Money, Money, Money.
Why would governments waste taxpayer’s money on something that is already protected under existing laws? Well, the second part of the question will be answered later, but is a human rights charter really expensive after all? Many opponents claim not only that the implementation of a charter is expensive, but that it would clog up the courts with extra claims and create delays and expense. Firstly, the Victorian Act cost 50 cents per Victorian per year in the first five years of its operation; that isn’t much for the equal protection of fundamental rights and freedoms.⁷ Secondly, Great Britain’s implementation of the Human Rights Act 1988 (UK) found that there was only a 2% rise in claims, and arguably this is only because the Act makes the pursuance of the protection of rights more accessible for the layman.⁸ Lawyers are also inevitably involved with these claims, whereby as a profession we too weed out vexatious litigation.
Super Fluidity
Another oft-cited reason against a Charter in NSW is that the laws already sufficiently protect its inhabitants. But recent examples of legislations and social problems like the Bikie Laws,⁹ increased police powers,¹⁰ and the introduction of a presumption against bail for certain offences,¹¹ mean that many people not only have their human rights stripped away directly from laws passed by Parliament, but there is no adequate means for redress. Others argue that this only benefits criminals—that if you have nothing to hide you have nothing to fear—but the presumption of innocence is a doctrine that runs deep in our legal system, and one that is worth protecting. It is minorities who have faced systemic discrimination more than any who have to gain from an introduction of a NSW Charter: the Indigenous, the homeless, troubled youths, and other racial and cultural minorities. In the interests of a fair and multicultural Australia, these are rights that are worth us all investing in protecting. 6
Parliamentary Common Sense It is the role of elected officials to make educated and justified decisions about legislation and how it can impact upon the people of NSW. Chief Justice Bathurst attributes this to a ‘culture of justification’,¹² that is a culture that ‘every exercise of public power is expected to be justified by reference to reasons which are publicly available to be independently scrutinised for compatibility with society’s fundamental commitments’.¹³ However, Bathurst CJ goes on to question whether this really exists, or is effective at all.¹⁴ NSW Parliamentarians have proven that in the quick succession of laws passed, many in under a week, or some less than two days, that there is little consideration of their potential impact on human rights, and little public knowledge surrounding this as well.¹⁵ There is always need for the arms of government to be able to make one another accountable; the Victorian Act demonstrates how such a mechanism can be achieved, painlessly and affordably. So while Victoria are moving from Commitment to Culture,¹⁶ NSW seems to be trailing behind our sister state without even a solid commitment to the fundamental protection of civil liberties. And at what cost? And for how long?
Former Chief Justice, J Spigelman, ‘The Integrity Branch
of Government’ (2004) 78 Australian Law Journal 724,
11
Bail Act 2013 (NSW), s 16A.
The Nature of the Profession; the State of the Law, 4
726 in The Hon Bathurst CJ AC, Opening of Law Term
12
The Hon Bathurst CJ AC, Opening of Law Term
February 2016
Address: The Nature of the Profession; the State of the
Address: The Nature of the Profession; the State of the
2
1 The
Hon Bathurst CJ AC, Opening of Law Term Address:
Law, 4 February 2016
Law, 4 February 2016.
Rights in State and Territory Law’, 2013,
7
13 ALRC127
3
is a wise investment to protect fundamental rights, 2
Legal Information Access Centre, Hot Topics, ‘Human McNamara, L. Quilter, J., ‘Institutional Influences on the
Ben Schokman, Human Rights Law Centre, 50 cents
14 The
at [2.2] ft 1, quoting Murray Hunt.
Hon Bathurst CJ AC, Opening of Law Term Address:
Parameters of Criminalisation: Parliamentary Scrutiny
September 2011, <http://hrlc.org.au/50-cents-is-a-wise-
The Nature of the Profession; the State of the Law, 4
of Criminal Law Bills in New South Wales’ (2015) 27(1)
investment-to-protect-fundamental-rights/>.
February 2016, 20.
Current Issues in Criminal Justice 21 (McNamara and
8
15
Quilter), 35.
Arguments for and against a national charter of rights
4 The
and responsibilities, April 2015, 2.
(Interference) Bill 2016, 22 March 2016.
9
Crimes (Criminal Organisations Control) Act 2009 (NSW).
16
gangs’ disregards human rights, 3 April, 2009, <http://
10
Law Enforcement (Powers and Responsibilities) Act
The 2015 Review of the Charter of Human Rights and
www.amnesty.org.au/news/comments/20742/>.2005).
2002 (NSW), s 99.
Hon Bathurst CJ AC, 24
5 Amnesty
International, Hastily passed law on ‘bikie
The Australian Collaboration, Democracy in Australia –
Parliament of New South Wales, Inclosed Lands,
Crimes and Law Enforcement Legislation Amendment Michael Brett Young, From Commitment to Culture:
Responsibilities Act 2006, 2015.
A RT I C L E S
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