Submission to National Human Rights Consultation Committee
The Chair
National Human Rights Consultation Committee
By Email: humanrightssubmission@ag.gov.au
Dear Fr Brennan
SUBMISSION TO NATIONAL HUMAN RIGHTS CONSULTATION COMMITTEE
The Queensland Council for Civil Liberties (“the Council”) thanks you for the opportunity to make a submission to this committee.
The Council is an organization which has for the last 40 years devoted itself to the implementation of the Universal Declaration of Human Rights in Queensland. As a member of the Australian Council for Civil Liberties it has committed itself to promoting the implementation in Australia of the Universal Declaration of Human Rights.
The Rudd Government’s commitment to a national consultation on how best to protect human rights is in our view a major opportunity to advance the protection of human rights in this country.
The committee has asked us to address three questions. We do so below.
1. Which Human Rights and Responsibilities should be Protected and Promoted?
1.1 Starting Point
We observe that the Australian government has committed itself to the implementation of the International Covenant on Civil and Political Rights (“the ICCPR”) and the International Covenant on Social, Cultural and Economic Rights (“the ICSCER”). In the circumstances the Council is somewhat perplexed as to why the government should ask the community which rights they wish to be protected. In the Council’s view the government has already committed itself to protecting the rights set out in these and a number of other international instruments.[1] The Council’s position is that prima facie all the rights set out in those covenants ought to be protected.[2]
As the Council sees it, there are two issues of contention:
1. The protection of economic, social and cultural rights;
2. The protection of reproductive rights.
1.2 Economic, Cultural and Social Rights (“ESC Rights”)
It has for many years been argued that there is a difference between civil and political rights and economic, social and cultural rights. Many people have sought to find that difference in the cost of implementing economic, social and cultural rights as opposed to the implementation of civil and political. The Council accepts that there is of course a cost in the implementation of civil and political rights.
The Council agrees with the view of the Prime Minister of the United Kingdom, Gordon Brown, that the critical question relating to economic, cultural and social rights is whether they are appropriately the subject of judicial determination.
The Council takes the view that for a number of reasons economic, cultural and social rights are not justiciable in the same way civil and political rights. Those reasons are:
1. Giving judges final power to determine economic, social and cultural rights will give them power which they are not suited to exercise, nor is it appropriate for judges to exercise in a democratic society the same power to enforce ESC rights as do in the context of Civil and Political rights;
2. Economic, social and cultural rights as expressed in instruments like the ICSCER are too vague
The Council accepts that the implementation of civil and political rights involves the expenditure of resources. The Council also recognizes that the state in Australia has already devoted significant resources to fulfilling its obligations in relation to economic, social and cultural rights as well as civil and political rights.[3] It is argued in our view accurately that in many respects Australia has failed to meet its obligations concerning both civil and political and economic, social and cultural rights. However, the Council agrees with those who are of the view that courts are not adequately equipped to determine the appropriate resource allocation between areas of government responsibility or in fact to determine what programs in any area are likely to best achieve the most effective outcome. It is in the area of economic, social and cultural rights that the most money needs to be spent. It is in these areas then that the handing over of power to the courts to determine the nature and extent of the rights in these particular fields are likely to result in courts re-writing in a significant fashion the budgets of states. The Council agrees with the view that in the end the proper allocation of budgets is an essentially political matter. It is inappropriate in a pluralistic society organized along democratic lines that significant budgetary allocations are determined by people other than elected representatives.
Furthermore, remedies for the violation of civil and political rights have generally speaking pretty much been determined. They are found in the type of orders which can be made by courts or statutory tribunals like the Queensland Anti-Discrimination Tribunal and in the system of constitutional and administrative law generally. The appropriate remedies for economic, social and cultural iniquities are in a much earlier stage of evolution. We need only remind ourselves that the Keating government's Job Compact actually involved a vast set of experiments to determine what programs would best alleviate unemployment, particularly long term unemployment. It is respectfully submitted that most judges have no capacity for determining what arrangements or what programs might best alleviate problems which might the subject of decisions relating to economic, social and cultural rights. In the end it is only the executive that is capable of determining what programs will most effectively alleviate poverty, improve housing availability or lead to the best outcomes in health.
The second objection was expanded upon by the Joint Committee on Human Rights of the Parliament of the United Kingdom (“the Joint Committee”) in its 21st report at paragraph 59 where the committee noted that:
“The objection of indeterminacy is more pertinent in relation to the protection of some of the covenant rights than in relation to others. Trade union rights for example are protected under Article 8 of the covenant are not categorized by indeterminacy; neither is the right to protection against forced labour under Article 6. Other of the covenant rights are formulated in considerably more general terms including for example the right to the highest attainable standard of health under Article 12 of the ICESCR. Rights guaranteed in broad terms may, however, contain elements which are sufficiently determinate to be enforced in the courts. Aspects of the rights to an adequate standard of health relating to non-discrimination in its application and to the procedural propriety in its implementation are likely to be deemed appropriate for consideration in the courts. The right to adequate housing under Article 11 of the ISESCR encompasses a right not to be forcibly evicted without due process of law - a right sufficiently determinate to be enforced in the courts.”
