THE CONSTITUTION, GOOD GOVERNMENT
AND HUMAN RIGHTS
HUMAN RIGHTS LAW RESOURCE CENTRE
MELBOURNE
12 March 2008
The Hon Sir Gerard Brennan AC KBE
1
Our Constitution, the powers of Government and the human rights
recognized by the law identify the basic politico/legal structures affecting
the wellbeing of our people. We need to consider these structures from
time to time to ensure that they facilitate the realization of our social
aspirations.
What are these social aspirations? At base, personal freedom –
freedom of conscience including freedom of religious belief and practice,
physical freedom, freedom to use and dispose of property, freedom to
choose a partner and found a family, freedom of association, freedom of
speech, freedom from the exercise of arbitrary power. Then, so far as the
resources of the community allow, each person should have reasonable
access to education and an opportunity for employment, together with
access to the social services required to maintain health and personal
dignity and to allow for personal development. The marshalling of those
resources and their application is a function of good government – a
government of laws and not of men.
In a democracy, laws find acceptance when the power to make
them is subject as far as practicable to popular control and when the
enforcement of the law is left to competent, fair and impartial tribunals.
So we should assess our constitutional laws, the way in which those laws
and governmental practices operate and the extent to which each
individual’s human rights and fundamental freedoms are respected.
In recent times there has been a welcome interest in human rights
and their legal recognition. But it would be a mistake to think that our
well-being and the protection of individual interests depend entirely, or
2
even chiefly, on the enactment of a Bill of Rights. Human rights and
fundamental freedoms find their chief protection in the twin pillars of the
constitutional legal system – the rule of law and the jurisdiction of the
courts to enforce the law.
The underlying principle of our constitutional law – the principle
which gives essential protection to individual freedom and dignity – is the
principle of the rule of law. That is because, as John Locke pithily
observed, “Where-ever law ends, tyranny begins.”1 The rule of law is
not to be found in a statutory text; it is simply the axiomatic basis of the
politico/legal system. In the Communist Party Case2, Dixon J observed
that among the traditional conceptions in accordance with which our
Constitution is framed “it may fairly be said that the rule of law forms an
assumption.” What does the rule of law mean? A.V. Dicey3 gave this as
the primary meaning –
“the absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary power... It means . . . equality before the law or the
equal subjection of all classes to the ordinary law of the land administered by
the ordinary law courts; the 'rule of law' in this sense excludes the idea of any
exemption of officials or others from the duty of obedience to the law which
governs other citizens or from the jurisdiction of the ordinary tribunals.”
As the law is applied equally to all – the government and the governed,
the powerful and the weak, the rich and poor alike – it has been held that
the criminal law allows no exemption to those who breach the law under
the purported authority of the executive government4.
1
2
3
4
John Locke, Second Treatise of Government (1690), Chap XVII, s.202 (Cambridge University
Press, 1988), quoted by Lord Bingham.
Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, 193.
Introduction to the study of the law of the Constitution (10th ed, 1959) at 202-203.
A v Hayden (1984) 156 CLR 532; Ridgeway v The Queen (1995) 184 CLR 19.
3
The “regular law . . . . administered by the ordinary law courts” is
that “everybody is free to do anything, subject only to the provisions of
the Law”5. That was the approach of the Declaration of the Rights of
Man, Article 4 of which read:
“Liberty consists in the freedom to do everything which injures no one else;
hence the exercise of the natural rights of each man has no limits except those
which assure to the other members of the society the enjoyment of the same
rights. These limits can only be determined by law.”
Individual freedom is protected by the common law – personal physical
freedom is protected by the law of assault, battery and false
imprisonment; reputation by the law of libel and slander; a variety of
interests by the torts of negligence and trespass; possessions by detinue
and conversion; the quiet enjoyment of where we live is protected by the
torts of trespass and nuisance6.
The common law also gives a measure of freedom to the artisan
and trader and strengthens the economy by invalidating unreasonable
restraints of trade.
