Robertson's briefing for a human rights charter

Robertson's briefing for a human rights charter

Stephen Keim | April 03, 2009
Article from: The Australian

WITH a self-confessed "little book" and a gigantic pun, Australia's expat human rights lawyer Geoffrey Robertson has cut a swathe through the misinformation campaign against a human rights statute for Australia.

Robertson's aptly named A Statute of Liberty, draft statute, epilogue and all, is a mere 223 pages. It is an easy to read, clearly argued and convincing piece.

Its many readers (although released only a few weeks ago, it is displayed among the best-sellers at the Sydney Airport bookshop) will, no doubt, be inspired to tell Father Brennan SJ and his "fence-sitting" colleagues on the Human Rights Consultation Committee that a Statute of Human Rights is, indeed, needed to strengthen democracy and promote awareness of human rights considerations among our public servants, especially those who deal with the old, the sick and the disadvantaged.

Even the use of the term "human rights" has been sold -- by those who oppose a human rights act -- as almost un-Australian and a betrayal of our British legal heritage.

As Robertson points out, it was our founding governor, Arthur Phillip, however, who issued his first law as a human rights proclamation, saying: "There can be no slavery in a free land and consequently no slaves." Governor Phillip's law was decreed three-quarters of a century before the US tore itself apart to establish the same principle.

It is an irony that a former Premier of NSW, Bob Carr, and current NSW Attorney General John Hatzistergos should lead the call to avoid, at all costs, the prospect that a scintilla of power should be taken from the moral paragons, politicians, and bestowed upon that worst of all possible demons, the "unelected judge".

This, in a state, where, more than in any Australian polity, the populace wishes it could de-elect its current Government, immediately, but has no confidence that the alternative would be any kind of improvement.

An instruction to judges from the parliament that the laws made by parliament should be interpreted, as far as possible, to be consistent with the principles of human rights can never be undemocratic.

An instruction to public servants that they should carry out their duties, always taking human rights principles into account, can only improve the openness and effectiveness of the liberal democracy in which we live, and in which we take much pride.

An elected dictatorship is not a liberal democracy. A majority mistreating a minority or the poor and the weak is not democratic. And who has not said at some stage in their voting lives: "No matter who I vote for, a politician will be elected".

The English citizens who battled the tyranny of the Stuart kings, whether in the first half or the second half of the 17th century, were leery of giving uncontrolled powers to the king's ministers, elected parliamentarians as they might be.

And when those ministers, at the behest of Mad King George, set the police upon John Wilkes, the journalist and MP who had the guts to call out the king, it was a great "unelected" judge, Richard Pratt, who set down the principle that "an Englishman's home is his castle".

Since that time parliaments have been loath to allow the executive to write its own search warrants, although the Migration Act 1958 gives the minister uncontrolled and unaccountable powers of a kind that Mad George and his ministers would have loved to wield.

I find it particularly strange that many who decry "unelected judges" in one breath, in their next say a human rights act is unnecessary because of the protections of the common law.

Who, one may well ask, created the common law, including its protections of the Englishman's "castle" from entry by officials unless that entry has been, specifically and unequivocally, authorised by law? That's right: more than 700 years of unelected, activist judges laid down the common law and all its protections.

There is none better than Geoffrey Robertson to remind us of the many bloody struggles that established the freedoms that public servants can strip away through sheer lack of thought. He has, of course, written most of the modern texts on that same history of struggle, none better than The Tyrannicide Brief, his account of John Cooke, the brave lawyer who risked, and eventually lost, his life in proving that even a Stuart king was amenable to the law.

There is also no one better than Geoffrey Robertson to debunk the shibboleths and urban myths that critics of a liberty statute put forward to mislead their readers and create hysteria. Robertson gently reminds Cardinal Pell that the tyranny of Robert Mugabe is not due to the Zimbabwean Bill of Rights but, perhaps, due to the fact that the judges of Zimbabwe have been terrorised and driven from office so that there are no "unelected judges" game to enforce the bill of rights or any law that would limit the powers of Mad King Bob.

He also reminds the good Cardinal that he, Robertson, had the guts to go to Zimbabwe and appear before a magistrate to defend the freedom of a journalist to tell the truth.

Robertson reminds the federal Liberal Party that a bill of rights would not "create a star chamber", pointing out that the signature characteristic of the real star chamber was that it was run in secret by judges who ordered people's ears to be cut off at the behest of King Charles I.

Robertson assists Bob Carr with the details of what happened in Scotland when prisoners and prison officers were finally granted their request that the prisoners no longer use buckets as toilets. The last "slop-out" jail in Queensland, Boggo Road, was shut down two decades ago.

And what of James Allan, Garrick Professor of Law at University of Queensland, Charter of Rights refugee from Canada, and Jeremiah in the wilderness warning, based on the experience of the poor Canadians, of a world takeover by power-hungry judges.

First, in 1960, they adopt a statutory bill of rights and then, after 22 years of power-hungry judges ruling the roost, the Canadians include the Charter of Rights and Freedoms in their brand new Constitution, leaving the Parliament a final say, of course, even if the law is found to be in breach of the charter.

With a history like that, at least one Canadian is crazy, hey Professor.

The best parts of The Statute of Liberty are the positive arguments by Geoffrey Robertson for a human rights act, the ways in which it can contribute to our sense of nation and sense of history and improve the tenor of our political debate.

For that, you will have to read the book. If you hurry, you can get it at the airport.

Stephen Keim SC is a Brisbane barrister.