Behind the Moral Curtain: The Politics of a Charter of Rights

Published by The Centre for Independent Studies, 25 January 2010 (PDF)

By Elise Parham, edited by Oliver Marc Hartwich

Executive Summary

In September 2009, the National Human Rights Consultation recommended that the federal government draft and enact a charter of rights. Opponents of a federal charter have vehemently argued against the institutional changes that such a law would bring to Australian governance, while supporters have saluted its moral brilliance and ability to improve government provision for the minority of Australians who ‘slip through the cracks’ of the current system.

The idealism of arguments for a charter does not sit well with political reality. Like other laws, charters would be subject to lobbying, ideology and judicial manipulation. Yet, unlike other laws, a charter would be a policy trump card—a final law that monitors all others. Allowing that kind of charter to dominate Australian governance would be democratic dynamite. Those who fail to get their interests represented in the charter or heard in court will no longer hold the influence over policy that voting implies. Those who cannot see the political reality behind the moralistic claims of supporters will not have the tools to make an informed decision about policy at all.

This report seeks to look beyond theoretical extractions about charters of rights and examine some of the more pragmatic questions surrounding an Australian charter. Who will influence the drafting of the terms? In what way might judges pursue their role at the federal level, in the short run and in the long run? Will the charter be as pervasive as critics suppose?

Just as judges are not philosopher-kings, nor are legislative drafters. The terms of a charter are subject to the influence of lobbyists; the judicial interpretation of charters is subject to manipulation by legal experts; and the pervasiveness of a charter is impossible to avoid.

These are the practical issues the Rudd government will need to consider in determining its response to the National Consultation, which it has promised to outline early in 2010. The time is ripe to piece together the evidence to construct a picture of what a federal charter might look like in practice. This report shows how, like all public instruments, its impact will be determined by the political game. A charter would hinder, not improve, Australian democracy.

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