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2008/16: Should Australia develop a federal charter of rights?<BR>

2008/16: Should Australia develop a federal charter of rights?

What they said ...
'Australians are largely unsure of what their rights are or how they can protect them'
The Human Rights Act for Australia lobby group

'A bill of rights transfers ... power to judges, who are among the least adept people in the community to make decisions on matters of cardinal social importance'
Dr Mirko Bagaric, a lawyer and author

The issue at a glance
The case for a national charter of human rights for Australia was promoted at the recent 2020 summit. Supporters noted that Australia is the only democratic country in the world that does not have a charter or bill that protects basic human rights.
The Federal Government has committed to an inquiry on a charter but it has ruled out any model that would undermine parliamentary authority.
Opponents see any charter as unnecessary and potentially harmful. Supporters of a charter argue that we live in times that make a charter of rights as necessary as it has ever been.

Background
(The following is an edited version of the Wikipedia entry under 'Bill of Rights'. The full text of that entry can be found at http://en.wikipedia.org/wiki/Bill_of_rights)

A Bill of Rights is a list or summary of rights that are considered important and essential by a group of people. The purpose of these bills is to protect those rights against infringement by the government and others. The term 'bill of rights' originates from Britain, and refers to the fact that the English Bill of Rights was literally a bill, which is a proposed law, that was passed by Parliament in 1689.
Bills of Rights require enforcement and support to be effective, which mean they are really only bills of temporary privileges.
An entrenched bill of rights exists as a separate legal instrument that falls outside the normal jurisdiction of a country's legislative body. In many constitutional governments, an official legal bill of rights recognised by the government in principle holds more authority than the legislative bodies alone.
An unentrenched bill of rights, on the other hand, may be weakened by subsequent acts that are passed by legislatures, and do not need approval by popular vote to be altered. A constitutional bill of rights cannot be changed except with the approval of that country's voting public.
In other jurisdictions, the definition of rights may be statutory. In other words, it may be repealed just like any other law, and does not necessarily have greater weight than other laws. Not every jurisdiction enforces the protection of the rights articulated in its bill of rights.
Australia is the only Western country without a constitutional or legislative bill of rights. The only two Australian states or territories to have a charter of rights are Victoria and the Australian Capital Territory.

Victoria's Charter of Human of Rights
Victoria's Charter of Human Rights and Responsibilities Act 2006 was passed by Parliament of Victoria in July 2006. The terms of the Charter are outlined below.
The full text of Victoria's Charter of Human Rights and Responsibilities can be found as a pdf file at http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/resources/file/eb29c64efaaa025/CharterOfHumanRightsandResponsibilities.pdf

1. Recognition and equality before the law
a) People have the right to recognition before the law.
b) People have the right to enjoy their human rights without discrimination.
c) People have the right to equality before the law and equal protection of the law without discrimination. Measures taken to assist people who are disadvantaged because of discrimination will not constitute unlawful discrimination under the Charter.

2. Right to life
a) Every person has the right to life and the right not to be arbitrarily deprived of life.

3. Protection from torture and cruel, inhuman or degrading treatment
a) A person must not be tortured, treated or punished in a cruel, inhuman or degrading way, or subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.

4. Freedom from forced work
a) A person must not be held in slavery or servitude.
b) A person must not be made to perform forced or compulsory labour other than work or service as a result of a court order; during emergency situations; or as part of normal civil obligations.

5. Freedom of movement
a) People have the right to enter and leave Victoria, to move freely within it and to freely choose their place of residence.

6. Privacy and reputation
a) A person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with and the right not to have his or her reputation unlawfully attacked.

7. Freedom of thought, conscience, religion and belief
a) People have the right to freedom of thought, conscience and religion. This includes
the freedom to choose a religion or belief, and the freedom to demonstrate the religion
individually or as part of a community and in public or private.
b) A person must not be coerced or restrained in a way that limits his or her freedom to choose a religion or to demonstrate the religion.

8. Freedom of expression
a) People have the right to hold opinions without interference.
b) People have the right to freedom of expression which includes the right to seek, receive and impart information and ideas except when lawful restrictions are reasonably necessary to respect the rights and reputation of others or for the protection of national security, public order, public health or public morality.

