1 HUMAN RIGHTS IN AUSTRALIA Human rights are the entitlements and freedoms 1 necessary for human flourishing 2 in a political community. The actual content of human rights at any given time in any given society may be contested, but once they are determined, they form an important foundation of the public law of every community. This chapter traces the origin of what are considered inalienable human rights in the Western legal tradition, and the way these rights are promoted and protected in the Australian legal system. Australia has boasted to the international community that Australians enjoy a ‘high level’ of human rights protection and observance. 3 Indeed, on the international plane, Australia appears to be a leader and model promoter of human rights, as it has ratified all the main international human rights treaties and has been involved in their drafting. But the story becomes more complex upon a closer look at the federal level, where human rights protection is partial and patchy. There are many gaps in federal human rights protection in Australia. In the 21st century, children have been held in immigration detention centres, anti-terrorism legislation allows individuals to be detained for several days without charge, and antidiscrimination protection can be suspended. The haphazard nature of human rights protection contributes to a poor understanding of human rights within the community. Australian lawyers are often forced to make cryptic, highly technical and circuitous arguments that are difficult for nonlawyers to follow, because one of the assumed major sources of human rights protection (albeit an indirect source of protection) derives from the strict separation of federal judicial power required by Chapter III of the Constitution. 4 At the State level there are fewer structural protections of human rights because the State constitutions do not guarantee the separation of powers, as occurs under Chapter III of the Federal Constitution, although the position of the State courts as part of the integrated federal judicial structure provides a minimum guarantee against encroachment into judicial independence and impartiality. Among its international peers, Australia is a relative latecomer to the field of human rights jurisprudence in the form of systematic rights protection. Only since 2004 has a coherent body of human rights law begun to emerge in two Australian jurisdictions: the Australian Capital Territory (ACT) and Victoria. The patchwork and technical nature of human rights protections in Australia means that few Australians are acquainted with their rights, and many find it difficult to articulate them. Indeed, in a 2006 survey, 61 per cent of those Australians surveyed mistakenly believed that Australia has a federal Bill of Rights. 5 In 2009 a national consultation took place to gauge Australians’ views about human rights protection and whether it could be improved. After travelling the nation and receiving over 35,000 written submissions, the Committee – chaired by Father Frank Brennan and known as the ‘Brennan Committee’ – observed that ‘Human rights are not well understood by the Australian community’, 6 and made 31 recommendations as to how Australia could strengthen its protection of human rights. The first three recommendations are broad in that they identify the need for better human rights education, including a readily identifiable list of Australian rights and responsibilities. The Brennan Committee’s report proposed that Australia adopt a federal legislative Bill of Rights, basing its recommendation on the support of 87 per cent of the submissions received by the Committee. 7 The Brennan Report also made a number of useful recommendations as to how the three arms of government could improve their promotion of, and compliance with, human rights. The Report argued that although the vast majority of Australians enjoy some measure of human rights protection, whether this level of protection is adequate should be judged on how well it protects the rights of the most vulnerable and marginalised sections of society. This chapter examines why human rights protection in Australia is a patchwork, lacking either consistency or uniformity. It begins by setting out how the notion of rights emerged in the Anglo-American world and how, through the UN system, the international community has brought some uniformity to rights protection in the drafting and monitoring of international human rights instruments. It analyses Australia’s level of compliance with these international human rights treaties by mapping how our Constitution, legislation, the common law and federal human rights institutions provide an uneven level of human rights protection. It shows that some Australian jurisdictions, specifically the ACT and Victoria, are providing the lead in building a human rights culture within the operation of government. Overall, this chapter argues that there are signs at the federal level of the emergence of a more robust and systematic mechanism to review all legislation for its human 2 rights impact. Stronger review mechanisms have been embedded within the Parliament and the Executive so that potential human rights problems in the legislative process are given greater consideration by our elected representatives and government before they enact laws that affect the community. Ultimately, these mechanisms need to be aimed at strengthening government accountability and lifting awareness within the electorate as to how our legal system protects and abrogates human rights, so as to facilitate a more informed choice on election day. The national emergence of rights In Parliament House in Canberra, visitors can see an ancient facsimile of the Magna Carta , valued at many millions of dollars. To human rights lawyers in the AngloAmerican world, the 13th-century Magna Carta is revered because it records the first documented time that the absolute power of the King was challenged and the King was made subject to the law. Through this document, the barons of England were successful in demanding that the King consult with them in return for the taxes they paid. In other words, they were successful in protecting their rights and privileges. This is not to say, however, that these rights and privileges were won for all the people at this point of time. A second English progenitor of rights was the enactment of the 1689 Bill of Rights by the English Parliament. This document placed certain restrictions on the sovereign; for example, it required the King to gain the agreement of Parliament before imposing new taxes. The document also guaranteed various rights such as freedom of speech and freedom from cruel and unusual punishments. A century later, the French drafted the 1789 Declaration of the Rights of Man Citizen , which declared that all men were equal by the laws of nature. document influenced the drafting of the most influential constitutional rights document: the US Bill of Rights . The US Constitution is the first written national Constitution in the world to have included a Bill of Rights, although it must be remembered that these rights were added a few years later in the form of amendments to the Constitution. While some of these rights – such as the right to freedom of religion – are considered universal, others – such as the right to bear arms – are seen as archaic and uniquely associated with American history. Australia does not have a constitutional tradition of rights as its Constitution does not include a Bill of Rights. As Chapter 2 explains, Australia did not follow the US model because its beginnings as a nation were not troubled by the same dramatic events that characterised the founding of the US. In Australia, successive attempts over the 20th century to boost the rights protections in our Constitution have been unsuccessful. At the time of the drafting of the US Bill of Rights and the French Declaration of the Rights of Man , it was thought that rights were innate, immutable and came from natural law – a law above the law of man. One problem with this natural law theory is that it is difficult to determine what exactly these ‘natural’ rights entail. An influential English philosopher, Jeremy Bentham (1748– 1832), found the concept of natural rights to be ‘simple nonsense’: Rights is a child of law; from real law come real rights, but from imaginary law, from laws of nature, come imaginary rights … Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense – nonsense upon stilts. In Bentham’s view, ‘real rights’ are rights that have a positive source in government; they cannot be simply asserted or assumed to exist. The writing and entrenching of rights into a state’s constitution, such as that of the US, was hence a significant step as rights became part of the positive law of the state. But the problem with Bentham’s positivist approach can be seen in a situation where a state fails to entrench rights fully into either its constitution or legislation, such as the case of Australia. The relative dearth of rights in our Constitution or in a legislative Act does not mean that Australians have no rights; but it is accurate to say that our rights are not systematically protected. The international emergence of rights One sphere where Australian governments have been actively involved in the creation of rights is the international sphere, where dozens of human rights instruments detail international rights and standards. States can ratify these international instruments, thus binding themselves to respect, fulfil and protect these rights. Human rights as we know them today only emerged after the end of World War II. The UN was created as a response to the atrocities of the War and as a means of building a global form of collective security. In face of the Holocaust, human rights were understood as a means of prescribing how governments worldwide should treat their populations. Article 1(3) of the Charter of the UN (1945) (‘UN Charter’) states that one purpose of the UN is: 3 To achieve international co-operation in … promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. These words are repeated in art 55 of the UN Charter, alongside statements regarding the need to promote ‘higher standards of living, full employment, and conditions of economic and social progress and development’. Article 56 follows with a ‘pledge’ that all members ‘will take joint and separate action in