Why we need an Australian Bill of Rights
A joint forum to consider human rights in Australia and to launch the New Matilda campaign for a Human Rights Act
The Hon John von Doussa QC, President of the Australian Human Rights and Equal Opportunities Commission
I am very grateful to the organisers of this evening’s Forum for the
invitation to be a speaker, for two reasons.
The first is that HREOC has been suggesting for a considerable time that
there needs to be renewed public debate on whether Australia should have a
charter of human rights of some sort. It seems that the launch of the New
Matilda campaign will give momentum to such a debate. A lot has changed,
both nationally and internationally since the unsuccessful attempts of the
1970s and the 1980s to interest Australians in a bill of rights. As is so
often said, Australia has now become the only major Western democracy that
does not have a bill of rights.
Secondly, and I think this was why I was invited, there seems to be a
perception held at least by some of those promoting the New Matilda campaign
in Adelaide, that I do not support a bill of rights in Australia. My
invitation suggested that my participation would put a different viewpoint.
The perception is not correct. I think it stems from remarks made by me in
casual conversation to the effect that I thought there were difficulties
with some notions of what could be achieved by a bill of rights.
To ask, as I was asked, “Are you in favour of a bill of rights?" is like
asking how long is a piece of string. It is a meaningless question incapable
of a sensible short answer. You must know the content and meaning which the
questioner gives to the expression "Bill of Rights".
The possible combination of features of a bill of rights is endless from a
very light touch model to something that looks like a codification of all
international human rights law.
Let me outline some of the central possibilities.
First, what will be the status to be given to a bill of rights? Is it to be
constitutional entrenched or is it to be a legislative instrument? In the
latter case its terms can be amended at later times by Parliament. Our
Racial Discrimination Act 1976 (Cth) is an Act of this type which was
amended in relation to the Native Title Act and again to allow construction
of the Hindmarsh Island bridge.
Then, what fundamental rights will the bill recognise?
As you know, the two most important international human rights conventions
divide fundamental rights into two classes - civil and political rights; and
economic, social and cultural rights. I think there are both historical and
political reasons for this division which I will explain later.
Civil and political rights include the fundamental rights to life, liberty
and security, to the rights not to be arbitrarily arrested or detained, to
be treated with humanity, to freedom of movement, to a fair trial, to the
protection of property, to protection against retrospective application of
criminal law and to participate in the government of the country.
Economic, social and cultural rights on the other hand deal with such
matters as the right to housing, clothing, food, education, and to social
security.
Most of the bills or charters of rights in other countries concentrate on
civil and political rights but there is some precedent for the inclusion of
some of the recognised economics social and cultural rights.
The Australian Capital Territory, the New Zealand and the United Kingdom
Acts only offer protection for civil and political rights.
Whatever the rights to be protected, it is essential that they be precisely
defined in the Bill to avoid uncertainty and to avoid the criticism that
through a process of interpretation courts and judges will become the
ultimate law makers – as has happened in the USA.
Once the rights are settled, other difficult questions arise: to whom will
the bill apply and what will be the available remedies?
The light touch approach of the ACT Bill of Rights Act 2004 is an example.
So far this is the only bill in Australia, although Victoria is
contemplating something similar. The Act applies only to legislation, and it
limits remedies to an application to the Supreme Court for a declaration
that a particular piece of legislation is incompatible with rights
enumerated in the Human Rights Act.
In considering an application the court must endeavour to read down the
language of the challenged legislation so as to be compatible with the Human
Rights Act, but if that is not possible then a declaration of
incompatibility may be made.
The declaration does not affect the validity of the legislation or the
rights of anyone. Rather the declaration is transmitted to the
Attorney-General who must present a copy of the declaration to the
Legislative Assembly, and within six months give the Legislative Assembly a
written response. It's up to the Legislative Assembly to decide what, if
anything, it will do.
This light touch approach is not to say that the Human Rights Act is useless
- far from it. The prospect of a judge ruling on incompatibility makes the
legislature give serious consideration to bills. Proper consideration is
also promoted by the Attorney-General being required to present to the
Legislative Assembly with each new bill a compatibility statement. The
statement must set out whether the bill is compatible with the Human Rights
Act, and if not how it is incompatible. The direction to the court to
construe Acts so as to give effect so far as possible to the protected
rights is also a powerful tool.