The common law of real property secures title
(including native title) to interests in land, and the principles of equity go
far to ensuring that the courts are able to enforce obligations the neglect
of which would be unconscionable. The common law as it has developed
is calculated to protect human rights and fundamental freedoms and it has
done so with tolerable success without a Bill of Rights. Of course the
established common law principles have been modified or built on by
statute but the significant point for present purposes is the importance of
5
6
Attorney-General v Guardian Newspapers [No 2] [1990] 1 AC 109, 283, cited by the High
Court in Lange v Australian Broadcasting Commission (1997) 189 CLR 520, 564.
Thus, in Entick v Carrigan,(1765) 19 St Tr 1029, 1066, Lord Campbell LCJ declared that –
“By the laws of England, every invasion of private property, be it ever so minute, is a
trespass. No man can set his foot upon my ground without my licence, but he is liable to an
action, though the damage be nothing . . . If he admits the fact, he is bound to shew by way of
justification, that some positive law has empowered or excused him.”;
and see Plenty v Dillon (1991) 171 CLR 635.
4
the ordinary, but general, jurisdiction of the courts to administer and
enforce the general law.
The law which rules is the law which is interpreted and applied by
the courts. In the familiar words of Chief Justice Marshall in Marbury v
Madison,7 “It is emphatically the province and duty of the judicial
department to say what the law is”. To maintain the integrity of the law,
we invoke the constitutional principle that the courts should be separate
from and independent of influence by the political branches of
government. The judges must be kept impartial, free not only from bias
but from any reasonable apprehension of bias8.
Lord Bingham has
pointed out9 that “…the function of independent judges charged to
interpret and apply the law is universally recognised as a cardinal
feature of the modern democratic state, a cornerstone of the rule of law
itself.”
Professor Winterton, commenting on the Communist Party
Case,10 said that it
"demonstrated that our freedom depends upon impartial enforcement of the
rule of law, of which courts are the ultimate guardians. Although, of course,
not infallible, impartial and fearless courts determined to exercise their
proper powers are our final defence against tyranny."11
There are a number of other rules and practices which underpin our
legal system and which are protective of individual rights: the public
promulgation of the law and the public sittings of the courts
administering the law, the presumption against retrospectivity and the
presumption that laws are not intended to trespass on rights and
7
8
9
10
11
(1803) 5 US (1 Cranch) 137, 177.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-345.
A v Secretary of State for the Home Department [2005] 2 AC 68, [2004] UKHL 56, paras 42.
Australian Communist Party v The Commonwealth (1951) 83 CLR 1.
(1992) 18 Melbourne University Law Review 630 at 658.
5
fundamental freedoms. In Wentworth v NSW Bar Association12, the High
Court said that –
“There are certain matters in relation to which legislative provisions will be
construed as effecting no more than is strictly required by clear words or as a
matter of necessary implication13. They include important common law
rights14, procedural15 and other16 safeguards of individual rights and
freedoms and the jurisdiction of superior courts17.”
The law assumes good government.
If the rule of law is to apply universally, however, the jurisdiction
of the courts to judicially review an exercise of governmental power is
essential.
If the courts are denied jurisdiction to enforce the law
governing the exercise of power, the repository of the power can refuse to
obey the law with impunity, individual interests are at risk and the rule of
law is negated.
Although State Parliaments have power to deny
jurisdiction to the courts, that power has been sparingly exercised18. By
force of s75(v) of the Commonwealth Constitution, decisions taken in
exercise of federal power cannot be totally exempt from judicial review.
12
13
14
15
16
17
18
(1992) 176 CLR 239, 252 per Deane, Dawson, Toohey & Gaudron JJ.
See Bropho v Western Australia (1990) 171 CLR 1 at 17-18 for a general statement of the
rule.
