THE CONSTITUTION, GOOD GOVERNMENT AND HUMAN RIGHTS

THE CONSTITUTION, GOOD GOVERNMENT AND HUMAN RIGHTS

HUMAN RIGHTS LAW RESOURCE CENTRE MELBOURNE 12 March 2008

The Hon Sir Gerard Brennan AC KBE

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Our Constitution, the powers of Government and the human rights recognized by the law identify the basic politico/legal structures affecting the wellbeing of our people. We need to consider these structures from time to time to ensure that they facilitate the realization of our social aspirations. What are these social aspirations? At base, personal freedom – freedom of conscience including freedom of religious belief and practice, physical freedom, freedom to use and dispose of property, freedom to choose a partner and found a family, freedom of association, freedom of speech, freedom from the exercise of arbitrary power. Then, so far as the resources of the community allow, each person should have reasonable access to education and an opportunity for employment, together with access to the social services required to maintain health and personal dignity and to allow for personal development. The marshalling of those resources and their application is a function of good government – a government of laws and not of men.

In a democracy, laws find acceptance when the power to make them is subject as far as practicable to popular control and when the enforcement of the law is left to competent, fair and impartial tribunals. So we should assess our constitutional laws, the way in which those laws and governmental practices operate and the extent to which each individual’s human rights and fundamental freedoms are respected.

In recent times there has been a welcome interest in human rights and their legal recognition. But it would be a mistake to think that our well-being and the protection of individual interests depend entirely, or

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even chiefly, on the enactment of a Bill of Rights. Human rights and fundamental freedoms find their chief protection in the twin pillars of the constitutional legal system – the rule of law and the jurisdiction of the courts to enforce the law. The underlying principle of our constitutional law – the principle which gives essential protection to individual freedom and dignity – is the principle of the rule of law. That is because, as John Locke pithily observed, “Where-ever law ends, tyranny begins.”1 The rule of law is not to be found in a statutory text; it is simply the axiomatic basis of the politico/legal system. In the Communist Party Case2, Dixon J observed that among the traditional conceptions in accordance with which our Constitution is framed “it may fairly be said that the rule of law forms an assumption.” What does the rule of law mean? A.V. Dicey3 gave this as the primary meaning – “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power... It means . . . equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.”

As the law is applied equally to all – the government and the governed, the powerful and the weak, the rich and poor alike – it has been held that the criminal law allows no exemption to those who breach the law under the purported authority of the executive government4.

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John Locke, Second Treatise of Government (1690), Chap XVII, s.202 (Cambridge University Press, 1988), quoted by Lord Bingham. Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, 193. Introduction to the study of the law of the Constitution (10th ed, 1959) at 202-203. A v Hayden (1984) 156 CLR 532; Ridgeway v The Queen (1995) 184 CLR 19.

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The “regular law . . . . administered by the ordinary law courts” is that “everybody is free to do anything, subject only to the provisions of the Law”5. That was the approach of the Declaration of the Rights of Man, Article 4 of which read: “Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.”

Individual freedom is protected by the common law – personal physical freedom is protected by the law of assault, battery and false imprisonment; reputation by the law of libel and slander; a variety of interests by the torts of negligence and trespass; possessions by detinue and conversion; the quiet enjoyment of where we live is protected by the torts of trespass and nuisance6.

The common law also gives a measure of freedom to the artisan and trader and strengthens the economy by invalidating unreasonable restraints of trade.

The common law of real property secures title

(including native title) to interests in land, and the principles of equity go far to ensuring that the courts are able to enforce obligations the neglect of which would be unconscionable. The common law as it has developed is calculated to protect human rights and fundamental freedoms and it has done so with tolerable success without a Bill of Rights. Of course the established common law principles have been modified or built on by statute but the significant point for present purposes is the importance of 5

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Attorney-General v Guardian Newspapers [No 2] [1990] 1 AC 109, 283, cited by the High Court in Lange v Australian Broadcasting Commission (1997) 189 CLR 520, 564. Thus, in Entick v Carrigan,(1765) 19 St Tr 1029, 1066, Lord Campbell LCJ declared that – “By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing . . . If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him.”; and see Plenty v Dillon (1991) 171 CLR 635.

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the ordinary, but general, jurisdiction of the courts to administer and enforce the general law.

The law which rules is the law which is interpreted and applied by the courts. In the familiar words of Chief Justice Marshall in Marbury v Madison,7 “It is emphatically the province and duty of the judicial department to say what the law is”. To maintain the integrity of the law, we invoke the constitutional principle that the courts should be separate from and independent of influence by the political branches of government. The judges must be kept impartial, free not only from bias but from any reasonable apprehension of bias8.

