ALRC Freedoms Inquiry-no place for freedom of information

Submissions close today on the Issues Paper issued as part of the Freedoms Inquiry
by the Australian Law Reform Commission. 

Attorney General Brandis asked the ALRC to "review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges." 

The inquiry reflects a commitment made before the 2013 election. As noted at the time common law rights and freedoms are limited. Judges, rarely, 'find' new rights not previously uncovered.

Other rights (the FOI right to access government information and the right to privacy are two of many examples) find their way into law through statute and international instruments. You won't find this sort of thing in the Magna Carta. Legions of Sir Humphreys managed to ward off Freedom of Information legislation in the UK until it finally took effect in 2005. 
 
Thus while freedom of speech got a specific mention in the terms of reference list of traditional rights, and in the Issues Paper, freedom of information didn't. 

I dropped a short note to the commission:

While a fundamental right and freedom recognised in international law, the common law in Australia, drawing on British traditions, does not recognise a right to information. 

This freedom is not listed in the terms of reference for the inquiry. However freedom of information and Commonwealth laws that encroach on this right should not pass without comment in your report.

For example, Secrecy Laws and Open Government in Australia (ALRC Report 112) identified 506 secrecy provisions in 176 pieces of legislation and made 61 recommendations for reform. The report refers to the chilling effect this complex framework has on open government, transparency and the right to access information. The report was tabled in March 2010 and has not, as yet, been implemented.

Many aspects of the Freedom of Information Act fall short of emerging international standards.

The statutory review of the FOI act conducted by Dr Allan Hawke in 2012-13 recommended a comprehensive review of the kind he was unable to undertake. There has been no government response.

As to freedom of information and its place in the law, UNESCO describes freedom of information as 

"an integral part of the fundamental right of freedom of expression, as recognized by Resolution 59 of the UN General Assembly adopted in 1946, as well as by Article 19 of the Universal Declaration of Human Rights (1948), which states that the fundamental right of freedom of expression encompasses the freedom to “to seek, receive and impart information and ideas through any media and regardless of frontiers”.

FOI has also been enshrined as a corollary of freedom of expression in other major international instruments, including the International Covenant on Civil and Political Rights (1966) and the American Convention on Human Rights (1969)."

The United Nations' Human Rights Committee (General Comment 34) states that freedom of information is integral to human rights under international law "essential for the promotion and protection of human rights." Access to government information, which the committee considers an element of freedom of expression, is an "indispensable condition for the full development of the person" and "the foundation stone for every free and democratic society."

The right of access to government information isn't absolute and must be balanced and adjusted over time to reflect other rights and public interests. 

But not taken away or without reason diminished. 

I didn't mention the potential encroachment on the enjoyment of the right arising from the Attorney General's intention to legislate the Office of Australian Information Commissioner out of existence. 

Maybe the Senate will stop that one.

Human rights types?

Aren't we all? But If this is you have a look at the Fellowships on offer from the Open Society Justice Initiative to work in New York, London, or Budapest and then in exotic places:

• Strong commitment to human rights;
• Prior work experience in the human rights field;
• Have a university degree in Law or an LLM or MA in human rights;
• High degree of proficiency in English;
• Good research, legal analysis, and drafting skills;
• Willingness to take initiative with ability to work individually and in teams;
• Organization and attention to detail;
• Knowledge of French, Spanish or other languages an asset.

 Closing 28 March. Life may never be the same.

Freedom wars: preparations underway

In Opposition both Prime Minister Abbott and Attorney General Brandis spoke of the freedom wars. 

The guns are now being primed.

The announcement by Senator Brandis of the appointment of Tim Wilson of the Institute of Public Affairs as a Human Rights Commissioner follows last week's Freedoms reference to the Australian Law Reform Commission to review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges including freedom of speech.

With regard to the Wilson appointment, Senator Brandis explained:

During the election campaign, I promised to create at least one “Freedom Commissioner” at the Australian Human Rights Commission. Next year, I intend to bring forward reforms to the Commission. In the meantime, I have asked Mr Wilson to focus on the protection of the traditional liberal democratic and common law rights, including, in particular, the rights recognised by Article 19 of the International Covenant on Civil and Political Rights.

