The Victorian Charter of Human Rights and Responsibilities came into full operation at the beginning of this year. One of the justifications for the charter is that it will force state government departments and local councils to become more open and accountable. Attorney-General Rob Hulls said a few days ago: "The beauty of the charter is it means that government and government decision-making has to be transparent."
It's a pity that such a commitment to transparency doesn't extend to the freedom of information laws. In the same week as ministers were congratulating themselves on having ushered in a new era of accountability, it was revealed that the Victorian Supreme Court had ordered the Department of Infrastructure to release publicly reports on the progress of the state's major projects. The State Government had spent two years and tens of thousands of dollars in legal fees attempting to keep the reports secret.
Nothing in the charter requires the State Government to abide by its own freedom of information laws. And this proves the reality of the charter. It's introduction has more to do with politics than with idealism. For the Labor Party, the charter fulfils two functions. First, it allows the ALP to claim the moral high ground as the party committed to protecting human rights. Second, the charter rewards one of Labor's key political constituencies, namely left-wing legal academics, lawyers and judges.
Put simply, the charter prevents the Victorian Parliament, government departments and local councils from infringing on human rights. If people believe their rights have been affected, they have a number of avenues open to them, including the ability to seek a declaration from the Supreme Court that their rights have been infringed. While the Supreme Court can't actually overturn a government decision, a declaration claiming that something the government has done is in breach of a person's human rights will have a powerful political impact. The government would be expected to respond, most likely by changing its decision.
The argument from advocates for the charter is that no one should be opposed to protecting human rights. But the question is not about protecting human rights. Instead the question is how to protect those rights.
The best way to protect human rights is through the democratic parliamentary process whereby elected representatives make decisions on behalf of the community. The system is far from perfect, and it sometimes fails. But it's better than the alternative. If a politician gets a decision wrong, they can be voted out at the next election. If a judge gets a decision wrong, the community is powerless.
The charter effectively hands to judges the political authority that once belonged to members of parliament. For some people this isn't a problem -- and indeed for some people this is the whole point of having a charter. According to them, politicians can't be trusted to protect human rights, but judges can be.
It isn't simply the principle behind the charter that is flawed. The way the charter operates in practice will create myriad problems -- and a bonanza for lawyers. As the Liberal shadow minister Robert Clark has identified, the charter will promote bureaucracy and cause massive uncertainty.
Take some real-life examples.
According to the charter, every person has the right to freedom of expression. When last year the Government introduced new measures to reduce graffiti, it was required under the charter to prepare an eight-page justification about why banning graffiti was not an unreasonable limitation on someone's right to self-expression. Instead of government officials working to stop graffiti, they are now required to spend their time explaining why they should be allowed to do their job.
Under to the charter, every person has the right to a fair trial. Last week in England it was reported that lawyers are using a similar provision in that country to prevent school principals expelling students for drug dealing or violence. According to those lawyers, unless principals collect statements from named witnesses, cross-examine them and prove their credibility, principals will not be allowed to expel a student. The family of a 14-year-old boy who was expelled for alleged drug dealing is using these grounds to claim he was not given a "fair trial". Already it has been claimed that Tony Mokbel might use the charter to avoid a trial in Australia.
There's pressure on Prime Minister Kevin Rudd to introduce a national bill of rights in a form similar to the Victorian charter. Thankfully, there are some in the Labor Party who appreciate that such a move would be disaster for democracy in this country. The Labor NSW Attorney-General opposes a national bill of rights. He's warned against "do-gooder academics running around the country trying to impose a sort of social order". That's a warning Kevin Rudd should listen to.
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