“I never wanted to hear all the things that you told me.”

I suppose it’s fitting enough to end a hiatus by complaining about a silly person.

As some of you may know, the National Human Rights Consultation Paper is in. I recommend reading Part Five, which outlines the findings and recommendations.

The Secretariat was able to assess 8671 submissions that expressed a view on the adequacy or inadequacy of the present system: of these, 2551 thought human rights were adequately protected, whereas 6120 (70 per cent) thought they were not.

Pshaw — how is that possible, in this great land girt by sea? Of course we have adequate rights protection! We’re a proud democracy! We believe in a Fair Go™ for everyone, and pride ourselves on being an egalitarian multiculturalism! Surely we protect something as basic and necessary and obvious as quaint old first generation (that is, civil and political) human rights.

Right?

Australia has a patchwork quilt of protection for human rights. We have made commitments to a range of obligations under international human rights law, but these obligations are enforceable in Australia only if implemented in domestic legislation. Although there are numerous mechanisms for holding Australia accountable at the international level, they are not legally binding and their recommendations can be, and have been, ignored by Australian governments. We also have strong democratic institutions, but they do not always ensure that human rights—and in particular minority rights—receive sufficient consideration.

Everyone repeat after me: this is a bad thing.

The Australian Constitution was not designed to protect individual rights. It contains a few rights, but they are limited in scope and have been interpreted narrowly by the courts. Federal, state and territory legislation protects some human rights, but the legislation can always be amended or suspended to limit or remove that protection. Further, the legislative framework is inconsistent between jurisdictions and difficult to understand and apply.

To be specific, some of the important human rights the Constitution expressly guarantees are the right to trial by jury (s 80) and religious freedom (s 116).

Administrative law allows individuals to challenge government decisions and encourages standards of lawfulness, fairness, rationality and accountability. The remedies it offers are, however, limited, and there is no general onus on government to take human rights into account when making decisions.

Heaven forfend that administrative decision makers should have to consider human rights! The bureaucratic machine would just be bogged down by something unnecessary like that.

The common law, which is developed by judges, protects some human rights, but it cannot stop parliament passing legislation that abrogates human rights with clear and unambiguous language. Chief Justice French has recently spoken of ‘the supremacy of Parliament which can, by using clear words for which it can be held politically accountable, qualify or extinguish [common law] rights and freedoms except to the extent that they may be protected by the Constitution’.

Oh, those judges. We’ll come back to them. Anyway, some of the common law rights are things like the privilege against self-incrimination (that pesky “Fifth Amendment” you keep hearing about from US courtroom and police dramas) and freedom of speech (to the extent that you don’t mess with someone’s right not be defamed by you). But are they really “rights” when all parliament has to do is pass legislation that could be interpreted as implying that they shouldn’t apply in a given dispute between citizen and state? The answer is that they aren’t, and while it’s a common law presumption that laws are written in compliance with international obligations (like ratified treaties), judges simply can’t consider human rights when there’s no leeway.

See, for instance, the case of Al-Kateb v Godwin (2004) 219 CLR 562, in which the conservative High Court ruled that it was A-OK to keep an asylum seeker in immigration detention for ever. Justice Kirby’s dissent is an interesting read; while he acknowledges that the Court can’t slip rights into the Constitution or bring in treaties “by the back door”, [179] he still believes that the court has to give some thought to international law when interpreting legislation. [183] After all, interpreting the legislation as though the drafter had a particular situation in mind, when they clearly didn’t, is just stupid. [150]

In any case, the paper comes to the conclusion that a human rights charter (like the ones VIC and the ACT have at the state level) would be a very, very good idea. Basically, it would codify the human rights we deserve to have protected, and make parliament issue a “statement of compatibility” for each piece of legislation it enacts. Where incompatibilities arise, the infringements on human rights would be justified in the statement, so the public knows what they’re getting in exchange for their rights. Administrative decision makers would be compelled to consider human rights. Judges would get to interpret legislation as intending to respect human rights wherever possible, and if they were to ever think that an act is incompatible, parliament would be informed — but it wouldn’t affect the enforcement or validity of the act. Parliament is still perfectly capable of passing any legislation it wants.