Article 19 states:
1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 19 includes the right to seek information.

So it remains to be seen whether the ALRC and Mr Wilson interpret their respective briefs as encompassing the Freedom of Information Act - Dr Hawke acknowledged a more comprehensive review was needed than he had undertaken - and the chilling effect of hundreds of secrecy provisions in Commonwealth laws identified close to four years ago in an ALRC report that has been undisturbed and gathering dust in the Attorney General's Department ever since.

The Institute of Public Affairs is strong on freedoms but less so on other rights, arguing earlier this year that even self regulation should be optional for the media. (Since 2000 media organisations in the conduct of journalism have been exempt from the Privacy Act if they self regulate with no reference to the adequacy of self imposed standards. There are plenty out there that don't consider they do this anywhere near well enough. I'm sure in any event that the Attorney General and Mr Wilson know the ICCPR contains provisions other than Article 19 including Article 17 which puts protection of privacy up there as a human right as well.)

Mr Wilson is no slouch at utilising his right to access information, attracting the ire of one government agency in 2011 for making 750 FOI applications in a four month period including 440 on one day.

Looming freedoms and rights wars

While the Coalition hasn't put on the record its intended approach in office to transparency and integrity issues,Tony Abbott and Senator Brandis have made it clear in speeches (both entitled 'Freedom Wars') over the last year, that 'freedom' and 'rights' will get the attention of an Abbott government.

Recently in an interview with The Australian, George Brandis to reclaim rights agenda (paywall), the Shadow Attorney General indicated one change would be a new 'rights' emphasis - protecting common law freedoms from legislative encroachment:

(Brandis) plans to refocus the human rights debate on traditional common law rights and freedoms which he believes can be a more effective guardian of liberty than any statutory charter of rights. He announced this week that a national audit will be conducted of federal statutes that infringe common law rights as a first step to restoring these freedoms, "when appropriate". One or more "freedom commissioners" will be appointed to the Australian Human Rights Commission with the goal of applying a balanced approach to all rights and freedoms. Instead of concentrating primarily on the administration of federal anti-discrimination law, Senator Brandis said the commission would also be required to become a national advocate for freedom of religion, freedom of expression and freedom of the press. "I don't want to see the human rights bureaucracy expanded but if we are going to have a human rights agency of the commonwealth, it ought to be an agency that protects human rights, not an agency that protects some human rights and makes excuses for the violation of others," he said. "The rights we enjoy in Australia are much better protected by the common law - as long as we don't allow that to be repealed or attenuated by statutory intervention - than they would ever be by a charter of rights.

The Senator's concerns had been flagged previously in a speech to the Sydney Institute Freedom Wars (members only access in May. The catalyst then was what the Senator described as Labor's unprecedented war on freedom of the press and freedom of expression, with aspects of the Racial Discrimination Act and 'elites' also in the sights.
 
In 2012 Tony Abbott delivered his Freedom Wars speech to the Institute of Public Affairs,
claiming this position for the Liberal Party:

"Essentially, we are the freedom party. We stand for the freedoms which Australians have a right to expect and which governments have a duty to uphold. We stand for freedom and will be freedom’s bulwark against the encroachments of an unworthy and dishonourable government."

Whether that claim stands up after a spell in office, and if any Freedom Wars battleground is to be narrow or broad scale remain to be seen.
(Update- The Australian 5 September 'Tony Abbott to champion free speech.')
 
(Real freedom of information, not mentioned in any of these texts, would be a great centrepiece, but I digress.)
 
In any event the issues raised about common law rights and protection from legislative encroachment are far from straightforward.
 
Former NSW Chief Justice Spigelman and others such as Chief Justice French of the High Court have pointed out that common law rights and freedoms are limited. Spigelman helpfully listed in this speech 'the common law bill of rights'.
 