co-operation with the Organization [the United Nations] for the achievement of the purposes set forth in Article 55’. This pledge was advocated by Herbert V Evatt, the Australian AttorneyGeneral and Minister for External Affairs, and leader of the Australian delegation to the 1945 San Francisco Conference that drafted the UN Charter, who was also known at the UN as a champion for social and economic rights. Overall, however, there are few references to human rights in the UN Charter, and those that exist are weak in that they use the language of promotion rather than protection. This inattention to human rights was partly remedied in 1948, when the Universal Declaration of Human Rights (UDHR) was drafted and subsequently adopted by the UN General Assembly. The UDHR sets out universal human rights standards: it consists of a preamble and 27 articles setting forth human rights and fundamental freedoms that were conceived as ‘a common standard of achievement for all peoples and all nations’. As Chapter 10 of this book explains, because the UDHR is a declaration, it is not a binding instrument; although today many, but not all, of the articles of the UDHR are considered part of customary international law. One of the important aspects of the UDHR is that it brought together in one single document three sets of rights, which are sometimes referred to as first-, secondand third-generation rights. These different types of rights are today considered by the UN to be interdependent and indivisible. First-generation rights are civil and political rights, such as freedom of religion and freedom of speech. Such first-generation rights are found in the European Convention on Human Rights , which was drafted in 1949, as well as other Western Bills of Rights including the US Bill of Rights and the UK Human Rights Act 1998 . These rights have typically been championed by the West. Second-generation rights are social, economic and cultural rights, such as the right to housing and the right to health; rights that were particularly supported by the Communist Bloc during the Cold War. Third-generation rights are collective or solidarity rights, articulated predominantly by developing countries, such as the right to selfdetermination. The UDHR included both first-and second-generation rights as it was drafted before the Cold War truly began. The UDHR also includes an example of third-generation rights: art 28 articulates a right to a ‘social and international order’ in which the rights in the UDHR are realised. After the adoption of the UDHR it was decided that the next step would be to draft a binding instrument with strong enforceable language to contain these rights. At this point, Cold War tensions between the West and the Communist Bloc meant that two separate covenants were drafted containing the first two generations of rights. These separate conventions, adopted in 1966, are known as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These are often referred to as the ‘Twin Covenants’, because they were concurrently drafted and some of their provisions (such as art 1) are identical; however, the language and mechanisms contained in the ICCPR are stronger than those in the more aspirational ICESCR. Together all three instruments – the UDHR, the ICCPR and the ICESCR – are known as the ‘International Bill of Rights’. Since the ICCPR and ICESCR came into force in 1976, five more core human rights treaties have been drafted and have come into force: these are the International Convention on the Elimination of Racial Discrimination (ICERD), the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), the Convention on the Rights of Persons with Disabilities (CRPD) and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Australia has ratified these seven core human rights treaties. While some third-generation rights – such as the right to the environment and the right to economic and social development – are articulated in non-binding declarations, thus far they have not been directly set out in any treaties, with the exception of the right to selfdetermination which is set out in art 1 of both the ICCPR and the ICESCR. For each of the core human rights treaties there is a relevant treaty committee – a quasi-judicial body that hears individual complaints about inadequate state compliance as well as state-to-state complaints. For example, the Human Rights Committee is responsible for the ICCPR, while the Committee on Economic, Social and Cultural Rights is responsible for the ICESCR. The conclusions of these treaty bodies in relation to individual complaints regarding state compliance are not binding. Individual complaints can only be submitted if the state party has 4 ratified the First Optional Protocol to the ICCPR or the Optional Protocol to the ICESCR. Australia has ratified the former but not the latter, which only came into force in 2013, almost 40 years after the former. Another function of these treaty bodies is to monitor state compliance: this is done through scrutinising reports periodically submitted by state parties. The idea is that the reporting process encourages states to reflect on their compliance. The treaty bodies then publish ‘report cards’, which set out the positive and negative aspects of a state’s performance. Once again, these report cards have no formal force, but they are designed to pressure state parties to fulfil the obligations they have undertaken. In addition to these treaty bodies, the UN Human Rights Council monitors a state’s compliance with international human rights law at a more holistic level by conducting a ‘universal periodic review’ of each UN member’s human rights record every four years. Unlike the quasi-judicial Human Rights Committee, which is made up of independent legal experts, the Human Rights Council is a political body made up of states, which means that the periodic review process is one whereby each UN member is reviewed by its peers. If one looks solely at Australia’s list of ratifications of the main human rights treaties, Australia looks like a model nation. However, our latest report cards from the UN treaty bodies point to a different story. For example, in 2009 the Human Rights Committee expressed a number of substantive concerns: 11 these included the compatibility of the provisions of the Anti-Terrorism Act (No 2) 2005 (Cth) with the ICCPR, in particular the expanded powers given to the Australian Security Intelligence Organisation (ASIO); 12 the continued operation of some elements of Australia’s mandatory immigration detention policy; and Federal Parliament’s suspension of the Racial Discrimination Act 1975 (Cth) for the purposes of the Northern Territory Emergency Response measures. 13 At the same time, the Committee on Economic, Social and Cultural Rights also expressed concern on the latter two issues and added a number of issues regarding the social and economic rights of Indigenous Australians, who suffer statistically high levels of ill health, homelessness and poor education. 14 Both treaty bodies recommended that the Federal Government enact comprehensive legislation to give effect to the Twin Covenants; that it establish a mechanism to ensure the compatibility of domestic law with the Covenants; and finally, and more controversially, that it consider introducing a federal charter of rights. All these criticisms and recommendations were echoed in February 2011 by Australia’s peers at the UN Human Rights Council, following the Council’s review of Australia’s human rights record. Since Australia ratified the First Optional Protocol to the ICCPR in 1991, it has been subject to over 100 registered individual complaints about its inadequate compliance with the treaty; this is the third highest number of registered complaints after Canada and Spain. The Human Rights Committee has heard about 50 of these complaints and of these, in roughly one-third the Committee has found that Australia is violating the ICCPR. One area in particular in which Australia has been found to be at fault is in the ‘arbitrary detention’ of asylum seekers under the Federal Government’s mandatory immigration detention policy. In 10 individual cases since 1997, the Committee has stated that this detention is contrary to art 9(1) and (4) of the ICCPR – which provide a right against arbitrary detention and a right to have substantive judicial review of detention – and has called on Australia to remedy this breach. 16 In its 2009 report card, the Human Rights Committee stated that Australia’s ‘failure to give effect to its Views [in these complaints] would call into question [Australia’s] commitment to the First Optional Protocol’. 17 However, it must be kept in mind that the Committee’s views are not binding on Australia. In addition, Australia’s ‘failure’ in this regard often relates to its disagreement with the Committee as to the interpretation of various relevant provisions of the ICCPR. Generally, Australia is prepared to engage constructively with the Committee’s views. In a number of cases, the UN Human Rights Committee has found laws to breach Australia’s obligations under the ICCPR when these same laws have survived challenges to their constitutional validity in the High Court. For example, in 2010 the UN Human Rights Committee concluded that the Queensland Dangerous Prisoners (Sexual Offences) Act 2003 , which was upheld by the High Court in the case of Fardon v Attorney-General (Qld) , 18 was a form of ‘arbitrary detention’ under art 9(1) of the ICCPR. The Committee reasoned that there was a breach of art 9(1) because the continued incarceration of ‘dangerous prisoners’ under such legislation amounted to a fresh term of imprisonment, which is not permissible in the absence of a conviction. 19 In a case dealing with similar legislation in New South Wales, the Human Rights Committee found that the civil procedures embedded in the legislation did not meet the due process guarantees, set out in art 14 of the ICCPR (due process is required for a fair trial in which a penal sentence is imposed). 