The Victorian Charter of Rights and Responsibilities is rubbish

Have a look at how this instrument "protects" freedom of speech, our most fundamental liberty:

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Charter of Human Rights and Responsibilities Act 2006 - SECT 15
Freedom of expression

15. Freedom of expression


(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the
freedom to seek, receive and impart information and ideas of all kinds,
whether within or outside Victoria and whether-

(a) orally; or

(b) in writing; or

(c) in print; or

(d) by way of art; or

(e) in another medium chosen by him or her.

(3) Special duties and responsibilities are attached to the right of freedom
of expression and the right may be subject to lawful restrictions reasonably
necessary-

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health
or public morality.

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You could drive a truck through that drafting. Sub-section (1) merely gives the right to "hold" an opinion; it doesn't even purport to give the right to express opinions, let alone the right to express attitudes, emotions, or whatever else people wish to express. Sub-section (2) is doing most of the work in the section, but its inclusive definition gives no hint that freedom of speech extends far beyond the right to "impart information and ideas". It would be better not to define "freedom of expression" at all, if that's the best the legislature could come up with.

But sub-section (3) is the killer. The language used here is downright grudging, and seems to be designed to signal to the courts not to take free speech seriously: "Special duties and responsibilities are attached to the right of freedom of expression ..." Okay, so we have this fundamental liberty only if we exercise it in accordance with unnamed "special duties and responsibilities". The most important freedom of all is hedged about as being subject to "special" restrictions on how it may be used. The tone is that of someone who considers free speech to be unwelcome and dangerous, to be handled with care.

But there's even worse to come. The sub-section allows the parliament to enact "lawful restrictions reasonably necessary ... for the protection of ... public morality." A "protection" of free speech with that provision is no protection at all. Governments can do anything in the name of "public morality", but they have no business in doing so. The state should keep out of the morality game.

Of course, sometimes it really is necessary to abridge free speech in some way - e.g., to prevent the direct incitement of violent acts. But the test should be that of a compelling state interest (as that expression is understood US jurisprudence), not the kind of weak, anti-free-speech test set out in sub-section 15(3) of the charter, which almost negates the half-hearted protection offered by sub-sections (1) and (2).

At a bare minimum, sub-section (3) should be repealed - this would bring the language of the charter into line with the equivalent instrument in the Australian Capital Territory: the Human Rights Act 2004 (which is a preferable model all round).

Ideally, though, the drafting should say no more than the following: "The parliament shall enact no law whatsoever that abridges freedom of speech and expression, and all existing enactments are hereby repealed to the extent that they do so." There could be a separate provision, elsewhere in the charter, allowing the enactment of legislation contrary to the charter where, but only where, there is a compelling state interest, with any doubt going against the state and favouring the party claiming the liberty.

The Victorian Charter of Rights and Responsibilities actually does nothing to protect the rights of Victorians. It's so pervasively corrupted by hedging and grudging phrases as to be useless. We were sold a lemon. No wonder there has been almost no litigation based on the charter, as Rob Hulls was boasting the other day as if this were a good thing. I hope that the current federal exercise, chaired by Frank Brennan, produces something a lot stronger than this.