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From the President : Our right to change

Every Issue

Cite as: (2002) 76(10) LIJ, p.4

GROWING OLDER, INCOME TAX BRACKET CREEP AND GOING BALD. THESE ARE ALL THINGS I AM ONLY TOO FAMILIAR WITH. WHAT THEY HAVE IN COMMON IS THE INSIDIOUS AND APPARENTLY IRREVERSIBLE PROCESS OF INCREMENTAL CHANGE.

I know today that I am a year older than this time last year, but I do not feel it. I feel today that I have the same amount of hair as I had yesterday, last week, last year or last decade. I know this not to be true and a comparison of the mug shot at the top of this page with a family photograph taken 10 or 15 years ago discloses the reality. The less said about my tax position the better.

I know that I am changing in many ways. The forces of nature and time exact their toll on us all. In the end we accept those changes because the laws of nature say we must. The point is that, birthdays aside, there are few markers along the way to highlight the changes.

Other incremental changes also affect us in our day-to-day lives. Our individual rights are often affected by legislative changes, which have intended (but largely ignored) consequences or unintended (and largely unanalysed) consequences. As society becomes more complicated a neat balance must be maintained between our rights as individuals and our community’s right, through our democratically elected representatives, to pass laws that moderate and control individual behaviour.

We know that we have rights and yet, with few exceptions, nowhere in Australia are those rights constitutionally defined or protected. We jealously guard our rights of freedom of expression, religion, peaceful assembly and our right to vote. We consider that we have a “right” to the provision of services from government such as security, education and health care. We lawyers might consider that any person that comes before a court has a “right” to representation.

In 1966, the United Nations adopted the International Covenant on Civil and Political Rights, which was ratified by Australia in 1980. This is the document most referred to when we seek to measure proposed legislative change against what is fundamental to our individual/community well being. How do we measure up in some important areas? Consider:

Article 6 – The right to life – what of the debate between the “right to lifers” and those who advocate a woman’s right to choose?
Articles 7 and 10 – Freedom from torture and inhuman treatment – what would the Tampa refugees and others say of Australia’s commitment?
Article 9 – The right against arbitrary arrest and detention – consider the implications of the anti-terrorism legislation and the ASIO Bills.
Article 12 – Freedom of movement – query the operation of the Family Law Act.
Article 14 – The right to a fair trial – does this include a right to be represented?
Article 17 – The right to privacy – what would the Department of Social Security and the Australian Tax Office say about this?
Article 19 – Freedom of opinion and expression – provided that one does not breach any of Australia’s diverse defamation laws.
Article 23 – The right to marry and found a family – what of the rights of same sex couples and their entitlements to adoption or IVF programs?
Article 24 – A right to the presumption of innocence – does any part of the anti-terrorism and ASIO legislation offend this supposed right?

There are of course many others. In Australia we have seen an incremental erosion of rights. I make no comment in relation to whether all or any are appropriate. That is a matter for more detailed debate for there is an inevitable tension between individual rights and the welfare of the community as a whole.

What is important is that we as lawyers, and society in general, are always vigilant to ensure that our rights as individuals are not inappropriately curtailed or violated by legislation. In recent years, for example, we have seen, the following proposed or introduced.

  • The Telecommunications Interception Legislation Amendment Bill 2002 proposes that government agencies be able to access voicemail without an interception warrant.
  • The Australian Grand Prix Act allows non-reviewable decisions to be made by a minister and abrogates the common law by, inter alia, declaring that any activity carried on during the race meeting does not constitute a nuisance.
  • The abolition of common law rights in work-related serious injury matters.

Between 1993-2001 the state government passed legislation that specifically excluded the jurisdiction of the Supreme Court on no less than 181 occasions. In the Scrutiny of Acts and Regulations Committee discussion paper no 1 in May 1995, the current shadow Attorney-General Victor Perton commented that: “To abolish causes of action and remedies normally available to individuals and thus restrict access to the Supreme Court is a serious matter.”

Other common law countries have taken the crucial first step of codifying civil and human rights. Perhaps the best known example is the United States Bill of Rights. In 1982, Canada adopted a Charter of Rights and Freedoms. The European Convention on Human Rights and Fundamental Freedoms operates to affect a number of the legislative processes. As associate director of the Castan Centre for Human Rights Law, Faculty of Law, Monash University Julie Debeljak has noted, since the adoption in the UK of the Human Rights Act 1998, “Australia is the only common law country without a comprehensive system of legislative or constitutional protection of human rights and freedoms”. (“Rights protection with judicial supremacy: a review of the Canadian and British models of Bills of Rights”, 26 MULR 2002 1).

Victoria Parliament’s Legal and Constitutional Committee produced an excellent report in 1987 on “The desirability or otherwise of legislation defining and protecting human rights”. One of its many recommendations was that the Constitution Act be amended by inserting a declaration of rights and freedoms. This year, the Victorian Constitutional Commission recommended that fundamental human rights be incorporated as guiding principles in the Constitution (“A house for our future”, 2002 at 71 (recommendation 14)). It is a matter of regret that those recommendations have not been taken forward; the time is clearly ripe for a reference on this question to the Victorian Law Reform Commission.

The absence of a formal statement of rights against which we can measure the effects of legislative change makes it difficult to monitor and assess the outcomes of proposed Bills. Until then, legislative changes will continue to incrementally erode our rights. “Like sands through the hourglass . . .”

DAVID FARAM

president@liv.asn.au

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