Book Review: The Statute of Liberty

Submissions for the consultation being conducted by a Committee headed by Father Frank Brennan SJ closed on 15 June 2009. Expatriate lawyer, human rights activist over four decades and general celebrity, Geoffrey Robertson QC, has let loose on Australian readers a brilliant “little book” carrying as a title, the outrageously punned The Statute of Liberty.  

In an early chapter, Mr. Robertson attempts to chronicle the development of human rights thinking through history. As AC Grayling and Lynn Hunt, both reviewed in these pages, have shown, a complete chronicling of the struggles for human rights can never be achieved for there has been no end to the struggles. Mr. Robertson’s comparatively shorter attempt starts with the Magna Carta in 1215. The Petition of Right, drafted by Edward Coke, a judge sacked by Charles I for daring to think that he could make independent decisions, ranks an honourable mention.

This starts a curious interplay between Parliament and the Courts in which one and then the other takes the lead in protecting rights. The Parliament of 1640, after a long absence at the behest of the same Charles I, established the principle of an independent judiciary by passing a law that judges did not serve at the pleasure of the king but could not be dismissed except for proven misbehaviour. A year later, the same Parliament abolished the Star Chamber so that torture, henceforth, was abhorrent to English law.2 In 1670, in contrast, it was appeal courts, through a grant of habeas corpus, defending the right of a jury to acquit, despite the strictures of the trial judge who locked them up without food, water or even toilet facilities of any kind. Later, it was an activist judge, Richard Pratt, who established that “an Englishman’s home is his castle” against government ministers, acting at the behest of an outraged King George III, who issued “general warrants” that the home and printery of a critic of the Mad King, John Wilkes, be raided and that the police seize everything on which they could lay their hands.

Mr. Robertson’s survey of history goes on through more British history; the French and American declarations of rights and the horrific events in Europe during the Second World War that led, eventually, with distinguished involvement of Australian politicians and diplomats, to the Universal Declaration of just over 60 years ago. In the few events I have quoted, however, one may see that democracy and the rights that are associated with a functioning democracy do not involve a simple duality of virtuous politicians and bad, power hungry judges. Rather, it was Parliament that saw the virtue of an independent judiciary. That judiciary has, along with many other actors, played a role in rights protection since that time.

Mr. Robertson does not ignore Australian history. He looks at failures of Australian legal processes to make a clear statement for universal rights protection, starting with the pro-male and anti-Catholic nature of the Act of Settlement of 1701 which underpins the rules by which members of the British/Australian royal family may proceed to the Crown. The deficiencies extend further, however, to a failure to entrench the right to vote; the absence of any effective right to trial by jury; the race power which remains a power to discriminate on the grounds of race;3 and the absence, in the wake of the Al-Kateb decision,4 of any protection against indefinite detention without cause.

Perhaps, one of the most important contributions by The Statute to the current debate is its emphasis on positive aspects of Australian history and the desire (and suggested means) of honouring these high points in a preamble to a human rights act. Mr. Robertson commences by describing the forgotten (unknown, at least to this reviewer) historical fact that Governor Arthur Phillip not only protected the convicts in his first fleet by ensuring their correct provisioning with food and water but also declared, as the first law of the new settlement, that there would be no slavery in a free land and that there would be no slaves.

The preamble seeks, inter alia, to acknowledge dispossession of the first owners of the continent and record last year’s apology; acknowledge the common law legacies of the Magna Carta, trial by jury (which saved the lives of many of the convict settlers so they could be transported) and the abhorrence of torture; the sacrifice of Australian soldiers to preserve basic rights for Australians and others; Australia’s fine history in preserving labour rights; and Australia’s contribution to the Universal Declaration and the protection of rights through international law. It is a pity that more debate has not occurred on the shape of an Australian human rights act but Mr. Robertson has, with his preamble, and the body of his suggested act, made a significant contribution.    

Much of the second half of The Statute is devoted to discussing experiences with Rights Charters in other countries and, in more recent years, in the ACT and Victoria. In doing this, Mr. Robertson demolishes many of the half truths; misstatements; and urban myths that get recounted ad nauseum by opponents of a human rights act. This reviewer has dealt at some length with Mr. Robertson’s rebuttal of many of the claims by opponents in another forum. I do not propose to recount them here.

I do wish to conclude, however, by reminding my readers of the authority based on experience with which Mr. Robertson offers his views. Certainly, the present reviewer, along, I suspect, with many of the opponents of the concept of an Australian human rights act, comes to the debate with a very different experience profile:

“I have spent my professional life making arguments based on bills of rights. Some have saved the lives of prisoners on death row, others have achieved release for dissidents wrongly detained by arrogant governments, or beaten up by over-powerful police. Many of my clients have been journalists, and arguments based on free-speech guarantees have won them in Europe the right to protect their sources, to lift suppression orders and to publish responsible stories on matters of public importance without being successfully sued for defamation. I have invoked human rights on behalf of the Indian farmer in Fiji denied a right to democracy; on behalf of refugees in Hong Kong denied the right to join their families; on behalf of Catholics wrongfully detained in Singapore; and for victims of Zimbabwe’s Robert Mugabe, Malawi’s Hastings Banda and Chile’s general Pinochet. I have used them of behalf of decent, law abiding people who have been treated unfairly by government officials … in none of these cases have unelected judges seized power from elected representatives — the Fiji case restored democracy (all too briefly), and the others came to court because elected representatives declined to act, or were content that these issues been decided by judges equipped by training and learning to make better decisions than parliament.”      

It is the reasoned arguments and the judicious presentation of data that, primarily, makes The Statute of Liberty such a valuable contribution to the debate whether Australia should have a human rights act. The curriculum vitae of the author, however, adds a significant degree of “street cred” to the mix, as well.

Price wise,5 The Statute of Liberty is a steal. I suspect that the time you spend reading the modest 223 pages will be an even better investment than the purchase price.

Stephen Keim SC

Footnotes

1. Vintage is an imprint of the UK publisher, the Random House Group which is, in turn, owned by the media company, Bertelsmann AG. Geoffrey Robertson’s author page at Vintage is here. For details of the publisher, go to this site.
2. A principle, along with open justice, restated recently in the Binyam Mohamed litigation. See Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 and [2009] EWHC 152.
3. See Kartinyeri v The Commonwealth [1998] HCA 22; 195 CLR 337.
4. Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562.
5. The recommended retail price is $19.95, miniscule in this day and age.