Ted Lapkin, the IPA and Human Rights

Ted Lapkin of the IPA has written a scathing criticism of the Victorian Charter of Human Rights, just as the consultation period after the first 4 years of operation draws to a close. As someone who identifies as a libertarian in many respects, I must voice my dismay at the essentialist arguments posed by Lapkin in opposition to human rights protections. The Charter is an instrument which allows courts to declare a law incompatible with human rights. It does not allow judges to ‘make law’ or usurp the sovereignty of Parliament, as Lapkin suggests in his article. (You can also read the IPA submission into the Charter’s review here.)

The IPA states on their website that they “[support] the free market of ideas, the free flow of capital, a limited and efficient government, evidence-based public policy, the rule of law, and representative democracy.” It is disappointing to see a think-tank that self-identifies as being pro-economic and political freedom advocate against an instrument which allows for a check and balance to be placed upon the exercise of legislative power. This surely should fit within the realm of political and economic freedom. Do we really have a pro-free-market think-tank advocating for the government to be able to wield unchecked power? How confused the IPA must be. Perhaps I can see, from a purely libertarian stand point, how another layer of bureaucratic oversight is negative in the quest to keep the government small, however this is an integral part of ensuring the wide powers of government are not used to crush individuals.

Lapkin argues that the intervention of “unelected judges into the business of our elected legislature entirely distorts the political dynamic”. If Lapkin, and many others who use this line of argument against the Charter, knew the structure of our Constitution and the function the judicial power within the context of the separation of powers, he would see that such interventions are precisely called for by our system of governance. This is part of the doctrine of responsible government, designed specifically to prevent the over-reach of the legislative and executive arms of government. He would also know that there is little if any protection for the individual against the might of the state written into this document. Mr Lapkin, are you really suggesting that every law the Parliament enacts reflects the will of the people?

Lapkin also refers to the way the Charter allows judges to look to decisions by courts outside the jurisdiction of Australia. Here I refer Mr Lapkin to the well-established principles of legislative interpretation, which Australia inherited from Britain along with our common law. When interpreting legislation, judges may, and routinely do, look to decisions made by courts outside of Australia, with particular consideration given to courts near the top of their own hierarchies. This is a standard practice in our judicial systems, and does not undermine the sovereignty of Australia – judges can work only with laws made by Parliament.

I am not a member of the so-called “left-leaning human rights industry” which Mr Lapkin refers to. Political debate in Australia needs to mature beyond this right-left divide and towards an analysis of policies and practices on their outcomes. The outcome of the Human Rights Charter is to limit the exercise of legislative and executive power, and protect individuals in the very unequal relationship between the individual and the State. I would have thought this fitted precisely within the IPA’s vision for the role of the State and the role of the individual in a well-functioning system. Instead, the IPA has reverted to classic right-wing popular sound bites about “unelected judges” and the having “legal fads and fashions” “foist” upon us. One of the cornerstones of legal systems the world over is that they move very slowly, often lagging decades behind the consensus on many issues within society. Mr Lapkin, if only our legal system could be so nimble as to keep pace with society so easily.

Most concerning though, is Lapkin’s assertion that human rights are not a universal concept. Before Magna Carta, there are a number of historical documents, including the Cyrus Cylinder, which declare human rights as early as the 6th Century BCE. Human rights are not merely a “Western concept” that we thrust upon others, or an invention of “the left” in the recent past. Let us ask the brave protesters in Tahrir Square, or those fleeing the Syrian regime what they think of human rights.

Human rights at times pose situations that call for difficult balancing of competing rights; the case Mr Lapkin cites of a convicted sex offender using the Charter to avoid the Extended Supervision Orders is one such example. This does not mean that human rights are a broken concept, it means that the operation of both the Charter and the Extended Supervision Orders need to be reviewed. The Charter was the first working human rights instrument in Victoria; let us work to strengthen it and ensure it is operating as we intend it to, rather than throw the baby out with the bath water and allow government to exercise power without regard for individual rights.


One response to “Ted Lapkin, the IPA and Human Rights

  • Ted Lapkin

    Dear Quietly,
    You ask whether every law enacted by Parliament represents the will of the people. I think it’s fair to say that an elected legislature better represents the majority view of the body politic better than any other institution I can imagine.

    So in the final equation I suppose the answer to your question revolves around the “people” to whom you are referring. But the bottom line I have much more confidence in the democratic fidelity of those whose career prospects are dependent upon the will of the Australian pople as opposed to a cadre of unelected jurists beholden only to themselves.
    I’m reminded of Winston Churchill’s famous quip about democracy being the worst system of government on earth except for every other variant ever tried. It may not be perfect, but it’s a damned sight better than anything else that comes to mind.

    Citing English common law precedent is one thing. After all, it is the foundation stone and fount of Australian jurisprudence. But invoking judicial rulings from, for example, continental European civil code legal systems that are alien to the English common law tradition is something else entirely.

    Of course, Australia and Britain began to go their separate ways with the passage of the 1931 Statute of Westminister. And with the enactment of the Australia Act in 1986, that parting of the ways became complete. So the sorts of English common law precedents to which I refer predate both pieces of legislation.

    I find the Charter’s open invitation for the cherry picking of non-English common law judicial precedents entirely unpersuasive (pun intended) and an affront to the bedrock democratic principle of government of and by the people.

    As I once joked to Senator George Brandis, the only way I’d support a bill of rights would be if we could figure out a way to resurrect James Madison to write it. And of course it would have to include a Second Amendment as well. Or to be more precise, the second clause of the Second Amendment. All those blatherings about a well regulated militia have muddied the waters of the essential right to bear arms for far too long.

    I hope this adequately answers your question.

    Ted Lapkin

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