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The ‘feral judge’ furphy in the human rights debate

By Simon Rice - posted Thursday, 5 June 2008

There are many arguable reasons for maintaining Australia’s unique position in not having a national guarantee of human rights.

You might question the concept of universal human rights. You might be opposed to legislation as a way of affecting behaviour. You might think that human rights promote the individual over the community.

All these reservations are worthy of debate, and I trust they will be part of the Federal Government’s promised consultation on legislating to protect human rights in Australia.


But one argument that is simply wrong is trotted out regularly by the professional opponents of human rights legislation: that human rights laws allow the judges to usurp the authority of parliament.

That is just not so, and I am bemused that people who know it is not so continue to peddle this misinformation. Perhaps it’s a power thing. Or just a way of getting attention - after all, it’s easy to be a critic because you get headlines predicting doom and disaster, and you get all the smug one-liners.

Whatever their motivation, the nay-sayers in the human rights debate in Australia have gained good traction with their scary tales of rampant judicial power. The truth, always less dramatic, is very different.

When I explain how human rights laws work with our parliaments and judges, I am going to refer simply to “human rights laws”. Terminology at the moment is fraught, in large part because terms are loaded up with meaning they were never meant to carry.

The shorthand term “bill of rights” is so compromised that it has lost any useful meaning in Australia. It is used to invoke the idea of the US Constitutional Bill of Rights, an old and idiosyncratic law of another country.

Rights critics know that the US Bill of Rights is irrelevant to a rights debate in Australia, but they also know that they can get a lot of mileage from raising the spectre of an entirely alien gun-toting, ambulance-chasing, litigation-happy society.


The other shorthand term is “charter”. It too is confusing, because it has a number of meanings. Canada’s national human rights law is called a charter, but it is a constitutional law that covers not only government power but also personal conduct. And in Australia voluntary codes of practice - with less authority than an Act of Parliament - are also called “charters”.

What I am talking about is what has happened in the ACT (a Human Rights Act) and in Victoria (a Charter of Rights and Responsibilities). These are ordinary Acts of Parliament. They can be over-ridden, amended or repealed. They are not part of a constitution.

A long but accurate description would be “legislation that sets human rights standards for the exercise of government power, not extending to personal conduct”.

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About the Author

Associate Professor Simon Rice OAM is the Director of the Law Reform and Social Justice ANU College of Law at the Australian National University. He has been Director of the NSW Law and Justice Foundation, President of Australian Lawyers for Human Rights, a Board member of the NSW Legal Aid Commission, and a consultant to the NSW Law Reform Commission. Since 1996 he has been a part-time judicial member of the NSW Administrative Decisions Tribunal in the Equal Opportunity Division. He was awarded a Medal in the Order of Australia for legal services to the economically and socially disadvantaged.

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