Bropho at 17,18; See also Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319,
322, 338 and cases there cited, 346-347. As to property rights see American Dairy Queen (Q)
Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, 682-683. As to the right to carry on business,
see The Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR
457, 464.
As to procedural fairness, see Annetts v McCann (1990) 170 CLR 596 at 598 and cases there
cited; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 575-576.
As to the privilege against self-incrimination, see Hammond v The Commonwealth (1982) 152
CLR 188 at 197-198, 200; Sorby v The Commonwealth (1983) 152 CLR 281 at 289-290, 294295, 309, 311; Hamilton v Oades (1989) 166 CLR 486 at 495, 500-501. As to the right to trial
by jury see Tassell v Hayes (1987) 163 CLR 34 at 41, 50. As to the right to personal liberty
see Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523. As to legal professional privilege
see Baker v Campbell (1983) 153 CLR 52 at 96-97, 104, 116-117, 123; Corporate Affairs
Commission (NSW) v Yuill (1991) 172 CLR 319 at 322, 331, 338, 348-349.
See Clancy v Butchers’ Shop Employes Union (1904) 1 CLR 181, 196-197, 204; Hockey v
Yelland (1984) 157 CLR 124, 130, 142; Bropho v Western Australia (1990) 171 CLR 1, 17;
Public Service Association (SA) v Federated Clerks’ Union of Australia (SA) Branch (1991)
173 CLR 132, 160.
See s 85 of the Constitution Act 1975 (Vic.) which confers general jurisdiction on the Supreme
Court of the State, but some exceptions have been legislated, e.g., Australian Crime
Commission (State Provisions) Act, ss.36, 49, 56, 64.
6
The High Court has pointed out19 that the jurisdiction conferred on the
High Court by that provision –
“is a means of assuring to all people affected that officers of the
Commonwealth obey the law and neither exceed nor neglect any jurisdiction
which the law confers on them.”
The law, and the courts which administer the law, are the primary
protectors against tyranny and any abuse of power. Respect for our
human rights and fundamental freedoms in this country stems from, and
still largely depends on, the constitutional authority of the courts to
vindicate those rights and protect those freedoms by application of the
general law.
The responsibility does not rest with the courts alone. Respect for
fundamental freedoms and human rights is a function of good
government in the ordinary exercise of legislative and executive powers.
Each of us individually and Australians collectively have an interest in
the distribution and control of these powers – their distribution between
the Commonwealth and the States and between the legislature and the
executive.
Consider first the distribution of powers between the
Commonwealth and the States.
In a federation, good government
requires legislative power to be distributed between the central and local
governments according to the need for national laws and efficiency in
their implementation and in the provision of governmental services.
Between 1986 and 1988, a Constitutional Commission inquired into the
working of the Constitution. The Commission and its Committees were
constituted by members possessing formidable political, practical and
legal expertise. The Commission recommended changes. Yet its Report,
19
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, 513-514; [2003]
HCA 2 and see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant
S20/2002 [2003] HCA 30; 77 ALJR 1165.
7
pre-empted by a Bill20 hastily cobbled together and submitted to
referendum, was buried in the rubble of the Referendum's failure. It
would be desirable to revisit in a cooler climate, the recommendations of
the Commission. Those recommendations covered, inter alia, minimum 3
year and maximum 4 year terms for the House of Representatives21; the
Senate's power over money bills22, disagreement between the two Houses
of Parliament23, an extension of Commonwealth power to make laws with
respect to intra State trade and commerce24, and nuclear material, nuclear
energy and ionising radiation25. The rapid growth of technology in fields
that affect human existence (the cloning of humans and animal genome
engineering, for example), the ecosystem (genetic modification of plants
and animals, control of rivers and waterways) and privacy now call for a
power to intervene, if necessary, by enacting uniform or co-ordinated
national laws. The new issues should not produce political division.