20 These cases illustrate that Australia has insufficient procedural or substantive safeguards that would require Parliaments to consider human rights in a systematic manner before enacting law or policy. Additionally, it highlights that our courts are not empowered to consider compliance with 5 human rights standards, such as those in Australia’s international obligations, when reviewing the constitutionality of legislation. One of the challenges in protecting human rights in Australia lies in controlling the actions of the Executive. In practice, the Executive is the most powerful arm of government because it has the most resources and because it interprets and enforces legislation on a daily basis. Unlike the Legislature, it is not directly accountable to the electorate. This means that the actions of the Executive require close monitoring by Parliament, the courts, human rights institutions, the media and civil society. The mechanisms for bringing the Executive to account in Australia are explained in Chapter 7. An examination of the Human Rights Committee’s 2009 report card and the 2011 review by the Human Rights Council shows that a number of the concerns of these international bodies relate to the Executive’s exercise of its powers. For example, in regard to Australia’s mandatory policy of immigration detention, the Human Rights Committee has criticised the Department of Immigration and Citizenship’s failure to conduct periodic reviews of continued detention in individual cases and to find less invasive, alternative means to detention, which has led to some detainees being held in detention for up to five years. 21 Since August 2012 this problem of arbitrary detention has been exacerbated by the transfer of all those asylum seekers who arrive by boat to third countries such as Papua New Guinea (PNG) and Nauru as part of a regional processing agreement Australia has brokered. 22 The UN High Commissioner for Refugees (UNHCR) has expressed concern that the asylum seekers transferred to PNG are being held in mandatory and indefinite detention. 23 Furthermore, this group of asylum seekers includes children, despite the UNHCR’s recommendation that children not be subject to this regime. Another concern is the manner in which the Executive exercises its power to detain asylum seekers who have received adverse ASIO security assessments. About 50 recognised refugees, including children, have been held in prolonged and potential indefinite detention, in some cases up to four years, following such negative ASIO assessments. These assessments are non-reviewable because asylum seekers are not able to seek merits review through the Security Appeals Division of the Administrative Appeals Tribunal, unlike other persons who are subject to such negative ASIO assessments. Indeed, ASIO is under no obligation to inform persons of the basis of its assessment, which means that the legality of ASIO’s decisions cannot be challenged in the courts through judicial review. In response to public criticism, the Gillard ALP Government appointed an ‘Independent Reviewer of Adverse Security Assessments’, to provide an advisory review of these ASIO assessments. The role of the reviewer is to provide a recommendation to the government as to whether the assessment is an appropriate outcome. 24 In August 2013 the Human Rights Committee concluded that this prolonged and indefinite detention amounted to cruel, inhuman and degrading treatment (contrary to art 7 of the ICCPR), and that the detention was arbitrary (contrary to art 9 ICCPR) because of the government’s refusal to provide reasons for, or any information regarding, the assessments and its removal of procedural rights. 25 The Human Rights Committee recommended that Australia release the detainees and compensate them, giving Australia 180 days to respond. Subsequent to the complaint being lodged, two of the detained families were released after ASIO overturned its assessment following a recommendation by the Independent Reviewer; and in one case ASIO rescinded its assessment on the eve of a High Court challenge. 26 The recommendation of the Human Rights Committee may fall on deaf ears, as the Coalition Government has announced plans to eliminate the minimal safeguard on the exercise of executive power offered by the independent advisory review. During times of heightened tension, such as the ‘War on Terror’ that succeeded the 11 September 2001 terrorist attacks, the powers of executive agencies such as ASIO and the police often become widened without sufficient monitoring. Sometimes, the problem is that Parliament delegates powers to the Executive without giving enough consideration to the human rights impact of such delegations. At other times, Parliament has failed to foresee how legislation may burden human rights because, as we shall see, in the past its process for reviewing proposed legislation has not been adequate. In the Human Rights Committee’s report card in 2009, concern was expressed that various powers given to ASIO were overly vague and broad. 28 According to two leading commentators, some of ASIO’s powers in relation to anti-terrorism measures are ‘more extensive than the powers granted to similar organisations in the United Kingdom, Canada and the United States’. To provide a clearer and more comprehensive picture as to how human rights are protected in Australia, the following section considers the three main sources of law in Australia – the Constitution, legislation and the common law – to compare and contrast how these sources operate to both protect and abrogate human rights. It illustrates that there are many gaps in our federal system of human rights protection. It then evaluates the powers of our human rights institutions to monitor the actions of the Executive, as well as the legislation enacted by Parliament. 6 Human rights at the federal level Constitutional guarantees Australia’s Constitution is one of a small number of constitutions in the common law world not to include a Bill of Rights. It remains untouched by the juggernaut of the human rights movement and, in this regard, it stands alone among English-speaking nations. Individual rights provisions in the Australian Constitution are few, and they are difficult for a non-lawyer to either identify or understand. There are just four express individual rights provisions: s 51(xxxi) states that the Commonwealth can only compulsorily acquire property on ‘just terms’; s 80 protects a limited right to trial by jury; s 116 protects freedom of religion; and s 117 requires freedom from discrimination on the basis of State residence. With regard to the second and third of these, the High Court has interpreted them very narrowly because of its adherence to legalism in interpreting the Constitution (see Chapters 3 and 8). In addition, the first three provisions are limited in that they relate only to the actions of the Federal Government. Since 1901 various attempts have been made to extend these rights, but these have failed partly due to the difficult referendum requirements imposed by s 128 of the Constitution, and possibly partly due to the low level of understanding of Australia’s constitutional rights among the electorate. Many Australians would be surprised, for example, to find that the Constitution does not explicitly articulate or guarantee a right to vote, despite the fact that under legislation voting is a duty, as part of our system of compulsory voting (see Chapter 4). That said, our system of representative and responsible government 30 means that the Parliament cannot arbitrarily deprive Australian citizens of their right to vote or their freedom of political communication. 31 The constitutional principles of responsible and representative government do not confer individual rights, but instead place limitations on the power of the Parliament. The High Court has also found implied protections in our Constitution based on the principle of the separation of federal judicial power as required by Chapter III of the Constitution (explained in Chapters 8 and 9). For human rights advocates, the indirect protections offered by the implications of Chapter III of the Constitution have been an invaluable tool, but this path of protection has produced highly circuitous forms of argument. For example, in cases involving the imposition of detention or control orders (parole-like conditions or house arrest where no charges have been laid), advocates are forced to make technical arguments about the nature and limits of judicial power and are unable to directly submit that federal legislation abrogates the right to liberty in a disproportionate and unjustifiable manner. The latter argument is used in jurisdictions such as the US, Canada and the UK, where human rights are directly protected through constitutional or legislative Bills of Rights. On the rare occasions when the Australian High Court has found implied protections in our Constitution, the decisions have been met with controversy as they raise the inevitable debate about parliamentary supremacy and judicial review. 32 In sum, the scarcity of human rights guarantees in the Constitution means that there is little High Court jurisprudence that directly engages with human rights law. This has meant that the main responsibility for human rights protection in Australia lies with the Federal Parliament. Legislative action Given the paucity of constitutional protection of human rights in Australia, Federal Parliament enjoys few human rights constraints in legislating. At the same time, Parliament bears the primary responsibility of protecting our human rights. The question is whether Parliament is sufficiently well equipped to carry out this important role given that it is dominated (at least in the lower house) by the Executive (see Chapter 6) and, as an elected body, it generally acts in the best interests of the majority rather than those who are most vulnerable, marginalised or unpopular. In 2009 the Brennan Report 33 found that those Commonwealth Government actors formulating policy and legislation were giving insufficient attention to human rights considerations. Human rights were not being adequately integrated into the parliamentary process. In regard to Parliament, the Brennan Report recommended the establishment of a new joint parliamentary committee modelled on the UK’s Joint Committee on Human Rights (which is widely regarded as performing a robust level of scrutiny), together with a system of statements of human rights compatibility to accompany all new Bills and disallowable legislative instruments. The Report also recommended that the Federal Government conduct an audit of all existing law, policies and practices to determine Australia’s compliance with its international human rights obligations and subsequently amend