Tonight, Kato and I are going to drop in on a panel discussion about the possibility of a Charter of Human Rights at the federal level. I wanted to set out some thoughts here before hand and see how/if they change...
To me the answer is because the majority are generally happy to trade the human dignity of the minority for promises of security - especially when things start blowing up. A CHR should encourage people/government to think in terms of proportionality - what are we giving up and what are we gaining?
The UK and NZ have stuck to civil and political rights. Economic, social and cultural rights are more problematic because they can place courts in the position of deciding how the executive should spend money. Seems like the South African Constitutional Court has been doing a great job of negotiating this tricky territory - with a much stronger Bill than Australia would ever pass, so I say bring on the ESC rights.
Parliament should retain the last say. A CHR should not be constitutionally entrenched (like in the US and Canada). The ability of the courts to strike down legislation makes people crazy. Jurisprudence surrounding the 14th Amendment in the US is an example of how it can go bad.
The focus on the CHR should be on law making. It should demand that the Minister responsible or the AG sign off on the compatibility of proposed laws (or say why the law is necessary despite incompatibility). It should also to enforce the mechanics of analysis --> Human Rights Impact Statements?
Because judges will take over.
Overwhelming numbers of spurious law suits.
Because current laws are good enough.
Because it will be too token.
I'd appreciate any comments from the smart and government-savvy disco. That way I can steal them and make snooty comments over canapes.