This model has its problems — for one, it’s piss-weak. But what it does is perk up the public’s ears when the government passes something like, oh, say, anti-terror legislation that deprives people of many of their rights when ASIO feels like flexing some executive muscle. It gets all three branches of government thinking about human rights. It raises public awareness. It’s undoubtedly a good step forward. As the report puts it:—

The so-called dialogue model of a Human Rights Act would sit more comfortably with Australians than other models because, even when the courts have expressed a view about the limits on rights, most Australians would prefer parliament to express the final view, once it had received a further opinion from the executive in response to an adverse court finding. The rights regime remains subject to parliament’s will. As noted in Chapter 2, at the public hearings same-sex marriage advocate Rodney Croome asked, ‘If a charter can’t deal effectively with the hard issues what’s the point?’ Under a suitable Australian charter, the ‘hard issues’ could be considered by government, parliament and the courts, but the last word would remain with parliament.

Now, a lot of people disagree with this, and they insist that any human rights acknowledgement whatsoever will undermine democracy and give power to non-elected judges and shift focus to undesirable minority groups at the fringes of society who should have their rights breached for not being Anglo-Saxon and it doesn’t work anyway just look at China and the Soviet Union.

At least, it would seem to be a lot of people, based on the coverage the issue has been getting in The Australian this past week. However, as the retired Kirby alluded to in a speech at Adelaide Uni on Wednesday night, the fact is that it’s not an especially unbiased publication. None of the members of the News Limited conglomo-empire are. Of course, as the most recent edition of On Dit pointed out, that’s the price we pay for all the newspapers being owned by one man. They can all be consistently stupid when it comes to crocodile tears over issues that offend their delicate dead-centre-right philosophy, so at least we won’t have to endure any dreadful inconsistencies in the media.

So it will come as no surprise that I’ve been opening the paper only to face-palm all week. You have Jim Wallace insisting that if we’re listed as the second-best country to live in, then we clearly don’t need any silly rights protection, it would only lead to the “promot[ion of] minority — and often abberant — agendas that would not succeed on their own democratic merit”, and anyway, that naughty PM better make sure he puts it to a referendum! You have an editorial on Tuesday claiming that the proposals are “clearly impractical” and would “engulf the federal bureaucracy in mazes of litigation”. You even have former High Court Justice Callinan going on the record as saying that the courts would be swamped by trivial human rights cases, preventing them from operating properly.

Callinan should know better — as should all of them. Firstly, referendums are only needed to amend the Constitution. A normal Act, like a charter of rights, can be passed and repealed without any fanfare. That’s one of the strengths of this road. Secondly, considering the human rights of minorities is hardly a bad thing. They’re human; therefore, they deserve human rights. It’s excruciatingly simple. Further, one of the purposes of the charter would be to provide easy internal solutions for those harmed by that labyrinthine bureaucracy, instead of needing to resort to the courts and “obscure corners of administrative law” (as Julian Burnside AO QC put it in his speech this week) to resolve screw-ups. Finally, a common theme throughout is the appalling “transfer of power to non-elected judges” — if the judges don’t actually get any power to strike down legislation because it does something as insignificant and petty as breaching Australia’s international human rights obligations, then how does a charter undermine the democratic process?

However, these are people who are expressing their earnest views. Their opinions are horribly misinformed and repetitive, but they probably mean well. This isn’t the case for Janet Albrechtsen. The title of her Wednesday tour de stupidité speaks of “substantive untruths” and “human rights platitudes”. You can see where this is going. The entire piece is a horrific read.

THE Left has a gift for using clever language to push its causes. The trick is to start with a literal truth, a platitude so steeped in emotion it tugs on the heartstrings of human nature, something that just about every sane person will agree on. But what makes the use of a literal truth so seductive is the way it is used to hide a substantive untruth. A bit of intellectual rigour lifts the cloak on these dishonest word games.

Does she really think that a charter of rights would be the culmination of some far-left conspiracy theory? Does she earnestly believe that “literal-truth word-games” are being employed to trick the public into becoming educated about human rights? Does she think anyone’s still going to swallow the argument that the figures the report presents are downright “deceptive” and “orchestrated”, when it’s been used all week and is refuted in the column directly to her right (have to give News Ltd credit for publishing it, actually)? How can a human rights charter lead to a “battle between the courts and parliament”? (Is this 16th century England?) And of course she wraps up by triumphantly revealing that the purpose of the “ruse” was — yes, you guessed it — “the fundamental transfer of power to unelected judges”. Because all those crazy human rights activists want is “to hell with old-fashioned democracy”, after all.