But this form of human rights Act gives no rights to individuals to
challenge decisions of the executive that contravene a protected human
right. The United Kingdom Human Rights Act 1998 gives a right to an
individual to challenge a discretionary decision of a public authority that
is incompatible with a protected right. Any court or tribunal can set aside
the decision, and courts may award damages if the public authority has
contravened the Human Rights Act.
There is a further possibility again. A declaration of incompatibility and a
remedy against a public authority are described as vertical remedies. It
would be possible to enact a horizontal remedy as well, that is a remedy
open to one individual against another individual who has acted contrary to
a protected human right enjoyed by the plaintiff. To go this far would be to
add a new layer of rights and responsibilities across the general laws of
the country that regulate the rights of individuals among themselves.
Perhaps this goes much too far, but it is one of the possibilities.
So until all these variables are put in place it is pointless to ask or
debate the general question: is a Bill of Rights to be supported?
New Matilda has recognised this, and launches its campaign with a draft
bill. This is an excellent approach. It provides the means of understanding
what is being promoted.
With any law reform proposal, especially one like the present where there
are divided and sometimes strongly held views, there are always two broad
considerations. First, what is the ideal, and secondly what realistically
can be achieved recognising that the reform has to get the support of an
elected government and parliament. Sometimes it is necessary to hive-off
part of the ideal, and settle for something less on the basis that the
something is better than nothing.
That happened in the ACT. The Report of the ACT Bill of Rights Consultative
Committee published in May 2003 recommended remedies enforceable against
public authorities, but that part of the recommendation did not find its way
into the Act. Nevertheless their Act seems to be having a significant
impact. The Chief Minister, Jon Stanhope's insistence that of the
Territory’s counter-terrorism legislation, that compliments the Commonwealth
laws for preventive detention orders, must be compliant with the Human
Rights Act is an example.
May I now say something about why I think the time and opportunity has come
to consider the question of a Bill of Rights?
Our legal system has its history in the English common law. The common law's
protection of fundamental rights can be traced back to the Magna Carta. In
Blackstone’s "Commentaries on the Laws of England" published in 1735 the
author states that the right to personal security, the right to personal
liberty, and the right to private property are the absolute rights of all
mankind. Statements like the following which stress the importance of the
common law rights abound in Blackstone:
"To bereave a man of life, or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act of
despotism, as must at once convey the alarm of tyranny throughout the whole
kingdom: but confinement of the person by secretly hurrying him to goal,
where his sufferings are unknown and or forgotten, is a less public, less
striking, and therefore a more dangerous engine of arbitrary government".
The recognition and respect of common law principles in England carried
through to the parliamentary process. It was assumed than a government
comprised of members of the public would act in the interest of the nation
as a whole. Any minister who failed in his duty to the uphold public
interest, for whatever reason, would resign, ensuring that no one remained
in government if they were irresponsible or personally deficient. To depart
from the fundamental protections of the common law was treated as not in the
interest of the nation.
The common law developed a great number of the fundamental rights which now
find expression in International Covenant of Civil and Political Rights.
When the United Nations agreed the Universal Declaration of Human Rights in
1948, and then through the Human Rights Commission, developed the
International Covenant on Civil and Political Rights, those historical
rights were regarded as a source from which the whole philosophy of human
rights developed. The civil and political rights are regarded as “first
generation rights". They have the feature that they are negative rights in
the sense that the state is required to refrain from certain actions against
individuals so that the individual can enjoy a freedom to be left alone to
pursue, within acceptable limits, happiness and prosperity.
Economic, social and cultural rights on the other hand are often described
as "positive" or "distributive" rights, since they require an activist
response by the state to ensure the provision of the money and services
necessary for the realisation and enjoyment of the rights. These rights are
often defined as "second generation" rights. It will be apparent from the
nature of these rights that their enjoyment is dependent upon the policies
and philosophy of the government of the day. In this sense there is a
political element in their enjoyment.
As the influence of Parliament in the day-to-day regulation of public life
grew, statutes began to confine the enjoyment of common law rights. Over
time, this led to common law principles that historically had been "rights"
in the sense that they were enforceable through the courts, to become not
rights but presumptions to be applied in the interpretation of statutes.
