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President speech: Human rights, the Constitution and a Human Rights Act

Commission Commission – General

Human rights, the Constitution and a Human Rights Act

The Hon Catherine Branson QC

Speech to AGS Constitutional Law Forum
Dinner

11 November 2009


It is a pleasure to be asked to speak to you this evening about ‘Human
rights, the Constitution and a Human Rights Act’.

We are gathered this evening on the land of the Ngambri people, from whom
Canberra takes its name, and I pay my respects to their elders past and
present.

Human rights in the drafting of the Constitution

The relatively recent tradition of acknowledging the traditional owners at
public events has a particular resonance when we talk about human rights and the
Constitution. Because, of course, our Constitution conspicuously fails to
recognise the rights of Australia’s Indigenous peoples.

Historically this is unsurprising. It was not until almost one hundred years
after our Constitution was drafted that the High Court, in Mabo (No
2)
[1],
recognised, for the purposes of our common law, that Australia was not
‘terra nullius’ at the time of white settlement and that Aboriginal
and Torres Strait Islanders have cognisable rights as our first peoples.

No Indigenous people were involved in the development of the Constitution
(nor, for that matter were any women) and many Aboriginal people were excluded
from voting in the referendums held to approve the draft Constitution that
emerged from the Conventions of the
1890s.[2]

The benign explanation for the general failure of our Constitution to
enshrine basic human rights is that the Constitution was not intended to be a
human rights document. Nick O’Neill has noted that

The founding fathers of the Australian Constitution were pragmatic people...
They were not concerned about the rights of humankind, nor did they see their
role as one of creating an Australian federal parliament and a government that
was required to guarantee, uphold and preserve the rights of the people. On the
contrary their aim was to achieve some hard, practical, political goals.

In the circumstances in which it was developed, O’Neill concludes,
‘it is surprising that any human rights provisions at all got into the
Australian Constitution.[3]

But it was not simply that human rights were beyond the concerns of the
‘founding fathers’. The founders were also keen to ensure that the
States had the power to maintain racially discriminatory
laws.[4]

Andrew Inglis Clark, a delegate to the 1891 Constitutional convention,
proposed including a clause to prohibit a State from denying ‘to any
person within its jurisdiction the equal protection of the laws’. The idea
of an ‘equal protection’ clause was, however, rejected, in part to
allow existing racially discriminatory laws to continue – for example, the
Western Australian laws that prevented ‘Asiatic or African aliens’
from getting a mining right or go mining in a
goldfield.[5]

Laws dealing specifically with Aboriginal and Torres Strait Islander peoples
were left as matters for the States. George Williams has observed that
‘the Constitution, as drafted in 1901, said little about Indigenous
peoples, but what it did say was entirely
negative’.[6] The original
drafting of the ‘races’ power in section 51(xxvi) excluded
‘the aboriginal race’. The Constitution also explicitly excluded
Aboriginal people from the census under section 127. Both aspects were struck
out by the 1967 referendum.

Express and implied rights in the Constitution

There are nevertheless some express rights in the Constitution, although
these are limited in their scope. You will be familiar with the basic catalogue:
the right to vote (s 41); the requirement that any acquisition of property by
the Commonwealth be on just terms (s 51(xxxi)); the right to trial by jury (s
80); the right to freedom of ‘trade, commerce and intercourse’ among
the States (s 92); the right to freedom of religion (s 116) and the right to
non-discrimination on the basis of State residence (s
117).[7]

We can add to these some implied rights, most clearly the right of political
communication[8] and
limits upon government power that can be implied from the separation of powers
in the Constitution.[9]

Rather more ambitiously, Justice Murphy attempted to divine ‘silent
constitutional principles’ arising from the nature of our society –
including such rights as freedom from slavery, freedom of movement and freedom
of communication.[10] This is not,
however, an approach that has found favour with other members of the High
Court.[11]

A role for international law in constitutional interpretation?

More recently, there has been some controversy over what, if any, influence,
international law, and relevantly this evening, international human rights law,
might have in constitutional interpretation.

It is typically seen as a rather unbalanced, two-sided affair.