In the Council's submission these objections can be overcome by
l eschewing a constitutional Bill of Rights in favour of a statutory mechanism. That way the final say on budgetary issues will lie with the politicians; and
l drafting that part of the Human Rights Act relating to ESC rights so as to clearly circumscribe the Court's right of review.
In its 29th report the Joint Committee recommended that a Bill of Rights should bind the Court to follow the approach which has been adopted by the South African Constitutional Court to economic, social and cultural rights. In particular, the Human Rights Act should set out that the duty of the government to comply with its obligations to provide social, cultural and economic rights is progressive and does not involve the notion of an individual having a core set of rights. Rather, the capacity of the state to meet its obligations in this regard must be assessed in the light of its resources with the question of the practical implementation of this obligation being left to the determination of the executive having regard to its experience in the implementation of programs. The committee also recast the rights in a less vague form. We commend the Joint Committee's approach to this Committee.
As we have noted the Joint Committee's approach draws on the South African experience. In its decision in The Minister of Health & Ors v The Treatment Action Campaign & Ors (No. 1)[4] the Constitutional Court of South Africa said that:
“The socio-economic rights of the constitution should not be construed as entitling anyone to demand that the minimum core be provided to them…a purposive reading of sections 27 and 26 does not lead to any other conclusion. It is impossible to give everyone access even to a “core” service immediately. All that is possible and all that can be expected of the state is that it acts reasonably to provide access to the socio-economic rights identified in sections 26 and 27 on a progressive basis.”
The court went on at paragraph 38 of that decision to say:
“The constitution contemplates rather a restrained and focused role for the courts, namely, to require the state to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation. Such determination of the reasonableness may in fact have budgetary implications but are not in themselves directed at rearranging budgets.”
That case concerned the drug Nevirapine which is designed to prevent the transmission of HIV from mother to child. The government had been given a free supply by the manufacturer. Despite this the government had decided that the drug was not to be made available outside certain research institutions. The court determined that the policy of the government “in so far as it confines the use of Nevirapine to hospitals and clinics which are research and training sites constitutes a breach of the state’s obligations under section 27(2) read with section 27(1)(a) of the constitution.”
The issue was re-visited by the Constitutional Court of South Africa in The Government of the Republic of South Africa and Ors v Grootboom & Ors[5] where it determined that the criterion of reasonableness meant that the government was required when a relevant need was obvious to provide a program to address that need and a court would not interfere if the program provided by the government rationally addressed that need.
That case involved a situation in which the applicants had been evicted from their homes and were squatting on private property. The court held that whilst the government had a medium and long-term program to address housing needs, it failed to address the needs of those who were in immediate and desperate need of housing. The court held at paragraph 41:
“The measures must establish a coherent public housing program directed towards the progressive realization of the right of access to adequate housing within the state’s available means. The program must be capable of facilitating the realization of the right. The precise contours and content of the measures to be adopted are primarily a matter for the legislature and executive. They must however ensure that the measure they adopt are reasonable…the question will be whether the legislative and other measures taken by the state are reasonable. A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. It is necessary to recognize that a wide range of possible measures could be adopted by the state to meet its obligations…the formulation of a program is only the first stage in meeting the state’s obligation. The program must also be reasonably implemented. An otherwise reasonable program that is not implemented reasonably will not constitute compliance with the state’s obligations.”
In the case of Grootboom the court held that because the programs did not address the needs of the desperate, they were inadequate. The order of the court was that the state develop a program which addressed the needs of the absolutely desperate.
We would however depart from the committee when it refuses to include in its Bill obligations relating to the standard of living. In fact, as we have previously noted, in its 21st report, that committee actually acknowledged that trade union rights and the right to protection against forced labour are in fact not subject to indeterminacy. We would take the view that those rights should be included in a Human Rights Act.
By way of summary the Council adopts the view of the report of the ACT Bill of Rights Consultative Committee[6] that:
“The inclusion of economic, social and cultural rights in the ACT Human Rights Act may prompt concerns that such rights will expose the ACT government to debilitating financial liability. For a number of reasons, the Consultative Committee considers that these fears have no basis in the proposed Human Rights Act. First, the draft legislation makes clear that the obligation to implement economic, social and cultural rights is not absolute, and may be limited in reasonable ways to take account of budgetary realities. Second, the Human Rights Act allows the Supreme Court to consider a range of remedies for the breach of a human right, some of which have no financial implications. Finally, the draft legislation allows the Legislative Assembly, rather than the courts, to take the final decision on the reasonableness of laws and policies. Even were a particular practice or policy found to breach an economic, social or cultural right, the legislature has the power to enact legislation authorising such a policy or practice.”
1.3 Reproductive Rights
Another area in which the Council wishes to take a somewhat different approach is that of reproductive rights. The Council accepts that this is a contentious area, not least for certain members of this committee. In its most recent formulation of its policy in this area the Council has taken the view that a woman should have a right to have an abortion up to the 20th week of pregnancy without committing any offence. After that the current state of the law in Queensland should apply. In the Council’s view this represents an appropriate compromise between the different views in the community on this issue. The Council takes the view that the South African constitutional provision in this area provides the strongest protection for the right of women to control their own fertility. Accordingly the Council’s submits that an Australian Human Rights Act should include a clause along the lines of section 12(2) of the South African Bill of Rights.
