The Bill of Rights power struggle

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As the winter recess starts and our federal politicians abandon the cold of Canberra for their electorates or an overseas holiday, the National Human Rights Consultation has moved into the Peoples House. Day one and two of the national hearing have concluded. While the arguments for and against a Bill of Rights have been well ventilated, each day has itself told a story about this necessary public discussion.

Day one featured the voices of the people, including leading Aboriginal advocates and elders, minority racial groups, a former refugee and other people experiencing marginalisation.

One of the most compelling speakers was Vickie Roach, a political activist and oral historian for the Koorie Heritage Trust. Roach spoke of the loss of human rights within the prison system.

With the assistance of others such as the Hon Ron Merkel QC, Roach had opposed John Howard's efforts to deny all prisoners the right to vote. She did not speak of this attempted human right abuse, but instead focused on the systemic abuse of female prisoners inappropriately housed in maximum security prisons.

Roach compared this form of incarceration to the state ordered pairing of a vulnerable woman with a new abusive partner. The stories of mothers refusing to see their children so as to avoid strip searches produced a strong argument for a rights based approach to public policy.

Day two was largely the day of the politicians and lawyers. The debate was often heated and lively. Even the previous day's debate involving a right to die advocate, a right to life advocate, a gay rights advocate and a church official did not compete to the heat of the angry rebuke given by the NSW Attorney General, the Hon John Hatzistergos MLC, to a the National Human Rights Consultation Committee member, Tammy Williams.

Williams simply asked the Attorney General to reconcile his position against a Bill of Rights with his own performance on the issue of segregation/solitary confinement of prisoners. The Attorney General shocked some members of the audience when he demanded Williams check her terms of reference.

Fellow committee member Mary Kostakidis continued the discussion with the NSW Attorney General, mentioning his decisions in relation to the bikie laws that were rushed through parliament, and important housing rights raised in previous consultations. All Kostakidis garnished was an admission that parliament is not always perfect.

There were many positive contributions, from the likes of Professor Adrienne Stone and Professor George Williams. But largely day two was dominated by a paradigm of power. While day one had ended with a growing hope for the recognition of rights of the oppressed, day two diluted this hope in legalism, fear and falsehoods.

Thankfully, at the end of the day the hope built on day one was reignited, with the help of two former judges of the Federal Court.

Merkel and the Hon Peter Heerey QC spoke for and against a Bill of Rights. The chair, Father Frank Brennan, noted that Heerey did his argument no favour in demonstrating what a measured and considered person might be put in place of reviewing the compliance of legislation against a Bill of Rights. That said, Heerey did produce a convincing argument.

But it was Merkel who ended the day with his observation on 'rectification'. Throughout the day many opponents to a Bill of Rights argued that present violations could be, and largely are, rectified. Merkel brought the debate back to the voices of day one. He reminded the audience of who would benefit from a Bill of Rights as he asked 'how can a government rectify the damage to the children and women placed behind bars in Woomera?'.

If Australia is to receive a Bill of Rights, by whatever form, we cannot singularly allow the lawyers and politicians to decide what it is. Instead we should let people like Vicki Roach or the children and women placed behind bars in Woomera decide, for they are the people who will derive the most benefit.


Jonathan Campton is a former lawyer now employed as a researcher by a major charity.

 

Topic tags: National Human Rights Consultation, Ron Merkel, Vickie Roach, John Hatzistergos, Adrienne Stone

 

 

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we should not do that silly
Kate Paskins | 09 November 2009


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