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The Quest for Rights

(Edited version of speech introducing the 2011 VEOHRC Human Rights Oration at ZINC, Federation Square, Melbourne)

I am sure you are as interested as I am in Bernard Salt’s answer to the question posed for today’s Oration – “How will demographic change shape our community, and what have rights got to do with it?”

It is a truism that time brings many changes. Over time, not only demography changes, but our perceptions about rights as well.

Yet, just as demographic change comes both with cycles and with underlying long term trends, so too our perceptions about rights.

There have been many ebbs and flows over the centuries about how we characterise the nature and origins of rights, but there has been one constant that has stood the test of time, and that is the fundamental human drive for justice and fairness.

It is a drive that is grounded in empathy and compassion, it is grounded in reason, and it is grounded in the needs of any organised community. Perhaps most fundamentally, it is grounded in the equal and inherent dignity of every member of the human family.

Even just a quick look at human history shows how fervently our ancestors believed in, fought for and indeed died for the very principles that we celebrate today.

One can see the quest for justice and fairness in the 18th century BC Code of Hammurabi – the earliest recorded legal code, which of course is still on display to the world, in the Louvre Museum in Paris – which sets out Hammurabi’s rules as to how members of his society could live and work cooperatively together.

One can see the same quest in the Biblical appeals on behalf of widows and orphans and in Plato’s account of the injustice of the trial of Socrates.

One can see it in the Magna Carta, when King John’s barons together successfully established limits on the monarch’s powers, not only for their own benefit, but also for the benefit of the King’s subjects generally.

One can see it in the development of courts of equity in England, which strove to deliver fairness as well as justice.

One can see it in the Bill of Rights in 1689, which entrenched the principle that the monarch cannot abrogate the law.

One can see it in the calls of William Wilberforce and others to bring an end to slavery in the early 19th century.

And in the 20th century, one can see the quest for justice and fairness in the Nuremberg trials, where the world insisted on accountability for the perpetrators of horrific injustice – an insistence that continues at the International Criminal Court today.

Going back two centuries, when Sir William Blackstone in 1753 presented the first known lectures on English law ever delivered at an English university, he grounded the foundations of common law in natural law, in principles said to derive from the inherent nature of human beings.

However, the natural law groundings of Blackstone subsequently came under question from the legal positivism and utilitarianism of Jeremy Bentham and others in the 19th century.

As a result, the philosophical grounding of rights in common law became far less clear, and has been the subject of protracted debate and changing views over the intervening years.

Despite this, a strong sense of justice and fairness has remained a constant feature of the Westminster common law legal system. In Australia, it has been reinforced by the Aussie sense of a “fair go”, which has been the vital underpinning of our successful open, welcoming and multicultural society.

In the Westminster common law tradition, the sense of justice and fairness has been manifested in at least three different aspects of the law:
• in how our courts have applied the common law,
• in the terms of the legislation passed by our Parliaments, reflecting in turn the general repugnance of the community for unfair laws, and
• in the way the legislation passed by Parliaments has been interpreted in the courts.

In combination, these factors have operated over many years to strengthen and reinforce justice and fairness, notwithstanding changing fashions about the philosophical underpinnings of law and of rights.

Among the vital common law principles that we can tend to take for granted are the principles of natural justice – that decision-makers should be free from bias, and should obey the maxim to audi alteram partem; in other words, to listen to the other side of the argument before reaching a final decision.

Other long established principles include the presumption of innocence, the right to a fair trial, the right not to be falsely imprisoned and the right to compensation for the alienation of property.

Common law and statute have also combined to secure the rule of law – that every member of the community is subject to the law and can brought to account for breaches of the law and, most importantly, that rulers as well as the ruled are subject to the law.

We who are fortunate to live in Victoria today are the beneficiaries of the centuries of efforts of those who have fought to establish and protect the principles that make Victoria the open, free and democratic society that it is.

However, we don’t live in a state of perfection of the law, or perfection of human behaviour. We therefore still face the continuing challenge of identifying those areas in need of improvement in the law and in our institutions, and improvement in the way rights are observed and upheld in practice.

In recent years, there has been a resurgence in Australia and Victoria of public discussion and debate about rights. For the reasons I have outlined, there is not much contention about the desirability of rights in abstract. It’s very rare to find any lawyer, legislator or citizen who would intentionally to set out to attack the existence of rights. It is never as simple as a contest between “rights” and “anti-rights”.

Rather, as lawyers, legislators or citizens, the challenges that we deal with regarding questions of rights involve policy debates and judgements about how to characterise rights and responsibilities and about the appropriate relationships between various rights and responsibilities.

As well as an innate sense of justice and fairness, there has also been a second invaluable constant of the Westminster common law tradition, namely a very practical, results oriented attitude. Does a law or institution actually work? What difference does it make in practice? Theory and philosophy are important, but the empiricist approach that characterises the common law and most Westminster Parliaments seeks to test theory and philosophy against practical consequences and to judge laws and institutions by what they actually achieve.

Today’s Oration is squarely in that tradition. The topic it addresses is not simply about rights in abstract, but about the reality of life in Melbourne and Victoria today, and about how demography might shape lives in future.

I expect it will give us cause for thought not only about rights, but about other key challenges for economic and social policy that we face.

I thank you for the opportunity to set the scene for today’s Oration and, like you, I look forward to hearing what our guest of honour is about to tell us.