Some of these subjects may fall within the Commonwealth’s external
affairs power if there be international conventions to which Australia is a
party but it is preferable to confer the power to make laws with respect to
specified areas of technology in order to facilitate laws appropriate to
Australian conditions. The Commission also recommended that the High
Court be invested with jurisdiction to give advisory opinions26, a
proposition that would not command universal support but it may need
some consideration if it were desired to invest the Court with a
declaratory jurisdiction under a statutory Bill of Rights – a topic to which
we must return.
20
21
22
23
24
25
26
Constitution Alteration (Rights and Freedoms) Bill 1988.
Constitutional Commission Summary p 7.
Constitutional Commission Summary p 9.
Constitutional Commission Summary pp 10-11.
Constitutional Commission Summary p 64-66.
Constitutional Commission Summary pp 47-48.
Constitutional Commission Summary p 29.
8
The Uniform Tax Cases in 194227 and 195728 sanctioned the
Commonwealth’s acquisition of the most important categories of
taxation. In Ha’s case29 in 1997, the High Court’s interpretation of the
excise power excluded the States from some of the residual sources of
taxation that they had hitherto enjoyed. However, although there is an
undoubted fiscal imbalance as between the central and state governments,
the concentration of financial power in the central government has been
conducive to effective control of the national economy. Nevertheless,
there may be a need to consider whether this financial power should be
used to purchase control over specific areas of activity, e.g. Universities,
that do not fall within the legislative powers of the Commonwealth and
are not covered by grants to the States under s 96.
Next, consider the relationship between the Executive and the
Legislature. Parliamentary control of the Executive is, of course, the
characteristic of responsible government. A century ago, Lord Haldane
thought that that institution permeated the Constitution30. But it has been
eroded by the growth of executive power and the dominance of the
Executive over the Parliament.
In Australia, as in England, Lord
Hailsham’s more modern statement31 is substantially true:
“[w]e live under an elective dictatorship, absolute in theory if hitherto thought
tolerable in practice.32”
When an executive government is able to escape the scrutiny of the
parliament and may even control the parliament so that scrutiny is
impotent against executive maladministration, responsible government
27
28
29
30
31
32
South Australia v The Commonwealth (1942) 65 CLR 373.
Victoria v The Commonwealth (1957) 99 CLR 575.
(1997) 189 CLR 465.
Cited in the Engineers Case (1920) 28 CLR 129, 147.
1976 Dimbleby Lecture.
Elective Dictatorship, Dimbleby Lecture (1976).
9
can become a misnomer and good government can fall captive to
undisciplined authority.
Recently a problem has surfaced in relation to parliamentary
supervision of expenditure by the central government. This is a problem
with a long history. It lay at the heart of the great constitutional struggles
of the late 17th century. At least from the time of the Appropriation Act
in the reign of Charles II, executive powers have been substantially
constrained by the “undisputed principle” that “supplies granted by
Parliament are only to be expended for particular objects specified by
itself.”33
Holdsworth34 adopted the opinion that the principle was
“established for the better securing the rights, liberties, and privileges of
the people” and he noted that –
“[t]he very act of appropriating specific sums to this or that need of the
government involved a decision upon the question which need was more, and
which was less pressing and the right to make these decisions gave a power,
not only to criticize but also, in some measure, to control the conduct of the
government.”
In conformity with this principle, the Constitution provides that
money cannot be “drawn from the Treasury except under appropriation
made by law”35, that a proposed law cannot be passed unless the purpose
of the appropriation has been recommended by message of the Governor
General36, and that money can be appropriated only for a purpose of the
Commonwealth37. To the extent that Parliament prescribes the objects of
expenditure by the Executive, the Executive is made responsible to the
Parliament. The drafting of recent Appropriation Bills for the “ordinary
annual services of government” has circumvented parliamentary control
33
34
35
36
37
At least from the time of the Appropriation Act of Charles II: see Carmichael’s TaswellLangmead’s English Constitutional History (4th Edn, 1890), p 645.
vi History of English Law pp 253-254.
Section 83.
Section 56.