Furthermore, the right to health care as drafted by the Joint Committee should be extended to say:
“Everyone has the right to access to appropriate health care services, including reproductive health care, free at the point of use and within a reasonable time.”
1.4 Responsibilities
The Council opposes the inclusion in any Human Rights Act of any statement of duties or responsibilities. In our view the argument for the inclusion of an express statement of duties or responsibilities in the human rights act is entirely misconceived. The whole architecture of human rights specifically and explicitly already involves a series of rights and duties. Each person is required to recognise and concede to the other person that person’s rights except to the extent that it is inconsistent with the exercise of their own human rights. In recognition of this, instruments like the Universal Declaration of Human Rights set out the principles upon which competing interests are to be reconciled. The concept of human rights imposes significant obligations on the state, that is, responsibilities or duties on the state.
The Council endorses the position of the Joint Committee in its report on a Bill of Rights for the UK that:
“Human rights are rights which people enjoy by virtue of being human: they cannot be made contingent on the fulfilment of responsibilities. The moment you seek to make a person or persons’ entitlement to human rights contingent on their performance of certain arbitrary moral or other obligations you destroy the whole concept of human rights.”
Lord Bingham, former senior Lord of the United Kingdom, in his speech to the Human Rights Law Resource Centre on 9 December 2008 at page 7, quoted the following remark of the European Court of Human Rights:
“The Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, mutatis mutandis, the judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, p. 32, par. 5). The search for this balance is inherent in the whole of the Convention” SPORRONG AND LÖNNROTH v. SWEDEN (Application no. 7151/75; 7152/75)
His Lordship went on to say that
“This is a comment of the European Human Rights Court in relation to the human rights convention of the European community but it applies as much to the national system of human rights.
1.5 Should any Human Rights Inhere in Corporations?
No doubt human rights should normally only inhere in human beings But in our modern society the protection of human rights may require that corporations share in those rights.
At times it seems the proposition that human rights can never inhere in corporations arises out of a confusion.[7] Most opponents of the proposition that human rights should inhere in corporations do so because they have commercial interests. This is of course a nonsense. This Council is a corporation. It is not run for a profit. It does not have commercial interests. Most political parties these days are corporations. In any event the fact that a body is a corporation and has commercial interests does not mean that it should not share in the human rights of natural persons where in the modern context it is necessary that corporations share in those rights to ensure that everyone fully benefits from those rights. The obvious example is with respect we would submit, the right of freedom of speech. Whilst it is of course legally and ethically relevant to consider a person’s motive in determining their ethical and moral responsibility for their conduct, a person's motive does not determine the issue. The reality of the world is that many areas the ability to attain an appropriate standard of human dignity relies upon corporations. It is submitted that which corporations and in what circumstances a corporation should be able to rely on human rights must be determined on a case by case basis as is provided for in the South African Constitution and the New Zealand Bill of Rights.
1.6 A Minimalist Position
The Council accepts that any proposal to include economic, social and cultural rights in a Human Rights Act will give rise to the most controversy. In recognition of that our position is that a Human Rights Act ought to at the minimum provide statutory protection for those rights which have been included in the Victorian Charter of Rights and Responsibilities Act, subject to our comments in relation to reproductive rights.
2. Are these Human Rights Currently Sufficiently Protected and Promoted?
Currently there are three basic means by which human rights are protected in Australia
i. The Common Law.
ii. The Constitution.
iii. Specific legislation.
2.1 The Common Law
The traditional view is that expressed by Sir Robert Menzies when writing in opposition to Lionel Murphy’s Human Rights Bill of 1973.
“When we, in Australia, come to discuss civil and political rights it is necessary to remember that one of the functions of the common law devised over a course of centuries in England and adopted by us by inheritance has been to protect the individual against infringement of his personal rights.”
2.2 The Major Historical Documents
In this context it might be useful to consider the application of such well known English charters of rights as the Magna Carta, the Petition of Right 1627, the Bill of Rights 1688 and the Habeas Corpus Acts of 1640 and 1679. Although these pieces of legislation are periodically referred to in political discussion their continued relevance in Australia is quite limited.
For example:
1. The Bill of Rights of 1688 provides that “the freedom of speech and debates of proceedings in parliament ought not to be impeached or questioned in any Court or place out of parliament”. This is accepted even today as the basis of parliamentary privilege. Although the extent of that privilege is the subject of debate. [8]
2. “Excessive bail ought not to be required and nor excessive fines imposed or cruel and unusual punishments inflicted”. This provision is familiar from the fact that it is reflected in the American Bill of Rights, but it has been of little effectiveness in Australia. [9]
3. Chapter 29 of the Magna Carta provides in part “to no one will we deny or delay right or justice.” In Jago v. The District Court[10] the High Court considered whether or not as a result of Magna Carta this had become a fundamental principle of the Australia Common Law. This argument was rejected. The practice and principle of Australian law is that a party particularly in a criminal case can ask a Court to stop a prosecution where there has been a very long delay. However, this is not an absolute right but the choice of whether or not to make the Order lies with the Judge.