9. Peaceful assembly and freedom of association
a) People have the right to assemble peacefully.
b) People have the right to freely associate with others and to form and join trade unions.

10. Protection of families and children
a) Families, as the fundamental group unit of society, are entitled to be protected by society and the State.
b) Children have the right to such protection as is in their best interests, without discrimination.

11. Taking part in public life
a) Every person has the right to take part in public affairs.
b) Every eligible person has the right to vote and be elected and to have access to the Victorian public service and public office.

12. Cultural rights
a) People with a particular cultural, religious, racial or linguistic background have the right to enjoy their culture, declare and practise their religion and use their language. b) Aboriginal people have the right to enjoy their identity and culture. They have the right to maintain their languThe Age:  kinship ties and spiritual and material relationship with the land, waters and other resources to which they have a connection under traditional laws and customs.

13. Property rights
a) A person must not be deprived of his or her property except in accordance with law.

14. Right to liberty and security
a) Every person has the right to liberty and security.
b) A person must not be subjected to arbitrary arrest or detention.
c) A person must not be deprived of his or her liberty, except on grounds established by law, and in accordance with procedures established by law.
d) A person arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and promptly informed about any proceedings to be brought against him or her.
e) A person arrested or detained on a criminal charge must be promptly brought before a court and tried within a reasonable time after arrest or detention. If not, that person must be released.
f) A person awaiting trial must not be automatically detained in custody. His or her release may be subject to guarantees to appear for trial or for any other stage of the judicial proceeding.
g) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of the detention. The court must make a decision on the application without delay and order the release of the person if it finds that the detention is unlawful.
h) A person must not be imprisoned only because of his or her inability to perform a contractual obligation.

15. Humane treatment when deprived of liberty
a) Persons deprived of liberty must be treated with humanity and with respect for their inherent human dignity.
b) An accused person who has been detained must be segregated from those convicted of offences, except where reasonably necessary.
c) An accused person detained must be treated in a way appropriate for a person not convicted.

16. Children in the criminal process
a) An accused child detained or a child detained without charge must be segregated from all detained adults.
b) An accused child must be brought to trial as quickly as possible.
c) A child convicted of an offence must be treated in a way that is appropriate for his
or her age.

17. Fair hearing
a) A person has the right to have criminal charges and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
b) A court or tribunal may exclude the media and the public from all or part of a hearing if permitted to do so by a law other than the Charter.
c) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless this is not in the best interests of a child or is permitted by a law other than the Charter.

18. Rights in criminal proceeding
a) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
b) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees:
(i) to be informed promptly and in detail of the nature and reason for the charge in a
language or, if necessary, a type of communication that he or she speaks or understands; and
(ii) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or adviser chosen by him or her; and
(iii) to be tried without unreasonable delay; and
(iv) to be tried in person, and to defend himself or herself personally or through legal
assistance chosen by him or her or, if eligible, through legal assistance provided by Victoria Legal Aid; and
(v) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal assistance; and
(vi) to have legal aid provided if the interests of justice require it, without any costs
payable by the accused person if he or she does not have sufficient means to pay for the assistance; and
(vii) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law; and
(viii) to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution;
(ix) to have the free assistance of an interpreter if he or she cannot understand or speak English; and
(x) to have the free assistance of assistants and specialised communication tools and
technology if he or she has communication or speech difficulties that require such
assistance; and
(xi) not to be compelled to testify against himself or herself or to confess guilt.
(xii) A child who is charged with a criminal offence has the right to a procedure that takes account of the child's age and the desirability of promoting the child's rehabilitation.
(xiii) Any person convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court in accordance with law.

19. Right not to be tried or punished more than once
a) A person must not be tried or punished again for an offence for which he or she has already been finally convicted or acquitted.

20. Retrospective criminal laws
a) A person must not be found guilty of a criminal offence because of conduct that was lawful at the time.
b) A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence at the time it was committed.
c) If a penalty for an offence is reduced after a person committed the offence, that person must be eligible for the reduced penalty.
d) The trial and punishment of any person for any act or omission which was an offence under international law at the time it was committed, is not affected by the section.