The principle was stated in these terms by a Justice of the High Court of
Australia in 1925 (Ex parte Walsh and Johnson; In re Yates, per Isaacs J, 37
CLR 36 at 93)
"…even where Parliament confessedly possesses plenary power within its own
territory, the full literal interpretation will not ordinarily be ascribed
to general words where that would conflict with recognised principles that
parliament would be prima facie expected to respect".
In short, Acts of Parliament were read down so far as possible to be
consistent with recognised human rights principles, on the basis that
Parliament would not have intended to depart from them.
In the early stages of this process the presumptions had great influence.
However in more recent times courts have come to emphasise another
principle, that if parliament has directed its attention to the question of
abrogation or curtailment of a basic human right, and has used clear
language to do so, that language will be given effect.
The diminishing influence of the common law on the construction of
legislation has gone hand-in-hand with a diminution in the Westminster
notion of ministerial responsibility. As Sir Anthony Mason noted recently in
a speech to the Law and Justice Foundation of NSW (6th October 2005):
"Now the convention seems to be largely of historical interest. Ministers
rely on the mistakes of subordinates as their response to criticism and as a
reason why they should not be expected to resign. Failure to give relevant,
perhaps embarrassing, information to the minister is not an occasion for the
minister's resignation. Nor, it seems is it inevitably an occasion for
disciplining the public servant. The modern practice is scarcely a recipe
book for good government".
Furthermore, it now seems to be a well accepted part of the political
process that members of Parliament are required to observe party discipline
and loyalty. This has the effect that those members of parliament who would
otherwise be disposed to vent their concerns about an infringement of
fundamental common law rights are denied the opportunity of injecting their
views into parliamentary debate.
The sum total of these influences is that common law rights are no longer a
strong protection in our law legal system.
When I went through the Law School, more than forty years ago, human rights
law was not a subject on the curriculum. Lectures we received about the
English common law system and the unwritten British constitution, led us to
believe that the protection of fundamental rights and freedoms would always
be the cornerstone of our legal system, and that there was no need to reduce
those rights to a statutory form.
This view was eloquently given by Sir Robert Menzies in a speech to an
American audience in 1967. He said;
“[R]esponsible government in a democracy is regarded by us as the
ultimate guarantee of justice and individual rights. Except for our
inheritance of British institutions and the principles of the Common Law, we
have not felt the need for formality and definition.
I would say, without hesitation, that the rights of individuals in Australia
are as adequately protected as they are in any other country in the world.”
Plainly this view was held by a many judges who receive their legal
grounding at about the same time, or before. In a more recent years when the
possibility of a human rights bill of some sort arose, the attitude of most
judges was unsympathetic, on the ground that it was unnecessary, and that to
have a bill of rights would transfer power from the elected government to
unelected judges. It was views like these that caused a suggestion made
during the Constitutional Conventions in the 1890s to include a “due
process” clause in the Australian Constitution to fail.
It is remarkable how things have changed in recent years. We now have a
number of leading former judges expressing the view that the time has come
for some form of a legislative protection for human rights. I suspect
similar views are held by many serving judges but it is not appropriate that
they canvass them publicly.
For these judges I think the tide turned because they have been closely
involved in unsuccessful attempts to protect human rights in the courts.
Their experience in relation to migration cases in particular must have been
one of disillusionment.
In the 1980s, the law allowed the merits of claims by asylum-seekers to be
thoroughly investigated, and if at first their claim was not successful,
review could be sought under the Administrative Decisions (Judicial Review)
Act. The grounds for review included the full range of natural justice
principles.
However, things have changed. I well remember an occasion in 1992 when one
of my colleagues was about to hear an application by asylum-seekers who had
arrived in Darwin by boat. At that time, judges of the Federal Court were
granting bail to asylum-seekers who arrived unlawfully whilst their claims
were processed. On the night before the case was to be heard, the mandatory
detention provisions were rushed through Parliament. The protection against
detention without trial was removed in one strike.
Many other amendments followed to limit the power of the court to do justice
according to common law principles. Resort to the Administrative Decisions
(Judicial Review) Act was removed. The Federal Court was given only
restricted jurisdiction to review decisions, and available grounds
specifically excluded that a breach of the rules of natural justice had
occurred in the making of the decision, or that the decision was one that
was so unreasonable that no person acting reasonably could have come to it.