2.3 The Common Law
The Common Law generally works to protect rights by a number of presumptions. That is the Common Law takes the view that “unless the parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the Courts will not construe a statute as having that operation.”[11]
Amongst the principles to which this rule is applied are the following:
a. The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt.[12]
b. The right to exclude other people including agents of the government from private premises[13].
c. The double jeopardy principle – “it is a fundamental rule of criminal law that no man is to be brought into jeopardy of his life more than once for the same offence.”[14]
d. Legislation does not authorise the State to take property without compensation.
2.4 Constitutional Protections
2.4.1 Express Constitutional Protections
The writers of the Australia constitution explicitly decided not to include a Bill of Rights. There are however a small number of guarantees of rights which generally speaking have been narrowly interpreted:
1. Section 51(31) - requires that any person from whom property is acquired by the Commonwealth is fairly compensated.
2. Section 18 - guarantees a Trial by jury for any person charged with an indictable commonwealth offence.
3. Section 116 - guarantees the free exercise of religion.
4. Section 92 – provides for free trade amongst the states.
5. Section 117 - prohibits discriminating against people on the basis of their residence of a state.
6. Section 24 - provides a limited right to vote.
It is no doubt accurate to say that the Constitutional guarantees which have been most strongly enforced are those relating to economic rights namely the just terms provision (Section 51(31)) and the free trade provision (Section 92).
2.4.2 Acquiring Property on Just Terms
This provision was inserted in the Constitution for two reasons. Firstly to actually give the Commonwealth power to acquire property and secondly to ensure that it was obtained on just terms that is fair compensation was paid.
2.4.3 Trial by Jury
Section 80 of the Constitution says:
Trial on indictment on any offence against any law of the Commonwealth shall be by jury.
Unfortunately, Section 80 of the Constitution has been rendered useless because the High Court has held that the parliament can decide what is an indictable offence and what is not. There have been a number of attempts to argue that the Court should provide its own definition of indictable offences so that in all those cases trial by jury is required. That argument has been rejected so that in effect if the Commonwealth parliament abolished indictable offences it could abolish trial by jury.
However, this section has been held to mean that where a Commonwealth charge is being heard by a jury the jury verdict must be unanimous.
2.4.4 Section 92 – Free Trade Amongst the States
This section was interpreted by the High Court for most of the last century as giving individuals a right to trade across state boundaries. That approach to the section has now changed.
However, one of the side effects of this section has been to create a right of freedom of movement across the state boundaries. The first case to do so[15] involved a New South Wales Act which provided that it was an offence for any person to move to that state who had committed in another state an offence which carried a maximum sentence of death or imprisonment for a year or longer and it was less than three years since they got out of jail. This was held to breach Section 92. However, more recent cases have held that this right is not absolute and that a law will not breach Section 92 if it is considered to be appropriate to achieving a legitimate purpose.
2.4.5 Freedom of Religion - Section 116
Section 116 of the Constitution states:
“The Commonwealth shall not make any law for establishing any religion or for imposing any religious observance or for prohibiting the free exercise of any religion and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”
Section 116 of the Constitution combines together two separate provisions copied from the American Constitution.
In 1980 a challenge was made to Commonwealth government financial assistance for non government schools most of which were run by religious organisations and taught religious principles.
It was argued that the first part of Section 116 “the Commonwealth shall not make any law for establishing any religion or for imposing any religious observance” prevented government funding of religious schools. This view was rejected with the Court holding essentially that what the Section prevented was the creation of an official state religion like the Church of England.
The most notorious application of this clause was during World War II when the Jehovah’s Witness organisation was effectively declared an outlaw organisation for arguing publicly that all organised political bodies including the Commonwealth government were organs of Satan. The church prohibits its members from taking part in political affairs including in war. An argument based on Section 116 was rejected. In short it was held that Section 116 did not protect the exercise of religion where what is alleged is a breach of laws which apply to everyone as opposed to laws which discriminate against religion generally or against particular religions or against conduct which is associated with a particular religion only.
In an interesting discussion of Section 116 Justice Pincus of the Federal Court [16] considered the power of the Minister of Immigration to deport an Iman partly because of the minister’s disapproval of the way he carried out his duties. The Judge referred to some American decisions which had held the government could not affectively acquire the right to chose who would lead a religious group by prohibiting their leaders from entering the country. Whilst the Judge accepted that the Minister could deport a religious leader who was likely to cause dissension in the community he could not deport a person simply to stop them from expressing purely religious views or because the minister considered a better leader could be chosen.
2.4.6 Protection against discrimination on the basis of State residence – Section 117
This section says that:
“A subject of the Queen, resident in any State shall not be subject in any other state to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.”
This provision was originally given a very narrow interpretation. In 1973 it was held that a rule which restricted the admission of lawyers admitted in one State from obtaining admission in another State in which they were not resident did not breach the section. A Victorian Barrister tried to be admitted in South Australia where there was a rule that a lawyer admitted elsewhere must live in South Australia for three months continuously before they could be admitted. The court said that Section 117 was not breached because a resident of South Australia would have to meet the same requirement. Subsequently in 1989 this decision was overturned with the Court holding that the actual position of the non-resident person should be compared with the position he or she would have been in if he were a resident of the relevant state.