Lord Bingham has

pointed out9 that “…the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.”

Professor Winterton, commenting on the Communist Party

Case,10 said that it "demonstrated that our freedom depends upon impartial enforcement of the rule of law, of which courts are the ultimate guardians. Although, of course, not infallible, impartial and fearless courts determined to exercise their proper powers are our final defence against tyranny."11

There are a number of other rules and practices which underpin our legal system and which are protective of individual rights: the public promulgation of the law and the public sittings of the courts administering the law, the presumption against retrospectivity and the presumption that laws are not intended to trespass on rights and

7 8 9

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(1803) 5 US (1 Cranch) 137, 177. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-345. A v Secretary of State for the Home Department [2005] 2 AC 68, [2004] UKHL 56, paras 42. Australian Communist Party v The Commonwealth (1951) 83 CLR 1. (1992) 18 Melbourne University Law Review 630 at 658.

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fundamental freedoms. In Wentworth v NSW Bar Association12, the High Court said that – “There are certain matters in relation to which legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication13. They include important common law rights14, procedural15 and other16 safeguards of individual rights and freedoms and the jurisdiction of superior courts17.”

The law assumes good government.

If the rule of law is to apply universally, however, the jurisdiction of the courts to judicially review an exercise of governmental power is essential.

If the courts are denied jurisdiction to enforce the law

governing the exercise of power, the repository of the power can refuse to obey the law with impunity, individual interests are at risk and the rule of law is negated.

Although State Parliaments have power to deny

jurisdiction to the courts, that power has been sparingly exercised18. By force of s75(v) of the Commonwealth Constitution, decisions taken in exercise of federal power cannot be totally exempt from judicial review. 12 13

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(1992) 176 CLR 239, 252 per Deane, Dawson, Toohey & Gaudron JJ. See Bropho v Western Australia (1990) 171 CLR 1 at 17-18 for a general statement of the rule. Bropho at 17,18; See also Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, 322, 338 and cases there cited, 346-347. As to property rights see American Dairy Queen (Q) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, 682-683. As to the right to carry on business, see The Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR 457, 464. As to procedural fairness, see Annetts v McCann (1990) 170 CLR 596 at 598 and cases there cited; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 575-576. As to the privilege against self-incrimination, see Hammond v The Commonwealth (1982) 152 CLR 188 at 197-198, 200; Sorby v The Commonwealth (1983) 152 CLR 281 at 289-290, 294295, 309, 311; Hamilton v Oades (1989) 166 CLR 486 at 495, 500-501. As to the right to trial by jury see Tassell v Hayes (1987) 163 CLR 34 at 41, 50. As to the right to personal liberty see Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523. As to legal professional privilege see Baker v Campbell (1983) 153 CLR 52 at 96-97, 104, 116-117, 123; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 322, 331, 338, 348-349. See Clancy v Butchers’ Shop Employes Union (1904) 1 CLR 181, 196-197, 204; Hockey v Yelland (1984) 157 CLR 124, 130, 142; Bropho v Western Australia (1990) 171 CLR 1, 17; Public Service Association (SA) v Federated Clerks’ Union of Australia (SA) Branch (1991) 173 CLR 132, 160. See s 85 of the Constitution Act 1975 (Vic.) which confers general jurisdiction on the Supreme Court of the State, but some exceptions have been legislated, e.g., Australian Crime Commission (State Provisions) Act, ss.36, 49, 56, 64.

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The High Court has pointed out19 that the jurisdiction conferred on the High Court by that provision – “is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them.”

The law, and the courts which administer the law, are the primary protectors against tyranny and any abuse of power. Respect for our human rights and fundamental freedoms in this country stems from, and still largely depends on, the constitutional authority of the courts to vindicate those rights and protect those freedoms by application of the general law.

The responsibility does not rest with the courts alone. Respect for fundamental freedoms and human rights is a function of good government in the ordinary exercise of legislative and executive powers. Each of us individually and Australians collectively have an interest in the distribution and control of these powers – their distribution between the Commonwealth and the States and between the legislature and the executive.

Consider first the distribution of powers between the

Commonwealth and the States.

In a federation, good government

requires legislative power to be distributed between the central and local governments according to the need for national laws and efficiency in their implementation and in the provision of governmental services. Between 1986 and 1988, a Constitutional Commission inquired into the working of the Constitution. The Commission and its Committees were constituted by members possessing formidable political, practical and legal expertise. The Commission recommended changes. Yet its Report, 19

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, 513-514; [2003] HCA 2 and see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165.

