I was the chair of the independent committee that recommended that
Victoria enact a Charter of Human Rights and Responsibilities.
Peter Faris says, first, that he has not seen the proposed legislation
and, second, that it will be a lawyers’ picnic. Unfortunately, it would
have become clear to him if he had read the report (which contains a copy of the legislation) that his second point is wrong (The Australian’s
coverage makes the same mistake of trotting out tired arguments based
on the 1791 US Bill of Rights). Our Charter is based not on the US but
on the UK. As we say in our report, the UK law has since 1998 not led
to the fears that Faris puts forward. We refer to two sets of accepted
UK statistics (based both on the UK and Scotland, the latter having a
comparable population to Victoria) that show that even in the
contentious area of criminal law there has been little if any increase
in litigation (it is less than one half of one percent – low enough to
make you wonder if there has been any actual increase at all). As in the UK,
lawyers who see this Charter as a picnic will be disappointed.
Charles Richardson on the other hand says that the Charter is a “pretty
feeble example.” I beg to differ. What it lacks in judicial power it
makes up for in its political punch. The focus is on strengthening the
hand of parliamentary committees and making sure there is a better
process for dealing with rights issues, while still leaving the final
decision about contentious social issues to the political realm. While
courts cannot strike down laws like in the US, they can point out with
rationality and authority where the law needs to be changed. Of the ten
such final declarations made in the UK to date the Parliament has
responded positively or is doing so in regard to every one. Indeed,
this more constructive approach has meant that the courts have had more
impact in the UK than in the US, even in the area of terrorism laws.
Just a week ago, it was found in the UK that evidence obtained by
torture is not admissible.
I have argued for some time that Australian law needs to be improved to
protect basic rights like freedom of speech (as is now the case in
every other democracy). Based on what I have seen work overseas and on
what the Victorian community has told us, the Charter is the right
first step forward. With such a Charter it would be less likely, for
example, that we would see journalists convicted for “interviewing”
prisoners, new sedition laws or defamation laws that are some of the
most restrictive in the world.
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