If I were forced to draft a bill of rights, and truth be told I’d have to be forced to do so because these instruments do more harm than good, I would aim to minimize the damage. Mine would be as follows:
No legislature in Australia can pass any law abridging the freedom of speech.
In deciding what does and does not abridge the freedom of speech Australia’s judges must treat all the American case law as especially persuasive.
In any cases in which a law of an Australian legislature is challenged in court, the lawyers involved in that case must donate all their fees to a registered charity of their choice.
That would be it. I am a very big believer in as much free speech as possible. A moment’s glance at the case law coming out of jurisdictions with “modern” bills of rights (ie Canada, New Zealand and Europe) gives no reason to think what you can say in Australia would go up if we adopted the sort of statutory bill of rights on offer or that was put in place in Victoria.
At present, without a bill of rights, there is more scope in Australia to say what you want here than there is in Canada, where they have one of the strongest bills of rights on the planet. Just look at the lines drawn when it comes to campaign finance rules, the defamation regime and hate speech provisions and you’ll see we have more room to speak today than Canadians. They have the bill of rights. We don’t.