Section 81.
10
of particular objects of expenditure by appropriating funds as a
“departmental item”, listing them under the heading “Departmental
Outputs”, which can be expended as the departmental minister chooses.
A challenge to the efficacy of this practice failed in Combet v The
Commonwealth38 - the Work Choices advertising case. A majority of the
High Court39 observed40:
“…at least since the mid-1980s the chief means of limiting expenditures made
by departments of State that has been adopted in annual appropriation Acts
has been to specify the amount that may be spent rather than further define
the purposes or activities for which it may be spent.”
Arguably, the appropriation provisions of the Constitution need
tightening or the drafting practices amended41.
The diminution of
parliamentary supervision over executive expenditure weakens the
practical observance of the system of responsible government.
It is not surprising that the Constitution shows some strain after
more than a century during which it has proved to be obdurately resistant
to change. It is time to overhaul its provisions to ensure that it meets the
needs of the present and foreseeably future times. Take, for example, the
corporations power. As it has been interpreted by the High Court42, it
denies the Commonwealth power to make laws with respect to the
formation of trading and financial corporations though it has power to
legislate for those corporations after their formation. The bifurcation of
the power precludes the enactment of a comprehensive national code for
the incorporation and control of trading and financial corporations,
although the qualified reference of power in a State Corporations
38
39
40
41
42
(2005) 224 CLR 494.
Gummow, Hayne, Callinan and Heydon JJ.
(2005) 224 CLR 494, 577.
See Geoffrey Lindell: “TheCombet Case and the Appropriation of Taxpayers’ Funds for
Political Advertising – An Erosion of Fundamental Principles?” (2007) 55 No. 3 The
Australian Journal of Public Administration, 307.
In New South Wales v The Commonwealth; The Incorporation Case (1990) 169 CLR 482.
11
(Commonwealth Powers) Act goes some way towards a resolving the
problem. It is not the constitutionally preferable solution.
Again, s 80 has proved to be an inadequate protection of the right
to trial by jury for serious crimes. Its provisions are engaged only when
the crime charged is triable on indictment43. Let the crime be defined as
triable summarily, and the right to jury trial disappears. Section 80 has
been described as “a mere procedural provision”44, the effect of which
can be avoided merely by a device of drafting45. If s 80 is to be an
effective guarantee of trial by jury for serious Commonwealth offences, it
should be amended.
A problem that may seem at first glance to be merely technical, but
which raises jurisdictional difficulties productive of cost and frustration,
is the constitutional inability of federal courts to be invested with State
jurisdiction46. There is no obstacle to the vesting of federal jurisdiction in
State courts – the "autochthonous expedient" was one of the
masterstrokes of the founding fathers. Nor is there any objection to the
vesting in federal courts of jurisdiction to determine "matters" which arise
in part under State law where the matter arises also under federal law47. It
may not be possible to create a single judicial system in a federation such
as ours, but it is unacceptable to maintain a system that places
jurisdictional difficulties in the way of enforcement of rights, whether
43
44
45
46
47
Li Chia Hsing v Rankin (1978) 141 CLR 182.
Spratt v Hermes (1965) 114 CLR 126, 244 per Barwick CJ; and see the Final Report of the
Constitutional Commission, 1988, Summary Volume, p 35 (hereafter "Constitutional
Commission Summary").
Kingswell v The Queen (1985) 159 CLR 264.
Re Wakim, Ex P McNally (1999) 198 CLR 511.
Fencott v Muller (1983) 152 CLR 570.
12
those rights be derived from State or Federal laws. The Constitutional
Commission recommended changes to remedy all of these anomalies48.
Then there are the transitional and obsolete provisions of the
Constitution which are littered throughout the text, cloud the true nature
of the Constitutional framework and impair its readability49.