Judges, rarely, 'find' new rights not previously uncovered. Other rights (the FOI right to access government information for example) find their way into law through statute and international instruments. Not all are absolute, some are qualified, others in tension to a degree with competing rights.
 
Rights reflected in international instruments and agreed to by Australian governments such as the Universal Declaration, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights only become an undisputed source of individual rights and obligations when directly incorporated into domestic law by legislation. There are many gaps in Australian law.
 
Unless constitutionally protected, hardly the case at all in Australia and Senator Brandis, News Corp and The Australian won't have a bar of a bill or charter, rights, common law or statutory can be modified by legislation. Parliament is supreme. However as the Chief Justice noted, courts take the view that rights that are well entrenched in the common law including freedom of speech and freedom of movement are only abrogated where there is clear legislative intent- by plain words or necessary implication. (The Coalition last time in office came unstuck on this in the Haneef case.)
 
Freedom of speech or expression - the freedom to say what you like - is not the same as freedom of the press - the freedom to publish or broadcast whatever and whenever you like. There are limitations imposed (national security, the right to reputation reflected in defamation law, and less clear cut the right to privacy) and standards expected of media publications and broadcasters because of the power and privileges they enjoy. Media organisations generally accept this and argue for self regulation. Others argue self regulation will always be unsatisfactory in some respects.
 
This debate about how and where to strike the balance between freedom and other interests is ongoing not only here but elsewhere.
 
If and when the freedom wars unfold the Liberal Party stance on privacy law reform will be an element in some of the battles.


There are currently questions floating out there about the legislated reforms to take effect in 2014: do the changes go far enough, is the law adequate in light of emerging issues, are the changes to commence too soon?
 
A whole range of recommendations from the ALRC report in 2007 were not dealt with in Stage 1 of the reforms. These include the terms of the exemption from the Privacy Act for media organisations in the conduct of journalism, and the removal of the exemption for political parties and small business. The ALRC has a current reference on privacy protection in the digital age and a statutory cause of action- before it was announced Senator Brandis seemed highly sceptical.
The Opposition did not enthusiastically embrace the mandatory privacy breach notification legislation introduced but not passed in the last Parliament.
 
And there are ongoing issues concerning privacy and surveillance and telecommunication interception.
 
More than a whiff of grapeshot is likely should the guard change after 7 September.

Press Freedom and the Public's Right to Know

Mike Carlton

One of the many offerings at the Sydney Writers Festival this week. Saturday, May 22 10:00 - 11:00 Sydney Dance Company, Studio 2/3 Pier 4/5, Hickson Road Walsh Bay. Mike Carlton moderates a discussion with David Marr, 2009 Walkley Award winning Seven Network FoI editor Michael McKinnon and former Washington correspondent Anne Davies about freedom of expression and freedom of the press in Australia. It's free, no bookings. I'll be there-say hello if you are.

Civil liberties rate in UK Coalition accord

Thanks to Bob Burton for a reference to the UK Coalition Government agreement  which includes:

10. Civil liberties

The parties agree to implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion.

This will include:

- A Freedom or Great Repeal Bill.

- The scrapping of ID card scheme, the National Identity register, the next generation of biometric passports and the Contact Point Database.

- Outlawing the finger-printing of children at school without parental permission.

- The extension of the scope of the Freedom of Information Act to provide greater transparency.

- Adopting the protections of the Scottish model for the DNA database.

- The protection of historic freedoms through the defence of trial by jury.

- The restoration of rights to non-violent protest.

- The review of libel laws to protect freedom of speech.

- Safeguards against the misuse of anti-terrorism legislation.

- Further regulation of CCTV.

- Ending of storage of internet and email records without good reason.

- A new mechanism to prevent the proliferation of unnecessary new criminal offences.