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pre-empted by a Bill20 hastily cobbled together and submitted to referendum, was buried in the rubble of the Referendum's failure. It would be desirable to revisit in a cooler climate, the recommendations of the Commission. Those recommendations covered, inter alia, minimum 3 year and maximum 4 year terms for the House of Representatives21; the Senate's power over money bills22, disagreement between the two Houses of Parliament23, an extension of Commonwealth power to make laws with respect to intra State trade and commerce24, and nuclear material, nuclear energy and ionising radiation25. The rapid growth of technology in fields that affect human existence (the cloning of humans and animal genome engineering, for example), the ecosystem (genetic modification of plants and animals, control of rivers and waterways) and privacy now call for a power to intervene, if necessary, by enacting uniform or co-ordinated national laws. The new issues should not produce political division. Some of these subjects may fall within the Commonwealth’s external affairs power if there be international conventions to which Australia is a party but it is preferable to confer the power to make laws with respect to specified areas of technology in order to facilitate laws appropriate to Australian conditions. The Commission also recommended that the High Court be invested with jurisdiction to give advisory opinions26, a proposition that would not command universal support but it may need some consideration if it were desired to invest the Court with a declaratory jurisdiction under a statutory Bill of Rights – a topic to which we must return.

20 21 22 23 24 25 26

Constitution Alteration (Rights and Freedoms) Bill 1988. Constitutional Commission Summary p 7. Constitutional Commission Summary p 9. Constitutional Commission Summary pp 10-11. Constitutional Commission Summary p 64-66. Constitutional Commission Summary pp 47-48. Constitutional Commission Summary p 29.

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The Uniform Tax Cases in 194227 and 195728 sanctioned the Commonwealth’s acquisition of the most important categories of taxation. In Ha’s case29 in 1997, the High Court’s interpretation of the excise power excluded the States from some of the residual sources of taxation that they had hitherto enjoyed. However, although there is an undoubted fiscal imbalance as between the central and state governments, the concentration of financial power in the central government has been conducive to effective control of the national economy. Nevertheless, there may be a need to consider whether this financial power should be used to purchase control over specific areas of activity, e.g. Universities, that do not fall within the legislative powers of the Commonwealth and are not covered by grants to the States under s 96.

Next, consider the relationship between the Executive and the Legislature. Parliamentary control of the Executive is, of course, the characteristic of responsible government. A century ago, Lord Haldane thought that that institution permeated the Constitution30. But it has been eroded by the growth of executive power and the dominance of the Executive over the Parliament.

In Australia, as in England, Lord

Hailsham’s more modern statement31 is substantially true: “[w]e live under an elective dictatorship, absolute in theory if hitherto thought tolerable in practice.32”

When an executive government is able to escape the scrutiny of the parliament and may even control the parliament so that scrutiny is impotent against executive maladministration, responsible government

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South Australia v The Commonwealth (1942) 65 CLR 373. Victoria v The Commonwealth (1957) 99 CLR 575. (1997) 189 CLR 465. Cited in the Engineers Case (1920) 28 CLR 129, 147. 1976 Dimbleby Lecture. Elective Dictatorship, Dimbleby Lecture (1976).

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can become a misnomer and good government can fall captive to undisciplined authority.

Recently a problem has surfaced in relation to parliamentary supervision of expenditure by the central government. This is a problem with a long history. It lay at the heart of the great constitutional struggles of the late 17th century. At least from the time of the Appropriation Act in the reign of Charles II, executive powers have been substantially constrained by the “undisputed principle” that “supplies granted by Parliament are only to be expended for particular objects specified by itself.”33

Holdsworth34 adopted the opinion that the principle was

“established for the better securing the rights, liberties, and privileges of the people” and he noted that – “[t]he very act of appropriating specific sums to this or that need of the government involved a decision upon the question which need was more, and which was less pressing and the right to make these decisions gave a power, not only to criticize but also, in some measure, to control the conduct of the government.”

In conformity with this principle, the Constitution provides that money cannot be “drawn from the Treasury except under appropriation made by law”35, that a proposed law cannot be passed unless the purpose of the appropriation has been recommended by message of the Governor General36, and that money can be appropriated only for a purpose of the Commonwealth37. To the extent that Parliament prescribes the objects of expenditure by the Executive, the Executive is made responsible to the Parliament. The drafting of recent Appropriation Bills for the “ordinary annual services of government” has circumvented parliamentary control 33

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At least from the time of the Appropriation Act of Charles II: see Carmichael’s TaswellLangmead’s English Constitutional History (4th Edn, 1890), p 645. vi History of English Law pp 253-254. Section 83. Section 56. Section 81.