Later on when New South Wales placed severe restrictions on the rights of people injured in motor car accident to claim damages, Queensland passed an Act which said that a Queensland resident suing for damages for injuries suffered in New South Wales could not recover more damages than they would have recovered had they sued in New South Wales. This provision was held to be invalid.
2.4.7 Voting Rights – Section 24
Section 24 provides that “the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth.”
An argument that this provision required “one vote, one value” was rejected. Nor does it make universal adult suffrage compulsory. It has been held to mean that there must be a direct election. That is, there cannot, for example as there is in America, be an electoral college system established. It has also been held not to prevent compulsory voting. In Roach versus the Electoral Commissioner [2007] HCA 43, the High Court gave this clause more life when it held a law of the Commonwealth which prohibited any person while in prison from voting as constitutionally invalid as a breach of sections 7 and 24 of the Commonwealth Constitution. Three members of the Court being Gummow, Kirby and Crennan JJ held a law which prohibited those serving a sentence of three years or more from voting to be invalid. Gleeson CJ agreed in that result but would have upheld a law prohibiting prisoners serving lesser terms as valid, although he did not specify how far he would be prepared to go.
2.4.8 Summary of existing Constitutional provisions
The existing Constitutional provisions provide very limited rights and the High Court has given them a rather restricted application.
2.4.9 Implied Constitutional Rights
When he became a Judge of the High Court the former Labor Party Attorney-General Lionel Murphy began a campaign to recognise in the Constitution a number of what he called silent constitutional principles which would have amounted to in effect an implied Bill of Rights. That attempt has been largely unsuccessful.
The two exceptions to that statement are the:
1. Implied right of freedom of political communication; and
2. Implications from the separation of powers.
2.4.10 Implied Right of Freedom of Political Communication
In a series of decisions culminating in Lange v. The Australian Broadcasting Corporation the High Court held that any legislation which inappropriately restricted freedom of communication on matters of government and politics was unconstitutional as it breached an implied freedom of communication in these areas.
This right is not an absolute right. The Court asks two questions:
1. Does the law restrict freedom of communication about government and political matters and if so, is the law reasonably necessary to achieve some legitimate government end? and
2. Does it do so in a way which is best designed to achieve that end taking into account the existence of this constitutional freedom
So far this principle has not been applied very often. In the most recent case [17] the High Court had to consider these facts: Coleman was protesting in Townsville. He was distributing pamphlets which contained charges of corruption against several police officers, including Power. Power approached Coleman and asked to see a pamphlet. Coleman pushed Power and said loudly: “This is Constable Brendan Power, a corrupt police officer”. Coleman was charged under Section 7(1)(d) of the Vagrants Act which provided: “Any person who, in any public place … (d) uses any threatening, abusive or insulting words to any person … shall be liable to a penalty of $100 or to imprisonment for 6 months”.
The Queensland Court of Appeal held this section invalid as it was inconsistent with the implied freedom of political discussion. However all but one of the High Court judges didn’t have to decide this point as, following the common law principle that legislation should not be interpreted to restrict fundamental freedoms, like freedom of speech, they read the section as not applying to this case.
2.4.11 The Separation of Powers
The High Court has always taken the view that there is a very clear separation of powers in the Australian Constitution and there appeared in the 1990’s to be a willingness on the part of the Court to use that doctrine to secure due process.
The first example of it being used in this fashion was that the Court held invalid special legislation passed in New South Wales which allowed the Supreme Court of New South Wales to order a prisoner who was about to be released at the end of the term of his imprisonment could be detained for a further period. A Constitutional challenge to similar legislation passed in Queensland was rejected on the basis that, unlike the New South Wales legislation, it was not directed at a particular person and contained a series of procedural safeguards.
The limits of this doctrine have also been shown by the decision of Al- Kateb v Godwin[18] which concerned whether the Parliament could authorise the continuing detention of Mr Al- Kateb an illegal immigrant despite the fact that he had no country to go to, meaning he could be detained indefinitely. By majority the Court held the law to be valid.
2.5. Legislative Implementation
The starting point of this discussion is the fundamental common law principle that international treaties have no direct effect in Australian law without legislation.[19]
This does not mean that the Courts ignore international treaties. It has been said by the High Court that “the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty”[20]
However what this does mean is that the principle means by which our human rights obligations have been implemented is legislation.
2.5.1 CERD & CEDAW
The Commonwealth Race Discrimination Act and Sex Discrimination Act both fundamentally rely for their constitutional validity on the implementation of these conventions. The Queensland Anti-Discrimination Act also makes specific reference to the implementation of these conventions although that is not necessary for its constitutional validity.
2.5.2 ICCPR
This treaty has not been legislated for in Federal law. It is contained as a schedule to the Human Rights and Equal Opportunity Commission Act 1986 (HEROCA).
The Human Rights and Equal Opportunity Commission Act gives the Australian Human Rights Commission the function of “enquiring into any act or practice that may be inconsistent with or contrary to any human right” protected by the instruments listed in the schedule which includes the ICCPR. This enables the Commission to conduct enquiries in relation to acts or practices complained of as being inconsistent with these instruments. This is the only attempt that has been made to give the ICCPR any broad affect in Australian Federal Law.[21] However, the United Nations Human Rights Committee in July, 2000 noted its concern that there remain areas of Australia domestic law which do not provide an effective remedy to those whose rights under the convention have been violated.
