Charter of Rights

I must admit to surprise at the recommendations from the National Human Rights Consultation headed by Fr Frank Brennan given his statement at the time he was appointed that he was yet to be convinced of the need for such a Charter.

I was not surprised, however, by the bleating of the likes of Bob Carr, protesting the possibility, in their words, that "unelected judges" would be able to turn down the laws that people were elected to make. He and many others of like mind seem to think that there is no position higher in society than those elected by the people to high office.

I would like to remind them of a couple of things.

It is normally the case that by the time a person gets to be a High Court Judge not only have they spent five to seven years getting their basic legal qualifications they will have spend many more years gaining both higher academic qualifications in the law, as well as professional qualifications, and they will have had many years in practicing law before sitting on various benches of inferior courts. Without these qualifications and experience they would not be able to exercise their high office. They are therefore exceedingly well qualified to look at law and interpret what it means.

Politicians, on the other hand, have no professional or academic pre-requisite qualifications for the job. While many bring experience and qualifications with them into the job, and the diversity of qualifications and experience that members of the various houses of parliament have greatly enriches those places, none has spent his or her whole professional career working cloesly with the law. Some may have been lawyers, even QC's, but I am unaware of any judges who have forsaken the bench for elected office.

Taking the current Western Australian government as a case in point, it is interesting to note that 7 of the 17 ministers of the Government have no tertiary qualifications at all, and only four have post-graduate qualifications, not necessarily in the field in which they are exercising their ministerial office.

The question I ask is: By whose or what standard are elected politicians regarded as the best qualified to deal with laws, particularly in comparison with High Court judges?

The most commonly touted reason is that if politicians make laws that people don't like, then they will pay an electoral price for their errors of judgement - people will vote them out. This logic only applies, however, in cases where the number of people adversely affected by such a bad law is greater than fifty percent.

A point made recently by a commentator on Radio National's Fora Radio was that Democracies protect the interests of the majority, Bills of Rights protect the interests of minorities and that free and democratic societies need both.

At the end of the day judges are generally and simply asked to interpet laws. If politicians don't like the interpretations they give then they have it in their power to change the laws so that the laws say and do what the politicians want them to do. Rather than bleating about the "unelected" status of judges as if it makes them inferior, politicians should accept that each has a vital role to play in our parliamentary and legal system - Parliament, the Executive and the Judiciary - none superior to any other but if one was eliminated the whole system would collapse.

I have signed the GetUp petition urging the establishment of a Bill of Rights. I am not sure I have a view about whether a Bill is preferable to a Charter, but I do believe that the rights of us all are best protected when we care about the rights of minorities.