Module Six
Human rights protected by:
 The courts – through the operation of the common
law, and their role in statutory interpretation;
 The parliament – at least the parliaments of the ACT
and Victoria which have enacted a form of human
rights legislation; and
 The executive – through the Commonwealth and State
human rights and anti-discrimination bodies such as
the Federal Australian Human Rights Commission
(AHRC).
For....
 Australian law does not protect fundamental freedoms.
 A Bill of Rights would give recognition to certain universal rights.
 A Bill of Rights would give power of action to Australians who are otherwise
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powerless.
A Bill of Rights would bring Australia into line with the rest of the world.
A Bill of Rights would meet Australia’s international obligations.
A Bill of Rights would enhance Australian democracy by protecting the
rights of minorities.
A Bill of Rights would put rights above politics and arbitrary governmental
action.
A Bill of Rights would improve government policy-making and
administrative decision-making.
A Bill of Rights would serve an important educative function.
A Bill of Rights would promote tolerance and understanding in the
community.
(After Professor George Williams, UNSW)
Against...
 Rights are already well protected in Australia.
 The High Court is already protecting rights through its interpretation of
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the Constitution and the common law.
Rights listed in the Constitution or Acts actually make little or no
difference in protecting rights.
The political system itself is the best protection of rights in Australia.
A Bill of Rights would actually restrict rights, that is, to define a right is to
limit it.
A Bill of Rights would be undemocratic to give unelected judges the
power to override the judgment of parliament.
A Bill of Rights would politicise the Australian judiciary.
A Bill of Rights would be very expensive given the amount of litigation it
would generate.
A Bill of Rights would be alien to our tradition of parliamentary
sovereignty.
A Bill of Rights would protect some rights (for example, the right to bear
arms) that might not be so important to future generations.
Australian statutory initiatives:
 Commonwealth: no express constitutional protection
 ACT: Human Rights Act 2004
 Victoria: Charter of Human Rights and Responsibilities
Act 2006
 Interpret as far as possible in a way which is compatible
with human rights
 Compatibility statements
 HUMAN RIGHTS ACT 2004 - SECT 30
 Interpretation of laws and human rights So far as it
is possible to do so consistently with its purpose, a
Territory law must be interpreted in a way that is
compatible with human rights.
Human Rights (Parliamentary
Scrutiny) Bill 2010
 Different approach – no direct involvement of courts
 Second Reading Speech:
 A statement of compatibility and a report of the Joint
Committee on Human Rights, while not binding on a court or
tribunal, could be used by the court or tribunal to assist in
ascertaining the meaning of provisions in a statute where the
meaning in unclear or ambiguous. By these measures, the
parliament will be empowered through its response to a
minister’s statement and any committee report, to give more
precise guidance to the courts as to the legislature’s intention
in enacting legislation in the context of Australia’s human
rights obligations.
UK: Human Rights Act 1968
 3(1) So far as it is possible to do so, primary legislation
and subordinate legislation must be read and given
effect in a way which is compatible with the
Convention rights
 Attorney Generals Reference No 4 2002 per Lord
Bingham:
 The interpretative obligation under s3 is a very strong
and far reaching one and may require the court to depart
from the legislative intention of Parliament
 A Convention compliant interpretation under s3 is a
primary remedial measure and a declaration of
incompatibility under s4 an exceptional course.
Common law: assumptions re
human rights
 Long standing assumptions of statutory intepretation
 “[the Court] is ...mediator between the state in the
exercise of its legislative power and the private citizen
....“
Lord Diplock in Fothergill v. Monarch Airlines [1981] A.C. 251, 279 quoted by Lord BrowneWilkinson in Pepper v Hart
Al-Kateb v Godwin (2004) 219 CLR 562.
 Migration Act 1958
 Mandatory detention – until removal or lawful entry
into Australia
 Gleeson CJ: What happens then? Is the consequence
indefinite, perhaps permanent, detention? The Act does
not, in express terms, address that problem. And so
determination of this question falls to the court.
 Note: Parliament silent – how does court interpret this
silence?
Migration Act s 196:
"(1) An unlawful non-citizen detained under section 189 must
be kept in immigration detention until he or she is:
(a) removed from Australia under section 198 or 199; or
(b) deported under section 200; or
(c) granted a visa.
(2) To avoid doubt, subsection (1) does not prevent the
release from immigration detention of a citizen or a lawful
non-citizen.
(3) To avoid doubt, subsection (1) prevents the release, even
by a court, of an unlawful non-citizen from detention
(otherwise than for removal or deportation) unless the
non-citizen has been granted a visa."
Gleeson CJ:
 10The word "detention" in sub-s (3) means "lawful
detention". If it were otherwise, the provision would
constitute an unconstitutional interference with
judicial power. Parliament cannot deprive the courts of
the power to order the release of a person from
unlawful detention. Consequently, it is the meaning of
sub-s (1), understood in its constitutional and
statutory context, that is in question.