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of particular objects of expenditure by appropriating funds as a “departmental item”, listing them under the heading “Departmental Outputs”, which can be expended as the departmental minister chooses. A challenge to the efficacy of this practice failed in Combet v The Commonwealth38 - the Work Choices advertising case. A majority of the High Court39 observed40: “…at least since the mid-1980s the chief means of limiting expenditures made by departments of State that has been adopted in annual appropriation Acts has been to specify the amount that may be spent rather than further define the purposes or activities for which it may be spent.”

Arguably, the appropriation provisions of the Constitution need tightening or the drafting practices amended41.

The diminution of

parliamentary supervision over executive expenditure weakens the practical observance of the system of responsible government.

It is not surprising that the Constitution shows some strain after more than a century during which it has proved to be obdurately resistant to change. It is time to overhaul its provisions to ensure that it meets the needs of the present and foreseeably future times. Take, for example, the corporations power. As it has been interpreted by the High Court42, it denies the Commonwealth power to make laws with respect to the formation of trading and financial corporations though it has power to legislate for those corporations after their formation. The bifurcation of the power precludes the enactment of a comprehensive national code for the incorporation and control of trading and financial corporations, although the qualified reference of power in a State Corporations 38 39 40 41

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(2005) 224 CLR 494. Gummow, Hayne, Callinan and Heydon JJ. (2005) 224 CLR 494, 577. See Geoffrey Lindell: “TheCombet Case and the Appropriation of Taxpayers’ Funds for Political Advertising – An Erosion of Fundamental Principles?” (2007) 55 No. 3 The Australian Journal of Public Administration, 307. In New South Wales v The Commonwealth; The Incorporation Case (1990) 169 CLR 482.

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(Commonwealth Powers) Act goes some way towards a resolving the problem. It is not the constitutionally preferable solution.

Again, s 80 has proved to be an inadequate protection of the right to trial by jury for serious crimes. Its provisions are engaged only when the crime charged is triable on indictment43. Let the crime be defined as triable summarily, and the right to jury trial disappears. Section 80 has been described as “a mere procedural provision”44, the effect of which can be avoided merely by a device of drafting45. If s 80 is to be an effective guarantee of trial by jury for serious Commonwealth offences, it should be amended.

A problem that may seem at first glance to be merely technical, but which raises jurisdictional difficulties productive of cost and frustration, is the constitutional inability of federal courts to be invested with State jurisdiction46. There is no obstacle to the vesting of federal jurisdiction in State courts – the "autochthonous expedient" was one of the masterstrokes of the founding fathers. Nor is there any objection to the vesting in federal courts of jurisdiction to determine "matters" which arise in part under State law where the matter arises also under federal law47. It may not be possible to create a single judicial system in a federation such as ours, but it is unacceptable to maintain a system that places jurisdictional difficulties in the way of enforcement of rights, whether

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45 46 47

Li Chia Hsing v Rankin (1978) 141 CLR 182. Spratt v Hermes (1965) 114 CLR 126, 244 per Barwick CJ; and see the Final Report of the Constitutional Commission, 1988, Summary Volume, p 35 (hereafter "Constitutional Commission Summary"). Kingswell v The Queen (1985) 159 CLR 264. Re Wakim, Ex P McNally (1999) 198 CLR 511. Fencott v Muller (1983) 152 CLR 570.

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those rights be derived from State or Federal laws. The Constitutional Commission recommended changes to remedy all of these anomalies48.

Then there are the transitional and obsolete provisions of the Constitution which are littered throughout the text, cloud the true nature of the Constitutional framework and impair its readability49.

The

Commission recommended repeal of the race power (s 51(xxvi)) to be replaced with a power to make laws with respect to Aborigines and Torres Strait Islanders50. Section 25 which authorizes disqualification from the franchise on grounds of race should be repealed. It is high time to be rid of s 74, the dead letter which still purports to provide for appeals to the Privy Council, and the provisions of ss 58, 59 and 60 which permit the reservation of a law for the Queen's pleasure and reserve the Queen's power to disallow a law even after it has been assented to by the Governor-General. The provisions which confer powers on the Queen, with one exception, have become anachronistic. The removal of these provisions should not be seen as dependent upon the adoption of a republican form of government.