Mark Bollard comments about the FOI and privacy related issues, and Media Spy  has this to say about likely defamation law reform:

Both parties agree that Britain’s libel laws are in need of an overhaul, with concerns that corporations and wealthy individuals have disproportionate power to use the courts to sue publishers and media outlets on the grounds of defamation, placing an undue burden of proof on the defendants. The laws led to what has been termed “libel tourism”, where foreign individuals and companies took advantage of Britain’s pro-claimant laws to sue the media. The coalition agreement pledges to initiate a “review of libel laws to protect freedom of speech”. The Conservatives’ election manifesto declared that the party would “review and reform libel laws to protect freedom of speech, reduce costs and discourage libel tourism”, while the Liberal Democrats went further by proposing the implementation of the so-called “Reynolds defence“, giving journalists the ability to use the public interest to justify investigations even if they are unable to prove conclusively that their findings are true.

 

The Oz, human rights horror stories from the UK, and some exploded myths for good measure.

UK DPP Keir Starmer QC- read on.

Chris Merritt in The Australian today returns to a familiar theme for the paper- the horrors that await us if the Federal Government goes ahead with a Human Rights Charter . This time its about the perils particularly for those of religious belief, based on the views of a British barrister, Paul Diamond, heading our way to join, among others that font of wisdom on the subject, former NSW Premier Bob Carr, at a " public meeting on the dangers of a charter of rights" in Sydney next week.

While acknowledging "(t)here are substantial differences between Britain's Human Rights Act and the scheme that has been drawn up for this country by Frank Brennan's committee," Merritt says, to justify telling us how bad things are in the UK, that " there are enough similarities to ensure Diamond's grim assessment of the British experience might cause some charter supporters to reconsider."

Diamond's "grim assessment" , according to Merritt, arises from involvement with clients who "are religious people whose beliefs, he says, have come under attack because of Britain's charter: an airport worker who refused to stop wearing a crucifix, a teacher who was dismissed when she objected to the promotion of a homosexual lifestyle to children, a nurse who was suspended for offering to pray for a patient."

Shocking isn't it? But a pity also that readers of the Oz and those attending the meeting probably won't hear about the speech yesterday in London by another UK barrister the Director of Public Prosecutions, Keir Starmer QC, one of many I expect who has rather different views. An extract follows- have a look at the myths towards the end.

"A brief look back into history shows that all of the defining documents recognise that human rights are universal, inalienable and perpetual. They are not triggered or defined by any one individual's status at any given time. They are not to be applied or disapplied depending on the situation one finds oneself in. And they are not discriminatory.

Our texts in this area are, of course, the Human Rights Act 1998 and the European Convention on Human Rights and Fundamental Freedoms. As I am sure we all know, Articles 2 - 12 and Article 14 of the Convention are adopted in the Human Rights Act 1998 and so have been with us for over a decade now. However, one cannot escape, particularly in recent months, the debate that has emerged around the extent to which it is appropriate - and these are my words here - to repatriate the Human Rights Act and make it "more British."

I do not think it unreasonable to conclude that those who advance such a view somehow propose to replace the Human Rights Act, or at least those articles in it which are taken from the European Convention, with other human rights which they consider to be more appropriately geared to "British" society.

Pausing only to recall the fact that the United Kingdom played a major role in the design and drafting of the European Convention itself back in 1951, let me just take you through those rights which have been adopted through the Westminster legislation.

• Everyone's right to life shall be protected by law.
• No one shall be subjected to torture or degrading treatment or punishment.
• No one shall be held in slavery.
• Everyone has the right to liberty and security of person.
• Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
• No one should be held guilty retrospectively of a criminal offence.
• Everyone has the right to respect for his private and family life, his home and his correspondence.
• Everyone has the right to freedom of thought, conscience and religion.
• Everyone has the right to freedom of expression.
• Everyone has the right to freedom of peaceful assembly and to freedom of association.
• Men and women have the right to marry.

And Article 14:

• The enjoyment of these rights and freedoms shall be secured without discrimination on any ground.

For my part, I am proud to be part of a society that regards these rights as part of my entitlement as a member of that society. They are basic; they are fundamental; and I venture to suggest that, for the majority of us, they are so much part of our way of life that we take them for granted.