Principle of ‘legality’
[19] In exercising their judicial function, courts seek to give effect
to the will of Parliament by declaring the meaning of what
Parliament has enacted. Courts do not impute to the legislature
an intention to abrogate or curtail certain human rights or
freedoms (of which personal liberty is the most basic) unless such
an intention is clearly manifested by unambiguous language,
which indicates that the legislature has directed its attention to
the rights or freedoms in question, and has consciously decided
upon abrogation or curtailment. That principle has been reaffirmed by this Court in recent cases. It is not new. In 1908, in
this Court, O'Connor J referred to a passage from the fourth
edition of Maxwell on Statutes which stated that "[i]t is in the last
degree improbable that the legislature would overthrow
fundamental principles, infringe rights, or depart from the
general system of law, without expressing its intention with
irresistible clearness".
[20]A statement concerning the improbability that
Parliament would abrogate fundamental rights by the
use of general or ambiguous words is not a factual
prediction, capable of being verified or falsified by a
survey of public opinion. In a free society, under the
rule of law, it is an expression of a legal value, respected
by the courts, and acknowledged by the courts to be
respected by Parliament.
‘Legality’ as unifying principle:
 The presumption is not merely a common sense guide
to what a Parliament in a liberal democracy is likely to
have intended; it is a working hypothesis, the existence
of which is known both to Parliament and the courts,
upon which statutory language will be interpreted. The
hypothesis is an aspect of the rule of law.
 Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers
Union (2004) 209 ALR 116,
Lord Steyn:
 Parliament does not legislate in a vacuum. Parliament
legislates for a European liberal democracy founded on
the principles and traditions of the common law. And
the courts may approach legislation on this initial
assumption. But this assumption only has prima facie
force. It can be displaced by a clear and specific
provision to the contrary.
Lord Hoffman:
 The principle of legality means that Parliament must
squarely confront what it is doing and accept the political
costs. Fundamental rights cannot be overridden by general
or ambiguous words. This is because there is too great a risk
that the full implications of their unqualified meaning may
have passed unnoticed in the democratic process. In the
absence of express language or necessary implication to the
contrary, the courts therefore presume that even the most
general words were intended to be subject to the basic rights
of the individual. In this way the courts of the United
Kingdom, though acknowledging the sovereignty of
Parliament, apply principles of constitutionality little
different from those which exist in countries where the
power of the legislature is expressly limited by a
constitutional document.
R v Secretary of State for Home Department; Ex parte Simms (2002) 2 AC 115 at 131
Spigelman CJ:
Courts presume that Parliament does not intend to:
 Invade fundamental rights, freedoms and immunities;
 Restrict access to the courts;
 Abrogate the protection of legal professional privilege;
 Exclude the right to claims of self-incrimination;
 Permit a court to extend the scope of a penal statute;
 Deny procedural fairness to persons affected by the exercise of
public power
 Give immunities for governmental agencies a wide application;
 Interfere with vested property rights;
 Alienate property without compensation;
 Interfere with equality of religion
Displacement of assumptions
 Coco v R (1994) 179 CLR 427
 Per Mason CJ, Brennan, Gaudron and McHugh JJ:
 Indeed, it has been said that the presumption is that,
in the absence of express provision to the contrary,
the legislature did not intend to authorize what
would otherwise have been tortious conduct ... But
the presumption is rebuttable and will be displaced if
there is a clear implication that authority to enter or
remain upon private property was intended.
Coco v R:
 10. The insistence on express authorization of an abrogation or
curtailment of a fundamental right, freedom or immunity must
be understood as a requirement for some manifestation or
indication that the legislature has not only directed its attention
to the question of the abrogation or curtailment of such basic
rights, freedoms or immunities but has also determined upon
abrogation or curtailment of them. The courts should not impute
to the legislature an intention to interfere with fundamental
rights. Such an intention must be clearly manifested by
unmistakable and unambiguous language. General words will
rarely be sufficient for that purpose if they do not specifically deal
with the question because, in the context in which they appear,
they will often be ambiguous on the aspect of interference with
fundamental rights).
Re Bolton; Ex parte Beane
[1987] HCA 12
Per Brennan J:
 "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."
Potter v Minahan
[1908] HCA 63
 'in the last degree improbable that the legislature would
overthrow fundamental principles, infringe rights, or
depart from the general system of law, without
expressing its intention with irresistible clearness; and
to give any such effect to general words, simply because
they have that meaning in their widest, or usual, or
natural sense, would be to give them a meaning in
which they were not really used’
Using the assumptions
Spigelman CJ:
It is at this point that judicial reasoning often becomes
distinctly fuzzy...the relevant test is, more often than
not, expressed in the conclusion rather than in the
reasoning....
It is often said that a statute which impinges upon the
principle of legality, or any of its constituent
interpretative principles, must be construed strictly.
However the concept of strict construction does not
involve a simple standard. There are degrees of
strictness.
The principle of legality
Parliament does not interfere with fundamental
rights
 Al-Kateb v Godwin
 Evans v State of New South Wales [2008] FCAFC 130
 We have interpreted the WYD Act on the presumption
that it was not the intention of Parliament that
regulations would be made under the Act preventing or
interfering with the exercise of the fundamental
freedom of speech. We have applied a principle of
interpretation in favour of that freedom which has been
accepted by the Courts of this country since
Federation...
