Abbott wants states stripped of powers
Australian Associated Press
July 10, 2008
The federal government should be given powers to strip the states of theirs, opposition frontbencher Tony Abbott says.
Mr Abbott said the strengthening of federal powers is the only way to tackle what he called the "dysfunctional federation", responsible for the constant buck-passing between the commonwealth and states.
Mr Abbott will argue for a referendum to enact the changes in a book he hopes to publish next year, Fairfax newspapers said.
"I will be arguing for a constitutional amendment to establish that, where it so wishes, the commonwealth can pass laws to override the states - not just Section 51 as it is now, but in all areas," he said.
"We need to face the fact that we are a nation today, not a federation of states, and we need to clearly establish in law that, when it comes to the crunch, the federal government is in charge." [THIS IS TANTAMOUNT TO REPLACING RULE OF LAW WITH RULE BY LAW (RULE OF MEN)].
Mr Abbott said the federal government was hamstrung by the states, and often had to offer bribes to get their support.
"The electorate wants problems solved and they don't want a treatise on why the relevant level of government can't solve a problem because it lacks the power," he said.
[THIS IS ESSENTIALLY A UTILITARIAN PRETENSE FOR DOING AWAY WITH THE CONSTITUTIONAL RIGHTS OF STATES, OR MORE SPECIFICALLY, THE RIGHTS OF INDIVIDUALS PROTECTED BY THE STATES. WITHOUT A BILL OF RIGHTS, THE BUREAUCRATS CAN FAVOR COMMUNAL OVER INDIVIDUAL INTERESTS, CONSISTENT WITH JEAN JACQUES ROUSSEAU'S 'GENERAL WILL' POLITICAL PHILOSOPHY THAT TODAY GOVERNS MUCH OF THE EUROPEAN CONTINENT].
[IN THE UNITED STATES OF AMERICA, THE 10 & 11TH AMENDMENTS OF THE BILL OF RIGHTS ACCOMPANYING THE U.S. CONSTITUTION, ALONG WITH OTHER ENUMERATED INDIVIDUAL RIGHTS (e.g., CONTAINED IN THE 5TH, 6TH AND 14TH AMENDMENTS TO THE CONSTITUTION, AMONG OTHERS), SERVE THIS VERY PURPOSE.]
[THE ABSENCE OF ANY BILL OF RIGHTS ACCOMPANYING THE AUSTRALIAN CONSTITUTION LEAVES THE CITIZENS OF AUSTRALIA EXPOSED TO PRECISELY THE TYPE OF SWEEPING PROPOSAL NOW BEING RECOMMENDED BY MR. ABBOTT. See: The Hon Mr Justice David Malcolm AC, Does Australia Need a Bill of Rights?, Comment Murdoch University Electronic Journal of Law Volume 5, Number 3 (Sept. 1998) at: http://www.murdoch.edu.au/elaw/issues/v5n3/malcolm53.html ].
"The federal government is hamstrung by the legal authority that resides in the states.
"Where the federal government needs to take charge, it shouldn't need to bribe the states to do so - and it only operates as long as the bribe is in place."
Mr Abbott admitted the treatise, which will form part of the book provisionally titled Conservatism After Howard, was part of a future bid for the Liberal leadership.
"I accept that I'm unlikely to be leader any time soon but I think I have reasonable credentials to be considered for the leadership at some point and I hope I can burnish my credentials," he said.
Courts 'becoming irrelevant' without bill of rights
ABC News Australia
August 29, 2007
Internationally-recognised human rights lawyer Geoffrey Robertson QC says Australia's courts are becoming irrelevant because of the lack of a bill of rights.
Last night in Sydney, Mr Robertson addressed the Australia's Right to Know coalition - a group of major media companies, including the ABC, who argue that press freedoms are becoming increasingly limited in Australia.
Mr Robertson says Australia's failure to adopt a bill of rights may explain why the nation has been ranked low in two recent surveys about the freedom of the press.
He says courts in other progressive liberal democracies are able to argue for first principles from bills of rights, in which there are freedom of expression clauses.