them where necessary. In particular, the Report drew attention to the areas of national security and immigration as well as antidiscrimination law, which is covered by a hodge-podge of Acts. The 2010 government response to the Brennan Report , known as the Human Rights Framework , 34 implemented a number of the Report’s recommendations, 7 particularly those relating to strengthening the parliamentary protection of human rights by establishing the Parliamentary Joint Committee on Human Rights (PJCHR) (discussed briefly in Chapter 5) and introducing a system of Statements of Compatibility. While the area of anti-discrimination law has been the subject of some attempt at reform, the area of immigration law has seen deterioration in human rights compliance as both major political parties have been competing to curtail the rights of asylum seekers – ostensibly in a bid to deter the business of people smuggling – drawing criticism from various UN bodies. This section analyses these developments and charts Parliament’s trajectory in protecting human rights. It begins by explaining Parliament’s power to enact human rights legislation and traces some of the instances where Parliament has actively promoted human rights through enacting anti-discrimination legislation. This is followed by some instances of where Parliament has used legislation to curtail human rights in a bid to counter terrorism and so-called threats to our borders (see also Chapter 14). It then sets out how the new system of parliamentary scrutiny operates through the PJCHR and Statements of Compatibility. Legislative protection of human rights It is possible to argue that in some respects our federal system circumscribes the ability of our Federal Parliament to provide positive protection of human rights through enacting legislation to promote human rights. Sections 51 and 52 of the Constitution set out the main limits on the Federal Parliament’s powers. However, as we shall see, this does not fully reflect the reasons why there is only partial legislative protection of human rights at the federal level. After signing the ICCPR in 1972, the Whitlam ALP Government introduced a legislative Bill of Rights so as to implement the ICCPR using the external affairs power (s 51(xxix)). When the Whitlam Government was dismissed in 1975, this Bill stalled. Three years after Australia ratified the ICCPR in 1980, federal Cabinet once again approved the introduction of a legislative Bill of Rights, but this time the Bill was never introduced into Parliament. In the meantime, the Federal Parliament began enacting anti-discrimination legislation over a period of almost 40 years, piece by piece, starting with the Racial Discrimination Act 1975 (Cth) (RDA), which implemented parts of the International Convention on the Elimination of Racial Discrimination (ICERD). In 1982 the Premier of Queensland challenged the validity of the RDA in the case of Koowarta v Bjelke-Petersen 35 on the ground that the Federal Government could not use the Commonwealth’s legislative power over external affairs to implement international human rights treaties. Before 1975, Queensland laws overtly discriminated against Indigenous Australians: they were subject to restrictions in respect of the holding of property, residence and working on reserves. Queensland was concerned that such federal anti-discrimination legislation would erode traditional State powers. The High Court held that the use of the external affairs power to enact the RDA was valid, and it effectively found that our system’s federal division of powers was indeed compatible with the federal implementation of human rights treaties. The enactment of further anti-discrimination legislation was very slow: nine years after the RDA came the Sex Discrimination Act 1984 (Cth); a further eight years later came the Disability Discrimination Act 1992 (Cth); and finally, in 2004 came the Age Discrimination Act 2004 (Cth). This suite of four separate discrimination Acts provides protection from discrimination on the grounds of race, sex, disability and age in relation to actions in the public sphere such as the workplace, education, and the provision of goods and services. The RDA goes further to prohibit discrimination in any field of public life. In addition, the Fair Work Act 2009 (Cth) sets out protections specifically relating to discrimination in employment. A breach of anti-discrimination legislation is known as an ‘unlawful’ act, which most often leads to civil remedies. Such a breach can be addressed through a process of conciliation conducted by the Australian Human Rights Commission (formerly known as the Human Rights and Equal Opportunity Commission), or determined through a judicial hearing and binding order made by the Federal Court or the Federal Magistrates Court. The States and Territories have also introduced anti-discrimination laws. In contrast to the federal Acts, this legislation is omnibus in that a single statute covers all the protected grounds of discrimination. The Tasmanian legislation is the most extensive, covering 22 grounds of discrimination. With the exception of the ACT and Victoria, the State bodies established by these Acts do not have a mandate to promote human rights generally – the antidiscrimination legislation is more narrowly concerned with equality, albeit formal equality. As a form of human rights protection, federal anti-discrimination legislation suffers from various weaknesses. For example, such legislation has no special constitutional status: this means that Parliament can easily suspend it, 8 repeal it entirely, or amend it in order to either strengthen or weaken it when it sees fit. So far, this has taken place three times, all in relation to Indigenous issues. The most controversial example was the suspension of the RDA in 2007 under the Northern Territory Emergency Response (NTER) measures (discussed in Chapter 13), which received bipartisan support when they were passed with little deliberation by Parliament. Under the banner of protecting Indigenous women and children, these measures applied to all land owned by Indigenous communities, targeting about 70 in particular, and the measures included the compulsory acquisition of this land which was subsequently leased back to Indigenous communities. Unless there is media coverage, it is difficult for the electorate to ascertain the human rights impact of such acts of suspension, which impose blanket limitations on rights in a racially discriminatory manner. While this suspension of the RDA was formally lifted in 2010, 36 the legislation did not explicitly set out that the RDA would prevail in the case of an inconsistency with the later legislation. Another problem is that the anti-discrimination laws in Australia form an inconsistent patchwork of legislation; for example, the tests for discrimination differ according to the Act, making this field of law overly complex for individual complainants and businesses to navigate. An employee who is not promoted because of more than one ground covered under the four Acts (such as age and race and sex - an older Aboriginal woman) is not able to commence action under more than one Act, but must choose one regime. Adding to this issue, enforcement of antidiscrimination law is left to individual complainants who shoulder the entire onus of proof. In contrast, the Fair Work Act shares this onus between the individual and the employer: once the complainant has been able to prove that an adverse action has taken place, the employer must then establish that the action was not based on a prohibited ground. This shifting of the burden of proof is in line with other jurisdictions such as the UK, the US, Canada and the European Union. Precedents in Australian anti-discrimination law are of a haphazard nature. This is because unlike the Equality Commissions in the US and the UK, the Australian Human Rights Commission and similar state agencies do not have the power to run strategic litigation so that important precedents can emerge in the field. 37 This means that the emergence of precedents depends on whether individual complainants have sufficient resources to pursue litigation. Indeed, many important precedents, such those set by the High Court, do not favour individual complainants; unlike their counterparts in North America and the UK, Australian courts have not applied a purposive or liberal approach to interpreting anti-discrimination law and thus they are not guided by the goals of anti-discrimination law. In 2012 the Gillard ALP Government made an unsuccessful attempt to remedy this hodge-podge of antidiscrimination law by introducing omnibus legislation – the human Rights and Anti-Discrimination Bill – aimed at consolidating all grounds of discrimination into one Act, sharing the burden of proof between the complainant and respondent, and reducing the risk of costs by each party bearing their own costs. The Bill drew some critics, such as those former New South Wales Chief Justice, James Spigelman, who was concerned that one provision of the Bill sought to impose liability for ‘conduct that offends, insults, or intimidates the other person’. He argued that words such as ‘offend’ and ‘insult’ could potentially lead to breaches of our international treaty obligations to protect freedom of speech and, more broadly, have of sex – one of is that as are this Human a ‘chilling effect’ on freedom of speech in Australia. 39 Facing a tide of such criticism, the government withdrew the Bill entirely rather than attempting to amend it. As a stopgap, in 2012 the government finally introduced legislation to amend the Sex Discrimination Act in order to include sexual orientation, gender identity and intersex status as prohibited grounds of discrimination. As a result of the Human Rights and Anti-Discrimination Bill being scuttled, our framework of anti-discrimination law remains a patchy affair and, with the exception of the Fair Work Act , it continues to place the entire onus of proof on the complainant. Legislative curtailment of human rights While the Federal Parliament has chosen to enact anti-discrimination legislation, the post-11 September 2001 ‘War on Terror’ has also led it to pass legislation that abrogates some human rights. 