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High Court shows there never was a need for a Charter of Rights

November 12, 2010

Yesterday the High Court of Australia brought down three headline-grabbing decisions.

  • South Australia’s “bikie laws” in South Australia v Totani;
  • Tax deduction for education expenses in Commissioner of Taxation v Antsis;
  • The lack of procedural fairness inherent in denying refugees access to Australian courts in Plaintiff M61/2010E v Cth and Plaintiff M69 of 2010 v Cth.

Remember that earlier this year the Federal Government rejected a recommendation from the Brennan Inquiry for a Charter of Rights. I was one who campaigned against a Charter of Rights.

Now the bold and forthright decision-making by the High Court confirms Australia never needed a Charter of Rights.

It confirms the courts already have ample power to protect liberties in Australia.

Under our Constitution the courts share power with the legislature and with executive government. And yesterday’s decisions make it plain that the powers the High Court has are substantial. They can overrule cabinets and parliaments. They can scuttle laws. They can set right public servants and departments. As they should be able to. Our freedoms have always been based on freedom of speech, parliamentary democracy and this robust common law tradition.

We do not need a radical shift towards additional judicial powers.

Consider refugees. At least 50 per cent of the arguments in favour of a Charter of Rights used by advocates like Geoffrey Robertson or Susan Ryan concerned refugee rights.

The High Court has demonstrated that it can intervene on refugee policy – without having to invoke a Charter.

Australia’s High Court – as demonstrated yesterday – already enjoys the capacity to intervene wholesale in how Australia is governed. Who could seriously argue after yesterday we need a greater shift of decision making power to the judiciary?

See my article in The Australian: http://www.theaustralian.com.au/news/features/bill-of-rights-is-the-wrong-call/story-e6frg6z6-1225710664130

One Comment
  1. November 12, 2010 10:36 pm

    Bob, this would appear to be a compelling argument, and I am glad that our judicial process has demonstrated it’s independence and delivered such verdicts.

    However this article from the SMH by Professor Sarah Joseph who is director of the Castan Centre for Human Rights Law at the Monash University Faculty of Law, demonstrates the potential danger of the absence of a charter…

    if Mr Abbott and his ilk head for a US style election of judges … would an elected judge have the same independence and conviction?

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