I cannot think of any way in which such basic human rights are either so foreign to England and Wales that they do not reflect those principles that we hold dear, or which for some other unspecified reason, are thought not to be relevant and of direct applicability to each and every member of our communities.

The idea that these human rights should somehow stop in the English Channel is odd and, frankly, impossible to defend.

Let me pause there simply to guard against complacency: everyone of us, I am sure, knows of instances where these rights have been ignored by someone in authority; where they have been deliberately set aside ostensibly to secure some greater goal; where they have been wilfully abused in the pursuit of prejudice and discrimination. So, whilst I recognise that for most they are a part of our way of life, for others, they are vital shields and defences to the abuse, prejudice; and discrimination to which they are subjected.

If there are perceived problems with these human rights under the Human Rights Act, I venture to suggest that they are more borne out of their misapplication and misunderstanding rather than any perception that they lack intrinsic value.

And following that theme, let me dispel some myths about the Human Rights Act and the European Convention:

A police force unable to circulate a photo of a wanted, dangerous and violent criminal because it might breach his Article 8 rights to privacy? My advice - go ahead - it is essential to protect the public.

Unelected judges can now tell Parliament that their laws need not be enforced? No - judges cannot strike down legislation.

Human Rights mean that school teachers cannot enforce discipline at school? No - it is domestic legislation - section 548 of the Education Act 1996 - passed 2 years before the Human Rights Act - that banned corporal punishment in schools. Interestingly enough, it is section 93 of the Education and Inspections Act 2006 - passed 8 years after the Human Rights Act - that now allows school teachers to use reasonable force to prevent a pupil from committing an offence."

It is often in the interests of those who want to debase a principle to chip away at it by citing examples of its occasional misapplication. We should all take care to examine critically the so-called restrictions brought about by the Human Rights Act and consider where the misunderstanding truly lies before condemning a constitutional instrument that has provided legitimate comfort to so many."

Good advice for those in the UK, and here as well.

Hyperbole and the human rights debate

The Sydney Morning Herald in its editorial was sceptical about actions recommended in the Brennan Report to protect human rights. But the Weekend Australian was in a class of its own slamming the report in two front page leads, this by Paul Kelly and another by Kelly and Chris Merritt. Kelly labelled "hyperbole" the claim by Opposition Attorney General that the report threatened "the most important de facto alteration to Australia's system of government in our history. " I sent a letter to the editor on Saturday, but no dear reader it's not published today. However to the editor's credit the one letter that made it, written by a manager of a legal service for the homeless, rightly took issue with another claim that a Human Rights Act would be a triumph for elites, arguing instead it would be "a victory for the most marginalised and disadvantaged members of our community."My unpublished contribution:

"George Brandis wasn’t the only one resorting to hyperbole.Your reports of mixed fact and opinion under headlines featuring” enormous problems,” “chaos,” and “poisoned chalice” on the “human rights lobby”, its alleged political agenda to obliterate the Howard cultural legacy and its plans to change our system of government, were over the top.The Australian’s “Right to Know” banner only makes sporadic appearances these days but its interest in rights clearly stops short of any meaningful embrace of broader internationally accepted rights and ways to best protect them. Victoria and the ACT don’t seem to be on another planet despite adopting comparable schemes to the dastardly proposals put forward by Brennan. By the way 16 of the 31 proposals were for protections other than by way of a Human Rights Act. What’s the problem again with initiatives that Paul Kelly acknowledges would bring Australia “into line with international human rights norms”? You give little hope to those of us who are confident we can better define and protect rights and sort out the wrinkles and problems on the way through."

Australians say human rights need better protection.