It is an anachronism that the

Constitution should repose in the Queen powers which are obsolete; but the power to appoint the Governor-General must remain unless and until an alternative provision is inserted for the appointment of an Australian Head of State. The Commission observed that the obsolete provisions could be repealed with no practical effect on the operation of the Constitution51. Dr Helen Irving52 makes the same plea:

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50 51 52

Summary, pp.66 (corporations, 34-35 (trial by jury), 25 (cross-vesting). The Commission's list of repealable provisions “include sections 26, 41, 52(ii.), 69, 84, 85, 86, 87, 89, 93, 95, 97 and the second paragraph of section 83, the second paragraph of section 90, the second paragraph of section 92 and the introductory words of section 96. Expended words should also be removed from other sections including 3, 15, and 66”. Constitutional Commission Summary pp 54-56. Constitutional Commission Summary p 78. Barton Lecture MS p 5.

13 “[R]emove the detritus… Send them to a constitutional elephants’ graveyard for historians like myself to lament”.

The Constitution is not easily changed by referendum, but a clean up of the Constitution is long overdue.

It is time to dust off the

recommendations of the Constitutional Commission and to make amendments that would eliminate known inefficiencies, strengthen our democratic controls and bring our Constitution into shape to cope with the scientific and technological problems of the 21 st century. Agreement on the principal issues should not be too difficult to attain, but it would require statesmanship and commitment from the leaders on both sides of the political divide to commend the desirable amendments to the Australian people. With adequate explanation, the people can be trusted to repair defects in our Constitution at least to the point where the document can operate effectively in 21st century conditions. Of course, the Constitution does not determine the way in which the powers it confers will be exercised. That depends chiefly on the values, ability and political acumen of the members of the Executive and Legislature. If we accept that, in a democracy, the powers of government should be exercised for the common good, the definition of what is the common good must in turn depend on the values and aspirations of the people. If the people aspire to a society that is free and in which all citizens are equal before the law, the common good must include respect for individual freedom and dignity. That leaves no room for drawing distinctions based on race or colour, class or creed, physical or mental perfection or defect. Governmental power must be exercised to ensure that at least the basic social benefits are available to all, especially to the marginalised and disadvantaged. Those benefits cannot be exhaustively

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listed for the infinite variety of personal circumstances and social phenomena evoke different needs at different times.

To achieve the common good, political leaders have a variety of courses which they might follow and opinions will differ about the way in which they should be achieved. In an ideal, but unreal, world the concept of the common good would guide all exercise of governmental power but in a democratic, materialist society which places a premium on individual benefits, the interests of a majority may be preferred at the expense of a minority. Policies which benefit or appeal to a majority may prevail to the prejudice of the common good. A brake on majoritarian tyranny is provided by raising public consciousness of the importance of human rights. Our common humanity can inspire us to seek a community in which, by respecting human rights, all may live in freedom and dignity. That has long been realized and it has played its part in the development of some legal rules. John Locke, in the 17th Century, had asserted that, as the natural law, discoverable by reason, holds all persons to be “equal and independent, no one ought to harm another in his life, health, liberty or possessions…“53. In France, Rousseau’s theory of popular sovereignty54 led to a democratic espousal of human rights and to their expression as a basis for political action.

In 1786, the American Declaration of

Independence asserted that “all men are created equal… endowed by their 53

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Two Treatises of Government, 1690 (Second Essay II, 6). Writing shortly after the Glorious Revolution of 1688, he rejected absolute monarchy as “inconsistent with civil society” and insisted that the authority of civil society is derived from the agreement of all members to submit to society’s laws to which even the monarch is subject (Second Essay II, 90, 94). So we might conclude that the need for both the constitution and the general law to respect fundamental human rights was part of British political thinking by the beginning of the 18 th century. The Social Contract, 1762.

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Creator with certain inalienable rights … amongst them ..Life, Liberty and the pursuit of Happiness”. Holdsworth believed55 that American independence was “the first great victory of the democratic ideas preached by Rousseau” but it was the success of the French Revolution which gave those ideas “their great importance in the succeeding century.” Those ideas informed the Declaration of the Rights of Man which, on 26th August, 1789, the National Assembly of France “recognize[d] and proclaime[d], in the presence and under the auspices of the Supreme Being”. It proclaimed, inter alia, that “men are born and remain free and equal in rights” and that “the aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.”

