Long before this country began its experiment with state-based charters of rights, Australia had a system in place for protecting our liberties that, in the view of some, needed to be improved.
That goal is perfectly reasonable. Legal infrastructure can always be made more effective – but not by a national charter of rights.
Based on the experience of the states, such a change would inevitably prove to be a bureaucratic waste of time and money – a chimera that promises much and delivers little.
One of the strengths of the federation is that it gives this country’s governments the ability to learn from each other. When it comes to charters of rights, the lesson is plain for anyone who cares to rely on reality instead of utopian fantasies.
It’s this: charters of rights do not work. They distract from the legal reality that if any of our human rights – such as freedom of speech or religion – are under attack the solution can be found in traditional lawmaking.
There is no silver bullet for the protection of rights.
It requires parliament to do its job – balancing conflicting interests and setting boundaries between opposing, but valid, goals.
This is tough, sometimes thankless work, but it is the essence of democratic lawmaking – something that is outside the judicial remit.
Inroads on freedom of religion, for example, will only be solved when parliament enacts a law entrenching the right of Australians to educate their children based on their religious ethos.
The same goes for freedom of speech. Enshrining this right in a statutory charter would be meaningless if the government pushes ahead with its plan to outlaw speech online that, in the view of some federal censor, amounts to misinformation or disinformation.
Victoria, Queensland and the ACT already have charters and their experience during the Covid pandemic shows that specific restrictions on rights prevailed over the broad value statements outlined in those charters.
As the pandemic hit the nation in 2020, these charters gave the residents of the three jurisdictions the misleading impression their governments had granted them superior protection of their rights and freedoms.
Last weekend, legal academic Ben Saunders unveiled research at a legal conference on the Gold Coast that explodes that belief.
Saunders, who is an associate professor at Victoria’s Deakin law school, answered the question that goes to the heart of the argument in favour of charters of rights: are they capable of changing the way courts apply legislation in order to enhance the protection of human rights?
He examined the way courts dealt with the restrictions imposed during the pandemic, which he described as “the most severe restrictions on human rights imposed in living memory”.
The pandemic required courts to confront the tension between the broadly framed values outlined in human rights acts with the public health and emergency powers of governments.
Challenges to Covid restrictions also came before the courts based on specific rights outlined in the Constitution.
Saunders reached this conclusion: “In jurisdictions with human rights acts as well as those without, courts eagerly adopted expansive constructions of the emergency powers and generally adopted a high level of deference to the executive” in rejecting challenges to health and emergency powers.
“In other words, human rights acts did not lead to more rights-favourable interpretations of legislation in the Covid cases.
“There was no case in which courts overturned a decision on the basis that it was incompatible with human rights.
“In one case a Queensland direction was invalidated because the commissioner failed to give consideration to human rights when giving a direction to police. But in every other case the existence of a human rights Act seemingly made little difference to the outcome.”
Saunders found a repeated theme in the Covid cases: The courts seemed to believe they would be straying from the proper role of the judiciary and adopting a more legislative function if they ignored the plain meaning of Covid restrictions imposed by governments and interpreted those restrictions in a manner that was more favourable to human rights.
“The key point is that the existence of a human rights Act made little or no difference to the courts’ conception of their proper role,” Saunders says.
He unveiled his research at the annual conference of the Samuel Griffith Society and was introduced by Loraine Finlay, the Human Rights Commissioner. “When we have this discussion of whether we should have a charter of rights, we need to be guided by the question of what a charter will actually do, not the question of how virtuous we will feel when we introduce a charter,” she said. “You can passionately believe in human rights and because of your belief in the importance of those principles you can validly question whether a charter of rights is the right approach for Australia to take.”
Finlay’s caution was understandable. She was speaking days before the release on Thursday of the report of a parliamentary committee calling for a national charter or rights.
A national charter is in line with the corporate position of the Australian Human Rights Commission, an organisation led by outgoing president Rosalind Croucher that includes several other commissioners apart from Finlay. Croucher’s replacement is Hugh de Kretser, the current chief executive of Victoria’s Yoorrook Justice Commission. That organisation produced a report last year that was described in this space as a biased attempt to rewrite Indigenous history and portray it as “truth-telling”.