it should be noted that in the present discussion there seems to be some suggestion there is a big difference between a bill of rights, which would allow courts to declare invalid legislation that was found to contravene some aspect of the bill, and a so-called charter of rights, which would allow courts only to declare legislation inconsistent with the rights as set out in the charter.
One reason there would be little difference in practice between these two schemes is that no government is likely to leave untouched a law that has been held by a judge to be contrary to human rights.
The difference here is stark. Without a punishment beyond reprimand, few governments will ever pay attention to a Charter of Rights. There is a legislative version in the ACT which has been very quickly forgotten by the general public and what passes for commentators down here. No punishment, no risk, no attention. The courts regularly ruled on the conditions of refugees during the Howard years, but little policy ever changed because of it.
Personally I want to see a bill of rights focus primarily on protecting people from the government, rather than other people. Free speech, representation, privacy, public trials by peers. The American founders got it right in designing rights for a democratic society. (Though something about a right to be counted fairly might have been a wise move given 2000's events)
I strongly side with the importance of a legal order as the foundation for a fair society, and international peace. But as a profession Lawyers are awful advocates for their arguments. Even the eloquent, brilliant ones like Geoffry Robertson are often self-defeating in their overinflation of the ability of the law to reign in tyrants and the malicious. We need politicians to get back into the arena and argue for a bill of rights, otherwise the public will reject the idea out of hand. This is a political fight, needing political skills, even if they were once trained in law.
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