Now, as far as I know, the most old-fashioned form of democracy was found in ancient Athens. Upon inspection, that extreme form of democracy was in a lot of ways admirable, but it also illustrates that an implementation of a democratic process alone doesn’t automatically make a society what we consider to be good in the present age. There was no human rights protection at all in ancient Athens; the citizens often voted to go to war, slaves were kept, and women didn’t have any say. (On the other hand, the reason that extensive human rights protection in the Soviet Union had no effect was because of the absence of the rule of law. The government just ignored laws and did what it wanted.) Is this what Albrechtsen considers to be ideal?

Her pompous conclusion: she’s going to continue “applying a bit of intellectual rigour to [the HR camp’s] seductive and deceptive arguments”. Lucky us, to have such a snappy, smart and spirited stalwart promoting the interests of the Australian people.

In conclusion, a federal human rights charter is a really good idea, and there really aren’t many arguments against it that hold water. While it doesn’t change things very much, that’s one of its biggest strengths. Above all, it has the government communicating internally about human rights, and the public much more informed than they are now. And while everyone should debate and engage with this fascinating issue, there are certain infuriating exceptions to the rule.

“I was hiding under your porch, because I love you.”

Me blog? That’s unpossible!

So, I went and saw Up with some friends on Monday (in case the title didn’t tip you off). It’s a fantastic movie, no doubt, and is what we’ve come to expect from Pixar — a fantastic scenario that ends up being far more emotive than you’d expect going into the cinema. And they’ve been particularly successful in this case, because all of the characters are just so endearing; even though Pixar’s humans were never meant to look particularly ‘realistic’, everything about them is so expressive. Even though everything that’s going on is so very, very ridiculous, you still engage with those characters on such a human level (even the ones that aren’t human), so the messages and the ideas the film attempts to convey are incredibly powerful, and can speak to people of all ages.

Obviously, that’s not news to anyone, but the more I think about it, the more amazed I am. David Stratton really wasn’t joking when he wrote that this was ‘the best American cinema has to offer’. So, here’s hoping that Pixar keeps churning it out.

Anyway, we saw it at the Mitcham cinema, and ended up being the only ones in the entire theatre (we didn’t take advantage of this and mess around because we were so enthralled by the movie). Unfortunately, the screen was relatively small, but after I persuaded everyone to go and sit closer to the screen, the 3D effect was an interesting touch. It’s not really a necessary element, though, so at least I know I’m not missing out on anything if I see a film without the technical sophistication of DISNEY DIGITAL THREEEE-DEEEEEE in the future. Ahem. Afterwards, we went and ate at a KFC restaurant that stank of mildew. Or more accurately, half of us ate while the rest looked on in horror. (And here I thought that I’d seen the worst of fast food in the Mayo Café at uni. Ah, eating on a budget …)

What are you waiting for? Go watch some interviews.

“Runaway train, never going back …”

How could I not write about the return of the train?

A few days ago, after I stepped of the last dreadful replacement bus I’d ever have to take, the realisation that things were about to improve hit me right as the pungent smell of wattles in full bloom almost knocked me off my feet — actually, I noticed a lot of fruit trees blossoming on the walk home, which I took as an uplifting portent of good things to come. (And if you don’t buy that, you can’t argue with travelling time being slashed by two-thirds!)

Of course, it also means that winter’s days are numbered. Today’s weather, no warmer than a brisk 16ºC and with refreshing rain sprinkling sporadically, was perfect, as far as I’m concerned.

Now, on another note entirely, Greg Sheridan wrote this weekend (amongst scoffing at Tony Abbott and lamenting the trivialisation of Shakespeare with gimmicks in performance — how can anyone disagree with that, M I RITE?) that “reverse snobbery is ruining the beauty of spoken [English]”, and directs us to listen to Menzies and hear for ourselves “how well Australians once sounded”. What do you think, interwebs?

“But won’t someone think of the children (with foresight and deliberation)⁈”

“It’s a modern-day Stolen Generation!” they decry. Hah. No.