2.5.3 ICESCR
This legislation is not referred to in the HREOCA although it has been relied upon as the constitutional basis in part for the Disability Discrimination Act and the Age Discrimination Act.
Once again the relevant United Nations committee in 2000 recorded its disappointment that the covenant continues to have no legal status in Australia.
2.5.4 CROC
This covenant is now incorporated as a relevant instrument for the purposes of the HREOC.
The legislation that has been relied upon as the constitutional basis for parts of the Family Law Act and is the constitutional basis in part for the Age Discrimination Act.
Once again the relevant United Nations committee has expressed concern that the rights under this covenant are not enforceable in Australian Courts.
2.5.5 CAT
The Crimes (Torture) Act 1988 of the Commonwealth Parliament makes an act of torture defined in accordance with the CAT a crime but only in relation to conduct of public officials or people acting in an official capacity or with the consent of the public official outside Australia. The charged person must either be an Australian citizen or present in Australia at the time of prosecution. The Queensland Criminal Code makes torture defined consistently with this treaty an offence.
3.1 How Could Australia Better Protect Human Rights?
The members of this Council do not think that there is any single way to protect civil liberties in this country. The pluralistic, open, democratic society in which we live only survives because the citizens of this country believe in it sufficiently to be active in support of it. This however does not mean that we cannot improve our institutional arrangements to ensure that they best support the continued existence of that society.
In the Council’s view this committee ought to recommend a constellation of changes to our current political system which in the Council’s view are best designed to achieve this objective:
1. There should be statutory protection of human rights by a Human Rights Act (“the HRA”).
2. The HRA should bind public authorities including government departments and statutory authorities and entities and persons performing public functions.
3. The HRA should invest individuals with a right to challenge the lawfulness of a decision of a public authority on the basis of a violation of human rights and require the executive government to take human rights into account in the policy process.
4. The HRA should provide that all draft legislation introduced to parliament must be accompanied by a human rights compatibility statement.
5. The Human Rights Act should require the courts to interpret legislation in a way that is compatible with human rights in so far as it is possible to do consistently for the statute’s purpose.
6. The HRA should empower the courts to make a declaration or finding that a law cannot be interpreted in a manner consistent with the right protected under the Act. Such a declaration or finding should not operate to invalidate the law but would require a response from the parliament.
7. The HRA should apply to the Federal Government only but with an option for State Governments to adopt the federal model to apply the legislation to their state.
8. Finally, there should be a right to seek compensation for breaches of the civil and political rights.
3.2 How Will A Human Rights Act provide Protection for Human Rights?
In the Council’s view the three traditional arguments for a Bill of Rights or HRA continue to be correct:
1. A HRA, by giving legal recognition to certain fundamental rights helps create a culture in which law makers, the executive judges and the community become educated about them and hence more respectful of them. The Victorian Human Rights Commission has already found evidence of cultural change in that state within less than four years of the passage of its Charter of Rights and Responsibilities. The ACT Bill of Rights Consultative Committee in its report of May 2003 was able to point to reforms of police practice in New Zealand following the introduction of the Bill of Rights in 1990.[22]
The Human Rights Law Resource Centre[23] and the British Institute of Human Rights[24] have both attempted to demonstrate the positive impact for change of a Human Rights Act in Victoria and the United Kingdom respectively. The committee might well think that the examples contained in those documents do not demonstrate a direct relationship between the Human Rights Act and the outcomes described. In the end of course the only way to establish a direct relationship would be to conduct interviews with the decision makers involved. However, the Council would respectfully submit that as a matter of common experience in every day life that a person, particularly a government official, is more likely to change their course when confronted with arguments which rely upon a statute or other source of authority than just on general propositions.
2. The second major improvement that a Human Rights Act would bring is that it would provide comprehensive protection for human rights. This appears to be the argument which was found most forceful by the report of the Human Rights Consultation Committee in Victoria.[25]
3. Thirdly, a Human Rights Act would give disaffected, disadvantaged, marginalized and other aggrieved persons in society a place to take their grievances to hopefully have them heard and a remedy granted.[26] It is a legal peg for people seeking redress to hang their hat on. In the Council’s submission this is in fact the most important purpose served by a Human Rights Act. We have already noted the reports of the British Institute of Human Rights and the Human Rights Law Resource Centre showing how the ability to refer to a human rights instrument appears on the face of it to have rendered human rights arguments more effective.
