Judicial imperialism argument is hollow

Spencer Zifcak | The Australian | 24 June 2011

JAMES Allan's recent article in these pages provides a welcome opportunity to examine the nature and quality of arguments advanced by opponents of Victoria's Charter of Rights.

The article, in response to one of mine that Allan described as pathetic and simplistic, contains many of the contrary arguments commonly asserted by antagonists but rarely justified.

The primary argument is that a charter is nothing more than a list of vague aspirations. Because of this, human rights legislation is a gift to judges. It provides them with a unique opportunity to engage in judicial imperialism.

They can make free speech mean what they want. They can whip up a new definition of arbitrary detention. They can stretch the boundaries of fair trial beyond recognition, and so on.

This argument completely ignores the fact that courts globally have 60 years of experience in interpreting the constitutional and legislative protection of human rights.

Ever since the introduction of the European Convention on Human Rights in 1950, courts in every Western nation except the US have been working through the meaning and ambit of rights guarantees born in the Universal Declaration of Human Rights in 1948. In every nation with which Australia usually compares itself -- Canada, New Zealand, Britain -- courts have minutely dissected the definition and effect of free speech, religious freedom and fair trial rights among many others. These rights, all of which are founded upon the Universal Declaration and its associated international covenants, have been fully explored and interpreted. The body of relevant precedent is precise, instructive and huge.

Allan's argument therefore may have had some weight if Australia had been the first Western country to embark upon comprehensive constitutional and legislative protection of human rights, and Australian judges upon their interpretation.

In fact we remain the last and the path is well trodden.

I've not noticed Victoria's radical judiciary gleefully grasping the levers of legislative power.

I've not observed a radical shift of constitutional power from the legislature to the judiciary in any other comparable country. The evidence is quite to the contrary. But that is what Allan would have us believe has happened. In the article he gives three examples of Victorian cases to found the imperialism contention. Every one of them is partial and misleading.

He claims that the charter provided the basis on which a female Victorian prisoner obtained the right to receive IVF treatment while imprisoned. That is incorrect. The Victorian Supreme Court determined that the prisoner's pre-existing treatment could be continued following her imprisonment.

But the charter was not the foundation for the decision. It was made pursuant to a provision in the Corrections Act (Vic) which, the court observed, was consistent with and reflected the woman's charter rights.

Allan asserts that the charter led Victorian judges to rule that extended supervision orders to monitor sex offenders were incompatible with human rights.

What he neglected to say was that the relevant decision was by a single judge of the Victorian County Court. That court cannot make a declaration of incompatibility. The judge decided correctly that the matter before him should be determined on the basis of the sex offenders law being considered.

Allan complains that the charter led the Victorian Court of Appeal to rule that a reverse onus provision in a drug trial was inconsistent with the presumption of innocence.

It is plainly inconsistent with that presumption. So, the court returned the matter to the Victorian parliament for reconsideration. Parliament's sovereignty was maintained.

How does any one of these examples justify the claim of judicial imperialism? Absence of evidence does not seem to deter Allan, however. He asserts that charter advocates have not come out in favour of Andrew Bolt's freedom of speech. That is wrong. Among others, I gave many interviews saying that in the Bolt case the racial vilification provision in the Racial Discrimination Act goes too far in constraining free speech.

He blames the charter for prompting the Victorian Human Rights Commissioner to make a statement in favour of David Hicks. I am unaware of the statement, but, even if it was made, the Victorian charter and Hicks have absolutely no relevance to one another.

Allan points out that the charter has had no impact upon the increasing number of suppression orders issued by Victorian judges. That is true. But there hasn't yet been a challenge, so how could it have impacted?

This is an unimpressive catalogue of argument. An unattractive facet of Allan's argumentation is the degree of hostility he brings to his consideration of the judiciary. Parliament is the paragon of human rights protection. Judges seemingly are the enemies of democracy. Too often this barely disguised hostility leads him into a rambling world of hyperbole.

For example, in a recent law journal article, he comments on an exemplary decision of the Chief Justice of Victoria in a human rights case: "Alas, all the Chief Justice provides are gaseous platitudes, vague genuflections in the direction of multiple acceptable approaches (hence, perhaps, a bizarre sort of worship at the alter of diversity), seemingly contradictory assurances, a nod towards using international law, talk of a first step of ascertaining ordinary meaning but no clear analysis of what follows thereafter . . ."

The article is the most disrespectful attack on the decision of a senior Australian judge that I can remember. I back Allan's freedom of expression. But if he is to persuade anyone of anything, his arguments will have to be more cogently formulated, his analysis less partial and his prejudices much more firmly set aside.

Spencer Zifcak is president of Liberty Victoria and Allan Myers professor of law at the Australian Catholic University