Wednesday, April 07, 2010

"Human rights" folly

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.


Another attack on jobs for women

Routine Leftist stupidity: First paid maternity leave and now enforced equal pay. If employers are forced to pay women more than they are worth as employees, the response may well be to hire men instead or cut back altogether

BUSINESSES could be forced to report every two years on what they are doing to reduce the widening gap between men's and women's pay.

And the Sex Discrimination Commissioner could get new powers to investigate alleged sex discrimination without waiting for a complaint.

The plans are two of the changes tipped for next month's Budget as the Rudd Government's response to a number of key inquiries into women's policy.

Despite it being almost 40 years since it became illegal to pay women less when they did the same work as men, the pay gap has not closed and is in fact growing. It now stands at 17.5 per cent, or $224 per week.

A major parliamentary report last year called for responsibility for reducing the pay gap to be taken off the federal bureaucracy and given to industrial umpire Fair Work Australia.

Deputy Prime Minister and Workplace Relations Minister Julia Gillard commissioned the parliamentary inquiry into pay equity and is driving change in the area.

Under the proposed changes, Fair Work Australia would research pay inequity in industries like childcare, aged care and the finance sector that have big pay gaps or poor pay for women. Its job would be to negotiate with employers on how the gaps would be reduced in four to five years.

It would achieve similar outcomes to key lawsuits that have found women in certain industries are being underpaid when their skills and the value of their work is compared with men working in jobs that require similar skill sets.

It is hoped the umpire would achieve increases in women's pay by negotiation and without lawyers becoming involved.

The Equal Opportunity for Women in the Workplace Agency, which has responsibility for pay equity, is under review and its former director has not yet been replaced.

A review of EOWA has found it lacks power, is focused on getting businesses to report on equal employment rather than actually change their practices and that 4500 of the businesses employing more than 100 workers escape its survey net.

A separate Senate inquiry has looked at the effectiveness of the Sex Discrimination Act, calling for the Sex Discrimination Commissioner to get new powers to initiate inquiries.


Another useless affirmative action appointment

This makes Britain's Cressida Dick look efficient. Cressida only killed one innocent Brazilian electrician on the London underground

FORMER Victoria Police chief Christine Nixon has admitted she went home at 6pm on Black Saturday to go out for dinner with friends after she was told of the likelihood of deaths in the bushfires.

The Herald Sun reports her exit from the control centre was about five minutes after she was briefed about the possibility of loss of life from what became the worst bushfires in the state's history.

The former Victoria Police chief yesterday was questioned at the bushfires Royal Commission in her first appearance since the disaster, which claimed 173 lives on February 7 last year.

Asked who was in charge after she went home, Ms Nixon admitted it was still her job. "I wasn't in the premises, but I was still clearly in charge," she said.

Ms Nixon told the commission she had a meal and monitored radio, websites and took calls and text messages as the disaster unfolded. But last night she clarified her movements to the Herald Sun, saying she went home and then to a North Melbourne bistro for dinner with her husband and three friends and returned home later.

Ms Nixon, who was paid almost $380,000 a year as chief commissioner, was appointed to chair the Victorian Bushfire Recovery and Reconstruction Authority just four days after Black Saturday.

In evidence yesterday, the commission also heard:

MS Nixon did not speak to Premier John Brumby at all on Black Saturday.

SHE left an assistant commissioner to brief Police Minister Bob Cameron.

SHE did not consider declaring a state of disaster on the night of Black Saturday, despite the emerging numbers of deaths and loss of homes.

SHE did not request an updated briefing of the situation facing Victoria on returning to the Integrated Emergency Control Centre at 3pm, because "I didn't need to waste their time by getting another briefing."

SHE did not check whether adequate warnings were being given to towns lying in the path of the fires, because she had "assumed fire authorities had done so".

But Ms Nixon did admit she should have done better. She told the commission her husband had driven her from her office to the Integrated Emergency Control Centre at 3pm, where it was apparent the fires were escalating. Asked by counsel assisting the commission, Rachel Doyle, SC, if it was enough for the chief commissioner to assume that warnings were being given, Ms Nixon agreed it wasn't.

She said it was an "extraordinarily intense time" but said that was not an excuse. "There should have been a follow-up, and I should have done it," she said.


Runaway population growth will kill dream of owning a home

RUNAWAY population growth will end the dream for many young Australians of ever owning their own home, says federal Labor backbencher Kelvin Thomson.

Mr Thomson has defied his party by saying Australia's population should be capped at 26 million, disagreeing with his Government's projection of 36 million by 2050.

Representing the inner Melbourne electorate of Wills, which is made up of 30 per cent immigrants, Mr Thomson believes Australia's annual intake of migrants should be cut to 70,000.

Under the Rudd Government, migration has jumped to around 300,000 a year compared to 126,000 under the Howard Government.

Mr Thomson said tackling population growth was necessary to stop the dreams of owning your own from fading away. "Rising house prices and rising interest rates are leading to falling housing affordability and make it impossible for young Australians to own a home of their own," he said.

He said the appointment of Tony Bourke as Minister for Population was a step in the right direction. "I believe Australia needs to have a population policy ... but we still have quite a distance to go," he said. "We need to take steps to stabilise our population."

He said the Rudd Government should abolish the baby bonus, which costs around $1.4 billion annually, and put that money to educating and training young Australians and equipping them with skills. "The Government has not been supporting university places, apprenticeships and TAFEs in the way it needs to for over a decade now," he said. "We've had these things flatlining and we need to put greater investment into these areas."

In an address to federal Parliament last August, Mr Thomson outlined a 14-point plan for population reform which called for an end to the open door policy which allows New Zealanders to move here. In the speech he said the open-ended uncapped program made it impossible for Australia or New Zealand to implement a population policy.

He also called for a cut in the skilled migration program, sending overseas students home for two years for a cooling-off period before being eligible for permanent residence and increasing Australia's foreign aid.


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