AIHW has told the media that the amount of indigenous children currently in state care exceeds 9000 (which we’ve been told in turn exceeds the amount at any time between 1910 and 1970), nine times the rate of other children taken into care. But is this really surprising when the number of substantiated cases of child abuse or neglect for aboriginal Australians is also so much higher than for other racial groups (see below)?

Children aged 0–12 years who were the subject of a substantiation of a notification received in 2007–08 (per 1,000 children). Source: AIHW National Child Protection Data Collection

It’s been apparent for a long time that as a nation, we have a serious problem on our hands. A sticking point for me has always been the fact that people were encouraged to live in remote communities in the first place — how can any level of healthcare or education be provided hundreds of kilometres from the nearest town, without huge expenditure? — but the fact is that even those who live in urban areas aren’t generally much better off.

The problem most likely can’t be solved by throwing money at it, but all we ever seem to see is interventionism and alarmism. On the other hand, this isn’t surprising when we get reports such as today’s, describing a family of seven living in a makeshift house with no running water and “serious hygiene problems”; most Australians would be sympathetic, but understand why the children were taken away this May, and perhaps even more so in regards to the couple’s sixth child (now two weeks old), albeit hours after its birth.

Of course, then there’s such figures as David Lewis, who urges us not to “mistake the squalor for poverty” (Letters to the editor, The Australian Wednesday August 19):

Contrary to what many believe, the members of most if not all remote indigenous communities are among Australia’s wealthiest owners of rights in land: freehold, native title, and so on. […] Each [Pitjantjatjara] man, woman, and child owns on average owns 50 square kilometres of land, which is larger than most pastoral stations. Under the current law the title to this land is inalienable but the land nevertheless has immense commercial potential, for pastoral activities, agriculture, mining, cultural tourism and so on.

Seems like a meaningless dichotomy in a context which includes human rights abuse, but let’s not allow this to deter us. Clearly, we simply need to redefine the criteria by which we’re judged against other OECD nations.

What do you think, though, readers? Do you take a humanist view, are you more worried about the bad picture it paints of Australia to other countries, or does it only concern you a little, if at all?

Birth of a blag: good old-fashioned U.S. stupidity

Hullo, everybody. I thought I might skip the usual first post formalities and skip straight to something you can comment on — comments are good, so pass comment to your hearts’ content, my commenting commentators!

Starting with the good: keyhole surgery involving the removal of a kidney through a small hole was recently performed for the first time in Australia.

Kidneys are usually 11 centimetres long and about 6 centimetres wide, but keyhole surgeon Daniel Moon said new laparoscopic tools helped him remove a Melbourne mother’s kidney through a tiny [2 cm] hole at Epworth Hospital last month.

He used an airtight port that carries a camera and two surgical tools at a time to deflate Justine May’s kidney inside her abdomen before pulling it out like the skin of a balloon through a two-centimetre incision.

“Removing a kidney would usually require three or four incisions either through the abdomen or the back, so this is much less invasive,” he said. “Aside from reducing the risk of infection, there is definitely a cosmetic advantage for people worried about scars.”

Nothing wrong with that, you might think. In fact, the vast majority would likely draw pleasure from learning about this news.

Not so for Wall Street Journal columnist James Taranto.

Granted, this isn’t brain surgery, but how in the heck can you fit something 11 by 6 “centimetres” through “a two-centimetre hole”? Although in this case the patient seems to have gotten lucky, the story illustrates another danger of socialized medicine: Everywhere it’s been tried, it seems to entail using the metric system. Do you really want someone cutting you open while being forced by the government to make sense of such bizarre and counterintuitive measurements?

While this sort of brash and unapologetic stupidity is hard to take standing up, we can’t take it lying down, either. But aside from the fact that Taranto is either a troll far too wry for his audience or lobotomised, there are some more relevant issues for U.S. denizens staring us in the face, too.

There may be some irony in the fact that the procedure in question was developed in the U.S. in the first place.

Do tell, readers, how do you think we can resolve the crisis we find ourselves in — one where hapless surgeons are forced by the wicked government to use bizarre and counterintuitive measurements as they operate on everyone rich and poor, slowly brainwashed into becoming the drones of the deep, dark forces fighting against that glorious stalwart, the 1950s picket fence, their knives palled in the dunnest smoke of hell, chopping people up all the while … all because of socialist medicine! Could McCarthyist propaganda be the answer? It certainly is for the U.S., but I fear it may be too late for us.