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Julian Assange and an Australian Charter of Rights

February 2, 2012

If I heard it once, I heard it a thousand times. Australia, the advocates said, had an inferior rights record to Europe because all the countries of Europe were stitched up in its charter of rights. From Geoffrey Robertson, from Michael Kirby, from Susan Ryan came the argument that Australian law was falling behind other jurisdictions, all busily developing their human rights law precedents and specialisations.


And how do you explain the treatment of Julian Assange under European jurisdictions, that of the UK and Sweden?

The Swedish judge is prosecutor…yes, the two roles in the one officer, an outrage by Australian standards. The trial in Sweden was in secret, the public locked out. The charge includes rape but the sex was consensual. The victims have exchanged emails talking revenge and money.

Hang on. None of the above happens here. Would anyone disagree that Assange would be better off in an Australian court? In a system, that is, without a charter or a bill of rights?

I know the issue of the charter is dead here, with the ALP for the first time in decades having no platform commitment to a bill of rights and the Coalition having no advocate of a chart in its ranks.

Even those law school enthusiasts who supported the campaign might be given pause by this case which confirms that convention and common law and ethos in a country like Australia counts more than the bogus promise of a charter like in Europe.

  1. David Epstein permalink
    February 2, 2012 7:52 pm

    Bob, I know you are a longstanding opponent of Charters of Rights, but I am not sure this helps your case. Are you trying to appeal to the chattering classes and the woolly left by playing to their prejudices? If so, you should take pause. Assange is no martyr. It is a common mistake to blur misguided sentiment about Wikileaks with what is occurring in Sweden. I think you are playing on that mischievously. The UK legal process is still in play, so it is too early to draw any conclusion about potential outcomes and their interplay with EC law -which, by the way, has come to produce settled outcomes that informed Victorian legislation. Likewise, Swedish process has barely begun, and certainly has not been tested against European statutes. So references to non-common law institutions are a red herring at this stage, just like the mythology about a “rape” charge. As you will know from NSW, charges of “rape” and “sexual assault” can have different meanings at law.

    • Bob Carr permalink
      February 2, 2012 8:18 pm

      Hard to argue the existence of a European charter has stretched Swedish understanding of defendants’ rights. It hasn’t been relevant. Proves the claims for a charter made by its Australian enthusiasts have been inflated. How would Assange be worse off in Australia’ charter-free jurisdiction?

      • David Epstein permalink
        February 2, 2012 8:25 pm

        At risk of being a sophist, I suspect it would actually depend on provisions of bilateral arrangements between Australia and Sweden

  2. February 2, 2012 8:45 pm

    I agree with you Bob. The ‘rights’ mentality that thinks the world will become a better place with lists of rights seems not to understand that when everything conceivable becomes a ‘right’ the hierarchy of truths/priorities and major human rights get equalised down to the lowest common denominator with fad/fashion and disputable new ‘rights’ of some minority groups.

    The common law and precedent has more to do with not creating rights by the State but rather of simply recognising since time immemorial what the natural and moral laws written and inbuilt into our hearts and nature tell us universally. This is the beauty of the common law tradition. It puts major and minor issues and rights into their proper hierarchy/perspective and order; and this also minimises the clashing of charters of rights with existing important truths such as human dignity and life and universal justice. Specious and confected complaints get chucked out by the common law tradition.

  3. February 2, 2012 9:45 pm

    We have an adversarial system of courts instead of an inquisitional form. Inquisitions (think Spanish) are not renowned for protecting the rights of the accused. Much of Europe uses the inquisitional system. Although it does also have some merits.

    I don’t support a bill of rights in the same manner I don’t support a republic. Both may have merit but I’m not going to sign a blank cheque on either without some specifics.

    Rather than constituionally codifying individual rights I think it is better to codify limits to government power. Some specific things I would like in our constitution:-

    – Section 51(xxxi) says the federal government can’t nick your property without paying compensation. State and local governments should be subject to this section also.

    – The race powers should be removed from the constitution. And there should not be any affirmative action for aborigines clause in it’s place as seems to be the current recommendation.

    – We should have scope for charter cities along the lines of the Californian constitution.

    – I would prohibit federal income taxes and put in a TABOR clause.

  4. February 2, 2012 9:54 pm

    Some good discussion of adversarial versus inquisitional approaches here:-

  5. Tom Round permalink
    February 2, 2012 10:08 pm

    While Australia doesn’t have a bill of rights, it is inaccurate to think that the law of criminal procedure and of defendants’ rights is completely within the control of Parliament. The High Court in the past two decades has interpreted Constitution sec 71 (judicial power of the Commonwealth is vested in High Court, other commonwealth courts, and State courts vested with federal jurisdiction) as implying a number of traditional “due process”-style procedural safeguards that Parliaments can’t take away by statute. While there are gaps in this approach (especially the legal fiction that immigration detention is “not punitive” and so subject to a lesser standard of due process), it does produce a legal regime that experts like Professor Cheryl Saunders consider analogous to that produced by Bills of Rights in other countries.

    Like Mr Carr, I am not a fan of, eg, writing “freedom of speech” into a Constitution and then kicking over to the judges such political questions as whether this prohibits, allows, encourages or compels the enactment of media-diversity laws. I would also agree that it’s perverse that the High Court construed sec 71 to strike down cross-vesting laws, an approach that has only nuisance value from a civil liberties viewpoint. But when it comes to the narrow issue of criminal procedure, judges are (as US professor Charles Black noted) “the best experts we have”. The problem with the European inquisitorial model is that Continental legislators (such as Napoleon) have made the judiciary far too close to the executive branch, so much so that even a charter or convention of rights can’t do much to help.

  6. February 3, 2012 6:52 am

    Thanks for drawing attention to the case. One wonders whether the existence of an Australian bill of rights for Australian citizens might have given him more scope to protest at his treatment by our Government. He has committed no crime here or abroad and yet his work has been labelled ‘illegal’ by Prime Minister Gillard and former AG McLelland vowed to do everything in his power to assist US authorities in their bid to bring him before a secretly convened Grand Jury in Virginia. Not the kind of treatment meted out to citizens in a decent democracy, where our personal rights and freedoms are explicitly defined I would have thought.
    Geoffrey Robertson has written on the case in today’s SMH: ‘WikiLeaks aside, Assange case strikes core of civil liberty
    And – a plug – these matters will be discussed at a public forum in Sydney on Feb 17, with Senator Scott Ludlam, Christine Assange, Humphrey McQueen and Mark Kostakidis: Would be wonderful to see you there
    All the best
    Cassie Findlay

  7. February 3, 2012 6:29 pm

    One of the problems facing this country are the inhabitants who want to cringe to anyone else that is offshore. Perhaps if they considered Australia and Australian citizens as a primary cause instead of wanting to race up and down the fence crying to join the pack outside and criticizing everything that they have in their own backyard this country might return to a semblance of what it had to become the envy of the rest of the world. Why the hell do these people think the boat people will risk life and limb to get here? Does anybody think they would be so anxious if we were just like every other country that they are attempting to escape from? For Gods (and Australias) sake be grateful for what we have…………………………………………..Professor

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