Former president of the NSW Court of Appeal Keith Mason has told a conference that Australian judges would not be competent to interpret or make declarations on human rights should a charter be adopted.
Speaking at the 2009 Protecting Human Rights Conference on 2 October, Mason said he was not opposed to a charter of human rights being introduced, but said he did not support the ability of courts to rewrite a statute or tell parliament that an existing statute was "not good enough" under the charter.
"In my view, judges have no particular competencies in the type of law reform exercises involved. They will inevitably bring their personal values to bear and the procedures of courts are not well fitted to the gathering and weighing of the types of information required to be sought out and balanced. Law reform is a very difficult and complex issue," he said.
"History teaches that Australian politicians, shock jocks, journalists and others exercise little restraint in attacking unpopular judicial decisions ... At present the court's will must be and is obeyed, and, accordingly, the rule of law and accountability is served. But when the judges officially state their opinions on politically contentious issues it becomes no more than opinions [and] risks to the standing of the courts are significant."
But University of NSW professor Andrew Byrnes, who is also chair of the Australian Human Rights Centre, said experiences in NSW in the last six months demonstrated the need for a bill of rights.
He said the NSW legislation review committee - which was favoured instead of a bill of rights and the role of the judiciary as backup - had been unable to carry out more than minimal scrutiny after the speedy passage of some legislation through NSW Parliament
"There is a certain irony in that some of this legislation has been under the ministerial charge of the Attorney-General, Mr John Hatzistergos, who, as a member of the NSW parliamentary inquiry into a bill of rights, was extremely supportive of the role of parliament and of the scrutiny committee in protecting rights and has consistently and publicly reaffirmed the importance ... citing them and their effective performance as a strong argument for justifying the rejection of any bill of rights," he said.
"Yet it was [Hatzistergos] who was one of the ministers who ensured the introduction and passage of the Crimes (Criminal Organisations Control) Bill through both houses of the NSW Parliament on one day, 2 April 2009, that is colloquially known as the 'bikies control act'. The legislation review committee was only able to deliver its extensive, and for a legislative review committee, I think, fairly scathing report one month later."
Byrnes said a bill of rights would make a difference to legislation being rushed through Parliament, citing the recent case of convicted child rapist Dennis Ferguson being lawfully evicted from his public housing as an example.
"It would provide a clear and possibly comprehensive set of standards and framework for full human rights analysis and the prospect that even soft judicial review would focus the lines of policy-makers and legislators as they go about their tasks ... and would force a second look when things seem to have gone badly awry," he said.
- Sarah Sharples