The
Commission recommended repeal of the race power (s 51(xxvi)) to be
replaced with a power to make laws with respect to Aborigines and
Torres Strait Islanders50. Section 25 which authorizes disqualification
from the franchise on grounds of race should be repealed. It is high time
to be rid of s 74, the dead letter which still purports to provide for appeals
to the Privy Council, and the provisions of ss 58, 59 and 60 which permit
the reservation of a law for the Queen's pleasure and reserve the Queen's
power to disallow a law even after it has been assented to by the
Governor-General. The provisions which confer powers on the Queen,
with one exception, have become anachronistic. The removal of these
provisions should not be seen as dependent upon the adoption of a
republican form of government.
It is an anachronism that the
Constitution should repose in the Queen powers which are obsolete; but
the power to appoint the Governor-General must remain unless and until
an alternative provision is inserted for the appointment of an Australian
Head of State. The Commission observed that the obsolete provisions
could be repealed with no practical effect on the operation of the
Constitution51. Dr Helen Irving52 makes the same plea:
48
49
50
51
52
Summary, pp.66 (corporations, 34-35 (trial by jury), 25 (cross-vesting).
The Commission's list of repealable provisions “include sections 26, 41, 52(ii.), 69, 84, 85, 86,
87, 89, 93, 95, 97 and the second paragraph of section 83, the second paragraph of section 90,
the second paragraph of section 92 and the introductory words of section 96. Expended words
should also be removed from other sections including 3, 15, and 66”.
Constitutional Commission Summary pp 54-56.
Constitutional Commission Summary p 78.
Barton Lecture MS p 5.
13
“[R]emove the detritus… Send them to a constitutional elephants’ graveyard
for historians like myself to lament”.
The Constitution is not easily changed by referendum, but a clean
up of the Constitution is long overdue.
It is time to dust off the
recommendations of the Constitutional Commission and to make
amendments that would eliminate known inefficiencies, strengthen our
democratic controls and bring our Constitution into shape to cope with
the scientific and technological problems of the 21 st century. Agreement
on the principal issues should not be too difficult to attain, but it would
require statesmanship and commitment from the leaders on both sides of
the political divide to commend the desirable amendments to the
Australian people. With adequate explanation, the people can be trusted
to repair defects in our Constitution at least to the point where the
document can operate effectively in 21st century conditions.
Of course, the Constitution does not determine the way in which
the powers it confers will be exercised. That depends chiefly on the
values, ability and political acumen of the members of the Executive and
Legislature. If we accept that, in a democracy, the powers of government
should be exercised for the common good, the definition of what is the
common good must in turn depend on the values and aspirations of the
people. If the people aspire to a society that is free and in which all
citizens are equal before the law, the common good must include respect
for individual freedom and dignity. That leaves no room for drawing
distinctions based on race or colour, class or creed, physical or mental
perfection or defect. Governmental power must be exercised to ensure
that at least the basic social benefits are available to all, especially to the
marginalised and disadvantaged. Those benefits cannot be exhaustively
14
listed for the infinite variety of personal circumstances and social
phenomena evoke different needs at different times.
To achieve the common good, political leaders have a variety of
courses which they might follow and opinions will differ about the way in
which they should be achieved. In an ideal, but unreal, world the concept
of the common good would guide all exercise of governmental power but
in a democratic, materialist society which places a premium on individual
benefits, the interests of a majority may be preferred at the expense of a
minority. Policies which benefit or appeal to a majority may prevail to
the prejudice of the common good. A brake on majoritarian tyranny is
provided by raising public consciousness of the importance of human
rights. Our common humanity can inspire us to seek a community in
which, by respecting human rights, all may live in freedom and dignity.
That has long been realized and it has played its part in the development
of some legal rules.
John Locke, in the 17th Century, had asserted that, as the natural
law, discoverable by reason, holds all persons to be “equal and
independent, no one ought to harm another in his life, health, liberty or
possessions…“53. In France, Rousseau’s theory of popular sovereignty54
led to a democratic espousal of human rights and to their expression as a
basis for political action.
