Charter risks clogging courts, says judge

FORMER High Court judge Ian Callinan has warned that the introduction of a charter of rights would ultimately restrict access to the High Court and grant undue power to activist judges.

FORMER High Court judge Ian Callinan has warned that the introduction of a charter of rights would ultimately restrict access to the High Court and grant undue power to activist judges.

Mr Callinan, who retired from the bench last year after 10 years of service, said a charter of rights would "transform the legal landscape" and clog the nation's highest court with rights cases.

"I think there will be so much pressure on the High Court to take rights cases that the court will have less time to deal with all the other cases it deals with," he said.

"It will have the tendency to restrict access to the court for what I would regard as more important matters."

Mr Callinan, a judicial conservative and defender of federalism, said the "dialogue model" of human rights charter proposed by Jesuit priest Frank Brennan to the federal government last week would shift the balance too far from the checks and balances of parliament towards individual judges, who may be seduced by the prospect of acting as arbiters of human rights.

"Unfortunately -- and I am not talking about any current members of the court -- there are some judges who find that sort of work very, very seductive," he said.

"It gives them an a opportunity to exercise a power they wouldn't -- and shouldn't -- ordinarily have."

In his report presented to the government last week, Father Brennan recommended any charter of rights be modelled on that already operating in Victoria and the ACT, where each piece of legislation must be accompanied by a "statement of compatibility" with human rights obligations.

Under the model, judges do not have the power to overturn laws and politicians can breach the list of human rights provided they present legitimate reasons.

The report also called for heightened scrutiny of human rights issues through the creation of a new parliamentary committee as well as a new federal human rights ministry.

The opposition's spokesman on legal affairs, George Brandis, branded Father Brennan's report "the ultimate triumph of the elites".

Senator Brandis argued it would shift too much of the responsibility for drafting laws away from the parliament and towards judges.

Father Brennan conceded at the weekend he was not confident that the "declaration of incompatibility" provisions he suggested be drafted by judges would work in practice.

"While the declaration of incompatibility may be constitutional there are enormous practical problems with it that may mean it may not be viable," Father Brennan said.

Attorney-General Robert McClelland declined to comment on the report, saying the government would provide its response by the end of the year.

NSW Attorney-General John Hatzistergos said yesterday that Father Brennan's human rights model would fundamentally change the way democracy would operate in Australia.

"The delicate balance of power that now exists in Australia, hung evenly between the parliament, the executive and the courts, would be altered," Mr Hatzistergos said.

He also said the model would politicise the appointment of High Court judges and create a wave of human rights litigation.