First Step On The Road To Greater Freedom

Editorial - The Age

The Victorian Government's decision to enact a human rights charter is a welcome, albeit modest, victory in a long-fought but fast intensifying campaign to enshrine and protect fundamental civil liberties. The first advance came last year when the ACT introduced its own Human Rights Act, codifying the sort of basic freedoms most Australians might once have taken for granted. As The Age has consistently argued, the drift towards ever-more draconian laws, particularly in response to the terror threat, means complacency is no longer an option. In recent times, governments across the country have curtailed basic freedoms, such as the right to silence and the presumption of innocence, which have been considered sacrosanct for centuries.

While the Victorian Charter of Human Rights and Responsibilities falls short of the bill of rights ideal, it promises to effect a cultural shift by putting issues of human rights on an equal footing with questions of security or law and order.

Victoria's charter appears to be modelled on the British version, which came into force in 1998. The charter will be created by an act of Parliament and could conceivably also be abolished by one. It is expected to affirm internationally recognised civil and political rights, such as the vote, a fair trial, freedom of expression and assembly, and the protection of families, as well as emphasise the link between rights and responsibilities. It is likely to be reviewed after four years.

But the charter will have limited force. If a piece of legislation violates fundamental rights, the courts won't be empowered to strike it down, but merely to make a declaration to this effect. The attorney-general would be required to inform Parliament of the court's declaration, but the government would not be compelled to act. This is a crucial shortcoming as any government committed to protecting basic rights should, as a matter of principle and logic, submit to proper scrutiny. But it must also be acknowledged that the charter proposal emerged from a process of lengthy consultation, with an expert panel holding 55 public meetings across the state and receiving 2500 submissions. The panel chairman, Professor George Williams, said the community clearly rejected a US-style model in which the courts could trump Parliament. This is an interesting and important finding that shows the public remains wedded to the idea of parliamentary supremacy but also wants to submit governments to political pressure if they curtail human rights. The experience of other jurisdictions certainly suggests non-binding charters can be effective in shaming governments to change course. In the ACT it has allowed the Human Rights Commissioner to call for redrafting of prospective laws on emergency electro-convulsive brain therapy, and to require a human rights audit of a new prison. Britain's statutory bill of rights has helped tame the excesses of the Blair Government's anti-terror push and enabled the House of Lords last week to rule against the use of torture in obtaining evidence. These victories have not been mirrored in the US, despite its constitutionally entrenched Bill of Rights.

All of which simply illustrates the fact that a charter of human rights is no magic bullet. The critics, among them Prime Minister John Howard, argue that defining civil liberties "could end up restricting rights rather than enhancing them". There is undoubtedly some truth in this - society changes, while documents, no matter how wise and sensitively drafted, inevitably become awkward and dated. The extent to which freedoms are protected ultimately depends on the political culture. But if our leaders want to enact tough laws because the world has changed, they should at least be compelled to make their case with human rights as the philosophical starting point. They should ensure strong safeguards are in place, which would include giving aggrieved citizens recourse to the courts. This is what happens in all other Western democracies; Australia is alone in lacking a bill of rights. It is hoped Victoria's decision will help build pressure on the Federal Government to introduce its own charter.