In 1786, the American Declaration of
Independence asserted that “all men are created equal… endowed by their
53
54
Two Treatises of Government, 1690 (Second Essay II, 6). Writing shortly after the Glorious
Revolution of 1688, he rejected absolute monarchy as “inconsistent with civil society” and
insisted that the authority of civil society is derived from the agreement of all members to
submit to society’s laws to which even the monarch is subject (Second Essay II, 90, 94). So
we might conclude that the need for both the constitution and the general law to respect
fundamental human rights was part of British political thinking by the beginning of the 18 th
century.
The Social Contract, 1762.
15
Creator with certain inalienable rights … amongst them ..Life, Liberty
and the pursuit of Happiness”. Holdsworth believed55 that American
independence was “the first great victory of the democratic ideas
preached by Rousseau” but it was the success of the French Revolution
which gave those ideas “their great importance in the succeeding
century.” Those ideas informed the Declaration of the Rights of Man
which, on 26th August, 1789, the National Assembly of France
“recognize[d] and proclaime[d], in the presence and under the auspices of
the Supreme Being”. It proclaimed, inter alia, that “men are born and
remain free and equal in rights” and that “the aim of all political
association is the preservation of the natural and imprescriptible rights of
man. These rights are liberty, property, security, and resistance to
oppression.”
Popular democracy as proposed by Rousseau, however, led to no
constitutional revolution in England. Absolute monarchy had departed
with the Stuarts; the Bill of Rights had ended the monarch’s power to
suspend the laws. The British Constitution was defended by Edmund
Burke, who revolted “against the individualism which magnified the
rights of each separate man”. Holdsworth agreed, although he accepted
that the extension of the franchise in England owed something to the
“loose theories of the equality of men and their natural right to share in
the government of the country” despite “the intellectual differences
between human beings, and the intellectual and physical differences
between men and women”56.
55
56
History of English Law, Vol vi, p 14.
vi, HEL,19, 22, 23.
Objections to the magnification of
16
individual rights had been consolidated in England by the horrors of the
French Revolution, which delayed the reform of British law57.
In the 20th Century, however, the world was faced with the
inhuman laws of Nazi Germany, inspiring the General Assembly of the
United Nations in 1948 to proclaim the Universal Declaration of Human
Rights as “as a common standard of achievement for all peoples and all
nations”. It began by declaring that “All human beings are born free and
equal in dignity and rights” and that “Everyone is entitled to all the
rights and freedoms set forth in this Declaration”.
The Universal
Declaration can be seen as the launch of the modern movement for the
protection of human rights. Of course, the Universal Declaration was not
directly effective in domestic law, but the movement for human rights
was effective – at least in western societies – to elevate public
consciousness of the need to protect the human rights and fundamental
freedoms of individuals. The need for recognition of human rights was
expressed by Sir Anthony Mason58:
"Human rights are seen as a countervailing force to the exercise of
totalitarian, bureaucratic and institutional power – widely identified as the
greatest threats to the liberty of the individual and democratic freedom in this
century.”
In 1950 the European Convention on Human Rights was agreed by the
member States of the Council of Europe. The rights were intended to be
at least prima facie barriers against infringing legislative or executive
action. They were enforceable by judgment binding on the States Parties
given by the Court in Strasbourg59.
57
58
59
The Convention allowed some
Theodore Plucknett A Concise History of the Common Law, 3rd edn., p 71.
"A Bill of Rights for Australia" (1989) 5 Australian Bar Review 79 at 79-80.
Articles 33, 34, 46.
17
limited restrictions on the rights declared60 and the Court has allowed
governments a “margin of appreciation” in those cases61.
The common law does not attribute to individuals any right which
gives immunity from legislative or executive power. For a time, the
notorious provisions of s 92 of our Constitution were thought to have the
effect of conferring an individual right to destroy legislative or executive
action but that heresy has now been extirpated62.