41 Since September 2001, the Federal Parliament has passed more than 40 new counter-terrorism laws, partly under the external affairs power, but also under the defence power and other powers. In late 2004, for example, the ASIO Legislation Amendment (Terrorism) Act 2002 (Cth) was enacted, which amended the ASIO Act 1979 (Cth) to expand ASIO’s powers of questioning and detention. Of particular concern is that the Act authorises ASIO to question and detain for up to seven days any person who is not necessarily suspected of being involved in committing or planning to commit a terrorist offence; it can apply to anyone who is able to ‘substantially assist in the collection of intelligence 9 that is important in relation to a terrorist offence’. 42 In these circumstances, a detained person has no right to seek judicial review of the warrant and has no right to be brought before a court. This arguably breaches the right to a fair hearing and to have an independent body review the legality of one’s detention. Following the 2005 London bombings, the Federal Parliament enacted the AntiTerrorism Act (No 2) 2005 (Cth). This amends the Criminal Code 1995 (Cth) and the Crimes Act 1914 (Cth). Based on UK legislation, the AntiTerrorism Act (No 2) gives the police power to impose control orders and preventative detention orders on suspected terrorists. One such suspected terrorist, Jack Thomas, attempted to challenge the control order imposed upon him under the legislation on the grounds that the legislation was not validly enacted under the Constitution’s defence power and that it breached the Constitution’s strict separation of judicial power. 43 Thomas was unable to challenge the legislation directly for placing unreasonable restrictions on his liberty because there is no constitutional or even legislative guarantee of liberty in Australia. In contrast, in the UK – which has a legislative Bill of Rights known as the Human Rights Act 1998 (UK) – the courts effectively placed limits on legislative provisions dealing with both control orders and the secret evidence they were based upon, on the ground that such provisions cannot be read compatibly with the various civil and political rights protected by the Human Rights Act . The same Anti-Terrorism Act figured in the 2007 case of an Indian doctor working in Australia, Mohamed Haneef, who was detained by the police under the Crimes Act 1914 (Cth) for 12 days of questioning after a SIM card he once owned was found in the possession of his second cousin, a terror suspect in the UK. On the 12th day of his detention, Dr Haneef was finally charged with the offence of providing resources to a terrorist organisation, despite the conclusion of the Australian Federal Police and the Queensland Police that there was insufficient evidence to charge him. Upon being granted bail, Dr Haneef ’s work visa was immediately cancelled by the Minister for Immigration and Citizenship under the Migration Act 1958 (Cth) on the basis that he had failed a character test because of his ‘association’ with his second cousin. Dr Haneef challenged this by applying for judicial review of the Minister’s decision in the Federal Court. 45 While the Federal Court could not directly consider Dr Haneef ’s civil and political rights, it could look closely at the legislation. The Court held that the Minister had misconstrued the legislation through interpreting the word ‘association’ too broadly. This error was a jurisdictional error and invalidated the Minister’s decision to cancel Dr Haneef ’s visa. Dr Haneef won his appeal against the Minister’s decision and the criminal charges against him were dropped soon after on the grounds of insufficient evidence. The Haneef case shows that common law principles of statutory interpretation (outlined in the next section, and in Chapter 11 in relation to international law) often play a critical role in protecting human rights in Australia because of the unavailability of more direct means of challenging executive actions that contravene international human rights. However, the weakness of statutory interpretation lies in the fact that it relies on the courts – which do not enjoy the democratic legitimacy of Legislatures and can only be reactive in individual cases, as they must wait for a human rights violation to take place. The Thomas and Haneef cases also show that there is clearly a danger of basing federal counter-terrorism legislation on legislative schemes from countries such as the UK that have strong human rights safeguards in the form of constitutional or legislative Bills of Rights. New parliamentary scrutiny Since early 2012 the Parliamentary Joint Committee on Human Rights (PJCHR) has become the main ‘rights watchdog’ within Federal Parliament. 46 The PJCHR was established under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) ( HRPS Act ), and under s 7(a) and (b) of this Act the Committee’s function is to scrutinise how proposed legislation (and disallowable legislative instruments) as well as existing Acts measure up to Australia’s international obligations under the seven core human rights treaties it has ratified. This scrutiny takes place not only when a Bill is first introduced, but also once amendments have been made at the time of the third reading. A second function is ‘to inquire into any matter relating to human rights which is referred to it by the Attorney-General, and to report to both Houses of Parliament on that matter’. 47 In addition, the HRPS Act introduced a new requirement that all new Bills and disallowable legislative instruments are accompanied by a Statement of Compatibility 48 to assess whether the Bill is compatible with the seven core human rights treaties. These Statements of Compatibility are not binding on any court or tribunal, and a failure to present such a Statement to accompany a Bill does not affect the validity, operation or enforcement of the Act. The rationale behind these Statements of Compatibility is that human rights considerations be observed throughout the pre-legislative stage so as to guide the development of policy and minimise the risk of new legislation giving rise to human rights breaches. They are not intended to be prepared as an afterthought as a Bill is about to be introduced into Parliament. An illustration of this point is the passing of the Stronger Futures 10 legislation in mid-2012 which effectively extends the NTER measures (discussed above, and further in Chapter 13) for a further 10 years and imposes income management-measures, predominantly on Indigenous communities. 49 The Bill was introduced into Parliament in late 2011 and hence was not accompanied by a Statement of Compatibility. Even though civil society 50 called for such a Statement of Compatibility to be presented, this would not have overcome the fact that the policy was developed at a time when there was no requirement that there be systematic consideration of Australia’s human rights obligations. However, civil society was successful in requesting the PJCHR to scrutinise the Stronger Futures legislation and report to Parliament regarding its compatibility. The PJCHR has indicated that it expects all Statements of Compatibility to address three questions: whether the limitation of a right is aimed at achieving a legitimate objective; whether there is a rational connection between the limitation and the objective; and, whether that limitation is proportionate. 52 This assessment is a proportionality process that requires balancing and weighing up rights with other rights and government objectives in a particular context. It is similar to those tests used by courts in jurisdictions with Bills of Rights, such as the UK and Canada, except that in the Federal Parliament it is an overtly political process. The PJCHR has so far been very active and conscientious in its scrutiny function. Almost all Bills introduced into Parliament in the first 18 months of its operation have been accompanied by Statements of Compatibility, although not all of these offered adequate assessments of human rights compatibility. Where Statements of Compatibility have been absent or inadequate, the PJCHR has asked the relevant Minister to justify how the legislation complies with Australia’s international human rights obligations. One example is the PJCHR’s response to the regional processing legislative measures enacted under the Gillard Government, the Migration Legislation (Regional Processing and Other Measures) Act 2012 (Cth). When the legislation was introduced, it was not accompanied by a Statement of Compatibility on the basis that the 2012 Bill was amending an earlier 2011 Bill, which was introduced prior to the requirement of Statements of Compatibility. The PJCHR requested that the Immigration Minister explain the Bill’s human rights compatibility to which the Minister replied that it is ‘the Government’s clear view that the Act complies with Australia’s human rights obligations’. 53 After conducting an inquiry involving public hearings and submissions, the PJCHR concluded that the legislative measures ‘carry a significant risk of being incompatible with a range of human rights’, including the prohibition on degrading treatment (art 7 of the ICCPR), the prohibition on arbitrary detention (art 9 of the ICCPR) and the right to health (art 12 of the ICESCR). The PJCHR found that the government had not demonstrated the reasonableness and proportionality of the limitations placed on those rights, but stopped short of recommending that the legislation be amended. This report preceded the 2013 federal election, but it is unlikely that it had any impact on the election given that both parties supported this curtailment of rights of an unpopular minority. The two new mechanisms introduced by the Human Rights Framework are aimed at encouraging greater compliance with human rights by Commonwealth Government actors at the same time as promoting greater accountability. This laudable aim is undermined when the government uses technical grounds to justify its failure to present Statements of Compatibility in regard to legislation that clearly limits its human rights obligations. While our system of parliamentary government is relatively strong, it can be argued that, at least in the past, Parliament has not consistently demonstrated sufficient competence in fulfilling its role as the primary institution for protecting human rights in Australia. Only time will tell whether the new PJCHR and system of statements of human rights compatibility will be sufficiently robust to ensure that human rights are respected and promoted throughout the legislative process. One indicator is whether Parliament is capable of giving greater protection to minorities who presently look to the courts and the common law for human rights protection because the courts are not influenced by the democratic pressures of acting in the best interests of the majority. In devising the Human Rights Framework , the Rudd/ Gillard ALP Government rejected the Brennan Report’s key recommendation of a federal legislative Bill of Rights on the ground that such a Bill would be divisive: this reluctance to increase the judicial role in the protection of rights is apparent on both sides of Parliament. In regard to the role presently performed by the courts in the protection of human rights, the Human Rights Framework noted the rules of statutory interpretation found in the common law: In the event of ambiguity, the courts construe legislation consistently with fundamental rights unless Parliament has expressly indicated a contrary intention. Similarly the courts construe ambiguous legislation on the basis that it is presumed that Parliament does not intend to breach Australia’s human rights obligations. 