The Brennan Committee report to the Federal Government on the National Human Rights Consultation makes 31 Recommendations, 16 concerning action to protect and promote human rights more effectively and 15 about a Human Rights Act for Australia and the preferred model- the "dialogue" model allowing for judicial opinion concerning incompatibility, but Parliament at the end of the day to prevail, along the lines of models currently operating at state level in the ACT and Victoria. Rights in seven international treaties signed by Australia (subject to any claimed reservation) including the International Covenant on Civil and Political Rights (Articles 17 and 19 confer a right to privacy and to information respectively) should be protected and promoted; and the right to privacy and the right to freedom of expression are among those listed for inclusion in the Act. The Chairman on ABC PM explained the proposed model and discussed what turned him from a self-confessed sceptic - it all makes welcome good sense to me.

Conference circuit hits Canberra

Two conferences, fortuitously or otherwise on successive days in Canberra, worth consideration.

Public Affairs in the Nation's Capital, the annual Walkley Foundation gig examining media issues affecting the public sector, will include two sessions titled "Breaking down barriers: Freedom of Information and disclosure. The first, New reforms, new processes:what do they mean? featuring Joan Sheedy of PM&C, Peter Roberts of Charles Sturt University, and yours truly; followed by Roxanne Missingham of the Parliamentary Library on The public good-publishing online and Markus Mannheim of the Canberra Times on Secrecy's toxic effect on political journalism. With plenty of other interesting sessions to follow. The early bird rate cut-off is today.

Then on 6-7 August the Australian Institute of Administrative Law Annual National Forum will cover human rights, whistleblower reforms, the role of the ombudsman, and Freedom of Information and other topics as well. David Solomon and Michael McKinnon will discuss "FOI reform or political window dressing?", and Professor Bill Lane and Eleanor Dickens of Clayton Utz Brisbane, "Reforming FOI: Time for a new model?" Details here

Everything fine and dandy in NSW parliament

When asked in the Legislative Council yesterday about why the NSW Parliament would not be subject to the Government Information (Public Access) Bill the Attorney General John Hazistergos said it was a silly question and that the President of the Legislative Council and the Speaker of the Legislative Assembly had explained the reasons for the decision. He said citing examples of where this had occurred elsewhere, like the UK, was inappropriate "cherry picking" because " how we do business in this Parliament, the checks and balances that exist in New South Wales are not replicated in every other jurisdiction" and "freedom of information legislation in this State and throughout Australia is about keeping the Executive accountable. There are other means for keeping the Parliament accountable."

Just what those means are is not apparent. And-if applying the law to the legislature poses a problem- why the Government has not asked Parliament itself to consider embracing higher standards of accountability and transparency has not been explained. The Attorney General has been a vociferous opponent of a Human Rights Bill or Charter for Australia on the basis that parliament, not unelected judges should strike the right balance in protecting rights. Yet when it comes to a system to ensure the right to know about the day to day operations of Parliament in spending the $123 million allocated in this week's state budget, it is not even a topic worth discussing.

So no more pesky questions please about the $100 million in the Budget for "Members' Support" or how much each member is paid in entitlements or how travel, electoral or other allowances are spent. Just look forward with anticipation to next year's annual report for a few high level details.

Trust us, we're the NSW Parliament.

World Press Freedom Day just another day in Canberra

World Press Freedom Day yesterday served as a reminder that fortunately we don't face here the enormous challenges that journalists face in some parts of the world to stay alive and stay out of jail. UNESCO awarded its 2009 press freedom prize posthumously to Sri Lankan journalist Lasantha Wickrematunga for his work as a newspaper editor.

"Wickrematunga was shot dead in early January as he drove to work at the Sunday Leader, a newspaper critical of the Sri Lankan government and especially of its bloody and costly war against Tamil rebels. Sri Lanka is one of the ten worst countries for press freedom, according to the Reporters Without Borders 2008 index. Other offenders include Eritrea, North Korea, Turkmenistan, Burma, Cuba, Vietnam, China, Iran and Laos."

But, at another level, The Australian reports that the MEAA while acknowledging some positives, points to a failure by the Government to remove the "cloak of secrecy" that hangs around its own activities and those of the courts. (The MEAA Annual Report report on press freedom in Australia should be on the MEAA website soon- Update it's here)

As an echo of Laurie Oakes comment that the media needs to do more to get across to a broader audience why press freedom issues are of relevance, it's interesting to note that around the world leaders including President Obama acknowledged World Press Freedom Day. But nothing seems to have been said by Prime Minister Rudd, even though he had the perfect opportunity last week in a speech presenting the Wallace Brown Young Achiever Award for Journalism.He decided to stick mainly with folksy reminisces.