Internet information
On June 10, 2008, ABC Radio's The Law Report broadcast a program presenting a range of experts giving differing opinions as to whether Australia should adopt a charter of human rights. A full transcript of this program can be found at http://www.abc.net.au/rn/lawreport/stories/2008/2266908.htm

George Williams is the Anthony Mason Professor and Director of the Gilbert and Tobin Centre of Public Law at the Faculty of Law, University of New South Wales. The Online Opinion site published Professor Williams' views in an article titled 'Getting a Bill of Rights into the national conversation' on August 25, 2006. Professor Williams argued that the introduction of a Charter of Human Rights in Victoria might act as a prelude to the adoption of a federal charter of rights. The text of this article can be found at http://www.onlineopinion.com.au/view.asp?article=4837

On April 4, 2008, Human Rights and Equal Opportunity Commission published a speech titled, 'Indigenous Rights and the debate over a Charter of Rights in Australia'
Given by Mr Tom Calma, The National Race Commissioner and Aboriginal and Torres Strait Islander Social Justice Commissioner. In this speech Mr Calma argues that a national charter of rights has the capacity to improve the situation of aboriginal Australians. The full text of this speech can be found at http://www.hrlrc.org.au/files/WG3TIONY2I/Tom%20Calma%20Speech%20for%20Human%20Rights%20Dinner.pdf

On May 8, 2008, The Sydney Morning Herald published an opinion piece by Richard Ackland titled 'Horror stories unfairly bedevil charter of rights'. The article argues that many of the negative claims made about a federal charter of rights are either inaccurate or exaggerated. The full text of this article can be found at http://www.smh.com.au/news/richard-ackland/horror-stories-unfairly-bedevil-charter-of-rights/2008/05/08/1210131163034.html

On April 30, 2007, The Sydney Morning Herald published an opinion piece by former New South Wales premier Bob Carr. Mr Carr's piece is titled, 'Democracy thrives in a free press and politics, not in the judiciary'. In this commentary the former premier highlights a number of faults he believes are part of a charter of rights. The full text of this article can be found at http://www.smh.com.au/news/opinion/democracy-thrives-in-a-free-press-and-politics-not-in-thejudiciary/2007/04/29/1177787967085.html

On September 26, 2005, The Sydney Morning Herald published on opinion piece by James Allan, Garrick Professor of Law at Queensland University. Professor Allan is a Canadian and in this opinion piece he argues that Australia's lack of a bill of rights is to its advantages. He criticises the operation of the charter of rights Canada has adopted. The full text of Professor Allan's opinion can be found at http://www.smh.com.au/news/opinion/lets-draw-a-line-through-a-bill-of-rights/2005/09/25/1127586742586.html

On June 1, 2008, the Brisbane Institute published an opinion piece written by Cardinal George Pell. The piece is titled, 'Four Fictions: An Argument Against a Charter of Rights'. The piece looks at four main arguments often offered in support of a charter of human rights and attempts to demonstrate that these arguments are faulted. The full text of this opinion piece can be found at http://www.brisinst.org.au/issue-details.php?article_id=215

Arguments in favour of a federal charter of rights
1. Australia is the only western democracy without a charter of rights
It has been repeatedly noted that Australia is the only Western democracy that does not allow its citizens the protection of a human rights charter or bill of rights. Great Britain, New Zealand, Canada, the United States of America and South Africa all have Bills of Rights in some form or another.
It has also been noted that Australia's position is particularly anomalous as Australia played a major role in the formulation of an international human rights charter.
On May 23, 2008, Susan Ryan, Chair of the Australian Human Rights Act Campaign, wrote, 'Sixty years ago, when Australia's Foreign Minister Bert Evatt was the first President of the United Nations, and activist Jesse Street was representing us on UN working bodies, the nations of the world made the Universal Declaration of Human Rights.
The Declaration became the building block of all modern rights instruments, now in effect in all democracies except Australia.
This exception is more than just an anomaly in the history of Australia's proud contribution to international human rights. It constitutes a serious gap in Australia's system of laws and allows much human suffering.'
It has further been noted that two Australian states or territories, Victoria and the Australian Capital Territory, now have human rights charters. Why, critics ask, is it not possible for the Australian federal Government to adopt similar measures?

