by James Allan
Rights Charter’s vague abstractions must be repealed
IMAGINE that someone stood up and proclaimed “I’m against cruelty” or “I’m in favour of patriotism”.
Do you think those sort of bald proclamations, couched as they are in vague, amorphous moral abstractions, give you any idea of where that person would draw the line on specific issues such as how cattle should be treated when being shipped to market? Or what that person’s view of David Hicks would be?
More importantly still, don’t you think that people who held different views about how best to ship cattle or what to think of Hicks could also claim to be against cruelty or in favour of patriotism?
Of course they could, and would. That’s the thing about dealing in moral abstractions. It finesses disagreement, reasonable disagreement between smart, well-informed, nice people.
Which brings me to the recent article in these pages by the president of Liberty Victoria and the report on the stance of Victoria’s Equal Opportunity and Human Rights Commissioner. In the former, Liberty president Spencer Zifcak defends Victoria’s Charter of Rights in the way almost all bill of rights defenders do. He tells us the charter provides legal protection for fundamental human rights.
And then he lists some of the rights this charter enumerates, including the right to free speech and to a fair trial. But here’s the thing the Liberty president and all bill of rights proponents never tell you: these rights are articulated in incredibly indeterminate, abstract terms, so that everyone can say: “I’m in favour of free speech and fair trials.”
As with sophomoric claims against cruelty in the abstract, these rights entitlements finesse and gloss over disagreement.
What a bill of rights does, and this includes statutory charters such as Victoria’s and the one in Britain, is transfer decision-making power from elected legislatures to unelected judges.
Take the right to a fair trial. A few years back, the British parliament decided that in rape trials, in specific circumstances, there would be limits on how a rape complainant could be cross-examined. But, using their statutory bill of rights, the top British judges (by majority vote) disagreed.
They said, on their understanding of a fair trial, these limits breached the right. And it was the view of the judges that prevailed. That was only because of their bill of rights.
But it seems clear that both sides of that debate were in favour of fair trials.
They differ not up in the Olympian heights of moral abstraction, but down in the quagmire of detailed line-drawing and what specific rules best further that abstraction.
What Zifcak and all charter of rights proponents are betting is that the judges have better moral antennae than voters, and so will draw better specific lines.
That has to be what they are betting, because when you buy a bill of rights all you are buying is enhanced judicial input.
Let me give more specifics. Victoria’s free speech right in its charter has done nothing to prevent its judges from issuing more than 10 times as many gag orders on the media as the judges of NSW, where no charter of rights exists.
The numbers, as collected by Melbourne media lawyer Peter Bartlett, are 627 for Victoria and 54 for NSW. And, if Canada’s experience with a super-potent bill of rights is anything to go by, where the judges upheld vigorous speech-restricting hate-speech laws, a commonwealth bill of rights would do nothing to help media commentator Andrew Bolt, either.
It does, though, show how politicised judges become under a charter of rights, and makes you wonder why so many self-styled devotees of charters of rights and the right to free speech are silent about Bolt’s trial over articles he wrote about light-skinned Aborigines.
Turning to Victoria, its now five-year-old Charter of Rights has been used by a female prisoner to argue it gave her a right to taxpayer-funded in-vitro fertilisation treatment in prison.
The Victorian Supreme Court agreed, pointing to the dignity right, as though that wasn’t a highly contentious view of that right.
It has been used to argue reverse onus provisions (so if you are found with lots of drugs on you, the onus flips to you to show you were not dealing them) breach the charter rights, and the Victorian Court of Appeal issued a declaration to that effect — one now under appeal to the High Court.
The Charter of Rights has also caused Victorian judges to rule that extended supervision orders to monitor sex offenders thought still to pose a risk to others are incompatible with the charter.
It has even led to the Victorian Equal Opportunity and Human Rights Commissioner coming out strongly in support of Hicks, although I am not aware of any links Hicks has to Victoria.
My core point is that in none of these examples do the judges stand self-evidently on the side of moral goodness, while the choices of elected politicians wallow in some rights-deficient mire.
And yet that is the pathetically distorted and simplistic picture the president of Liberty Victoria would try to sell you, with his “don’t you want your rights protected” tired refrain, sung again and again by so many charter of rights cheerleaders.
Well, yes, I do want my rights protected, as does everyone. I just don’t believe Zifcak or the unelected judges have some mystical pipeline to God on these moral and political line-drawing exercises.
In fact, I think in a world of reasonable disagreement on such issues that the legislature has a better track record on them than the judges.
Not perfect, of course, but better. To say nothing of a much more accountable record.
Which is why I hope the Baillieu government repeals this democracy-diminishing Charter of Rights in Victoria.
And so, at last, to Victoria’s Equal Opportunity and Human Rights Commissioner. I will put to one side her commission’s remarkable support, in court, for an uber-potent understanding of the section 32 reading down provision along rule-of-law-enervating British lines.
No, what irks me here is that the commissioner, Helen Szoke, does not appear to understand that she is a civil servant and that on contested political issues, such as whether to repeal this charter of rights and whether to have her commission’s website serve as a one-sided outlet for the pro side, she ought to remain neutral.
If she wishes to leave her highly paid government appointment and seek election, she can voice her one-sided pro-charter views all she wants. Who knows, she might even be elected.
But in her present position she needs to remember that those who want this charter repealed are no less in favour of rights-respecting-ness than she is.
Nor do they have less moral perspicacity than she. They just think more of democracy than she does.
For the rest of this debate over repeal of the charter, Szoke and her commission need to be neutral. Or she should resign and take up politics in a way that allows voters to pass judgment on her.
James Allan is Garrick professor of law at the University of Queensland
[Previously published in The Australian]