World Press Freedom Day does get an acknowledgement on the "values" page of the Department of Education Employment and Workplace Relations and from the Australian Human Rights Commission.

Just as pertinent, given Oakes' comment, is the fact that apart from his article in News publications on Saturday, the Australian report today of MEAA findings and an edited version of the Oakes speech), the only other reference to World Press Freedom Day in the print media at least was an opinion piece in another News publication, the Gold Coast Bulletin (no link available).

We need dreamers.

www.smh.com.au

I haven't read Geoffrey Robertson's new book "The Statute of Liberty: How Australians Can Take Back Their Rights"( Vintage Australia) but an extract published in the March 2009 Australian Literary Review (no link to the article I'm afraid) consisted of a draft of an act "to declare the rights and freedoms of the people and to make better provision for liberty in Australia."

Robertson (not everyone's cup of tea, I know-see Paul Toohey for his experience of a recent Hypotheticals) who has well-earned standing in this field says

"any statutory enumeration of basic freedoms should list those the advanced world holds to be universal, but the Australian statute should be infused with a spirit that reflects national pride and national progress. The adoption of a statutory charter would provide an opportunity for Australians to incorporate some of their struggles and achievements in the advance of human freedom and to reflect traits that (optimistically perhaps) we regard as self-definitive. A charter works for ordinary people (a condescending phrase used by lawyers to describe persons who are not lawyers) and it is they who must understand it."

The draft includes a long preamble citing achievements and regrets, 25 provisions on rights, one to allow derogation in times of national emergency, and another on the duties of Australians and plonks on the table as the National Consultation gets underway.

Robertson's ambitious list seems miles ahead of the debate we are about to have , and the extract doesn't go to how these rights might be best protected, which seems to be one of the crucial issues. It includes proposed words on freedom from slavery; prohibition on torture; right to life (after birth); freedom from compulsion; right to be set at liberty; rights on arrest; the open justice principle; right to trial by jury; the right to fair trial; no punishment without law; freedom of movement; freedom of thought, conscience and religion; right to own property;right to work; right to wellbeing; right to education; right to democracy; rights of parliamentary representatives; prohibition of discrimination; rights of children; rights of disabled people; right to a pristine and healthy environment, and special rights of indigenous people. Whew!

And the following, still leaving plenty of room for debate about the right to publish (12(iv)) and the right to privacy (13):

"12 Freedom of expression and the right to know

(i) Everyone has the right to freedom of expression, which includes the right to hold and express opinions, and to receive and impart information and ideas without interference by government.

(ii) Journalists shall have a right to protect their sources, subject only to overriding considerations of public interest.

(iii)The above rights shall be accorded especial importance in any civil court proceedings in which they are properly invoked.

iv) This right shall create a presumption in favour of publication, rebuttable only if the restriction sought to be placed on such publication is necessary in the interests of a democratic society to guard against incitement to crime or disorder, or to safeguard national security, or to enable other citizens to stop lies being told about them, or to preserve confidential information or to protect privacy as defined in Article 13.

(v) Citizens have a right to know about the workings of their government. In addition to their rights under the Freedom of information Act, and subject to vi) below, all cabinet papers and other government documents shall be made public within 10 years of their creation.

vi) These rights may be invoked by media corporations on behalf of their journalists and editors, and-or on behalf of their readers, viewers or listeners.

13 Right to privacy

Everyone has the right to have his or her home or stable family life respected and to prevent passing on, or publication of, intimate personal details, or disclosure of personal matters concerning children in their care. Public authorities shall not interfere with the exercise of this right unless such interference serves the public interest and is in accordance with legally prescribed data protection principles or ethics codes promulgated for the media."