As judges placed narrow interpretations on some of these amendments, and to
the best of their ability continued to apply accepted principles, further
limitations on their powers were imposed, until finally in 2001 section 474
was inserted into the Migration Act, the so called privative clause. This
purported to remove all jurisdiction to review decisions unfavourable to
asylum-seekers. Whilst that section was ultimately read down by the High
Court, the approach of Parliament and of the executive to the rights of the
asylum-seekers demonstrates the failings of traditional protections.
Then came a string of cases concerning unfortunate failed asylum-seekers who
could not be returned to their countries of origin, either because they were
stateless, or their countries would not permit their return. The question
was whether Parliament, by the language used in the Migration Act, intended
that these people could be held in mandatory detention indefinitely. Some of
these people had been in detention for any many years.
Ultimately, in Al Katab in 2004 the High Court by a 4 to 3 majority held
that the legislation did authorise indefinite detention, even though the
detention was recognised as arbitrary, contrary to article 9 of the ICCPR.
In the course of his reasons in that case, Justice McHugh observed that:
"the justice and wisdom of the course taken by the parliament is not
examinable in this or any other domestic court. It is not for courts,
exercising federal jurisdiction, to determine whether the course taken by
Parliament is unjust or contrary to basic human rights."
At the same time, the High Court held Parliament had sufficiently expressed
its intention that children could be detained, not withstanding that their
detention ran foul of human rights principles.
It is a matter of record that many human rights advocates were at the time
complaining vigorously about the injustices of the migration system, a view
endorsed by the HREOC report, “ A Last Resort”, on children in detention.
However it was not until the revelations of the Palmer inquiry following the
detention of Cornelia Rau that public sentiment swung strongly behind the
criticisms.
Although there was strong public support for the actions of the government
at the time of the Tampa incident, and for the announcement of the first
counter-terrorism legislation in 2002, I sense that public sentiment is at
last changing. I have already referred to changed attitudes about migration
detention. I think that the debate that has occurred over the lack of
judicial oversight in propose counter-terrorism measures provides further
evidence of change.
Had there been a human rights charter of some sort, I doubt whether the
occasion for the recent debate over the counter-terrorism legislation would
have arisen. It is likely that human rights principles relating to a fair
trial and judicial oversight would have been incorporated at the outset, and
even if that had not occurred, a human rights remedy would in itself have
provided protection.
It is interesting to observe that there is no close analogy to be drawn
between the counter-terrorism legislation in the United Kingdom, and that
proposed by the Australian counter-terrorism bills of 2005. Whilst a form of
preventive detention is possible under the UK legislation, because of their
Human Rights Act, people in the United Kingdom are not without remedies.
This was demonstrated by the decision of the House of Lords in A v Secretary
of State in December 2004 which held to be incompatible with human rights
principles a law which permitted the detention of unlawful non-citizens who
were suspected of terrorist leanings, but who were not charged with any
offence.
So now is the right time for the debate which New Matilda seeks to enliven.
My I conclude with two further comments.
First, what happened with the Migration laws is being mirrored across the
executive branch of government. More and more discretionary power is given
to the executive, and less and less detail of conditions governing the
rights and duties of individuals is stated in legally enforceable statutory
provisions. It is all very well for government to say we are all protected
by the rule of law and the respect that Australia accords to that core
principle. However, if the regulation of our lives is not stated expressly
in the law, but is a matter of discretion, what protection does the rule of
non-existent law give? To give real substance to the principle, enforceable
and certain rights need to be express - and this could be achieved in a
charter of rights.
Secondly, one important purpose of a human rights charter will be to protect
the rights of people in minority groups. One minority group in Australia
that is particularly in need of enforceable fundamental rights is the
Indigenous community. Aboriginal people have advocated for a treaty, but
their advocacy has fallen on a deaf ears. I perceive that there are strong
self-interest groups in our community who treat the notion a treaty as
giving one section of our community something which they would not have. For
that reason they oppose it. Without debating the merits of that proposition,
if there were a universal charter to protect the rights of everyone, the
basic rights recognised in it would go a long way to giving protection to
one community which plainly needs it.
I commend New Matilda and the co-hosts of this Forum for advancing the
debate on a very important topic.
Thank you.