11 The next section considers what is meant by the term ‘fundamental rights’ and how the courts use common law presumptions of statutory interpretation to protect human rights. Common law protections The Australian courts have held that the common law contains a range of protections of rights and freedoms. A non-exhaustive list includes the following: the privilege against self-incrimination; legal professional privilege; access to the courts; access to legal counsel when an indigent person is accused of a serious crime; immunity from interference with vested property rights, including native title rights; immunity from deprivation of liberty except by law; freedom of speech and movement; and procedural fairness when affected by the exercise of public power. These protections are of ‘freedoms’ rather than ‘rights’ because they are not actionable unless argued in the context of an actionable wrong, such as interference with one’s liberty or property. On the common law privilege against self-incrimination, Murphy J explained in Hammond v Commonwealth : The privilege against self-incrimination is part of our legal heritage where it became rooted as a response to the horrors of the Star Chamber. In the United States it is entrenched as part of the Federal Bill of Rights. In Australia is it part of the common law of human rights. … the privilege is presumed to exist unless it is excluded by express words or necessary implication, that is by unmistakeable language. Here Murphy J is discussing the common law statutory presumption that legislation is construed consistently with fundamental rights, which has become known as ‘the principle of legality’. The presumption is that Parliament does not intend to curtail common law rights and freedoms unless such an intention is manifested by Parliament through the use of unambiguous language. In its unanimous joint judgment in Coco v The Queen the High Court explained: The insistence on express authorization 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 of an abrogation or curtailment of rights. Accordingly, where legislation is ambiguous or unspecific, then the courts read it subject to common law rights and freedoms. If Parliament intends to curtail common law rights and freedoms, it must be specific and clear in its intentions. Given the establishment of the PJCHR, such explicit language should trigger scrutiny and produce a level of political debate as well as media attention. The presumption articulated by the High Court in Coco v The Queen has been cited in numerous cases, including Al-Kateb v Godwin . 58 In this case the presumption was important in the three separate opinions that dissented from the majority of the High Court. 59 The case concerned the plight of a stateless Palestinian asylum seeker, Ahmed Al-Kateb, who was born in Kuwait. When Mr Al-Kateb’s application for asylum in Australia was denied following four years of detention, he agreed to be deported, but this was frustrated when no country was willing to accept him. The issue was whether, in these circumstances, s 196 of the Migration Act 1958 (Cth) required Mr AlKateb to be held in indefinite detention. Section 196 states that a person must be detained unless they are removed from Australia, deported or granted a visa. In this case, the minority judgments held that the legislation would need to be clearer if it sought to permit the indefinite detention of people in Mr Al-Kateb’s situation contrary to the right to personal liberty. The majority disagreed, finding the legislation to be clear and unambiguous. The outcome of this case is that Parliament can indefinitely deprive people such as Mr Al-Kateb of their liberty as long as the legislative intention is clear and the purpose of the detention is non-punitive. In the majority, McHugh J stated: As long as the detention is for the purpose of deportation or preventing aliens from entering Australia or the Australian community, the justice or wisdom of the course taken by the Parliament is not examinable in this or any other domestic court. It is not for courts , exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to human rights . 60 McHugh J’s words show that in the sphere of human rights Parliament is supreme, subject to the Constitution’s few rights provisions and structural guarantees. The only role for the courts is in situations where Parliament’s intention is ambiguous. Some other relevant presumptions of statutory interpretation include the presumption 12 against retrospectivity of certain laws that affect substantive rights, and the presumption that Parliament intends to legislate consistently with its international law legislative provisions that implement international human rights treaties will be read consistently with the relevant treaty. For some commentators, these common law presumptions effectively offer a bill of rights: for example, former New South Wales Chief Justice James Spigelman refers to them collectively as a ‘common law bill of rights’ and he argues that they enjoy a quasi-constitutional status. 62 It is, however, difficult to share Spigelman’s optimism about the scope of the common law protection of human rights. The common law is a limited vehicle for human rights protection for a number of reasons. First, common law rights and freedoms can be easily extinguished by Parliament. For example, the ASIO Legislation Amendment (Terrorism) Act 2002 (Cth), mentioned above, partly extinguishes the privilege against self-incrimination, as there is clear legislative intention to remove the right to remain silent. 63 Second, it is unclear as to what rights are fundamental at common law. Spigelman asserts that: ‘What is to be regarded as a “fundamental right, freedom or immunity” is informed by the history of the common law.’ 64 The history of the common law does not fill one with confidence: up until the late 19th century in Australia, the common law was actively involved in discrimination in that it denied legal rights to women, in particular the status of legal personhood. 65 Indeed, the common law has a history of protecting a narrow set of rights – predominantly property rights – by strictly construing penal and tax statutes, but such an approach has not been applied to statutes interfering with personal liberty. 66 Despite this sketchy record, the common law is often relied upon by human rights advocates because other remedies are scarce or absent. Another area of the common law where we can find a measure of human rights protection is administrative law, which, as explained in Chapter 7, protects the right to challenge government decisions. More specifically, it protects the right to procedural fairness in that all decisions made by government officials and Ministers must be made lawfully, and those affected by a decision must be given a proper hearing. However, there is no general requirement that government decisions be compliant with human rights. The exception to this is procedural, in that a decision maker must give an affected person an opportunity to argue why the decision should comply with a human rights treaty ratified by Australia if the decision maker does not intend to comply. One area of the common law often overlooked in the sphere of human rights law is the private law of torts, which deals with interpersonal relations. Various human rights – such as the right to life, liberty and security, and freedom from torture, slavery and servitude (arts 6 and 7 of the ICCPR) – intersect with the tort actions of trespass and its sub-categories of assault and battery. Similarly, the tort of false imprisonment intersects with the right to be free from arbitrary detention found in art 9 of the ICCPR. While tort law is designed to protect individuals and their property, it differs from human rights law in that it is remedial in nature – it is concerned with harm suffered rather than prescribing standards of treatment. In the sphere of private tort law, however, common law protections become seen as ‘rights’ because in the context of interpersonal relationships they are justiciable and binding in nature. At a broad level, international human rights norms can be influential in the development of the common law, as Chapter 11 outlined. In Mabo v Queensland (No 2) Brennan J stated: The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. Brennan J then qualified this statement by explaining that the common law could not be developed in such a way as ‘to fracture a skeletal principle of our legal system’. 