2. In Australia no single document, including Australia's constitution, enshrines the full rights of its citizens
Australia's constitution does not guarantee the full rights of its citizens. As noted on the Human Rights Act for Australia website, from our constitution we have 'the freedom of religion, freedom from discrimination on the basis of residence, a right to trial by jury, the right to review of government action, acquisition of property on just terms, and some implied rights which have been narrowly defined by the courts.'
An indication of the wide range of areas not explicitly guaranteed by the Australian Constitution is that the Victorian Charter of Human Rights specifies twenty areas where the rights of citizens need to be defined and protected.
Other supposed guarantees of the rights of Australian citizens include legislation passed at federal and state level, most noticeably anti-discrimination legislation, and more recently the ACT Human Rights Act 2004 and the Victorian Charter of Human Rights and Responsibilities 2006. While at common law, judges have recognised certain civil liberties.
The Human Rights Act for Australia lobby group argues, 'Together these laws only protect a narrow range of fundamental freedoms of the Australian people. With such a complicated array of laws, it is understandable that Australians are largely unsure of what their rights are or how they can protect them. We are left to blindly trust that those in power have our best interests at heart ...
What we lack is one document, one Act, which clearly sets out the rights of all Australians. A national human rights act would serve this purpose. Alone it is not a panacea to all human rights problems but it has the potential of being an important part of Australian life.'

3. Australia's international treaty obligations have no legal reinforcement within this country
On May 23, 2008, Susan Ryan, Chair of the Australian Human Rights Act Campaign, wrote, 'The Australian Human Rights Act Campaign (New Matilda) ... advocates a human rights act for Australia, based on our existing UN obligations, and operating as an ordinary act of parliament.'
Supporters of such an Act or charter have noted that Australian law has frequently breached our international treaty obligations and that in the absence of national legislation embodying these obligations, Australian law did not prevent their violation, nor require parliamentary scrutiny or accountability in relation to them.
The Human Rights Act for Australia lobby group has claimed, 'Australia has ratified a number of important international covenants including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) ... We have failed to honour our agreement to make these part of our domestic law means that we are in breach of international law.'
The United Nations Human Rights Committee (UNHRC) has found on several occasions that Australia has breached the fundamental human rights of people living in Australia.
Since 1990 the UNHRC has heard almost fifty complaints against Australia. In seventeen of those cases, the UNHRC found that Australia violated ICCPR rights. However, without an Australian Bill of Rights Australian courts cannot hear complaints about human rights violations.

4. Government responses to the threat of terrorism make a charter of rights particularly necessary.
It has been claimed that government responses to the threat of terrorism have seen an unprecedented and excessive attack on the rights and freedoms of Australian citizens. It has further been claimed that these unreasonable erosions of Australian citizens' rights demonstrates the need for a charter.
This position has been put by Ron Dyer, Vice President of the Evatt Foundation, former a member of the NSW Legislative Council between 1979 and 2003 and Minister in the Carr Labor Government from 1995 to 1999.
Mr Dyer has stated, 'I had always held the opinion that parliaments in Australia could be trusted to preserve individual freedoms and not diminish them by enacting draconian legislation.
My confidence in this regard has been eroded, if not destroyed, by recent State and Federal legislation in Australia characterised as "anti-Terrorism laws". It seems to me that these laws go well beyond the proper limits that should apply in a liberal democracy. They certainly call into question my hitherto long-held belief that Australian parliaments could always be relied upon to be a bulwark against encroachment upon our democratic freedoms.
To illustrate my concern, I refer to the Anti-Terrorism Bill (No. 2) 2005 (Commonwealth). This legislation, together with complementary legislation enacted by the Australian States and Territories, contains quite extraordinary preventive detention and policing powers.'
A similar point has been made in September 2007, by the Lord Mayor of Sydney, Clover Moore, who stated, 'Australia is the only democratic nation in the world without a legal human rights instrument. Although human rights atrocities are not common, there is a growing feeling that civil rights are being eroded, particularly in response to anti-terrorism laws and the APEC summit... The threat of terrorism has resulted in the abandonment of a number of fundamental principles in the name of protecting our safety. Without a human rights legal instrument there is no guarantee that other rights will not be traded in the name of security.'