In the ‘red’ corner, as it were, is Justice Michael Kirby who has
advocated making reference to international law to resolve ambiguity or
uncertainty in matters of Constitutional interpretation and the development of
Constitutional law.

In Newcrest Mining, for example, Justice Kirby explained the approach
as follows:

international law is a legitimate and important influence on the development
of the common law and constitutional law, especially when international law
declares the existence of universal and fundamental rights. To the full extent
that its text permits, Australia's Constitution, as the fundamental law of
government in this country, accommodates itself to international law, including
insofar as that law expresses basic rights. The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their
governance. It also speaks to the international community as the basic law of
the Australian nation which is a member of that
community.[12]

In the ‘blue’ corner is a rather large number of other judges of
the High Court, for whom the notion of the Constitution being construed subject
to international law is heresy. Justice Michael McHugh, for example, in Al-Kateb v Godwin had this to say:

[T]he claim that the Constitution should be read consistently with the rules
of international law has been decisively rejected by members of the Court on
several occasions. As a matter of constitutional doctrine, it must be regarded
as heretical.[13]

Indeed, in Roach v Australian Electoral Commissioner, Justice Dyson
Heydon felt compelled to do the numbers. His Honour noted:

The proposition that the legislative power of the Commonwealth is affected or
limited by developments in international law since 1900 is denied by most,
though not all, of the relevant authorities - that is, denied by 21 of the
Justices of this Court who have considered the matter, and affirmed by only
one.[14]

In fact, the position is a little less clear than that. There are a number of
instances in which members of the High Court other than Justice Kirby have made
reference to international law principles in the course of their reasoning in
Constitutional cases.

In Roach itself, a case that you will recall concerned the right to
vote in s 41 of the Constitution, Chief Justice Gleeson referred to
jurisprudence from the European Court of Human Rights and the Supreme Court of
Canada considering the Canadian Charter of Rights and Freedoms. The
reasoning of those courts was, in the former Chief Justice’s view,
‘instructive’, although not directly applicable to the Australian
Constitution.[15] In their joint
judgment, Justices Gummow, Kirby and Crennan also made reference to those
decisions in the course of their
reasoning.[16]

In a number of other Constitutional cases, Chief Justice Gleeson and Justices
Deane, Brennan and Gummow have also made reference to principles of
international law.[17] Ernst
Willheim has noted that their Honours did not ‘find any need to justify
their references to principles of international law and no other judge found
reason to criticize their doing
so’.[18] The trick is perhaps
not to claim any doctrinal backing for making reference to international law and
it can then form an uncontroversial part of judicial
reasoning.[19]

It is also interesting to note that in a presentation to the 2003 Gilbert +
Tobin Constitutional Law Conference, Justice Susan Kenny referred to the
significant role that the ‘prudential-ethical’ mode of judicial
reasoning, as opposed to ‘textualism’ or the closely related
‘doctrinal mode’, can play in Australian Constitutional
interpretation.[20] The
‘prudential-ethical’ mode is a mode of reasoning that relies on
‘economic, social or political considerations’ attending a case.
While it was not the subject of her Honour’s analysis, it is not difficult
to see how human rights principles might form part of such an approach.

I refer to her Honour’s presentation in this context because her
Honour’s review of the 2002 law term revealed that most members of the
High Court were to some extent adopting a prudential-ethical mode of
interpretation in constitutional cases. Perhaps surprisingly, former High Court
Justice Callinan, often seen as a committed ‘black letter lawyer’,
was identified as the leading practitioner of this
mode.[21] This is despite Justice
Callinan’s being a vocal opponent of the use of international human rights
law in Constitutional reasoning.[22] It is not at this time easy, I suggest, to draw firm conclusions about the
relevance of international human rights law to Constitutional interpretation in
this country.

Achieving better protection of human rights

Nonetheless, we must recognise, it seems to me, that the Constitution, unless
it is significantly amended, can only play a limited role in protecting human
rights.

For those of us who believe that we can do better to protect human rights
through the law, the question then arises: how?

