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10.01.2009

The Debate about a Rights Charter in Australia – Part 1

Earlier this week, the National Human Rights Consultation Committee in Australia submitted its final report to the Australian government about whether Australia should adopt a national statutory rights charter, and if so, in what form– see Earlier this week, the National Human Rights Consultation Committee in Australia submitted its final report to the Australian government about whether Australia should adopt a national statutory rights charter, and if so, in what form– see http://www.humanrightsconsultation.gov.au/

What the government ultimately chooses to do in this context will be of significant comparative interest because Australia is currently one of the only constitutional democracies without a comprehensive written rights charter – and thus an interesting test case for the hypothesis of increasing constitutional convergence (see e.g. interesting recent work on this issue by David Law and Mark Tushnet).

The Consultation Committee’s report, however, is also of independent interest for what it reflects about the breadth of current commitments, across the globe, to extensive community consultation in the drafting of constitutional or even quasi-constitutional documents. Unlike in many post-conflict settings such as Iraq and Afghanistan (for a great treatment of consultation in this context, see e.g. recent work by Jennifer Widener), widespread consultation in this context in Australia was not a political necessity - but rather a clear choice. It was also, to my knowledge, far more extensive and interactive than any previous such process in Australia – lasting almost 8 months and involving a 3 day public hearing in the capital, 66 community roundtables in 52 locations and 35,000 written and online submissions (including one from this author).
What the Australian community ultimately said in this process will also be extremely interesting to read, and understand, when the government finally releases the Committee’s report – as a test case for the more general possibility of truly meaningful and informed community consultation on constitutional issues.
-Rosalind Dixon

5 comments:

  1. I read on the website that the terms of reference of the National Human Rights Consultation include the following

    "The options identified should preserve the sovereignty of the Parliament and not include a constitutionally entrenched bill of rights."

    So what do they have in mind, a toothless charter like the British Human Rights Act?

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  2. It's actually odd to read about "parliamentary sovereignty" because that pernicious doctrine doesn't exist in Australia.

    The federal parliament is a mere creature of the constitution, with limited powers. It's just that, oddly, the constitution doesn't include a bill of rights.

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  3. I am interested in what is driving the process. Is it just a sense that Australia should be like other commonwealth countries that have adopted rights charters, a kind of modernization rationale? Or are there specific greivances that have driven the debate forward--in other words, why now?

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  4. In response to Tom's comment, while there is certainly a lot of argument to the effect that there is no real reason to take this path (see e.g. the interesting recent edited collection, "Don't Leave Us with the Bill: The Case Against an Australian Bill of Rights"), I sould suggest there are three main reasons as to why now?
    (i) one relatively important election pledge on the part of the current government, from the perspective of some supporters, was a commitent to adopting a more pro-human rights stance than the previous government, which was very dismissive of international human rights instruments as a constraint on its action;
    (ii) momentum in some states to adopt a rights charters for similar reasons having to do with changes in government and particularly attorneys-general (there are now 2 charters in force at state level and more are being debated);
    (iii) a sense that in the context of asylum-seeker rights in particular, there have been some fairly serious rights breaches, which the current system has not done well in preventing/adressing - until substantially after the fact. The High Court has also been quite aggressive in protectiing procedural, but not subtsantive, rights in this context under the Constitution - creating a slightly strange rights patch-work, and in doing so has urged parliament to consider supplementing additional substantive statutory protections - see e.g. Al-Kateb v. Godwin, [2004] HCA 37 - available at http://www.austlii.edu.au/au/cases/cth/HCA/2004/37.html
    RD

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