"The Australian courts... whose judgements were once cited all the time, are becoming less relevant to that because Australia is the only country without a bill of rights," he said.
This morning, Mr Robertson told ABC 702 Local Radio host Virginia Trioli that Australia was behind not only Britain and the US on press freedom but also less developed countries like Bolivia, San Marino and Malta.
"Our rating is number 39 [in the world] and slipping in terms of press freedom. We've got to find some reason for this," he said.
"We are alone amongst advanced liberal democracies in not having a bill of rights which has a presumption in favour of freedom of expression.
"That produces the situation where in New South Wales alone you have over 1,000 suppression orders."
He says the Freedom of Information Act has become irrelevant over 20 years, while journalists are offered no protection against being ordered to reveal their sources.
Mr Robertson has also condemned reforms under which legal action will be allowed to be taken against groups that call for boycotts of Australian products.
He says Australia inherited a flawed legal system from Britain but has failed to draw inspiration from the country's later democratic reforms.
"It's all down to the British judges in the 19th century, who crafted laws of defamation and contempt in order to protect themselves..." he said.
"I think we're mugs to keep the laws that the British themselves have abandoned."
But Mr Robertson says press freedom needs to be balanced with the right to privacy in Australia.
"You can muckrake with private tittle-tattle as much as you like because there's no protection against misuse of personal information," he said.
"On the other hand, there are 101 suppression orders and ways in which news gathering, of genuine news, is prohibited."
Should Australia have a Bill of Rights? - Time for debate
By Ron Dyer
Recent history causes Ron Dyer to change his mind.
The question of whether Australia, and for that matter the Australian states, should have a Bill of Rights enacted is coming under increasing examination. This especially is the case against a background of increasingly draconian security or 'anti-terrorism' laws. The traditional response to those who have argued for a Bill of Rights in the past has been that Australians can rely on our traditional and proud background of respect for civil liberties and the democratic freedoms of the individual citizen or resident of Australia. It has often been asserted that the protection of our rights can be safely left to our parliamentary representatives and that to legislate for a Bill of Rights would distort our system of government by giving unelected judges too much influence over how our democracy develops.
However, this traditional response has been questioned by those who point out that Australia now is in an arguably anomalous position, when we compare ourselves to other democratic countries. Great Britain, New Zealand, Canada, the United States of America and South Africa all have Bills of Rights in some form or another, while Australia does not. In November 1999 the then New South Wales Attorney-General the Hon Jeff Shaw QC referred to the Standing Committee on Law and Justice of the NSW Legislative Council, then chaired by me, the question whether it would be appropriate and in the public interest to enact a statutory, as distinct from a constitutionally entrenched Bill of Rights in NSW. The committee reported in October 2001, after an exhaustive inquiry which included public hearings and a review of models of Bills of Rights in the countries mentioned above.
The Committee found against a Bill of Rights for NSW, substantially on the basis that such a Bill would undermine the roles of both Parliament and the Courts. The rationale for this decision was that a Bill of Rights would derogate from parliamentary supremacy and also lead to a politicisation of the judiciary. It was felt that parliamentary representatives are directly elected by and accountable to the people, in a way that unelected judges cannot be, though they do give detailed reasons in writing for their decisions. The Standing Committee also found that uncertainty is unavoidable in a Bill of Rights which traditionally, and perhaps inevitably, specify rights in brief, general terms, such as a right to freedom of speech, without taking account of detailed countervailing factors, which in this example would include defamation or racial vilification. Thus, it was felt that the judiciary is then left in the position of "filling in the gaps" and in effect legislating by finding what is the appropriate decision and remedy in a given fact situation arising under a Bill of Rights.
It must be conceded that the committee inquiry I chaired occurred against a background of strong opposition to the concept of a Bill of Rights expressed publicly by the then NSW Premier, the Hon Bob Carr, who also forwarded a detailed submission to the Standing Committee. Nevertheless, the Committee was sincere in the views it expressed. It recommended, as an alternative to Bill of Rights, a NSW Scrutiny of Legislation Committee, which was intended, among other matters, to raise parliamentarians' awareness of their responsibility to protect human rights. Such a Scrutiny of Legislation Committee was in fact set up following the Standing Committee's report.