It won’t surprise you to hear that, in my view, Australia should have a
Human Rights Act.

I regard a Human Rights Act as a more appropriate immediate goal than seeking
to amend our Constitution to enshrine a Bill of Rights. While in time
Constitutional amendment may occur, I do not presently favour such an approach
for a number of reasons. One is, of course, the practical matter of attempting
to change our Constitution. But the substantive reason is that I believe we
should first build a human rights culture in our government – one that
reaches across the legislative, executive and judicial arms. We should also
strive for a human rights culture for our country. These should be our immediate
goals and they are, I believe, achievable – but probably only if we have
an Australian Human Rights Act.

Given the amount of legal press that has recently been devoted to the issue,
you may be relieved to hear that I don’t propose to make the case this
evening for a Human Rights Act. The National Human Rights Consultation Committee
chaired by Father Frank Brennan has considered the issue in great detail and has
heard from a wide cross-section of Australians, including through over 35,000
written submissions: the largest number of submissions ever received by a
government consultation in Australia. The Committee has recommended that
Australia adopts a federal Human Rights Act.

A Human Rights Act and the balance of power

What I would like to consider is perhaps the most significant question that
has arisen in the debate and one that I expect is of interest to you as lawyers
practising in public law: would a Human Rights Act alter the balance of power so
as to fundamentally change our system of government?

You will probably not be surprised to hear that in my view it would not. You
may be slightly more surprised to learn that two leading modern British
conservative thinkers, Jesse Norman and Peter Oborne, have recently published a
booklet which sets out a Tory case for the UK Human Rights
Act.[23] This booklet seeks to make
clear how the Human Rights Act (UK), which shares many features of the Act
proposed for Australia, contains the most basic rights from 900 years of British
history including the great conservative ideas of freedom under law, restraint
on the power of the state and the deep link between individual liberty and
private property. Their view of legislative protection of economic, social and
cultural rights is, of course, less sanguine.

But returning to the Australian context, the spectre of ‘unelected
judges’ wielding unprecedented power is frequently held up as a strong
argument against a Human Rights Act. It makes me wonder if I left the bench
before the fun was about to begin.

But let’s look at what is really being proposed.

The feature of a Human Rights Act based on the ‘dialogue’ model
that seems to have caused the controversy is the inclusion of an interpretive
provision.

Such a provision requires courts to interpret laws consistently with human
rights, whenever it is possible to do so consistently with the purpose of the
legislation being interpreted.

If a court cannot interpret legislation consistently with human rights,
Parliament is notified and is required to respond – either by amending the
legislation to make it consistent with human rights, or by deciding to leave it
unchanged.

On one approach, Parliament is notified by the court issuing a
‘declaration of incompatibility’ or ‘declaration of
inconsistency’ as happens under the Victorian and ACT schemes.

This has raised a constitutional issue that I should deal with briefly. The
personal view that I have expressed on a number of occasions is that the
Constitution would not prevent federal courts from making a
‘declaration’ that legislation is incompatible with the human rights
enumerated in a Human Rights Act. I am pleased that the same view has been taken
by the Solicitor General in advice given to the National Consultation Committee
and appended to its report. I recognise, however, that others, such as former
High Court Justice Michael McHugh, take a different view.

That there are different views on this issue has been seized upon as posing
some sort of crisis for the effectiveness of the ‘dialogue’ model in
Australia. It is no crisis at all.

If it is thought necessary to avoid any potential for Constitutional
difficulty, it is possible to make the necessary notification to Parliament of a
court’s finding of inconsistency by means other than a formal declaration
by the court. That was the view taken by a roundtable of experts brought
together by the Australian Human Rights Commission including the former Chief
Justice Sir Anthony Mason and Michael McHugh himself.

One option for how this notification could be achieved is to have the
Australian Human Rights Commission perform the role. But in truth it
doesn’t matter much who has the job. The point is to devise a mechanism
that brings the matter to the attention of Parliament so that it can respond.
Father Brennan has recently suggested that a committee of parliamentarians may
perform the role and that may also work effectively.