5. There are many disadvantaged groups whose rights could be guaranteed by a federal charter of rights
It has been noted that the rights of disadvantaged groups have been routinely overlooked in Australia and that a charter of human rights would act as a block against unjust treatment of these groups.
On May 23, 2008, Susan Ryan, Chair of the Australian Human Rights Act Campaign, wrote, 'In 2005, under Coalition government policies, small children kept in immigration detention were driven ill and mad by inhuman conditions. Adult asylum seekers lacking documents were condemned to indefinite detention, a decision upheld (with considerable agonising) by the High Court of Australia. Agents of the government, principally its immigration department and outsourced service providers, wrongly deported a seriously ill Australian citizen, Vivien Solon, casting her on the mercies of a church charity in the Philippines. A permanent resident suffering severe mental illness, Cornelia Rau, was detained by the authorities, sent to jail, and then to immigration detention.'
Susan Ryan further noted, 'In our remote indigenous communities, where there are no schools, children cannot exercise a right to education. Devastating violence and horrendous crimes rage in the absence of police support. Seriously ill community members can't get health care, hence the ... seventeen year life expectancy gap with non indigenous Australians. Is it zealotry to raise the issue of these Australians' rights to education, health, and security?'
Supporters of a human rights charter argue that such a charter would make it more difficult to perpetuate such institutionalised injustice.
A survey conducted in 1997 showed that 54% of respondents did not feel that rights were well protected in this country, while 72% supported the introduction of some type of Australian Bill of Rights.7 A majority of Australians appear to be sympathetic to the introduction of a Bill of Rights.

6. A charter of rights need not give undue power to the courts
Supporters of a charter of rights in Australia claim that their aim is not to transfer power from the parliament to the courts. Rather, they argue, they want a charter which will act as a framework within which all government policy and legislation needs to work in order to protect the rights of Australian citizens.
The Human Rights Act for Australia lobby group has claimed, 'When new policies are being developed, human rights principles will be used as [a] framework.
When laws are introduced to parliament, they will be assessed as to whether they are compatible with the human rights act.
When a matter is taken to the courts, the courts will be able to either interpret laws to be consistent with the protected human right, or if this is not possible, to declare a law to be incompatible with human rights.
Importantly, courts will not have the capacity to dismiss or invalidate laws. The final decision on how to deal with the incompatibility will always remain with the parliament.'
As the Human Rights Charter operates in Victoria the following provisions apply. The charter requires that all statutory provisions (for example, laws and regulations) be interpreted, as far as possible, in a way that is compatible with human rights.
Where the court cannot interpret a law consistently with the charter, the Supreme Court may make a Declaration of Inconsistent Interpretation and Parliament will then decide whether to change the law.
Unlike the United States' Bill of Rights, the charter does not allow courts to strike down laws as unconstitutional. In Victoria, the Supreme Court has power only to ask the Parliament to review a law to ensure that it is consistent with citizens' rights. The final decision remains with the Parliament. This is because Parliament is the elected body and therefore considered to be most responsive to the will of the people.

Arguments against a federal charter of rights
1. Australian's rights are already sufficiently well-guaranteed.
It has been claimed that the rights of Australians are already well guaranteed by the combined operation of our Constitution, our common law, our parliamentary-generated laws and our courts system. It is claimed all of these interact to ensure the rights of Australian citizens.
It has been asserted that the protection of our rights can be left to our parliamentary representatives and that to legislate for a Bill of Rights would distort our system of government by giving unelected judges too much influence.
There is a long-standing and strong commitment to the rule of law in Australia. Traditional arguments against a Bill of Rights have been that Australia can rely on our proud background of respect for civil liberties and the democratic freedoms of the individual citizen.
Justice Keane, a former solicitor-general, noted that many Australians 'have urged the adoption of our own bill of rights and consider the absence a cause for regret.' Yet Justice Keane further noted, 'Our framers (of the Constitution) were not indifferent to the rights of individuals; they were, however, content to entrust those rights to a legislature composed of citizens.'
Justice Keane has also commented, 'Australians haven't done too badly with our small brown bird of a Constitution.' As evidence of this, Keane cited the handling of abortion and gun control through parliaments.
There are many who argue that Australia's successful democracy removes the need for a bill or charter of rights. As one email correspondent to The Australian on April 26, 2008, stated, 'As far as I can see, we have got by without one [a charter of rights] for the last 220 years and managed to make our way as a democracy pretty successfully.'

