Virginia and Victoria

"As the British Constitution is the most subtle organism which has proceeded from progressive history, so the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man."

- William Ewart Gladstone, British statesman, prime minister four times

"Tyranny has always depended on ignorance—and the only way to overcome it is to empower voters by giving them more information. Until then, we will continue to have this phenomenon of candidates who appear to be harmless becoming judicial tyrannists once they're on the bench."

Yesterday, the Victorian Charter of Rights was enabled with the silent fanfare it deserved. It is a gutless, toothless document.

At best, it is a make-work rule that will require a small paragraph to be appended to the template for putting a bill before the Victorian Parliament stating that the bill is in compliance with the Charter of Rights. -- Whether the bill is or not won't matter. Parliament can simply ignore the Charter at any time.

Is Change needed in Victoria to better protect human rights?

Short Answer to Question 1:YES, Victoria needs change to better protect human rights. There is no institutional way now to stop legislation impairing the enjoyment of human rights, nor to require overnment to repair gaps in the law.

In Victoria, our human rights are not protected well enough. Even rights that many Victorians take for granted are not protected and available to all. For example the right to freedom of speech is given only limited protection underthe common law, and can easily be limited by statute.

A Charter of Rights is a law or part of the Constitution which protects certain minimum standards common to all humans, called human rights. Human rights can be summarised by the Australian concept of a “fair go” for everyone. A Charter of Rights would protect rights such as the right to: affordable health care, freedom of religion, freedom of speech, a fair trial etc. A Charter of Rights would also have a corresponding responsibility for the government to protect individual rights.

Over 200 years ago, another state issued a Declaration of Rights for its citizens. As you read through the sections below, you'll see that we are still fighting and literally dying for those rights today.

The Virginia Declaration of Rights

Virginia's Declaration of Rights was drawn upon by Thomas Jefferson for the opening paragraphs of the Declaration of Independence. It was widely copied by the other colonies and became the basis of the Bill of Rights. Written by George Mason, it was adopted by the Virginia Constitutional Convention on June 12, 1776.


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A DECLARATION OF RIGHTS made by the representatives of the good people of Virginia, assembled in full and free convention which rights do pertain to them and their posterity, as the basis and foundation of government .

Section 1. That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Section 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.

Section 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration. And that, when any government shall be found inadequate or contrary to these purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

Section 4. That no man(or woman), or set of men (or women), is entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, nor being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary.

Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

Section 6. That elections of members to serve as representatives of the people, in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assembled for the public good.

Section 7. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.

Section 8. That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.

Section 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Section 10. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.

Section 11. That in controversies respecting property, and in suits between man and man, (or woman and man) the ancient trial by jury is preferable to any other and ought to be held sacred.

Section 12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.

Section 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Section 14. That the people have a right to uniform government; and, therefore, that no government separate from or independent of the government of Virginia ought to be erected or established within the limits thereof.

Section 15. That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.

Section 16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each other.

Thomas Jefferson compiled the Virginia Bill of Rights a few years before he wrote the American Bill of Rights as the first 10 amendments to the US Constitution.

The weakness of the Virginia Declaration of Rights was the same as the cardinal weakness in the Victorian Charter of Rights: It is a state document which is limited to the jurisdiction of the state. However, the Virginian Declaration carried far more weight than the Victorian Charter because it was not hampered by limitations in the law itself.

The courts could enforce the Virginia Declaration; the courts are excluded from enforcing the Charter.
Any person could declare themselved protected by the Declaration; the Victorian Charter is only vaguely for the rich. If an individual finds a law or action of the government in breach of the Victorian Charter, they must sue in the Supreme Court for it to be enforced. -- The minimum cost for for an appearance before the Supreme Court is $100,000.
That alone will limit the number of people who seek to be protected under the law.
It would be nonsense anyway.
Even if a law or action of government were found by the Supreme Court to be in breach of the Charter of Rights, all that can be done is to make a reference to the Victorian Parliament, which is not required to do anything about it.
Parliament can simply ignore the reference.