Popular democracy as proposed by Rousseau, however, led to no constitutional revolution in England. Absolute monarchy had departed with the Stuarts; the Bill of Rights had ended the monarch’s power to suspend the laws. The British Constitution was defended by Edmund Burke, who revolted “against the individualism which magnified the rights of each separate man”. Holdsworth agreed, although he accepted that the extension of the franchise in England owed something to the “loose theories of the equality of men and their natural right to share in the government of the country” despite “the intellectual differences between human beings, and the intellectual and physical differences between men and women”56.

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History of English Law, Vol vi, p 14. vi, HEL,19, 22, 23.

Objections to the magnification of

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individual rights had been consolidated in England by the horrors of the French Revolution, which delayed the reform of British law57.

In the 20th Century, however, the world was faced with the inhuman laws of Nazi Germany, inspiring the General Assembly of the United Nations in 1948 to proclaim the Universal Declaration of Human Rights as “as a common standard of achievement for all peoples and all nations”. It began by declaring that “All human beings are born free and equal in dignity and rights” and that “Everyone is entitled to all the rights and freedoms set forth in this Declaration”.

The Universal

Declaration can be seen as the launch of the modern movement for the protection of human rights. Of course, the Universal Declaration was not directly effective in domestic law, but the movement for human rights was effective – at least in western societies – to elevate public consciousness of the need to protect the human rights and fundamental freedoms of individuals. The need for recognition of human rights was expressed by Sir Anthony Mason58: "Human rights are seen as a countervailing force to the exercise of totalitarian, bureaucratic and institutional power – widely identified as the greatest threats to the liberty of the individual and democratic freedom in this century.”

In 1950 the European Convention on Human Rights was agreed by the member States of the Council of Europe. The rights were intended to be at least prima facie barriers against infringing legislative or executive action. They were enforceable by judgment binding on the States Parties given by the Court in Strasbourg59.

57 58 59

The Convention allowed some

Theodore Plucknett A Concise History of the Common Law, 3rd edn., p 71. "A Bill of Rights for Australia" (1989) 5 Australian Bar Review 79 at 79-80. Articles 33, 34, 46.

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limited restrictions on the rights declared60 and the Court has allowed governments a “margin of appreciation” in those cases61.

The common law does not attribute to individuals any right which gives immunity from legislative or executive power. For a time, the notorious provisions of s 92 of our Constitution were thought to have the effect of conferring an individual right to destroy legislative or executive action but that heresy has now been extirpated62.

Laws operate in

accordance with their terms, although the terms are interpreted so far as possible to respect human rights and fundamental freedoms. Once human rights are enacted as domestic law, however, it is necessary to determine whether and to what extent such rights affect the exercise of the constitutional powers of the legislature and the executive. That question did not arise for the framers of the Commonwealth Constitution, because, as Mason CJ explained63: “….the prevailing sentiment of the framers [was] that there was no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens. That sentiment was one of the unexpressed assumptions on which the Constitution was drafted.”

Thus, our constitutional history was against the creation of human rights which might limit or be incompatible with the exercise of legislative or executive power. The balancing of individual interests with the interests of the community has been seen as a purely political issue, in which the courts have no role to play.

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See, inter alia, Articles 15, 18. For example, Hatton and Others v. the United Kingdom [Grand Chamber], Application no.36022/97, 8 July 2003; Aksoy v Turkey Application no. 21987/93, 18/12/1996. Cole v Whitfield (1988) 165 CLR 365. Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, 135-136; see also per Dawson J at p 182.

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Nevertheless, the exigencies of modern politics have sometimes led Governments to ignore human rights in order to achieve objectives which are said to be for the common good. Commonwealth laws relating to national security and immigration and executive action under those laws provide the most obvious recent examples. Recent international history and domestic concerns about the untrammelled authority of the political branches of government to infringe upon the rights and freedoms of individuals has led to the translation of some international instruments into domestic statute.

In Victoria, many of the provisions of the

International Covenant on Civil and Political Rights have been incorporated in the Charter of Human Rights and Responsibilities Act 2006; similarly, in the Human Rights Act 2004 in the ACT.

When

domestic human rights laws are enacted, it is necessary to include some modifying provision to allow a balance between the rights enacted and other rights and interests, including the interests of the wider community64. Some overseas laws provide that prescribed human rights are not to be taken to be incompatible with other laws which infringe those rights only to an extent demonstrably justified in a free and democratic society65. That test which is in substance reproduced by the Victorian Act66 is, by our constitutional standards, political.