2. A charter of rights could upset the balance of our democracy
There is concern that a charter of rights can take power from the federal Parliament and transfer it to the courts and therefore the judges. This is seen as undesirable as politicians are elected whereas judges are not. Thus, it is claimed, politicians can be held accountable for their actions in a way that is not possible with judges
Dr Mirko Bagaric, a lawyer and author, has argued, 'Who do you want to make decisions on the core moral issues that define us as a society?
There are only two choices: politicians or judges. At the moment all of the big decisions in Australia are made by politicians.
A bill of rights transfers much of this power to judges, who are among the least adept people in the community to make decisions on matters of cardinal social importance.
When it comes to giving power to people to make decisions, the most important consideration is accountability.
And that's why we should never hand over things that are vital to us to judges.
They are the only group in the community that (effectively) can't get sacked or disciplined for incompetence or negligence.'
The Australian's editorial of April 12, 2008, stated, 'The constitutional structure of this country is based on the assumption that politicians should resolve political issues, and judges should resolve legal disputes. Recent history tells us that this is exactly how the community would like things to remain.'
A similar point has been made by former New South Wales premier, Bob Carr. Carr has stated, 'A bill of rights, or a charter, will lay out abstractions like the right to life, or privacy, or property, and thus enable judges to determine - after deliciously drawn-out litigation - what these mean.
A shift in power from elected parliaments to unelected judges, by a process of "judicial creep", is part of the bill of rights package.'
Bob Carr has further stated, 'It's my argument that reaching the right balance is an issue for the realm of parliament, shaped by the give-and-take of elections and freedom of the press, not for a realm of judicial policy-making.
Alexis de Tocqueville, the great observer of American politics, taught that democracy arises from the ethos of a people. In Australia that ethos encompasses the parliament, the common law tradition and a free press. Wrenching more decisions out of this realm and planting them with a non-elected judiciary is no advance.'

3. A charter of rights would be expensive
It has been claimed that a charter of human rights would be expensive given the amount of litigation it could generate. It has also been suggested that a charter of human rights would also be expensive to operate as it would be administratively more expensive.
In response to the Victorian Charter of Human Rights, Charles Francis AM, QC, RFD, has stated, 'An examination of the Consultation Committee's Report makes it apparent that the administration of the Charter will be both complex and expensive and will require the employment of a number of additional public servants to carry out all the duties entailed in the function of the Charter.'
Jay Fitzgerald, in an emailed response to the issue of a human rights charter, has stated, 'Anyone seeking to witness the impact of a charter of rights on our Westminster model parliamentary system in Australia should study its effects on Canada. An unmitigated disaster, and for Canadian taxpayers, a very expensive one.'
Doug Parrington, writing in The Gold Coast Bulletin on April 12, 2008, argued that the added capacity to have compensation paid to those whose human rights are found to have been violated will add to the expense of a charter. Mr Parrington stated, 'It is undoubtedly taxpayers who individually stand to gain a lot but collectively will cop it in the neck [if a charter of rights is put in place].
There is no more vulnerable creature in the world than a taxpayer who is financially responsible for all the tragedies amazingly discovered by lawyers.
Politicians, despite all their flaws, at least recognise the point at which taxpayers begin to squeal and don't particularly like laws that allow open season on taxpayers' money.
Judges, on the other hand, simply apply the laws as a matter of principle; whatever compensation is paid is a matter for the state.'

4. A charter of rights could be limited to the wealthy or be exploited by those who are not entitled to the rights they claim
It has been claimed that the manner in which some defence lawyers have sought to use the provisions of Victoria's new Charter of Human Rights is an indication of the way in which a federal charter of human rights might be similarly misused.
Senior prosecutors and lawyers in Victoria have warned of a large number of applications by notorious criminals (including drug boss Tony Mokbel) attempting to use Victoria's Charter of Human Rights to delay or abort their trials.
The charter is dividing Melbourne's legal community, with some arguing it is unnecessary and that defence lawyers' use of it will clog up the courts.
One prosecutor, who declined to be named, has claimed in a report made by The Age that the charter was 'an absolute disaster' for the court system and would clog it up for no good reason.
The same man also claimed that the traditional system of common law had adequately protected Victorians' human rights for decades, and the charter's authors were 'frankly not bright enough' to make it watertight.
The feared consequences of any new charter are that it will see dangerous criminals released into the community on the basis of technicalities created by such a charter.
The Victorian charter has been cited by judges in three cases to support their decision to release defendants on bail. The most recent case was when a man who was accused of belonging to Tony Mokbel's alleged drug cartel was released on bail after magistrate Peter Couzens said the charter, and the higher courts, made it clear defendants were entitled to have their cases heard without delay. The court heard the accused was unlikely to face trial until well into 2010.
It has also been claimed that a charter of human rights may advantage only the wealthy. The experience in other jurisdictions, particularly Canada, has been claimed to demonstrate that a bill of rights, rather than preserving and enhancing the rights of the people most in need of further rights protection, might in fact have the opposite effect and benefit those least in need. Prohibitive legal costs associated with enforcing one's rights under a bill of rights (whether constitutional or statutory) might effectively see the utility of a bill of rights being restricted to wealthy and corporate citizens.