3.3 The Objections to a Human Rights Act
Most of the arguments against a Human Rights Act seem to fall into three categories:
1. By giving the courts powers to rule on the compliance of legislation with the Human Rights Act the legislation diminishes parliamentary sovereignty and is thereby undemocratic. More recent versions of this argument refer to Canada where in fact no decision of the court has been overturned by the parliament despite it having the power to do so. Proponents of this view seem to be arguing that in effect the prestige of the judges makes it impossible for the politicians to act. The first problem with this argument is that there always has been and necessarily, so long as the rule of law survives in this country, always will be a tension between the courts and the parliament. The job of the courts has always been to ensure that the executive complies with the requirements of legality. This has always resulted in the courts drawing boundaries around the executive and to some extent in a federal system like ours, around parliament.[27]
The Council has had a long term policy of supporting a constitutionally entrenched Bill of Rights. However over the last five to ten years it has come to accept that the American system has resulted in the transfer of far too much power to the judiciary. We agree with opponents of a HRA that the final say should lie with elected officials. For this reason the Council has adopted the policy of supporting a statutory Human Rights Act. Under this model a court cannot strike down legislation. It can only make a ruling of incompatibility and refer the matter to the parliament. This leaves in the end the final say on the issue to the parliament. In fact, the model proposed here is even more favourable to parliamentary sovereignty than say the model in Canada where the parliament must take a positive step in order to overturn a decision of the court that a piece of legislation breaches the Charter of Rights in that country. Under the model proposed here the parliament can do absolutely nothing and the law will not change. It seems the proponents of this argument against a HRA don’t trust politicians to in fact do nothing.
2. The second objection is that a Human Rights Act will involve the courts in areas of public controversy. The courts have always had to make difficult policy decisions. Some of them have been quite radical including the reform of the common law to accommodate the laissez faire economic and industrial system of the 18th century. Even the daily work of the courts in determining negligence questions has the potential to draw the courts into controversial areas.
3. Finally, the point is made that there have been Bills of Rights in Stalinist Russia and Zimbabwe which have not prevented those countries from turning into dictatorships. Equally the American Bill of Rights did not prevent the mass internment of Japanese during World War II. Nor did it prevent Abraham Lincoln from suspending habeas corpus during America’s civil war and detaining 10,000 people. As we have already noted it allowed the separate but equal doctrine to flourish.[28] It has been argued that those who point to the example of the American Bill of Rights are really pointing to the activities of the Warren court in the short period between 1955 and 1970. However, on the other hand it must be pointed out that it was not the politicians who desegregated the schools in the south of America. It was because blacks in the south of America could go to the Supreme Court and call in aid of the Bill of Rights that finally desegregation of the schools took place. A perfect example of a Bill of Rights supplying a peg for the disadvantaged to hang their hat on.
Next the Council would submit that when opponents of a Human Rights Act refer to the situation in Stalinist Russia they are in fact insulting both the politicians who they seek to support and the judiciary. Surely they are not seriously contending that the passage of a Human Rights Act in this country is meant to be a sham.
In this submission the Council has already pointed out its very strong view that a Human Rights Act is not a panacea. It will only work if there is a culture supporting human rights and sufficient political activism to ensure that human rights are in fact respected. The American political thinker Robert Dahl in Democracy and its Critics argues that the effect of a Bill of Rights may over time be to diminish the strength of the norms in the political culture because the participants no longer feel the need to practice self restraint because the courts can be relied upon to prevent the violation of fundamental rights and liberties. The model being supported by the Council here should not have that effect because as we have already pointed out legislation held to be incompatible with the Act will only be repealed if the politicians decide to do so. It may indeed still need political action to ensure that this occurs.
3.4 A Cause of Action For Damages
The Council agrees with the ACT Bill of Rights Consultative Committee that there should be an entitlement to bring an action for damages for breach of the Human Rights Act. If our recommendations in relation to economic, social and cultural rights are accepted then necessarily this right will not extend to breaches of those provisions. The experience of the United Kingdom where this right exists does not support any assertion that the result will be a flood of litigation nor that it will result in a drain on the public purse by awards of compensation. In fact, the awards in the United Kingdom have proved to be quite modest as is demonstrated by the decision in R v The London Borough of Enfield [2002] EWHC 2282.
3.5 Constitutional Invalidity
The Council observes the debate amongst Constitutional Law scholars about whether or not the dialogue model of a Human Rights Act proposed here can survive a challenge under the constitution. The Council does not have constitutional scholars who are able to make any particular comment on this. We simply observe the cogent arguments put forward by the Law Council of Australia in its submission to this committee and that the former Justice McHugh in his much cited paper[29] whilst expressing his view that the Act may be unconstitutional concedes that there are legitimate arguments in its favour.
3.6 Interpretation Clause
Arguably the centerpiece of the Human Rights Act will be a clause requiring the courts to interpret legislation in a manner consistent with the Human Rights Act. The interpretation clause in the United Kingdom has been interpreted as applying:
“Even if there is no ambiguity in the language in the sense of the language being capable of two different meanings… [it] requires the courts to find an interpretation compatible with convention rights if it is possible to do so…it will sometimes be necessary to adopt an interpretation which linguistically may appear strained.”[30]
Subsequently in Ghaidan v Godin-Mendoza[31] it was held that the interpretation clause:
“May require a court to depart from the unambiguous meaning the legislation would otherwise bear… [it] may require the court to depart from the intention of the parliament which enacted the legislation.”
In the Council’s view Australia should not go down this path because it would represent a serious intrusion by the courts into the role of the parliament. The Council supports an interpretation clause along the lines of that contained in the legislation of the Australian Capital Territory and Victoria.
The Victorian and ACT legislation makes it clear that the obligation of the courts is “to interpret legislation in a way that is compatible with human rights, so far as it is possible to do so, consistently with the purpose of the legislation”.
