Lawyer generated twaddle.

On December the 9^th 2008, the Sydney Morning Herald published the latest in about twenty two years of lawyer generated propaganda, against the Australian Bill of Rights. This is misleading and deceptive conduct, and the Newspaper should should be taken to the Federal Court of Australia, and fined heavily. Helen Irving is Associate Professor in the Faculty of Law at the University of Sydney. Just what are our budding lawyers being taught? What they should teach, and they should be teaching themselves, especially Professor Irving, is that if all lawyers were not liars, they would admit, that in 1986, the International Covenant on Civil and Political Rights, was enacted as a Federal Law, by the Labor Party with Liberal Party support as Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 . The elementary education required to read and understand a Statute, does not appear to have been part of M/s Irving’s education.

· The Commonwealth of Australia Constitution Act 1900 is a Statute.

· The Acts Interpretation Act 1901 is a Statute.

· The Judiciary Act 1903 is a Statute.

· The Human Rights and Equal Opportunity Commission Act 1986 is a Statute.

· The Trade Practices Act 1974 is a Statute.

· The Criminal Code Act 1995 ( Cth) is a Statute

· The Privacy Act 1988 is a Statute

· The Evidence Act 1995, (Cth) is a Stautue.

The First Statute on the list has two Supremacy Clauses: S 5 Commonwealth of Australia Constitution Act 1900 makes every Federal Law supreme and S 109 makes them prevail,over all State Enactments. The second says a Schedule is part of an Act ( Statute). The Third says that the common law shall prevail, in S 80 Judiciary Act 1903. The Fourth makes it a common law crime to disobey a Statute, by misleading and deceiving the good people of Australia, so M/s Irving and her Publisher, are both criminals, because the Trade Practices Act 1974 forbids misleading and deceptive conduct. The Fifth refers to the International Covenant on Civil and Political Rights not just in its Dictionary, but in three offences in Schedule Section 3. The Fourth specifically implements the International Covenant on Civil and Political Rights. In the fifth, in Section 138 (3) (f) Evidence Act 1995, (Cth) even twaddling lawyers, are told where to find the International Covenant on Civil and Political Rights. The article demonstrates the stranglehold lawyers have on the media. It is time they got a life, and an education. We make Judges out of these people! No wonder the country is in a mess. Lawyers refuse to accept it as law, because it makes their monopoly profession, an illegal one, and without discrimination, anyone can be a lawyer/advocate. Anti Cartel Legislation should be applied.

Peter Alexander Gargan 8/369 Glebe Point Road Glebe 2037 ph 0405329979 Day: 02 95185507

Might a right, but let’s not bill the rest

Helen Irving
December 9, 2008

Australia may be closer to getting a bill of rights. The Federal Government looks likely to begin a nationwide consultation process this week, to coincide with the 60th anniversary of the Universal Declaration of Human Rights at the United Nations.

Proposals for an Australian bill of rights are nothing new. On and off for decades there have been attempts to incorporate rights into the constitution or in comprehensive legislation, often following lengthy inquiries and detailed reports. None has succeeded.

Is anything new this time round?

As proponents like to remind us, all other comparable countries, including Britain, New Zealand and Canada, have adopted a bill or charter of rights. Two Australian jurisdictions, the ACT and Victoria, have recently joined them.

Now the pressure is on for Australia to fall in line.

If it is to be so, the issue must be how to make a bill compatible with Australian democracy. Australia’s constitutional democracy is built on representative government and the separation of powers. In principle, the legislature makes the laws and the courts enforce them.

A bill of rights changes this. Unelected courts gain the power to frustrate elected governments if they hold a law to be in breach of rights.

This may sound fine, even desirable. But many rights are in fact political. They rest on controversial propositions, matters open to reasonable disagreement, issues that should properly be debated in the public arena.

We hear, for example, of the “right to die with dignity”. This is not a natural right, or a settled matter. It is deeply, and essentially, contentious.