69 Brennan J’s words in Mabo make it clear that human rights are not one of the ‘skeletal principles’ of our common law system. However, the 2009 extra-curial writings of Chief Justice French indicate that there is scope for the common law to be developed so as to intersect and converge with international human rights standards articulated in the UDHR and the ICCPR. Given the inherent weaknesses of the common law, as outlined above, it would be unwise to depend on the common law as a key form of human rights protection. While the principle of legality is an important means of judicial protection of human rights, the case of Al-Kateb shows that, in the absence of a Bill of Rights, courts have no role in protecting human rights where Parliament is explicit in its abrogation of rights, even where it leads to dire consequences such as indefinite detention. Furthermore, the highly opaque and nebulous nature of the common law rights means that the process of identifying and protecting fundamental rights is one necessarily 13 involving lawyers, the courts and expensive litigation. This system of protection is difficult to access and even harder to fathom for those without resources or legal training. The next section considers the other institutions in Australia that have the dual role of assisting the Parliament and the Executive in protecting human rights while monitoring the government’s compliance. Independent oversight institutions Currently at the federal level, government institutions can, unless there is legislation to the contrary, act inconsistently with Australia’s international human rights obligations with impunity. These institutions include government departments and agencies, public officials and the public service. There are few independent institutions to monitor Australia’s compliance with human rights. The main one is the Australian Human Rights Commission (AHRC), although the Commonwealth Ombudsman, Privacy Commissioner and the new National Security Legislation Monitor and Information Commissioner also play a role. As Chapter 7 explained, although they are independent, these institutions form part of the federal Executive. In 1981 the Federal Government established the first Human Rights Commission. Over time the name 71 and functions of the Commission have changed. From 1981 to 1995, one of its main functions was to conciliate and hear complaints under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (renamed the Australian Human Rights Commission Act 1986 (Cth) ( AHRC Act )), the Racial Discrimination Act 1975 , the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth). However, following the case of Brandy v Human Rights and Equal Opportunity Commission 72 (in which the High Court found that the Commission was exercising federal judicial power in breach of Chapter III of the Constitution), the Commission can no longer make conclusive determinations: all discrimination cases are now heard by the Federal Court and the Federal Magistrates Court. The effect of this change was to make discrimination hearings more formal, but also to bring discrimination cases into mainstream legal jurisprudence. The AHRC is chiefly involved with promoting rights articulated in the international instruments annexed to the AHRC Act ; 73 in reviewing and monitoring legislation, particularly anti-discrimination legislation; and in reporting to the federal AttorneyGeneral as to whether new law or policy is necessary. The President of the AHRC can also investigate and conciliate cases under federal anti-discrimination legislation. Under the AHRC Act , complaints can be made to the AHRC about a government department where the matter cannot be resolved through conciliation. In this situation, the AHRC reports to the Attorney-General as to its recommendations for action, and in practice this report is usually tabled in Parliament. For example, the AHRC may recommend that the Federal Government compensate victims of human rights breaches because a government department has breached their rights under the ICCPR, which is annexed to the AHRC Act . There is, however, no requirement that Parliament respond to these reports or even that it table them. In addition, the AHRC can be asked by Parliament or the government to review policy and legislative proposals, but this has never occurred. The AHRC can also intervene in court cases or coronial inquests if given leave by the court, but such interventions are rare, and overall they have had little impact on government policy. In contrast, the UK’s Equal Opportunity Commission has the power to initiate and sponsor litigation. While there is certainly scope for the AHRC to conduct a stronger form of monitoring, Parliament and government appear wary and unwilling to allow it to fulfil its potential in effectively overseeing compliance with Australia’s international human rights obligations. In its 2009 report, the Brennan Committee 74 recommended that the President of the AHRC be appointed alongside the Commonwealth Ombudsman as a permanent member to the Administrative Review Council so as to reflect the increasing significance of human rights in administrative decision-making processes (the Administrative Review Council gives policy advice to the Federal Attorney-General in regard to the system of administrative law, and its reports are tabled in Parliament). The government accepted this recommendation, thus ensuring that human rights considerations are able to influence the future direction of administrative law in Australia. However, the government did not accept the Brennan Report’s recommendation that human rights be made a relevant consideration in the making of all government decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth), which would have brought the fields of human rights law and administrative law one step closer together. 75 Furthermore, the government did not institute the Brennan Report’s recommendation that all federal government departments be required to report on human rights compliance in their annual reports, a feature of the ACT scheme of human rights protection that is explained below. The Commonwealth Ombudsman is another institution broadly involved in monitoring human rights in that the Ombudsman investigates maladministration by government. Following international criticism of Australia’s 14 treatment of asylum seekers and terrorism suspects, as well the 10-month detention (in immigration detention) of a mentally ill Australian permanent resident, Cornelia Rau, 76 the Commonwealth Ombudsman’s powers have been expanded to include the power to review cases of immigration detention and detention under anti-terrorism legislation and to report on these cases to Parliament. Ultimately, however, the Ombudsman only has the power of identifying problems and bringing them to the attention of Parliament and the electorate through making recommendations. A determination or recommendation of the Ombudsman has no effect on any law, policy or government decision. Notwithstanding, although the Ombudsman has no formal powers of enforcement, Parliament shows serious regard for the Ombudsman’s recommendations and generally acts upon them. In 2010 the Federal Government established two new offices. The first was the Office of the Independent National Security Legislation Monitor, which was set up to conduct an independent review of Australia’s counter-terrorism laws. This move followed recommendations of two parliamentary committees, as well as the judicial inquiry called by the government into the Haneef case. 78 The aim of this new statutory office is to provide systematic and regular reports to Parliament as to the impact and operation of counter-terrorism laws, particularly in regard to effectiveness and accountability, and their consistency with Australia’s international obligations under human rights treaties. This supplements the work of the Inspector General of Intelligence and Security, who scrutinises the activities of the Australian intelligence community, including ASIO, and sits in on the first day of questioning by ASIO of a person who is in detention. The second independent agency established in 2010 was the Office of the Information Commissioner, which was set up to oversee freedom of information and privacy matters. This office also houses the Freedom of Information Commissioner and the Privacy Commissioner. It is clear that a number of recent reforms have strengthened human rights protections in the federal Executive, in particular the independent monitoring institutions discussed above. However, human rights would likely be better protected in Australia if Commonwealth Government actors were guided by a human rights framework in their decision making and service delivery. As we will see below, such an approach focused on the daily interactions between government actors and citizens is emerging in those jurisdictions with legislative Bills of Rights. Emerging human rights jurisprudence Through its Human Rights Framework 81 the Rudd/Gillard ALP Government implemented a number of the Brennan Report’s 82 recommendations to fortify our system of human rights protection. The two new mechanisms of the PJCHR and the system of Statements of Compatibility appear to have strengthened parliamentary processes, although it is unclear whether this has necessarily led to greater compliance. As explained above, the government rejected the Brennan Report’s key recommendation that the courts become another avenue for protecting human rights through performing post -legislative scrutiny in light of particular concrete facts, a role that would complement the abstract pre -legislative scrutiny conducted by the PJCHR and Statements of Compatibility. This would enable the courts to enjoy a formal role in the dialogue between the Parliament and the Executive in protecting human rights; presently, as illustrated above, this role is an indirect and informal one. In its report the Brennan Committee canvassed some of the counterarguments for such involvement by the courts; in particular, the importance of the Judiciary remaining a completely independent institution, untarnished by questions of a political and moral nature that are inevitably posed by human rights, and the argument that such an arrangement may diminish parliamentary sovereignty, considered to be a cornerstone of our system (see Chapter 5). This argument regarding parliamentary sovereignty was the basis upon which the New South Wales Parliament decided, following two separate inquiries, 83 that it was unnecessary to enact a legislative Bill of Rights as this would undermine the supremacy of Parliament and the independence of the Judiciary. The report of the 2001 inquiry stated that it was not in the public interest ‘to hand over primary responsibility for the protection of human rights to an unelected judiciary who are not directly accountable to the community’. 