 Parliament does not deprive people of access to
the courts
 Privative clause
 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Specific assumptions
The law is constitutional
 There is always an initial presumption that Parliament
did not intend to pass beyond constitutional bounds. If
the language of a statute is not so intractable as to be
incapable of being consistent with this presumption,
the presumption should prevail.
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Isaacs J in FCT v Munro; British Imperial Oil Company Ltd v FCT (1926) 38 CLR 153 at 180
 s15A Acts Interpretation Act
Legislation is presumed not to have
extraterritorial effect
 In the interpretation of general words in a Statute there
is always a presumption that the legislature does not
intend to exceed its jurisdiction. Most Statutes, if their
general words were taken literally in their widest sense,
would apply to the whole world, but they are always
read as being prima facie restricted in their operation
within territorial limits.
 O’Connor J in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR
309 at 363
 S21 Acts Interpretation Act
 Statutes do not operate retrospectively
 Rodway v R (1990) 169 CLR 515
 Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ [at 51819] said: The rule at common law is that a statute ought not to
be given a retrospective operation where to do so would affect
an existing right or obligation unless the language of the
statute expressly or by necessary implication requires such
construction. It is said that statutes dealing with procedure
are an exception to the rule and they should be given a
retrospective operation. It would we think be more accurate
to say that there is no presumption against retrospectivity in
the case of statutes which affect mere matters of
procedure....But the difference between substantive law and
procedure is often difficult to draw and statutes which are
commonly classified as procedural...may operate in such a
way as to affect existing rights or obligations. When they
operate in that way ...they fall within the presumption against
retrospective operation.”
Crown presumed not to be bound by statutes
 Province of Bombay v Bombay Municipal Corp [1947] AC
58
 Bropho v State of Western Australia (1990) 171 CLR 1
 State Government Insurance Corp v Government
Insurance Office of NSW (1991) 28 FCR 511 at 557:
 The common law presumption that statutes are intended
not to bind the Crown remains in force, but as a more
flexible guide to construction which may be displaced
without the stringent requirements that previously existed
Legislation presumed not to limit prerogative
powers or property rights of the Crown
 Barton v Commonwealth [1974] HCA 20
 Ruddock v Vadarlis [2001] FCA 1329
 Legislation is presumed not to interfere with
equality of religion
 Canterbury Municipal Council v Moslem Alawy Society
Ltd [1985] 1 NSWLR 525
 Legislation is presumed not to violate the rules of
international law
 Jumbunna Coal Mine NL v Victorian Coal Miners
Association (1908) 6 CLR 309
 Legislation is presumed not to alienate vested
proprietary interests without adequate
compensation
 Clissold v Perry (1904) 1 CLR 363
 Presumption can be rebutted by clear words
 Durham Holdings Pty Ltd v NSW (2001) 205 CLR 399
 Legislation is presumed not to interfere with vested
proprietary interests
 Clunies-Ross v Commonwealth (1984) 155 CLR 193
 If the power to acquire for a public purpose which the Act
confers is construed as extending to purposes quite
unconnected with any need for or future use of the land, the
ministerial power thereby created would be surprisingly
wide in that, subject only to monetary compensation, it
would encompass the subjection of the citizen to the
compulsory deprivation of his land, including his home,by
executive fiat to achieve or advance any ulterior purpose
which was a purpose in respect of which the Parliament has
power to make laws...It is in our view, unlikely that the
Parliament would have intended to confer such a power
other than by the use of clear words to that effect and
subject to stringent and specially framed controls or
safeguards against its abuse. Neither is to be found in the
Act.
 Penal provisions are strictly construed
 Beckwith v R (1976) 135 CLR Gibbs J commented:
 The rule formerly accepted, that statutes creating
offences are to be strictly construed, has lost much of its
importance in modern times. In determining the meaning
of a penal statute the ordinary rules of construction must
be applied, but if the language of the statute remains
ambiguous or doubtful the ambiguity or doubt may be
resolved in favour of the subject by refusing to extend the
category of criminal offences...The rule is perhaps one of
last resort.
 Legislation is presumed not to alter common law
doctrines/Legislation is presumed not to invade
common law rights
 FCT v Citibank Ltd (1989) 20 FCR 404 at 433, where he
noted:
 The nature of this society, and its tradition of respect for
individual freedom, will support an approach to
construction which requires close scrutiny and a strict
reading of statutes which would otherwise remove or
encroach upon those freedoms. But where the natural
meaning of the words is clear, the will of Parliament must
be respected.
Examples:
 Parliament does not abrogate the privilege
against self incrimination
 Crafter v Kelly [1941] SASR 237
 Privilege may be removed by express words
 Pyneboard Pty Ltd v Trade Practices Commission (1983)
152 CLR 328
 Parliament does not abrogate legal
professional privilege
 The Daniels Corporation International Pty Ltd v
Australian Competition and Consumer Commission
(2002) 213 CLR 543
Further reading:
 http://www.aph.gov.au/library/intguide/law/billofrigh
ts.htm
 http://www.gtcentre.unsw.edu.au/content/charterhuman-rights-0
 http://www.aph.gov.au/library/pubs/rp/199899/99rp20.htm