THE CULTURE WARS IN AUSTRALIA
http://www.theaustralian.com.au/news/opinion/this-culture-war-cuts-to-the-core/story-e6frg6zo-1225850660242
This culture war cuts to the core
Janet Albrechtsen
From: The Australian
A FUNNY thing happened in the nation’s capital recently. ACT Supreme Court judge Richard Refshauge ordered the release of Gim Em Moh, a convicted criminal, after finding that the sentencing magistrate had failed to treat Moh with the “inherent dignity” he deserved as a human being under the ACT Human Rights Act.
Moh pleaded guilty to using fake credit cards and a fake driver’s licence to buy electronic goods. In sentencing Moh, a Malaysian national, to six months’ jail, magistrate Grant Lalor said that Moh “was turned loose to burgle the stores of Canberra with false credit cards” and “turned loose to rape and pillage the stores of Canberra”.
Refshauge ordered Moh’s release, claiming that sentencing obligations had not been met, and chastised the magistrate for his “exaggerated and extreme language”. The judge said “anyone deprived of liberty must be treated with humanity and respect for the inherent dignity of the human person”. What was Lalor thinking when he said a fraudster and thief had behaved like a fraudster and thief? Moh must have fallen about laughing as he left Canberra not so much a convicted criminal as a victim of a human rights breach.
However, the real joke is on Refshauge. By treating colourful language as a breach of Moh’s rights, the judge has unwittingly delivered a useful sermon, not on the inherent dignity of human beings but on the inherent folly of a human rights act.
Refshauge has demonstrated the irresistible seduction that happens when judges are given the chance to impose their personal preferences using a list of ambiguously worded “human rights”. Barely a few years ago Refshauge was a hearty supporter of community views when it came to notions of justice.
In 2007, when he was the ACT director of public prosecutions, he told the ABC’s Stateline program that sentences in the ACT were sometimes too lenient compared with other jurisdictions. He expressed concern about the trend of defendants opting for judge-alone trials in the hope of shorter sentences. “We do lose a sense of where [sic] the community thinks is a fair thing and that community involvement can be very important even though sometimes it means that the community comes to a view that’s different from mine . . . But that’s important,” he said. “It is the community’s decision.”
When Refshauge was appointed to the Supreme Court in August 2008, a prescient blogger wrote: “He seemed to have his finger on the pulse as far as public sentiment was concerned. Let’s hope he doesn’t end up having the operation that all incumbent judges have had, where they lose all sense of what the community they are supposed to represent feels.”
The Moh decision on March 26 suggests Refshauge has had that operation.
As DPP, Refshauge told a conference in 2007 that the HRA was no “rogues’ charter. There have been no more acquittals or technical defeats for the prosecution than before the act, nor an express reliance on the act in ways that are different from the common law.” As a judge, he has helped turn the HRA into a rogues’ charter by relying on its fuzzy notions of dignity to release Moh, instead of merely using the statutory obligations under the ACT’s sentencing laws.
Refshauge, who in October 2008 was alleged by a defendant to have fallen asleep during a boringly complex civil hearing, has certainly woken up to the alluring chance to defer to his own brilliant mind when defining a vague list of human rights. What was the naive blogger thinking? Community views? They don’t get a look in when a judge is charged with defining what “inherent dignity” means when a criminal is being sentenced.
And here is the essential defect in a human rights act. At its core, it is anti-democratic, requiring unelected judges to answer a wide range of social and political questions once left to parliament. Previously, the Left relied on specific pieces of discrimination legislation to impose its “rights” agenda. A charter of rights is a more ambitious project. It empowers an elite cadre of unelected charter recruits to impose a broader ideological agenda that would have no hope of success under normal democratic processes. Even Frank Brennan, chairman of the National Human Rights Consultation Committee, admitted that a charter is a “device for the delivery of a soft-Left sectarian agenda”.
Those advocating a federal charter of human rights are keen to keep a lid on this simmering culture war. The midwives for the delivery of their agenda are not just unelected judges; Brennan’s report also recommends a far more devious backdoor charter of rights where public servants will be required to exercise powers vested in them under any law in accordance with an overriding list of hazy “human rights”.
As Margaret Kelly wrote on this page a few weeks ago, this is a “legal Trojan horse”: unnamed bureaucrats behind closed doors will decide on highly contested human rights.
Kevin Rudd is no cultural warrior. But he is a canny politician. His government has announced that Brennan’s recommended federal human rights act is “not a high priority”. So you won’t hear anything about it come election time. But if the Rudd government is re-elected we may see the Prime Minister staking out his position as an apparently sensible centrist by opting for Brennan’s fallback position for bureaucrats.
You know the routine. Rudd can say that if he has enraged both the Left (which wants a full-scale charter) and the Right (which rejects a backdoor charter as equally anti-democratic), then he must be doing something right. Don’t fall for that ruse. This is a culture war about how Australia should be governed.
Every chapter in the culture wars has its own orthodoxy. The orthodoxy surrounding a human rights act says empowering unelected judges and backroom bureaucrats to make fundamental social and political determinations is a benign process aimed at improving our human rights culture. And opponents should be treated as either mad or malevolent, or both. In fact, opponents are old-fashioned democrats who believe ordinary Australians are better trusted to make decisions about the country’s future. Culture wars don’t get more core than this one.
janeta@bigpond.net.au
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