Advocates of an Australian Charter of Rights concentrate almost exclusively on its humanitarian benefits, ignoring the obvious ways in which the wealthy and powerful will exploit their good intentions. One of the least critical champions of an Australian Charter of Rights is celebrity QC Geoffrey Robertson.
In Statute of Liberty, Robertson outlines a proposal for a charter of rights. The book exemplifies the shallowness of thought which has plagued Robertson in recent years (see, for example, The Case Against the Pope). While his arguments in favour of a charter of rights are eloquent and articulate (if wrong-headed), he dismisses any opposition to his case as ‘charterphobia’. An interesting development in Australian law is about to show precisely why the ‘charterphobia’ was rational.
The Australian Government has outlined its proposal to enforce plain-packaging for cigarettes. Various health groups are in favour of it and it doesn’t seem as if the opposition will oppose it. British American Tobacco Australia, on the other hand, will and will mount a case defending their intellectual property rights.
Let us imagine, for a moment, if Robertson’s charter had been adopted complete with its ‘property’ right. Instead of being a difficult argument to mount — that BATA has an investment in its brands which should be protected by law — Robertson would have given them a free kick. It would have been trivially easy for BATA to argue that the charter of rights protects their property and, as such, the Government’s proposal is unlawful.
When thinking about rights issues, it’s not enough to trumpet what you’ll receive; you also have to wonder what others will take away. We dodged a bullet.