However we would say that following the remarks of Justice Nettle in RJE v The Secretary of the Department of Justice[32] it may be necessary for the Commonwealth legislation to go even further. In that decision Justice Nettle at paragraph 118 quoted the remark from Ghaidan v Godin-Mendoza referred to above but found it unnecessary to decide whether or not section 32 of the Victorian Charter went that far.
That the interpretation clause needs to be drafted carefully to avoid the approach taken in the United Kingdom has been made clear by the remarks of Justice McHugh.[33] Such an approach would be inconsistent with the separation of powers contained in the Commonwealth Constitution.
Having said that the Council rejects the oft stated argument that even an interpretation clause along the lines of the Victorian provision represents a departure from the traditional role of the courts. In fact, the courts apply a number of common law presumptions which involve the proposition as set out earlier in this submission that legislation should not be interpreted to take away fundamental rights and liberties. The decision of the Federal Court in the so-called “Annoying Laws” case in 2008 demonstrates quite clearly the application of such principles.[34]
3.7 Should the legislation apply to the States?
It would be the Council’s submission that politically and constitutionally it would be better if the proposed HRA did not apply of its own force to the states. However, the HRA should allow state governments to pass legislation applying the Commonwealth Human Rights Act to their jurisdictions. This would enable the coverage of the legislation to extend throughout the country.
Summary
In the Council’s view the case for a Human Rights Act is quite simply irrefutable. In saying that the Council does not think that a Human Rights Act will constitute a revolution in either sense. That is, a Human Rights Act will not create a human rights nirvana in Australia. Nor will it wreck the separation of powers between the branches of the government or destroy our democracy. What it will do is represent a bold statement of commitment by the Commonwealth Government to bring human rights closer to the heart of political culture in this country and provide a place where the marginalized and disadvantaged in our community can seek redress for their grievances.
The Council thanks you for the opportunity to make this submission and trusts it will be of assistance to you in your deliberations.
Yours faithfully
[1] The Convention on the Elimination of all Forms of Racial Discrimination (CERD); The Convention against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment (CAT); The Convention on the Elimination of Discrimination against Women (CEDAW); The Convention on the Rights of the Child (CORC)
[2] In making this comment the Council wishes to make it clear that it sees all the International instruments, but particularly the covenants on Civil and Political Rights and on Economic, Social and Cultural Rights as the product of cold war compromise. Accordingly in our view they often represent at best a minimum position. The Council in fact differs in what it sees as the relevant standard in a number of areas. Perhaps most prominently we differ with the standard set out in the ICCPR and Victorian legislation in relation to the freedom of speech where the Council’s long standing policy is the traditional civil libertarian position in relation to freedom of speech. For example, the Council opposes anti-vilification legislation.
[3] The government’s steps to meeting its obligations range from the Courts, to HREOC, the welfare state, the public health system, industrial laws.
[4] 2002 (5) (SA) 721 at page 739
[5] 2001 (1) (SA) 46 at paragraphs 41 and 42
[6] ACT Government May 2003 – paragraph 5.46
[7] Eg, the submission of Edward Santow to this committee at pages 49 and 50
[8] Erglis v. Buckley [2005] QSC 25
[9] Smith v. R [1991] 25 NSWRL 1
[10] Jago v. District Court of New South Wales 87 ALR 577 at 589, 602 and 605-609
[11] Coco v. R 120 ALR 415 at 419
[12] R P S v. The Queen [2000] 199 CLR 620 at 630
[13] Coco v. The Queen [1994] 179 CLR 427
[14] R v. Carroll 194 ALR 1 at pages 7 and 30
[15] R V Smithers (1912) 16 CLR 99
[16] Lebanese Moslem Association v. The Minister of Immigration [1986] 67 ALR 195
[17] Coleman v. Power 209 ALR 182
[18] [2004] HCA 37
[19] The Minister for Immigration V Teoh 128 ALR 353 at 361
[20] Teoh supra at 363
[21] The ICCPR has been used as a constitutional basis for certain legislation including the Human Rights (Sexual Conduct) Act 1994 introduced to override Sections of the Tasmanian Criminal Code. It is also partly the basis of the Disability Discrimination Act and the Age Discrimination Act.
[22] Towards an ACT Human Rights Act May 2003 paragraph 2.85
[23] Case Studies: How a Human Rights Act can Promote Dignity and Address Disadvantage (2009)
[24] Changing Lives, December 2008
[25] Human Rights Consultation Committee: Rights, Responsibilities and Respect (2005) page 6
[26] Gareth Evans: An Australian Bill of Rights? The Australian Quarterly, Volume 45, No. 1, March 1973, page 4 at page 15.
[27] See the discussion of Lord Bingham in his speech to The Human Rights Law Resource Centre, 9 December 2008 entitled Dignity, Fairness and Good Government: The Role of a Human Rights Act
[28] Robert Dahl: Democracy and its Critics 1989 pages 189 to 190
[29] A Human Rights Act, the Courts and the Constitution, 5 March 2009
[30] The Queen v A [2001] UKHL 25 at paragraph 44 per Lord Steyn
[31] [2004] UKHL 30 at paragraph 30
[32] [2008] VSCA 265
[33] Op cit page 20 and following
[34] Evans v The State of NSW 2008 FCAFC 130