advocated a very conservative bill of rights enacted by ordinary federal legislation and merely extending existing Commonwealth Constitution rights to bind the States (where possible); and adding a general guarantee of due process and equal protection like the US Fifth and Fourteenth Amendments. We also advocated provisions against slavery, torture and capital punishment, which I doubt even Bob Carr would regard as dangerously liberal. However we strongly argued that broader social, economic and group rights should not under any circumstances be included.
The practical reality of Victoria’s Charter of Human Rights and Responsibilities is well described in a 2009 article by Labor lawyer and MLC Brian Tee. It’s subscription only but here’s a substantial extract:
Featured Posts
 |
The ABC’s Chris Uhlmann is undoubtedly correct in detecting in the actions of Tony Abbott and Scott Morrison a clear intent on the part of the Coalition to play the race/immigration/asylum card against Labor. It’s a recurrent gambit in Australian politics, played successfully by John Howard in the late 90s to fend off the One Nation challenge and then again a few years later to cement Coalition ascendancy over Labor in the wake of September 11. The Age’s Shaun Carney observes:
For more than 10 years, these issues have been all political upside for the Liberal-National Coalition and all downside for Labor. This will not change.
Is that necessarily true? Just as, morality aside, Labor can’t afford to beat the race drum aggressively because it would alienate a large left-leaning constituency sometimes labelled pejoratively as “latte sippers”, so too the Coalition has a substantial group of “small l” liberal supporters equally pejoratively labelled as “doctors’ wives”. One can make a reasonable case that Howard was simply more rhetorically effective and more ruthless at navigating his way through the thickets of this highly emotive area than successive Labor spokespeople.
Chris Bowen’s revival of the “multiculturalism” label this week may well be an attempt to negative the Abbott/Morrison gambit and carve out an electorally and ethically sustainable position for Labor by stressing an important qualification:
Recent NT News discussion on the perennial topic of crime and punishment seems to have generated more heat than light. Chief Justice Trevor Riley wrote an excellent piece pointing out basic facts about the NT criminal justice system, not least the fact that NT judges and magistrates are actually tougher on crime than any other part of Australia. However, that hasn’t stopped a succession of subsequent correspondents from asserting that judges are “out of touch” and adopting an excessively lenient approach.
Former Chief Minister Shane Stone even weighed into the debate with a piece advocating re-adoption of an expanded mandatory sentencing regime, ignoring the fact that crime in relevant categories actually increased while the last version of mandatory sentencing was in force and fell when it was repealed.
Territorians are justified in being worried about crime. Crime rates are twice as high here as the Australian average in most categories; in some they are significantly higher. Moreover, things are getting worse in some categories. Crime rates for homicides, house break-ins and sexual assaults have not changed over the last 6 years, but non-sexual assaults have increased by a disturbing 73% from already high rates, armed robberies by 58% and commercial break-ins and vehicle thefts by 71%.
There are limits to the extent any NT government can reduce crime rates, because we have a very young population with a high indigenous component and high levels of alcohol consumption. All are factors associated with higher crime rates. However that doesn’t deny that we can do better than at present.
Research and practical experience indicate that crime is not deterred by longer and longer prison sentences, but that increasing the certainty of being caught and meaningfully punished has a measurable crime-reducing effect. On the other hand, imprisoning young first offenders for short periods tends to increase crime rates. Most first offenders never commit another crime, but for some the “school for crime” effect of prison may outweigh any deterrent effect. That’s why judges view imprisonment as a last resort for young first offenders, even where the offence committed may seem one that warrants imprisonment. It depends whether you view crime reduction or “just deserts” as the main aim of sentencing.
Sri Lankan asylum seekers in detention on Nauru in 2007 |
I was asked an interesting question this morning (well, interesting to me anyway) by a local media person about whether the seemingly imminent transfer of Christmas Island asylum seeker detainees to Darwin would mean an upsurge in refugee matters being litigated in local Darwin courts.
The simple answer is probably no. In MZXOT v Commonwealth in 2008 the High Court ruled that amendments to the Migration Act 1958 (Cth) in 2005 meant that neither the Federal Court nor Federal Magistrates Court have jurisdiction to hear judicial review applications relating to ‘primary decisions’ under the Act, and the Court also held that State courts were not vested with jurisdiction to hear such matters. Consequently only the High Court of Australia can hear judicial review matters concerning decisions dealing with “boat people” asylum seekers.
Conversely though, the High Court held in Plaintiff S157/2002 v Commonwealth that its own jurisdiction to judicially review such decisions was constitutionally entrenched by Constitution s 75(v) and therefore could not be removed by Parliament (or arguably even restricted to any significant extent – see Bodruddaza v Minister for Immigration and Multicultural Affairs (2007)).
On the other hand, in 2001 in Ruddock v Vadarlis the Full Federal Court held by majority that asylum seekers detained on the MV Tampa were not in law imprisoned in a sense that would allow the issue of the writ of habeas corpus, in that they were at all times free to leave and go anywhere they liked – except Australia!
ABC political analyst Antony Green is predicting that Kevin Rudd will seek a double dissolution election in July-August. A double dissolution election can’t be held after 10 August because Constitution s57 forbids a double dissolution within 6 months of the expiry of the House of Representatives’ term “by effluxion of time” and that expiry occurs on 10 February 2011.
Antony Green presents a superficially plausible scenario for the reasons he outlines. In fact so superficially plausible that I got Antony to present an online seminar on the subject to CDU law students and academic staff a couple of weeks ago. It was a useful way of teaching about the constitutional aspects of the deadlock and double dissolution provisions of Australia’s Constitution in an immediate practical context, and we’re grateful for Antony’s willing participation. There isn’t much he doesn’t know about elections including their legal and constitutional dimensions.
However, the more I think about the practicalities the more I doubt that Rudd will choose the double dissolution option. The only double dissolution “triggers” Rudd currently possesses are the package of Emissions Trading Scheme bills rejected for a second time last December in the wake of Malcolm Turnbull’s demise and the bill to cut private health insurance rebate benefits to high income earners. The latter not only involves increasing taxes (albeit only to high income earners) but a broken election promise. Rudd specifically promised not to do this at the 2007 election. Hardly a propitious launching platform for an election.
Presenting the ETS bills as the trigger for a double dissolution election presents even greater political dangers. A double dissolution election would certainly breathe new life into Tony Abbott’s “Great Big New Tax” propaganda line. Abbott managed to neutralise that potentially powerful message by proposing his own “Great Big New Tax” to fund paid maternity leave. However a double dissolution would allow him to claim truthfully that the result of returning the Rudd government might well be that the ETS legislation would be passed in a parliamentary joint sitting, thereby actually inflicting the Great Big New Tax that the Coalition and Greens have so far managed to stymie in the Senate.
