The statute of liberty

Andrew Lynch

Famous expatriates regularly weigh into Australian debates with a lack of delicacy and insight. So readers may be wary of this contribution to the discussion about a national charter of rights from Geoffrey Robertson, probably our best-known lawyer although, when not globetrotting, he resides in London.

Perhaps conscious of this perception, Robertson begins this powerful little book by recounting his familial connections to Australia. This is neither vanity nor a mere presentation of credentials, for he skilfully weaves his narrative to the grander story of this land - its original owners, the First Fleet and the waves of new arrivals since - focusing on those who have struggled or sacrificed for its protection and flourishing.

Too often these stories are steeped in jingoism or cliche. Here Robertson tells them to have his readers reflect on what we mean when we talk about rights in this country. The debate about a national charter must be about our rights, those with resonance to our own distinctive history.

That said, it is inevitable that local versions of a charter, those operating in Victoria and the ACT and also floating around as possible national models (to which we must add the "wet Sunday afternoon" draft included by Robertson in this book to fire our imaginations), will look pretty similar to instruments of rights protection in other countries and internationally. As the last liberal democracy without a charter we can hardly expect to come up with a unique catalogue of rights. But this does not mean that the decision to protect certain freedoms will not draw on our experience. On the contrary, it must do so.

Robertson nimbly skates across the past, highlighting at every turn liberties, achievements and national obsessions in his quest to articulate the rights we may guarantee. Such an exercise is bound to elicit disagreement. So while acknowledging a "right to engage in ethical scientific experiment" in memory of Joseph Banks, Fred Hollows and others is a nice touch, it is rife with complexities. The suggestion that "a right to be free of visual desecration" may have spared Sydney the Blues Point Tower or Cahill Expressway sees Robertson in full Hypotheticals mode.

Unlike other expats, however, his provocations are always designed to make us think. Unquestionably, this book's most appealing characteristic is that while it advocates and explains, it never hectors. The author invites us to engage with each other about which rights to protect.

"He attacks as simplistic any view of democracy limited to the crude majoritarianism of the ballot box and crisply rejects the shrill distortions of certain prominent local critics of a charter."

For example, it may seem surprising that the first right selected by Robertson for inclusion in his draft charter is freedom from slavery. He emphasises this as our original right, having been asserted by governor Arthur Phillip in establishing the new colony. But this is, sadly, far more than a historical relic: only last year, the High Court heard a case concerning crimes of sexual slavery committed against Thai women kept in a Melbourne brothel.

Beyond the question of what rights we may consider protecting in a charter, the book seeks to quell fears that a "statute of liberty" will place too much power in the hands of "unelected judges" and thus subvert Australian democracy.

Robertson is bemused by this, given the positive contributions made by charters to the quality of governance elsewhere. He attacks as simplistic any view of democracy limited to the crude majoritarianism of the ballot box and crisply rejects the shrill distortions of certain prominent local critics of a charter. Elections, he argues, revolve around economic issues, with human rights rarely getting a look-in. While surely an oversimplification, we get the point. Robertson is persuasive when he asks how parliament, with enormous legislative responsibilities in limited sitting days and frequently distracted by political theatre, can possibly be expected to respond to all the large and small infringements on individual rights that may be suffered across the community. Although human rights abuses can sometimes cut through to capture attention, this is hardly common and the prospect of a remedy is far from certain.

Disagreement about the content and extent of rights does not mean that courts are inappropriate sites for their enforcement. In the evolution of the common law and in the task of interpreting legislation, courts are already presented with ample scope for alternative approaches and meanings. It seems odd to be perturbed by the extension of this to expressly protected rights, particularly since in all models but those of a US-style bill of rights the political arms of government retain the final say.

Even under Canada's constitutional charter, a "notwithstanding" clause allows the parliament to re-enact any law found by the Supreme Court to be in breach of its interpretation of a particular right.

So far, Australian advocates have overwhelmingly favoured the more modest example of the British Human Rights Act, an ordinary statute enabling courts to declare when laws are incompatible with a protected right. While not without some political impact, a declaration has no formal effect on an offending law's validity or on the rights of the parties. Parliament may respond positively to the court's view but is free to ignore it.

Robertson adds his voice to those supporting this model of charter for Australia. While unsurprising given his close familiarity with the British Act, this is still disappointing. Substantial doubts exist over whether the declaration mechanism is valid under the Australian Constitution, but Robertson is flippant on the question.

To simply assert that the British model is transferable sits oddly with his central thesis that an Australian charter must connect with our history and conditions, which surely includes our constitutional circumstances.

Some form of charter, indeed a stronger version, is still possible and may, in substance, look a lot like Robertson's draft. Whether one is desirable is something the Rudd Government is trying to determine through the community consultation process. This lucid and entertaining book should inspire and assist all Australians to consider and discuss this important issue.

Dr Andrew Lynch is director of the Gilbert + Tobin Centre of Public Law at the University of NSW. He is also the Director of the Centre's Terrorism and Law Project. His research in recent years has concentrated on the topics of judicial dissent in the constitutional law decisions of the High Court of Australia and the intersection of public law and legal responses to terrorism. Visit the Centre's resource page.The Statute of Liberty:How to Give Australians Back Their Rights, by Geoffrey Robertson is published by Vintage Press, 244pp, $19.95. This review was first published in the Weekend Australian on 4-5 April 2009 and is reproduced with the author's kind permission.

Suggested citation
Lynch, Andrew, 'The statute of liberty', Evatt Journal, Vol. 9, No. 2, April 2009.<>