In Canada as in the United States, the courts are required to make that political decision in order to apply constitutionally entrenched rights in determining the legal validity of statutes and executive action. That has resulted in a relocation of political power from the legislature and the 64

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See David Kretzmer Basic Laws as a surrogate Bill of Rights: The Case of Israel in Promoting Human Rights through Bills of Rights (ed Philip Alston) (1999, O.U.P.) 75, 82. See, for example, Canadian Charter of Rights and Freedoms, s1, s 5 of the Bill of Rights Act 1990 (N.Z.) and Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, [1999] NZCA 329 [18]. The Charter of Human Rights and Responsibilities Act 2006 (Vic) s.7(2).

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executive to the Judiciary.

In the United Kingdom, the European

Convention on Human Rights has been substantially incorporated into domestic law67 and the courts have been directed to interpret statutes so as to vindicate the Convention rights even though the statute would be incompatible with Convention rights if it were interpreted by the ordinary legal rules68. To repose these kinds of political power in an Australian court would run counter to our constitutional history. The American experience shows that the reposing of ultimate responsibility in the judiciary for invalidating legislative and executive action to give effect to human rights raises a popular expectation that many controversial political issues are to be solved by judges, not by the democratically elected branches of government. Thus the judiciary is itself politicized. The legislatures of Victoria and the Australian Capital Territory69 have taken a more conservative approach, respectful of the separation of judicial power which is characteristic of our Constitutional system. The courts have been directed to interpret statutes compatibly with statutorily defined human rights but only so far as it is possible to do so consistently with the statutory purpose70. The court’s function is to give effect to the legislature’s purpose in accordance with the legislature’s directions, including the direction to give the statutory language, if possible, a meaning consistent with prescribed human rights. Under these statutes, the validity of a law is not affected by any incompatibility with human rights. If there is incompatibility, the court’s jurisdiction is limited to the making of a declaration of inconsistency, leaving remedial action, if any, to be taken by the legislature. The courts will from time to time have to 67 68 69 70

By the Human Rights Act 1998 (UK). See Ghaidan v Godin-Mendoza [2004] 2 AC 557; [2004] UKHL 30. Human Rights Act 2004 (ACT). Charter of Human Rights and Responsibilities Act 2006 (Vic.), s 32(1); Human Rights Act 2004 (ACT), s 30.

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decide the political question whether a law infringes a human right “only to such reasonable limit as can be demonstrably justified in a free and democratic society” but they will not be empowered to strike down a law if the law is found to exceed that limit. That will be for the legislature to consider.

Of course, if the court, construing a provision in accordance with the legislature’s directions, concludes that an executive action is in disconformity with statutory power construed as the Charter directs, the court will review the executive action and grant the appropriate remedy. But jurisdiction to review executive action for disconformity with statutory power is a commonplace in our constitutional arrangements, applying the rule of law to government as well as to the governed71.

In Victoria and the ACT, the legislative code of human rights awaits judicial interpretation, but the innovative mechanism for giving effect to the listed human rights is most significant.

The primary

responsibility for giving human rights their intended operation rests not with the courts but with the Parliament. The Victorian Act requires that, before any second reading speech on a Bill introduced into the Parliament, a statement of compatibility must be laid before the House, showing either the Bill’s compatibility or incompatibility with the defined human rights72.

A Parliamentary Committee must report on

compatibility73, and the Parliament may include a declaration of override in an Act, declaring that the Act or a provision of the Act is effective

71

72 73

Church of Scientology v Woodward (1982) 154 CLR 25; Attorney General (NSW) v Quin (1990) 170 CLR 1, 35-36. Section 28. Section 30.

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despite any incompatibility74.

Although the courts are directed to

interpret a statute compatibly with human rights so far as it is possible to do so consistently with the purpose of the statute75, the purpose is the Parliament’s purpose ascertained in accordance with a ordinary rules of interpretation76. Public authorities are directed to act compatibly with the Charter rights, subject to certain exceptions77. The significance of a wide definition of “public authority” is pointed out in a valuable paper by the Solicitor General, Ms Pamela Tait78.

The term extends to statutory

bodies, local councils, Victoria police and “[i]mportantly, [it] extends to those bodies that discharge functions of a public nature” thus sweeping in private corporations to which government might contract out public functions such as the control and management of prisons.