In the years that have followed the above inquiry in which I participated, I have had cause to revise my views very substantially. I had always held the opinion that parliaments in Australia could be trusted to preserve individual freedoms and not diminish them by enacting draconian legislation. My confidence in this regard has been eroded, if not destroyed, by recent State and Federal legislation in Australia characterised as 'anti-Terrorism laws.' It seems to me that these laws go well beyond the proper limits that should apply in a liberal democracy. They certainly call into question my hitherto long-held belief that Australian parliaments could always be relied upon to be a bulwark against encroachment upon our democratic freedoms.
To illustrate my concern, I refer to the Anti-Terrorism Bill (No. 2) 2005 (Commonwealth). This legislation, together with complementary legislation enacted by the Australian States and Territories, contains quite extraordinary preventive detention and policing powers. We are told by those in authority, including the Prime Minister, the Commonwealth Attorney-General and State Premiers, that these newly-enacted powers are necessary to meet a perceived terrorist threat. Yet the terrorist threat assessment remains to the present time at 'medium', which was the level set on 12 September 2001 following the terrorist attacks in the USA. If there is no increased threat, why is legislation containing greatly increased powers necessary? Why also has the Parliament enacted additional measures to deal with terrorism when reviews of already enacted legislation following 9/11 have not been completed and assessed? There seems to be an irrational rush to vest ever-increasing powers in various policing authorities, with little or no public justification by governments.
As my confidence in the ability and willingness of most parliamentarians to stand against the removal of democratic freedoms has been eroded, I believe that one's thoughts must turn to the role that an independent judiciary can play in the preservation of these freedoms. In my view, there needs to be a basic law of some sort against which legislation threatening civil liberties can be measured.
From my perspective, constitutionally entrenched Bills of Rights such as the US Bill of Rights and the Canadian Charter of Rights and Freedoms are excessively rigid. There are quite notorious examples of this in the US Bill of Rights, such as the constitutional right to bear arms and the apparent inability of the Congress to effectively deal with the law and order problems thrown up by the widespread availability and use of firearms. In Canada corporations, as well as individuals, are able to take advantage of the rights enacted by the Charter. It has been argued that this has made the task of corporate regulation in Canadian jurisdictions problematic.
The model I consider most attractive for use in the Australian context is the UK Human Rights Act, 1998. Like Australia, Britain had an historical attachment to the protection of human rights through the common law. However, Britain's engagement with the European Court of Human Rights and the European Union, especially since the UK accepted the compulsory jurisdiction of the European Court in 1966, has changed Britain's outlook radically. A series of decisions by the European Court had overruled English courts on the basis that there were breaches of the European Convention of Human Rights.
The UK Human Rights Act is often referred to as a "dialogue" model in that a higher court is able to make a declaration that legislation is incompatible with European Convention rights. This initiates a dialogue between the judiciary, Parliament and the Executive government. The declaration of incompatibility allows a Minster to seek parliamentary approval for a remedial order to amend legislation to make it compatible. It is true that the declaration of incompatibility can be ignored by the Executive government. In this case the legislation remains valid. However, to do this will often invite political embarrassment for a government.
Perhaps the most useful aspect of the UK Human Rights Act is that a Minister must, before the Second Reading of a Bill in either House, either (a) make a statement of compatibility with European Convention rights or (b) make a statement to the effect that, although he or she is unable to make a statement of compatibility, the government nevertheless wishes the House to proceed with the Bill. The practical effect of this provision is to require government departments and agencies to undertake a formal review in relation to Convention rights when preparing legislation or regulations. Ministers may introduce legislation incompatible with Convention rights, but the Human Rights Act obliges the Minister to explain to Parliament why the rights have been ignored.
Clearly, if the UK model were to be adopted in Australia, there would have to be a yardstick - as there is with the European Convention on Human Rights - against which the proposed legislation could be measured. That is, there would have to be an Australian Human Rights Act, called by this or some other similar title.
The Evatt Foundation believes that the question of a Bill of Rights for Australia is one which warrants public attention and debate. If you have any relevant views, please feel free to express your opinion.