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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The reality is that many left/liberal Australians are sceptical of an HRA-style system, principally on democracy/separation of powers grounds. It may be strange for Brits to hear it, but many left/liberal Australians can simultaneously be appalled by aspects of Australia’s human rights record (e.g. aspects of refugee treatment and indigenous policy) without viewing a judicially-enforced charter as the solution to those aspects of the record. To put it another way: to an extent that would surprise many Brits, Australians can be politically-liberal but nonetheless wary of an HRA-type enactment.
In response to Phil, I’m impressed that his evidence of Australians envying Europeans’ human rights system is an informal survey of lecturers in a social policy department! Perhaps survey methodology was not taught on the MA!
I’m no expert, but as an ex-pat Pom who’s just completed an MA in Social Policy at an Australian Uni, I’d like to make you aware of the following points:
1. The Australian Constitution does not treat everyone equally: it includes the possibility for discrimination based upon race:
Section 51 (the ‘race power’) states:
“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:… (xxvi) the people of any race for whom it is deemed necessary to make special laws”.
2. The constitution fails to explicitly recognise Aboriginal and Torres Strait Islanders, Indigenous peoples who were excluded during its creation, and has consistently failed to protect these First Australians’ human rights (see http://www.humanrights.gov.au/constitution/factsheet/recognition.html; http://www.youmeunity.org.au/be-informed/faqs), most notably via the Northern Territory Intervention and recent Stronger Futures Bills. This is legislation, I would argue, which would be decried as abhorrent apartheid if introduced towards any minority group in a European country (see http://www.hreoc.gov.au/social_justice/sj_report/sjreport07/chap3.html; http://www.amnesty.org.au/news/comments/29107/0).
3. Australia also has a highly questionable record in regards to human rights of asylum seekers and refugees: the Government’s policy of mandatory detention for such people (including children) violates basic human rights and contravenes Australia’s obligations under the UN Refugee Convention, the International Covenant on Civil and Political Rights, and the UN Convention on the Rights of the Child (see http://www.hreoc.gov.au/about/media/media_releases/2011/60_11.html).
4. The majority of lecturers I encountered at my university were envious of UK/European HR legislation and adamant that Australia’s lack of strong, Federal HR legislation was something that needed to be addressed. Many suggested there was a missed opportunity (or deliberate political manoeuvring) in 2010 when an HR Act wasn’t introduced even though it had been recommended after a long public consultation, in which a significant number of Australians polled in favour of HR legislation (see http://www.amnesty.org.au/news/comments/22903/). The view that ‘Australians as a whole are sceptical’ about HR is therefore, I feel, untrue. I would agree, however, that contemporary HR debates are given little attention in the mainstream media.
Aus judicial efforts to read protections into Cth Constitution are a bit of a joke. HCA justices see judges in US and UK playing human rights and civil liberties and say “Ooh, I want to do that too.” But the sad reality is that our constitution is a procedural framework for a very flexible parliamentary democracy, not a free-speech liberty-preserving equality-loving democracy.
Dozens of statutes have been knocked out for technical errors (contrast Kable and Fardon if you don’t believe me) but rarely do we get a High Court case that means what people think it does. For example, the Communist Party case was about freedom of political activity and it was touted as such. But Williams, which was touted as being about secularism, was really about the technical difference between an appropriation and whatever it was they had in their budget: a technicality.
One can imagine Australia gives Human Rights lawyers some pause for thought. The justification we are continually given for the ever increasing human rights industry is that it is necessary to protect vital rights and freedoms, even at the expense of Parliamentary supremacy.
And yet Australia manages to be one of the most stable and civilised nations on earth all by itself, without any human rights convention. Could it therefore be more to do with the culture of the country, rather than the weapons of the lawyers, that is the key to a nation enjoying rights an dfreedoms?
Agreed. Australia’s Parliaments respect human rights because Australian voters respect human rights.
Of course, Australia frequently breaches human rights treaties, in particular around thearbitrary detention of asylum seekers and sex offenders. But that is our democratic choice. We could “cure” these rights violations by enacting a bill of rights, but in substance that would be nothing more than a vocal minority enforcing their own policies on the wider population. The reality (and whether this is a good thing or not is up to you) the people of Australia support arbitrary detention in circumstances that the UN Human Rights Committee doesn’t.
Many thanks for both these points. They support my strong impression that the Australian courts are much more austere about statutory interpretation – Parliament should be credited with meaning what it says, rather than what the judges think it ought to have said.
There is another protection. Chapter 111 of the Australian Constitution ensures that the executive and the parliament cannot trespass on the judicial power. As a result, the High Court has, from time to time, constrained parliamentary overreach.
Two other points you may want to note:
1. In 2008, the federal government commissioned a nationwide inquiry into human rights protection in Australia, which recommended the introduction of a ‘dialogue’ model of rights protection at the federal (national) level that would have, in many respects, followed the UK HRA model: http://www.humanrightsconsultation.gov.au/. The federal government did not adopt the committee’s principal recommendation. (For an overview of some of the reasons, see this article: http://pa.oxfordjournals.org/content/65/2/359.abstract). It did, however, introduce legislation that, similar to the UK, requires the executive to provide statements of compatibility with rights and establishes a parliamentary committee to review bills for rights issues: http://www.comlaw.gov.au/Details/C2011A00186
2. In Momcilovic (http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html), the High Court held that the Victorian Charter’s interpretive provision, which is similar but not identical to s 3 of the UK HRA, is largely reflective of the common law principle of legality. Thus, despite their similarities, the Victorian Charter does not allow Australian courts to undertake the more ‘creative’ types of interpretation seen in the UK (e.g. Ghaidan).
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