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Charter of Rights: A Matter of Fashion

August 27, 2011

This is the view of Dr Margaret Kelly of Macquarie University speaking at the Samuel Griffith Society conference (see below). Her focus is the Victorian Charter of Rights which the Liberal government has the opportunity to repeal.

There is a review of the charter currently taking place.

I agree with her remark about fashion. I also think the tide is running against judge-made law through charters. Apart from plucky little Tasmania no other state is remotely interested in striking out in this direction. Federal Labor came down against a charter even when Father Brennan’s inquiry recommended one.

I spoke to one former Victorian public servant here, a former Labor adviser, who told me of the waste of resources involved as Victorian public servants exhaustively seek to satisfy the process of establishing compatibility with the charter. “Better if the resources went into increased child protection,” was her view.

Here’s an observation from me on this: we were told by Geoffrey Robertson and others that rights in Australia were insufficiently protected compared with those in the UK which is covered by the European charter. Our police, argued Robertson, are not being educated in human rights as they are under the much more enlightened human rights regime in the UK.

I wonder how much of this stacks up after recent revelations about UK policing?

If any of the abuses that preceded the riots in the UK had occurred in Australia Robertson and others would have been saying they were proof positive of the need for Australia to get itself a charter quick smart.

If Australia had experienced riots like those of the UK then you can bet that Michael Kirby would have argued they showed the need for a charter to elevate social and economic rights. But they occurred in a jurisdiction covered by what Michael Kirby has argued is an exemplary charter of rights.

The Victorian government could peel their charter off the statute books without any serious criticism given the skepticism about a charter – even outright opposition – that resides in the ALP, even in Victoria.

  1. August 27, 2011 3:27 pm

    Bob, if you were the leader of the federal ALP then I’d consider voting Labor at the next poll. I’m a small “L” liberal supporter but you would give the ALP a considerable boost in credibility, and give Abbott a run for his money, that’s for sure.

  2. Eric Hearble permalink
    August 27, 2011 4:14 pm

    Well argued Bob. Looking forward to hearing you debate Justice Kirby in a little over a months time on this issue. I’m in agreement with you that we don’t need a charter of rights in Australia, though for different reasons I think; what we need is a culture of human rights rather than a jurisprudence of human rights. Your argument that public servants will also be tied up in the processes of making sure policies and legislation abide by the charter only scratches the surface; think about the cost of actually policing a charter of human rights, and as we know, a law is only as strong as it is enforced. I do think that there are improvements to be made generally in terms of human rights protections (e.g., asylum seekers, anti-discrimination) but these can be addressed by other means. As I’m yet to hear or read Kirby’s arguments for a charter I look forward to hearing his side of the argument; he’s a wonderful man and I’m sure he’ll put forward an intelligent counter-argument.

    • Bob Carr permalink
      August 27, 2011 4:23 pm

      Hear hear.

  3. August 27, 2011 10:14 pm

    Absolutely, I am also looking forward to what arguments Justice Kirby puts up as I think he is one of our true national treasures and a great mind; I also think the government lost a very smart cookie when you saw the light on the water Bob, but what I think we need (really really need) are politicians who are strong and sensitive to the needs of the people, modern communicators, not the old-school ball-busters or dare I say drongo’s like the Budgie Smuggling Tony. I think it would be a very cool day in Hell when he stepped into office.

  4. Tom Round permalink
    August 28, 2011 8:51 pm

    There are two main grounds to oppose a Charter of Rights, and while they often overlap they are distinct: (a) clarity – rights guarantees are vaguer than most laws, and are intended to cover a wide range of situations (eg, “freedom of expression” applies to many more situations than “drunk and disorderly” or “drive dangerously”. (b) entrenchment – a US-style Bill of Rights is very difficult to change, so even if (or especially if) it is clear enough to limit judicial discretion, it can produce undesirable results (eg USA’s Second Amendment, Ireland’s special privileges for the Catholic Church… and the USA’s sexist, sectarian Act of Succession which is not, strictly speaking, entrenched but is still very difficult to update).

    So, eg, a law that says “No public figure can ever sue for defamation, and this cannot be changed without an 85% majority in every State in a referendum” largely avoids objection (a) but still runs into objection (b). Whereas statutory rights charters like Victoria’s, NZ’s or the UK’s (at a stretch one can add Canada to this list, since in most cases a legislative majority can override a court ruling on rights) avoid (b) but still leads to “lawyers’ picnics” under (a).

    The upshot of this is that I am often confused when my fellow rights charter skeptics say things like “We don’t want a Charter of Rights like Victoria’s but we do want a strengthened Anti-Discrimination Act”, eg, because there doesn’t seem to be a huge difference – for good or ill – between the two, especially when the litmus test for discrimination exemptions is the good old lawyer’s picnic of “reasonableness”.

  5. PETER permalink
    August 30, 2011 9:23 am



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