Although many of the rights listed in the Charter are already familiar to, and would in any event have found a measure of protection in, the common law, their enactment might affect the interpretation of ambiguous terms79 and, one might surmise, will heighten judicial sensitivity to circumstances in which human rights are possibly at risk. But, having interpreted a statute or statutory instrument as the Charter directs, a court which finds the provision to be incompatible with a Charter right has no jurisdiction to affect the operation of the provision. The court is limited to the making of a declaration of inconsistency which, in turn, enlivens a statutory obligation on the part of the responsible Minister to prepare and lay before the Parliament a written

74 75 76 77 78 79

Section 31. Section 32. Interpretation of Legislation Act 1984 (Vic), s 35(b). Section 38. Protecting Human Rights in a Federation, 33 Monash University Law Review (No 2) 217 ff. As the Solicitor General illustrated by reference to Hopkinson v Police [2004] 3 NZLR 704

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response80. The political branches of government may repeal, amend or leave standing the incompatible provision.

Political responsibility

remains with the political branches. The traditional separation of powers is unaffected.

The courts have an important role in the interpretation of the Charter rights. The construction which a Victorian court places on a statutory provision affecting the rights or duties in issue, whether affected by a Charter right or not, is open to review in the course of an appeal to the Court of Appeal. There may be a question whether a further appeal would lie to the High Court under s 73 of the Constitution against a mere declaration of inconsistency if the declaration does not affect the interests involved in the litigation. The Solicitor General gives an affirmative answer to this question, noting that such a declaration is made only in litigation which determines the issues between parties. Ms Tait relies inter alia on the judgment of the High Court in Mellifont v Attorney General (Queensland)81. In that case, the High Court entertained an appeal from a Court of Criminal Appeal deciding a point of law on an Attorney General’s reference after acquittal.

There will be a degree of forensic fascination with the jurisprudence which emerges under the Charter.

But it may not be

premature to make two suggestions. First, as the Victorian model does no violence to the traditional separation of political and judicial powers, adoption of the model by the Commonwealth would work no change to the current distribution of federal powers. The genius of the Charter is the solution of the problem which beset earlier models, namely, the risks 80 81

The Charter of Human Rights and Responsibilities Act 2006 (Vic) s 37. (1991) 173 CLR 289.

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of transferring political powers to the judiciary. The Charter has brought the judiciary into constructive dialogue with the Parliament, but that is no more than utilising the interpretative skills of the courts to promote good government in the interests of the community. However, if a judicial declaration of incompatibility had no effect on a litigant’s rights or liabilities, there would be a question whether such a declaration can be made in the exercise of federal jurisdiction82. An appeal to the High Court from Victoria or the ACT under S 73 may indicate an answer to this question.

Second, a statutory enactment of human rights in the Victorian model would surely inhibit legislative or executive infringement of those rights – and thus enhance the quality of good government; it would also heighten judicial sensitivity to possible infringements and sharpen judicial ability to construe provisions so as to avoid infringements. If, for example, a Commonwealth statute in terms similar to the Victorian Charter had been in force in 2004 when Al-Khateb83 came before the High Court, the Court may not have held that a stateless migrant who could not be deported in the foreseeable future was liable to be held in executive detention for an indefinite and unlimited period. The relevant provision84 prescribed detention of the migrant until deportation or the grant of a visa; it did not contemplate the situation of refusal of a visa and practical impossibility of deportation. Had the Court been directed to give effect, if possible, to the right to liberty and freedom from arbitrary detention85, a majority86 may have construed “detention” as meaning

82 83 84 85

See In re Judiciary and Navigation Acts (1921) 29 CLR 257. [2004] 219 CLR 562 Migration Act 1958 (Cth), s 196 Charter of Human Rights and Responsibilities Act 2006 (Vic.) s 21

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detention limited to the time needed and taken for the processing of Mr Al-Khateb’s visa application and ascertaining the prospects of deportation87.

By mandating legislative machinery to ensure that individual human rights are not improvidently overridden in the course of legislating for the community at large, and by requiring the courts to understand that the Parliament has no such intention unless the contrary is expressed, the Charter of Human Rights and Responsibilities Act is a valuable instrument of good government. It leaves the constitutional distribution of powers intact, allowing the political branches of government to do what is needed to secure the common good while protecting human rights and fundamental freedoms except to the extent that “can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom”. These are lofty ideals. It will be the satisfying privilege of both the political and the judicial branches of government to implement the Act’s provisions and to make those ideals a reality.

86

87

See the reference by Justice McHugh to the absence of a Bill of Rights in his reference to Al Kateb in "The Need for Agitators - the Risk of Stagnation" reported at http://www.hcourt.gov.au/speeches/mchughj/mchughj_12oct05.pdf. Cf Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54.