December 17

Flawed human rights consultation : why do they bother?

A committee of “four eminent Australians” appointed by the Attorney –General, Robert McClelland, to consult the community about whether we should have a bill of rights, is flawed.  On the government's record so far, it is reasonable to assume that the process for consultation and debate on constiutional change will be similarly flawed.  

Indeeed , it is not at all unreasonable to say that the government might as well save the money and announce the result now. The Attorney has unfortunately followed the very un-Australian precedent established by Paul Keating when he appointed the Republic Advisory Committee and vetoed anyone who was not a republican.

Australians are a wake-up to this sort of thing, and the standing of the politicians will only suffer – even more – as a result.

The unfortunate thing is the nation had expected Kevin Rudd to be more like John Howard in this respect. It was surprising then to see the government turn its back on proper practice and the Australian sense of decency and fair play with the 2020 Summit, likened by one republican delgate to  a Mad Hatters Tea Party.

The Summit’s governance panel voted a derisory 98 to 1 that Australia should become some sort of vague republic, a recommendation subsequently adopted by acclamation at the plenary session.In both cases this was unbelievably done without debate and without any reference whatsoever either to the alleged faults in our constitutional system and to any model designed to correct these.

Not only was there no substance in the proceedings,  the procedure was so inept that they adopted a motion which was so fundamentally legally flawed it had to be changed on the Summit website, surreptitiously, ten days later.

How could any one of those present, with the notable exception of Senator George Brandis, have allowed their names  to be associated with this travesty?


This is the sort of behaviour we expect from the government of Robert Mugabe, not a democratic Australian government.

So the conclusion must be that in any referendum and especially any constitutional plebiscite, we cannot expect that the government will behave with the impartiality and propriety the Howard government demonstrated in relation to the 1998 Convention and the 1999 referendum campaign.

…committeee of eminences… 

Now the committee of human right eminences is to be led by Father Frank Brennan SJ, with the former Australian Federal Police commissioner Mick Palmer, the former SBS TV news presenter and member of Paul Keating’s Republican Advisory Committee, Mary Kostakidis and an indigenous lawyer, Tammy Williams.

Whatever his views on a human rights bill, Father Brennan does not sit on the fence over the removal of the Crown from our constitution.

Notwithstanding the 1999 landslide he claims “the overwhelming majority of Australians want to sever all links” with the Crown.  His evidence for this is a seriously flawed opinion poll about The Queen as Head of State.

A law professor and assumed advisor and confidante of his father, former Chief Justice Sir Gerard Brennan, he ignores the High Court ruling on who is our constitutional head as well as the application of international law and practice to the use of the term Head of State, which does not appear in the constitution. (“Constitutional Politics,” edited by John Warhurst and Malcolm Mackerras, MUP, 2002 at page 218)

As to a bill of rights, Father Brennan may well be torn between an apparent attraction to this measure, and the fact that in recent years  they seem to be so often applied against Christian beliefs.

Gerard Henderson – a well known republican – noted that when he introduced the committee the Attorney-General said: "Father Frank is, by his own admission, a long-term 'fence sitter' on the question of how best to protect and promote human rights."

“This comment would have come as some surprise to Brennan-watchers, including those who have read his 1998 book Legislating Liberty,’ observed Dr. Henderson in “Voice of a minority disappears,”         The Sydney Morning Herald ,16 December, 2008.

Interviewed on The World Today on ABC radio the Attorney said he had ‘been very careful not to express’ his view on whether Australia should have a charter of rights.

“This would have surprised those who read his speech delivered in Albury on June 14, 2000 where McClelland argued for "the adoption of a charter of rights and aspirations," countered Dr. Henderson.

He says the “evidence suggests Kostakidis and Williams are sympathetic to a charter of rights. Which leaves Palmer as the only member of the committee who might support the minority view on this issue expressed at the 2020 summit. Yet this is most unlikely. Palmer was reported in The Australian last Wednesday as saying he had an open mind on the issue.” 

There are plenty of prominent people who could have given a sense of balance to this committee. 

Observers are entitled to assume that this exercise is being undertaken to go through the motions of having a consultation, and that a recommendation favourable to a bill of rights is a fait accompli.

 If so, the government has only itself to blame.  




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