84 It needs to be emphasised that the force of such arguments regarding parliamentary sovereignty depends on the particular design of the Bill of Rights. As will be shown below, in regard to the Bills of Rights currently operating in Australia – namely in Victoria and the ACT – Bill of Rights can be devised in such a way as to guarantee parliamentary sovereignty while giving the courts a formal role in performing post-legislative human rights scrutiny. The ACT and Victorian Bills of Rights are aimed at ensuring that primary responsibility for human rights protection remains with, and is explicitly given to, the Parliament and the Executive by introducing a human rights culture into the operation of government. As is explained below, these two statutory Bills of Rights transfer minimal 15 responsibility for human rights protection to the Judiciary while formally including the courts in the institutional dialogue. The ACT Human Rights Act 2004 (HRA) and the Victorian Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’) are in one sense ordinary statutes about statutory interpretation, as they oblige decision makers to interpret ACT or Victorian laws to be consistent as far as possible with human rights. Both the HRA and the Charter are based on the parliamentary rights model found in the UK and New Zealand, in that they do not give courts the power to strike down inconsistent legislation. The focus of these statutory Bills of Rights is not on the courts and possible remedies that can be gained there; instead, these instruments take a wholeof-government approach, building human rights thinking into policy making and the legislative process before matters go to the courts. They follow what is known as the ‘dialogue model’, in that their aim is to encourage dialogue between the three arms of government in relation to the promotion and protection of human rights. In many respects, the HRA and the Charter are very similar. For example, both contain a list of mostly firstgeneration rights; that is, civil and political rights drawn from the ICCPR. Both the HRA and the Charter also have a general limitation clause, which recognises that rights are subject to justifiable limits. For example, s 7(2) of the Charter provides: A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including – (a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. Section 7(2) places the onus on the government to satisfy these conditions in order for a limitation to be placed on Charter rights. Thus, when a legislative provision limits one of the rights set out in the Charter, the government must be able to establish that the limits are reasonable and that they can be justified according to the conditions set out in the provision. This process is similar to the assessment expected by the PJCHR to be set out in Statements of Compatibility accompanying Bills in Federal Parliament. As the larger of the two jurisdictions to have enacted a Bill of Rights, Victoria provides a valuable case study. Hence the next section examines the operation of the Victorian Charter in some detail so that it becomes clearer how a statutory Bill of Rights differs from a constitutional Bill of Rights, the model with which many Australians are more familiar through the influence (both positive and negative) of the US Bill of Rights. The Victorian Charter: a case study The Legislature under the Charter Like the new federal system of Statements of Compatibility, the Charter requires that when a member introduces a Bill into Parliament, the Bill must be accompanied by a statement of human rights compatibility. Under the Charter, this statement must set out the purpose of the Bill, a statement about how the Bill affects the relevant rights (here the Charter rights), and whether the right is justifiably limited under s 7(2) of the Charter. Thus, if a Bill intends to limit any right set out in the Charter, the Statement of Compatibility would need to explain how the Bill satisfies the conditions set out in s 7(2). In addition, as at the federal level, a parliamentary committee – here the Scrutiny of Acts and Regulations Committee (SARC) – scrutinises each new piece of legislation and reports to Parliament as to whether it is human rights compatible, specifically with the Charter. In undertaking this duty, the SARC considers each Statement of Compatibility so as to ensure that they are all adequate and, where this is not the case, the SARC draws Parliament’s attention to the inadequacy. As is clear, this committee differs from its federal counterpart, the PJCHR, in that it was not specifically established to scrutinise human rights compliance. 16 So far the SARC has been relatively active. For example, in regard to the introduction of the Summary Offences and Control of Weapons Acts Amendment Bill 2009 (SOCWAA Bill), which empowered the police to apply extensive search powers to children, the SARC was critical of the government’s Statement of Compatibility. It requested that the government provide greater detail on the nature and extent of the incompatibility, and it generally expressed concern that the SOCWAA Bill authorised the police to exercise powers that are incompatible with the Charter. Many of the SARC’s concerns drew on submissions received from the public and from other bodies. The SARC then requested the relevant Minister to respond to its concerns and published his response. In some instances, the SARC’s comments have led to amendments, but this was not the case with the SOCWAA Bill, which was passed before the Committee received the Minister’s response. Thus, while the SARC has been active, its concerns have not always been given adequate consideration. The equivalent mechanisms to these in the HRA came under the spotlight in 2005 when the ACT wanted to introduce mirror legislation to complement the Commonwealth’s Anti-Terrorism Act (No 2) 2005 . As the Commonwealth legislation had bipartisan support in Federal Parliament and the government controlled the Senate, little attention was initially given to the human rights impact of this legislation at the federal level. However, because of the HRA, unlike the position in any other Australian jurisdiction, the ACT Government had to reveal its proposed legislation to the public and allow for scrutiny of the legislation’s human rights safeguards. One consequence is that the human rights safeguards in the ACT’s anti-terror legislation are stronger than those in other jurisdictions. In Victoria, there is evidence that the Charter is being considered in the legislative drafting process in order to prevent and remedy human rights abuses. The Executive under the Charter The Charter is designed to have the greatest impact on the Executive. Under s 6(2), the Charter applies directly to ‘public authorities’. Section 4 defines public authorities as including government departments, public officials, prison authorities, the police, local councils, and, when acting in an administrative capacity, courts and tribunals. Section 38(1) sets out the obligations on public authorities: ‘It is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.’ Subsection (2) says that the obligation to act in a way that is incompatible with a human right does not apply where, as a result of a law (a Commonwealth law or other law), the public authority could not have acted differently. There is also an exemption for religious bodies. In 2006 and 2007, the Victorian Government organised training programs, particularly for key agencies – such as the police, the prison service, the Department of Human Services and the Department of Justice – to ensure that they were fully prepared to act compatibly with the Charter. Section 38 is a critical provision as it affects the development of government policy, the drafting of regulations, the delivery of services, and decision-making processes. For example, there is evidence that in the Charter’s first five years it has led both the police force and prison authorities to initiate reforms in line with the Charter. 87 It has also affected the development of local government planning, the work of disability service providers, and the approach taken by health care facilities in their treatment of patients. 88 Furthermore, community-based advocacy and health centres are using the Charter in order to assist vulnerable sections of society to articulate their human rights when interacting with government actors. The Charter gives specific roles to two executive bodies that could be considered part of the ‘integrity branch’ of government, introduced in Chapter 7. The first is the Victorian Equal Opportunity and Human Rights Commission, which is characterised as an ‘independent monitor’ of the Charter. 90 Under s 41 of the Charter, the Commission must examine the operation of the Charter and its interaction with other law, both common law and statute, and report annually to the Attorney-General on any incompatibility. Such reviews have led to various amendments being made to legislation to ensure that it is human rights compatible. 91 The Attorney-General can also specifically request the Commission to review the effect of legislation and common law on human rights. The Attorney-General must then table these reports in Parliament so that they are accessible both to Members of Parliament and the community. In addition, under s 40, the Commission has an unqualified right to intervene in court cases raising Charter issues. The courts have a duty to notify the Commission whenever a question of law arises that relates to the Charter and whenever a court is considering making a declaration of inconsistent interpretation. More broadly, the Commission has a primary role in human rights training and education in relation to the Charter. 17 The second oversight body is the Victorian Ombudsman, upon whom the Charter confers the power to investigate whether any administrative action is incompatible with a human right set out in the Charter. This is set out in the Schedule to the Charter, which amends the Ombudsman Act 1973 (Vic). The nature of such investigations and how they have been resolved are set out in the Ombudsman’s annual report to Parliament. Overall it is clear that the Charter strengthens these two independent bodies so that they can play a greater role in monitoring all three arms of government in regard to human rights compliance. Note however that although the Victorian Equal Opportunity and Human Rights Commission has greater powers than the AHRC – as it has the unqualified right to intervene in cases – it does not have the AHRC’s power to recommend that the government compensate victims of human rights breaches. In addition, it does not enjoy broader power to hear complaints under the Charter.