Bill of rights is a dangerous lawyers’ picnic
We forget to consult history at our peril.
It is very relevant to the Rudd Government’s latest assault on the sovereignty of the people – that is the proposal of its hand picked committee, headed by Father Frank Brennan, to impose upon them a charter of rights masquerading under the title of a Human Rights Act.
The last time Labor tried for a bill of rights it was by way of a Constitutional amendment to insert a mini bill of rights with the aim of continual enlargement.
This was 1988 and at the time of announcement polling showed 80 per cent of people supported the proposals.
The Opposition, of which I was a part, opposed the referenda and set out to inform the Australian people what the consequences would be.
When acquainted with the facts and sound argument instead of the Government’s soft cuddly misleading words and spin, the 80 per cent polled yes vote turned into a 70 per cent actual NO vote.
This was the largest rejection of any referenda put since Federation.
So this time yet another Labor Government is contemplating imposing a charter of rights by way of legislation using their numbers in the House to crunch it through and hoping for Green and independent support in the Senate.
They know full well that having rejected a bill of rights once in a referendum the Australian people will no doubt do it again.
We are indebted to eminent historian Professor Geoffrey Blainey for reminding us how Labor politicians have for generations hated the provision of S)128 of the Constitution which entrusts only the people – not politicians – to change the Constitution by way of referendum.
He writes as follows, in his contribution to a recently published book entitled Don’t Leave us with the Bill: The Case against an Australian Bill of Rights -
“An extraordinary attempt was made by the Scullin Government to eradicate the people’s referendum. In 1930 his government successfully introduced into the House of Representatives the Constitution Alteration (Power of Amendment) Bill. It would allow a party holding an absolute majority in each federal house to amend the Constitution. No referendum would be required.
Realising that the High Court would have to declare whether this profound change and the spirit underlying it, infringed S)128 it appointed Dr H Evatt and E A McTiernan to the High Court: both had been Labor politicians in NSW, one in the state and the other in the federal Parliament.”
The Bill failed to pass into law because the Senate rejected it. But quite clearly the loathing for having to submit to the will of the people continues.
The clear prevailing argument against a charter or bill of rights is that it hands over legislative making power from the Parliament comprised of the elected representatives of the people to the unelected judges appointed by Governments of the day.
The counter argument runs that judges in our common law system do consistently make law. This is true but if the Parliament of the day disagrees with the outcome of a judge’s decision, the Parliament can and often does legislate to change the judge made law. Thus the Parliament with its elected representatives is the ultimate law maker.
This power could be destroyed by a charter or bill of rights as it would be unelected judges who would decide whether a law, properly passed by the Parliament was valid or not, according to his or her (or their) interpretation as to whether it complied with the proposed Human Rights Act.
The Parliament would not legislate against a decision to declare a law invalid as any such subsequent legislation to re-instate the will of the Parliament would be struck down again.
Thus the ultimate law makers become unelected judges not the elected representatives in the Parliament.
The arguments against a legislated charter or bill of rights are just as powerful as they were in the 1988 referendum when the people spoke against a bill of rights being inserted in the Constitution.
The Rudd appointed Chair of the Committee recommending a charter via a Human Rights Act be imposed by legislation, thereby avoiding the people, tries to argue that his consultation with 6,300 people and receiving 35,014 submissions of which 14,604 were from the lobby group Get-up.
The actual numbers of people who voted yes we want a bill of rights in the 1988 referendum was TWO MILLION eight hundred and ninety-six thousand, thee hundred and twenty-one (2,896,321).
98.52 per cent of people who were eligible to vote did so. How much more convincing do the people have to be?
The “undemocratic” Labor elites, to use Geoffrey Blainey’s term, never give up.
The contempt for the people shown under Prime Minister Scullin with Labor’s attempt to eliminate the people’s voice when it comes to changing the Constitution is alive and well.
Mr Rudd should be straight forward about his committee’s recommendation and promise it will go to referendum .
If he wants this Human Rights Act then he must and allow all 13,865.806 Australians enrolled to vote to have their say and not have the view of the 6,300 people who went to a meeting and the 35,014 who sent a submission foistered upon the rest of us.
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