Enhancing Australian democracy

So how might this ‘dialogue’ model alter the balance of power
between the legislature and the judiciary? And would any change be so
significant as to upset the foundations of our system?

It is worth remembering the obvious point that a Human Rights Act is an act
of Parliament. Opponents of a Human Rights Act are caught in a bind on this.
They say that we should place our faith in our elected representatives to
protect human rights. But not if they should decide to do so through a Human
Rights Act.

In my view, a Human Rights Act would enhance Australian democracy: there
would be a more open and transparent consideration of human rights within our
system of government; and access to more information about the impact and
operation of laws should lead to a more active and engaged public.

A Human Rights Act does give courts an increased role in protecting
rights. Lord Bingham of Cornhill has described the benefit of the UK Human
Rights Act as 'empowering the courts to uphold certain very basic safeguards...
for those members of society who are most disadvantaged, most vulnerable, and
least well-represented in any democratic representative
assembly'.[24]

To the extent that this gives courts more ‘power’, it is
important to remember that the role of the court is a clearly defined one, given
to it by Parliament. The point of the dialogue model being considered in
Australia is that parliamentary supremacy is maintained. If a court finds that a
law is incompatible with human rights, it is for Parliament to respond as it
sees fit.

Opponents of an Australian Human Rights Act seem again to lose their
confidence in our elected representatives at this point. They suggest that
Parliament may be unwilling to maintain a law that a court has concluded is
inconsistent with the Human Rights Act or to amend a law where a court has
interpreted it in a way with which there is serious disagreement. The point of
the dialogue model is, of course, that neither step should be taken lightly, but
it seems to me that it is not credible in the Australian context to suggest that
our Parliament would not be clearly in control of any dialogue on the topic of
the content of statutes of the Parliament.

Sir Anthony Mason recently considered the argument that Parliament may not
override a judicial interpretation of legislation that renders it human-rights
compliant, even if it is in the public interest to do so. He asked wryly:
‘Why not? If an override has public support why would the politicians not
support an override? Surely not out of respect for
judges.’[25] The argument that
a Human Rights Act suffered a democratic deficit was, in Sir Anthony’s
view, ‘without a
foundation’.[26]

A development, not a revolution

It is also worth remembering that the interpretive principle that courts
would apply under an Australian Human Rights Act is not significantly different
from the principle of legality that is an established part of our common law.
You will all be familiar with the rule of statutory construction that statutes
should not be understood to intend to interfere with fundamental rights unless
Parliament has manifested an unambiguous intention to do so.

Chief Justice French has recently observed:

Freedom of expression is one such fundamental freedom [recognised] by the
common law. Another is personal liberty. It does not take a great stretch of
the imagination to visualise intersections between these fundamental rights and
freedoms, long recognised by the common law, and the fundamental rights and
freedoms which are the subject of the Universal Declaration of Human Rights and
subsequent international Conventions to which Australia is a
party.[27]

An interpretive principle of the type contemplated under an Australian Human
Rights Act is not a revolution. It would be a careful and modest development of
the way our system currently works. It would serve to strengthen the principle
of legality by supplementing common law freedoms with a specific list of rights
that reflects Australia’s international human rights obligations. In
Australia we are accustomed to checks and balances on the power of each of the
branches of our government. The important thing is not so much to protect the status quo as to ensure that we have in place the right checks and
balances for our time. A Human Rights Act would not significantly disturb the
balance of power between our Parliament and our judiciary but it would, I
suggest, provide modest additional protection of the rights and freedoms of
those in our country who are either unpopular or able to be disregarded without
electoral cost.

In an earlier speech in which the now Chief Justice asked whether judicial
activists were ‘mythical monsters’, his Honour also noted that

Whatever the rights and wrongs of the debate about human rights laws and the
adequacy of the existing institutional mix together with the common law for
their protection, the function that such statutes confer upon the judiciary does
not seem qualitatively different from that which it already discharges across a
wide range of jurisdictions.[28]

Conclusion

Of course, a Human Rights Act is not a magic wand. We will not wake up the
morning after the Act comes into operation to a world that feels dramatically
different. But at a time in our constitutional history when the power of the
executive branch of government is very considerable, the new law would be an
important step in filling the gaps in protection for those who do not on a
particular issue constitute the majority in our society. It would require the
government of the day to give mature consideration to the need to enact measures
that derogate from human rights and to justify publicly any decision to do so.