Another example: the Victorian Charter of Human Rights and Responsibilities includes a provision giving a person of “a particular cultural … background” the “right, in community with other persons of that background, to enjoy his or her culture”. To determine whether a person has a “particular” background, and whether its enjoyment has been denied, requires detailed knowledge of cultural practices and expectations, both in “particular” and mainstream cultures.

These are sociological and historical issues, not questions for the courts.

• The socio-economic rights that are favoured by many have major resource implications. Good health, education and housing are all worthy goals, but they are costly. To turn these into legal rights is to deprive governments of the power to make decisions about available resources, budget priorities and future plans

Australia may be closer to getting a bill of rights. The Federal Government looks likely to begin a nationwide consultation process this week, to coincide with the 60th anniversary of the Universal Declaration of Human Rights at the United Nations.

Proposals for an Australian bill of rights are nothing new. On and off for decades there have been attempts to incorporate rights into the constitution or in comprehensive legislation, often following lengthy inquiries and detailed reports. None has succeeded.

Is anything new this time round?

As proponents like to remind us, all other comparable countries, including Britain, New Zealand and Canada, have adopted a bill or charter of rights. Two Australian jurisdictions, the ACT and Victoria, have recently joined them.

Now the pressure is on for Australia to fall in line.

If it is to be so, the issue must be how to make a bill compatible with Australian democracy. Australia’s constitutional democracy is built on representative government and the separation of powers. In principle, the legislature makes the laws and the courts enforce them.

A bill of rights changes this. Unelected courts gain the power to frustrate elected governments if they hold a law to be in breach of rights.

This may sound fine, even desirable. But many rights are in fact political. They rest on controversial propositions, matters open to reasonable disagreement, issues that should properly be debated in the public arena.

We hear, for example, of the “right to die with dignity”. This is not a natural right, or a settled matter. It is deeply, and essentially, contentious.

Another example: the Victorian Charter of Human Rights and Responsibilities includes a provision giving a person of “a particular cultural … background” the “right, in community with other persons of that background, to enjoy his or her culture”. To determine whether a person has a “particular” background, and whether its enjoyment has been denied, requires detailed knowledge of cultural practices and expectations, both in “particular” and mainstream cultures.

These are sociological and historical issues, not questions for the courts.

The socio-economic rights that are favoured by many have major resource implications. Good health, education and housing are all worthy goals, but they are costly. To turn these into legal rights is to deprive governments of the power to make decisions about available resources, budget priorities and future plans.

But not all rights are political. Legal process rights - the rights that surround the arrest, charge, trial and detention of persons suspected of having committed an offence - belong properly to the judicial arm of government. They concern the judicial process. They are essential protections against arbitrary power, elements of the rule of law on which our constitutional democracy also rests.

Questions about legislative encroachment on these rights are appropriately answered in the courts. If the claims made by proponents of a bill were confined to legal process rights, then agreement might be secured among those who are otherwise sceptical.

Leading advocates now accept that a proposed constitutional bill of rights is unlikely to survive a referendum.

They propose, instead, a statutory bill, passed by parliament and open to repeal or amendment.

The powers of the courts, they also suggest, should be limited to making declarations of incompatibility between laws and rights, and not extend to striking down such laws. This is the model followed in the ACT and Victoria, and it is said to respect the separation of powers, allowing the parliament to decide what to do with “incompatible” laws.

These are many merits in such proposals. But there are concerns, too.

Although a statutory bill is repealable in principle, the experience in other countries is that such bills quickly become “constitutionalised”. The rights they include become fixed, and difficult to adjust to changing circumstances.

Paradoxically, the very attempt to protect parliament by empowering the courts to make “declarations” may itself prove unconstitutional. The commonwealth constitution prevents the High Court from giving advisory opinions. The court may only rule on actual legal disputes.

This hurdle may prove fatal. It will require close attention by the government.

If Australia is on the path to a bill of rights, let’s have a genuine consultation process. Let us ask ourselves which rights are best protected by the courts, and why we believe Australia to be deficient compared to other countries.

Let us also consider how advocates and opponents might find common ground. Given the long history of failure, this may be the decisive question.

Helen Irving is Associate Professor in the Faculty of Law at the University of Sydney.