Does NSW Stand Alone?


At Labor’s recent National Conference, the Party watered down a proposal to introduce a national Charter of Rights.

For many years Labor’s Platform has committed the Party to ‘supporting the international human rights instruments to which Australia is a signatory;’ and further that, ‘Labor will adhere to Australia’s international human rights obligations and will seek to have them incorporated into the domestic law of Australia.’

Those passages were not changed at the Conference and appear in two places in the new Platform.

The problem is that although the human rights treaties have been ratified by Federal Parliament and Australia has an obligation under international law to implement them domestically, it has never happened.

To address that issue, New Matilda‘s Susan Ryan, and Professor George Williams, the principal author of the Victorian Charter of Human Rights and Responsibilities, successfully submitted to Federal Labor before the Conference that the draft Platform provide for a national Charter of Rights as an ordinary Act of Parliament.

At the Conference, however, opponents of a Charter engineered replacing the Ryan/Williams proposal with a commitment to hold ‘a public inquiry about how best to recognise and protect the human rights and freedoms enjoyed by all Australians.’ Williams, a delegate to the Conference, told New Matilda that he is happy enough about the inquiry because he is confident it will inevitably support a national Charter.

So who are the Labor opponents of a Charter?

Not the Victorians or the ACT the Victorian Labor Government’s new Charter came into effect last January, and Jon Stanhope’s ACT Bill of Rights commenced in 2004.

The Western Australians? No, WA has commenced its own public consultation/inquiry with a view to implementing a State Charter, or similar Bill. The WA inquiry Chair, Fred Chaney, last week wrote a piece for the ABC in which he strongly supported a recognition of rights.

The Tasmanians? No, the Tasmania Law Reform Institute is currently writing a report which is widely expected to recommend a State Charter of Rights.

Then there is New South Wales.

Thanks to emo

In 2001, a NSW Parliamentary Committee, chaired by Labor MLC Ron Dyer, opposed a Bill of Rights for the State. The Premier at the time, Bob Carr, strongly opposed a Bill of Rights and he recently repeated this publicly. Current NSW Attorney-General, John Hatzistergos, has publicly criticised the idea and other Iemma Government Ministers also oppose it.

But Ron Dyer now supports a Charter because of what he regards as the underwhelming performance of our politicians in protecting fundamental rights in the anti-terrorism legislation of recent years.

The difficulty with the debate is that the Charter opponents have yet to properly explain why they oppose it. Their main argument seems to be that a Charter will amount to a surrender of parliamentary power to the courts. This assumes that Charter supporters want a Constitutional document.

However, most Charter proponents are opposed to Constitutional entrenchment and, in those circumstances, the complaint about surrendering power to non-elected courts has no substance. A statutory Charter (one that is introduced into Parliament like any other law, and can be amended likewise) does not lessen parliamentary power at all.

Paragraph 5.2 of the Law Reform section of the NSW ALP Platform reads:

A Bill of Rights to be introduced consistent with the International Covenant on Civil and Political Rights and its provisions to overrule all other State legislation.

This clause has been there since before the Carr Government was first elected in 1995, but so far the Labor has not moved to implement it. Perhaps now is the right time? There is a groundswell of opinion that fundamental rights need greater protection, and the 2006 NSW Labor Conference decided to hold a consultation process within the NSW Party about the Charter proposal.

There is room for debate, and unlike some Party members, I would not attack Bob Carr or any current Ministers for debating or even opposing Labor policy in public. But let them get serious about it and state their case without misleading us with spurious arguments about ‘unelected courts.’

Could it be that the real reason they do not support a Charter is that they oppose any restriction on the wide powers of State Parliaments to pass almost any legislation they like? These powers include abolishing religions, confiscating private property without compensation, imprisoning people without charge, or even creating Guantánamo-style biased courts all possible without restriction in the States, except Victoria with its new Charter.

I note that George Williams lost Labor pre-selection for the Federal seat of Blaxland last Saturday week. Williams, one of Australia’s leading Constitutional lawyers, was a formidable candidate he has been a Party member for 15 years and written 13 books, 100 academic articles and 260 newspaper pieces. He has also appeared as a barrister in the High Court in cases as important as the Hindmarsh Island Bridge case, and the case which established the right of freedom of political communications.

Who beat him? A former member of Bob Carr’s staff, Jason Clare, who currently works in public relations. He is said to be very capable.

You may wonder what he thinks of a Charter of Rights. I think I know.

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