5. A charter of rights could lead to a dramatic increase in time-consuming litigation
It has been suggested that a charter of rights will add an additional layer of complication and legal interpretation to many cases brought before the courts. It has further been suggested that the result of this will be a significant increase in the time that it takes for cases to proceed through the courts.
Referring to the current Victorian situation, Melbourne Law School Associate Professor Jeremy Gans has stated, 'I think people are right to worry about the [Victorian] charter bringing more complex legal arguments to the courts and, in the meantime, a lot of uncertainty, delay and confusion. And the blame for that is the text of the charter itself, which has a lot of ambiguity.'
There is also significant concern that time-delays may actually reduce the rights of some citizens as their cases will take far longer to process. It is also noted that such effects are cumulative with each individual delay having a negative impact on all the cases that come after, an impact which compounds the longer it is allowed to go on.

6. Rights charters are inflexible and can entrench rights that may become inappropriate
It has been claimed that one of the shortcomings of a bill or charter of rights is that each is the product of the time in which it was produced. This means that it may promise citizens rights which at a later point become inappropriate.
It has further been noted that once a population has been given a right in a bill or charter it becomes virtually impossible to remove that right, even when it is clearly desirable to do so.
Sam Crosby, the 25-year-old outgoing president of Young Labor, has stated,' Look at the situation in the US, where 200 years ago the founding fathers thought it was a pretty good idea to entrench a right to bear arms. They had just come out of a war of independence with Britain, and I'm sure 200 years ago that was probably a good idea. But ... if the founding fathers were sitting down today in the 21st century, they probably wouldn't include a provision allowing armed militia. And that's ultimately what we would be deciding if we entrench rights today...
You won't be able to take out a right that's been set down in a charter because then you'll be accused of taking away someone's rights. It's a terribly emotive subject and it invokes an emotional response from people. But it needs to be seriously thought through.'

