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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019) and AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021).

Friday, April 17, 2009

The Victorian Charter of Rights and Responsibilities is rubbish

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


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

(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.


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.


Lorenzo said...

I hope it does not. More power to judges does not strike me as a good thing.

The articulate, connected and networked are likely to be confident that that their perspectives will be respected. Those whose only avenue of influence is their vote, perhaps less so.

And, if you want an example of the disastrous effect of judicial decision-making on contentious social issues, consider the blight having judges decide on abortion has been on American politics. Particularly American judicial appointment politics.

Russell Blackford said...

^I disagree. Generally speaking, I think the US Supreme Court has played a beneficial role in enforcing limits on the power of the state and federal legislatures. Abortion is just one example, and not the best one, since one might doubt the legal reasoning in Roe v. Wade. The American free speech jurisprudence in the US is something Australians should envy IMHO.

Also, it is fallacious (or, at best, simplistic) to talk about giving power to judges if they are merely enforcing citizens' negative rights against the state. I explain why at some length in my submission to the Consultation Committee.

If they are enforcing positive rights against the state, it's rather different - but that's not something I've ever argued for.

Russell Blackford said...

lol, at my "American free speech jurisprudence in the US", though. Um, where else would it be? Note to self: preview comments before posting them.