We need to recognise that although our Constitution has many strengths, the
protection of human rights is not one of them. We should therefore look for
other ways to build a strong human rights culture in Australia. And a Human
Rights Act would be a very good place to start.


[1] Mabo v Queensland (No 2) (1992) 175 CLR 1.
[2] For the
most comprehensive survey of the role of human rights in the creation and
application of the Australian Constitution, see George Williams, Human rights
under the Australian Constitution
(2nd ed, 2002). See also
O’Neill, Rice and Douglas, Retreat from injustice (2nd ed, 2004), chapters 3-4.
[3] NKF
O’Neill, ‘Constitutional Human Rights in Australia’, (1987) 17 Federal Law Review 85,
85.
[4] See Williams above n 2,
33.
[5] Ibid 37-8,
41-2.
[6] George Williams,
‘The Australian Constitution and Human Rights: A Centenary View’
(Symposium: Constitutions and Human Rights in a Global Age: An Asia Pacific
Perspective, Research School of Pacific and Asian Studies, 2001),
4.
[7] George Wiliams suggests a
broader range of explicit rights might be identified: see above n 2,
47-8.
[8] First recognised Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR
106.
[9] Chu Kheng Lim v
Minister for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR
1.
[10] McGraw Hinds (Aust)
Pty Ltd v Smith
(1979) 144 CLR 633,
670.
[11] See Williams, above n 1,
156-8.
[12] (1997) 190 CLR 513,
657-8.
[13] (2004) 219 CLR 562,
589 [62].
[14] Roach v
Australian Electoral Commissioner
(2007) 233 CLR 162, 225 [181], footnotes
omitted.
[15] Ibid 179
[17].
[16] Ibid 203-4
[100]-[101]. Justice Kirby has suggested that the majority ‘invoked, for
contextual relevance, general legal principles that had been expounded on a like
question in the European Court of Human Rights’: Justice Michael Kirby,
‘The Growing impact of international law on Australian Constitutional
values’, (Australian Red Cross National Oration, Hobart, 8 May 2008),
29.
[17] See Ernst Willheim,
‘Globalisation, State Sovereignty and Domestic Law: The Australian High
Court Rejects International Law as a Proper Influence on Constitutional
Interpretation’ (2005) 1 Asia-Pacific Journal on Human Rights and the
Law
1, 18-9.
[18] Ibid
19.
[19] See further Justice
Michael Kirby, above n 15,
29-31.
[20] Justice Susan Kenny,
‘The High Court on Constitutional Law: the 2002 Term’ (2003) 26(1)
University of New South Wales Law Journal 210,
219.
[21] Ibid
220.
[22] See I.D.F. Callinan,
‘International Law and Australian Sovereignty’ (2005) 49(7) Quadrant 9.
[23] Jesse
Norman and Peter Oborne, Churchill’s Legacy: The Conservative Case for
the Human Rights Act
(2009).
[24] Lord Bingham of
Cornhill, ‘Dignity, Fairness and Good Government: The Role of a Human
Rights Act’ (Speech delivered for the Human Rights Law Resource Centre,
Mallesons Stephen Jaques, Melbourne, 9 December 2008),
9.
[25] Sir Anthony Mason,
‘Human Rights and the Courts’ (Speech delivered to the Cultural and
Religious Freedom under a Bill of Rights Conference, Canberra, 13-15 August
2009), 5.
[26] Ibid.
[27] Chief Justice Robert
French, ‘Oil and water? International law and domestic law in
Australia’, (Brennan Lecture, Bond University, 26 June 2009), 21 [38],
footnotes omitted.
[28] Chief
Justice Robert French, ‘Judicial Activists – Mythical
Monsters?’ (Paper presented at the Gilbert + Tobin 2008 Constitutional Law
Conference, Sydney, 8 February 2008), 6 [12].