Further implications
It is hard to determine whether the Australian Parliament will ultimately pass a federal charter of human rights. The government is proceeding cautiously and will first hold an inquiry into the proposal.
Such inquiries have already been held in a number of other states, with the result that Victoria and Canberra already have a charter and developing one is under consideration in West Australia and Tasmania.
In October 2007, the Tasmania Law Reform Institute completed its report on a Charter of Rights For Tasmania. The Institute concludes in its report that Tasmania should introduce a Charter of Human Rights.
In December 2007, a Western Australian report of a rights charter for that state was released. Former Federal Minister Fred Chaney AO, a director of Reconciliation Australia, chaired the committee which produced the report. The other members were the head of the WA Council of Social Service, Lisa Baker; former Anglican Primate the Most Reverend Dr Peter Carnley; and child health researcher Associate Professor Colleen Hayward.
The committee held more than 40 public hearings and received nearly 400 submissions from the public, community organisations and Government agencies.
The committee chairman Fred Chaney said there was clear majority support for a WA Human Rights Act - both from submissions the committee received and the findings of an independently run public opinion poll commissioned in August. Of the 401 people surveyed, 89 per cent believed WA should have a law to protect human rights.
If the committee appointed to investigate a federal charter of human rights recommends that one be adopted, any legislation will require bi-partisan support to be likely to pass the Senate. The previous history of Australia's federal Parliament in passing such legislation does not suggest that this is particularly likely.
The public and political discourse on the Charter of Human Rights issue began during the Constitutional Conventions in the 1890s. The Tasmanian Attorney-General, Andrew Inglis Clark, argued in favour of entrenching some basic individual rights in the constitution. While Inglis' success in achieving greater individual rights protection in the Constitution was limited, advocacy for a Bill of Rights has continued throughout Australian political history with numerous inquiries, a number unsuccessful bills and failed referenda attempts.
In 1944 a referendum was held that, among many things, proposed the insertion of constitutional guarantees of freedom of speech and religion, as well as safeguards against the abuse of delegated legislative power. The referendum and therefore the proposal to constitutionally entrench freedom of speech and religion failed.
In 1973, Commonwealth Attorney-General Lionel Murphy introduced the Human Rights Bill 1973 to implement the International Covenant on Civil and Political Rights that Australia had just signed. The Bill lapsed when the Governor-General dismissed the Whitlam Government in November 1975.
There was an attempt by Commonwealth Attorney-General Lionel Bowen in 1985 to introduce an Australian Human Rights Bill (along with an explanatory memorandum), but the Bill was later withdrawn.
In 1985, Prime Minister Bob Hawke announced the establishment of a Constitutional Commission to review the Constitution. The Commission produced its final report in 1988 and was assisted by an Advisory Committee on Individual and Democratic Rights under the Constitution. In 1987, a Report from that Advisory Committee recommended the insertion of several new rights in the Constitution, including rights to a speedy trial and a right to vote. The 1988 Constitution Alteration (Rights and Freedoms) Bill was passed by Parliament but rejected at a referendum on 3 September 1988.
In 2000, attempts to improve rights protection in Australia continued with the Australian Democrats releasing the draft Australian Bill of Rights Bill 2000 and in the following year introducing into Parliament the Parliamentary Charter of Rights and Freedoms Bill 2001. In the same year, the Australian Bill of Rights Bill 2001 was introduced by Dr Andrew Theophanous MP, then an Independent but formally of the Australian Labor Party. These Bills sought to incorporate international instruments, including the International Covenant on Civil and Political Rights, into Australian law. None were passed into law.

Newspaper items used in the compilation of this issue outline
THE AUSTRALIAN:  January 9, page 2, news item by Rick Wallace, `Lawyers eye off charter breaches'.
THE AGE:  January 8, page 11, comment (with Spooner cartoon) by Karen Kissane, `Exerting a moral force'.
HERALD-SUN:  January 7, page 18, comment by Hugh de Kretser, `A charter we can celebrate'.
THE AGE:  January 17, page 8, news item by Peter Gregory, `Rights charter aids bail claim'.
THE AGE:  January 16, page 15, comment by John Roskam, `A social order Australia does not need'.
HERALD-SUN:  January 11, page 21, news item by Crawford and Higginbottom, `Charter cost may soar'.
HERALD-SUN:  January 28, page 18, comment by Dr Helen Szoke, `Protecting people'.
THE AUSTRALIAN:  April 2, page 14, comment by James Allan, `Giving lawyers more power will cut our liberties'.
THE AUSTRALIAN:  April 16, page 7, news item by Paul Maley, `Christian bodies fear charter of rights'.
THE AUSTRALIAN:  April 12, page 3, news item by Paul Maley, `Human rights group to argue for charter'.
THE AUSTRALIAN:  April 12, page 18, editorial, 'Flaws in a charter'
THE AUSTRALIAN:  April 11, page 3, news item by Michael Pelly, `Charter of rights won't fix society's wrongs, says A-G'.
THE AUSTRALIAN:  April 24, page 14, comment by former NSW Premier Bob Carr, `Lawyers are already drunk with power'.
THE AUSTRALIAN:  April 23, page 14, comment by Janet Albrechtsen, `Beware the galloping imperialist judiciary'.
HERALD-SUN:  May 1, page 30, comment by Mirko Bagaric, `Bill of rights all wrong'.
THE AUSTRALIAN:  April 28, page 3, news item by Michael Pelly, `Top judge questions need for rights bill'.
THE AGE:  May 7, page 9, news item by Steve Butcher, `Court delays "destroy" rights'.
THE AGE:  May 11, page 3, analysis by Michael Bachelard, `Human rights or a get-out-of-jail-free card?'.
Using google to find newspaper items still available on the Web
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