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Chris Merritt
Legal Affairs Contributor
3 November, 2023
Federal charter of rights may not be the answer

What an amazing coincidence. Just as a parliamentary inquiry is considering whether Australia needs a federal charter of rights, a global report has identified a relative weakness in this country’s protection of fundamental rights.

It would be a mistake, however, to conclude that this report strengthens the case for a federal charter of rights based on the ineffective charters that have been enacted in Victoria, Queensland and the ACT.

The problem with the protection of fundamental rights is real. But it will not be solved by window dressing or by forcing judges to make value judgments that are best made by parliament.

The problem is outlined in the latest edition of the World Justice Project’s Rule of Law Index which shows Australia again ranks 13 out of 142 countries when measured by the overall health of the rule of law.

That places this country among those with the strongest overall adherence to the rule of law. It is only when you dig into the findings that the issue with the protection of fundamental rights becomes apparent.

And even then, it needs to be kept in perspective. Australia’s overall rank of 13 is two places ahead of the UK at 15, well ahead of the US at 26 and just behind Canada.

But Australia’s strong overall performance has been let down by what can only be described as a weaker approach to fundamental rights as well as order and security. This could explain why Australia is well behind New Zealand which is in eighth position on the rankings.

The top ranking nation overall is Denmark, followed by Norway, Finland, Sweden, Germany, Luxembourg and the Netherlands.

The rankings are based on eight factors: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice and criminal justice.

Australia’s strongest performance was in open government where it is in eighth position, while its weakest performance was in order and security, where it ranked 23 among the 142 countries.

On fundamental rights Australia ranked 21 out of 142, down two places from the year before due to improvements by other countries.

The picture is even more troubling when the report breaks down the various components that go to make up fundamental rights.

On equal treatment and the absence of discrimination Australia ranked 34 out of 142 countries.

But when the performance of Australia on fundamental rights is compared to that of the US, the argument that a bill of rights inevitably leads to better protection of fundamental rights appears to break down.

The US, with a constitutionally entrenched Bill of Rights, ranks 38 out of 142 countries on the protection of fundamental rights. While Australia, without a charter, ranks 23.

When it comes to equal treatment and the absence of discrimination, the US ranks 106 and Australia ranks 34.

But in purely Australian terms, the protection of fundamental rights and order and security were identified in the report as this country’s lowest ranking components of the rule of law.

While Australia remains in the leading group of countries that protect fundamental rights, this country’s performance, when examined in isolation, declined after 2015 and has been stable at a lower level for the past three years.

This deterioration should come as no surprise, given the recent failure of authorities to protect the liberties of Jewish Australians by enforcing the law against those inciting violence.

Those who believe this erosion of the rights of fellow Australians is best addressed by yet another charter of rights are kidding themselves.

The problem here was one of governance, not the absence of a charter. When confronted with incitement to “gas the Jews” police failed to enforce the law and their political masters failed to hold them to account.

This is why some Jewish Australians now fear for the safety. There was nothing wrong with the law. It was not enforced.

Why would a federal charter prove to be any more effective than the charters that are already in place in this country?

Has the right to life in section 9 of the ACT Human Rights Act had any effect of the territory government’s euthanasia bill?

Did the right to privacy in section 13 of Victoria’s charter and the protection of property rights in section 20 prevent the push to give Aboriginal heritage officers the power to enter properties without permission?

Professor Nick Aroney, in a submission to the parliamentary inquiry into a federal charter of rights, has made the point that by international standards Australia, without a national charter, is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law.

“This underscores what is most important for the maintenance of rights: a social, political and legal culture that respects human rights and the rule of law,” says Aroney in a submission written jointly with fellow academics Richard Ekins and Benjamin Saunders.

They make the point that respect for human rights does not require enactment of a statutory charter of rights.

Instead, they believe human rights are best protected by carefully drafted legislation that addresses particular issues in a manner that ensures a reasonable level of certainty and predictability for all those affected by the law.

The report of the World Justice Project makes a similar point. It says the rule of law requires that the law should be clear, publicised, stable and applied evenly. “It ensures human rights as well as property, contract and procedural rights,” the report says.