How most Australians do human rights without a Human Rights Act
9 July 2012
The constitutional framework is all important. There are three major differences between this and the UK “constitution”. The first is the presence of a written constitution over 100 years old, and amendable only by referendum. The second is a federal system laid down by that constitution. Out of that arrangement comes a separation of powers between judiciary, legislature, and executive, and also between the Commonwealth (i.e, the federation) and each State, taken against the background of general common law principles drawn from the States’ shared colonial history. And the third is the lack of any substantive human rights instrument applicable to Australia as a whole.
But a modern human rights lawyer will scour the Constitution of 1900 for modern-style rights in vain. It contains the right to vote and the right to trial on indictment (whenever an offence is said otherwise to be indictable), and a prohibition on established religion (a sort of reverse Article 9 under the ECHR); and there is a power granted to the state to acquire property from a citizen only on the payment of just compensation. And there is in effect a right not be discriminated against in respect of residence. And that is about it in terms of express rights. Such is amply explained by its time (98 years before the HRA and 50 before the ECHR), and its ultimate political purpose: see the opening paragraphs of the High Court of Australia decision in Roach for a bit more on this topic.
The Australian Courts (in particular the High Court, at the top of the court hierarchy) have drawn out of this constitution and the common law a firm principle of legality. And this brings in its train the principle that a decision must not be “repugnant to the judicial process in a fundamental degree”. Australian common law identifies rights and freedoms in various areas such as
- freedom of speech (tacked on rather uncomfortably onto political freedoms: see Australian Capital Television (1992) 177 CLR 106)
- presumption of innocence (see, e.g Momcilovic)
- fair trial
- freedom from arbitrary search and seizure, and
- procedural fairness.
These principles can be and are overridden by statute, but if statute does so, this must be stated head on by Parliament. But the interpretative exercise which the judges carry out must not be taken too far. French CJ put all this in a recent case, International Finance Trust,
41. The process of statutory construction, including the identification of constructional choices, is informed by text, context and legislative purpose and, when applicable, the conservative principle that, absent clear words, Parliament does not intend to encroach upon fundamental common law principles, including the requirement that courts accord procedural fairness to those who are to be affected by their orders. Further, where there is a constructional choice that would place the statute within the limits of constitutional power and another that would place it outside those limits, the former is to be preferred.
42. There is a caveat which should be entered in relation to these principles. The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen.To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished. Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning.
This passage raises interesting questions about the consequences of over-strenous judicial reading-down, which we have become so used to in both ECHR/HRA and EU contexts, as well as the practical problem of what do you do about a law where you need a law degree to interpret it.  also reminds us of the principle drawn from the well-known Australian case of Teoh, in which it was said that if a decision-maker proposes to make a decision inconsistent with a legitimate expectation derived from human rights principles, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.
As ever, there is a lot to be derived from Australian case law. Veterans of the UK prisoners votes cases will know about Roach v. Electoral Commissioner (law saying that anyone detained could not vote was invalid via disproportionality) and Rowe v. Electoral Commissioner (cut-off in electoral rolls invalid) and how seriously the Australian courts take incursions on the right to vote: see, for instance,  in Rowe
What is of enduring and immediate significance is that, whatever else it involves, “the rule of law” posits legality as an essential presupposition for political liberty and the involvement of electors in the enactment of law. In the 19th century vast changes had been wrought by legislation influenced by the utilitarian movement associated with Jeremy Bentham, and the Constitution was framed in the belief that these “progressive instincts” would animate members of legislative chambers which were chosen by the people. By this means the body politic would embrace the popular will and bind it to the processes of legislative and executive decision making.
My title says that not every Australian is without a human rights instrument. This is because Victoria and the Australian Capital Territory have adopted their own laws on that score. The Victorian Charter of 2006 looks quite like the HRA, but it ducks out of horizontal effect by excluding courts from the definition of “public authority” responsible under the Charter. It also includes a procedure under which Parliament may override the Charter in respect of a specific provision, so that neither the interpretive mechanism nor the declaration of inconsistent interpretation can be used, a sort of court-busting pre-emptive strike of rather more power than the Parliamentary statement of compatibility recently in the UK news when the Deputy Prime Minister was not willing to sign on the dotted line.
It is early days to look at the effect of these express human rights provisions. The Australian Government has recently rejected any suggestion that there should be a federation-wide charter. Australians as a whole are apparently sceptical about such a measure, for whatever reason. But the interesting analysis will come at the end of, say, 10 years of parallel development – will the charter states have gone further than the rest of Australia, or will they be in the same place by a different route? A sort of Randomised Controlled Trial of the effect of constitutional measures.
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