Laws operate in
accordance with their terms, although the terms are interpreted so far as
possible to respect human rights and fundamental freedoms. Once human
rights are enacted as domestic law, however, it is necessary to determine
whether and to what extent such rights affect the exercise of the
constitutional powers of the legislature and the executive. That question
did not arise for the framers of the Commonwealth Constitution, because,
as Mason CJ explained63:
“….the prevailing sentiment of the framers [was] that there was no need to
incorporate a comprehensive Bill of Rights in order to protect the rights and
freedoms of citizens. That sentiment was one of the unexpressed assumptions on
which the Constitution was drafted.”
Thus, our constitutional history was against the creation of human rights
which might limit or be incompatible with the exercise of legislative or
executive power. The balancing of individual interests with the interests
of the community has been seen as a purely political issue, in which the
courts have no role to play.
60
61
62
63
See, inter alia, Articles 15, 18.
For example, Hatton and Others v. the United Kingdom [Grand Chamber], Application
no.36022/97, 8 July 2003; Aksoy v Turkey Application no. 21987/93, 18/12/1996.
Cole v Whitfield (1988) 165 CLR 365.
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, 135-136;
see also per Dawson J at p 182.
18
Nevertheless, the exigencies of modern politics have sometimes led
Governments to ignore human rights in order to achieve objectives which
are said to be for the common good. Commonwealth laws relating to
national security and immigration and executive action under those laws
provide the most obvious recent examples. Recent international history
and domestic concerns about the untrammelled authority of the political
branches of government to infringe upon the rights and freedoms of
individuals has led to the translation of some international instruments
into domestic statute.
In Victoria, many of the provisions of the
International Covenant on Civil and Political Rights have been
incorporated in the Charter of Human Rights and Responsibilities Act
2006; similarly, in the Human Rights Act 2004 in the ACT.
When
domestic human rights laws are enacted, it is necessary to include some
modifying provision to allow a balance between the rights enacted and
other rights and interests, including the interests of the wider
community64. Some overseas laws provide that prescribed human rights
are not to be taken to be incompatible with other laws which infringe
those rights only to an extent demonstrably justified in a free and
democratic society65. That test which is in substance reproduced by the
Victorian Act66 is, by our constitutional standards, political.
In Canada as in the United States, the courts are required to make
that political decision in order to apply constitutionally entrenched rights
in determining the legal validity of statutes and executive action. That
has resulted in a relocation of political power from the legislature and the
64
65
66
See David Kretzmer Basic Laws as a surrogate Bill of Rights: The Case of Israel in
Promoting Human Rights through Bills of Rights (ed Philip Alston) (1999, O.U.P.) 75, 82.
See, for example, Canadian Charter of Rights and Freedoms, s1, s 5 of the Bill of Rights Act
1990 (N.Z.) and Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, [1999]
NZCA 329 [18].
The Charter of Human Rights and Responsibilities Act 2006 (Vic) s.7(2).
19
executive to the Judiciary.
In the United Kingdom, the European
Convention on Human Rights has been substantially incorporated into
domestic law67 and the courts have been directed to interpret statutes so
as to vindicate the Convention rights even though the statute would be
incompatible with Convention rights if it were interpreted by the ordinary
legal rules68. To repose these kinds of political power in an Australian
court would run counter to our constitutional history. The American
experience shows that the reposing of ultimate responsibility in the
judiciary for invalidating legislative and executive action to give effect to
human rights raises a popular expectation that many controversial
political issues are to be solved by judges, not by the democratically
elected branches of government. Thus the judiciary is itself politicized.
The legislatures of Victoria and the Australian Capital Territory69
have taken a more conservative approach, respectful of the separation of
judicial power which is characteristic of our Constitutional system. The
courts have been directed to interpret statutes compatibly with statutorily
defined human rights but only so far as it is possible to do so consistently
with the statutory purpose70. The court’s function is to give effect to the
legislature’s purpose in accordance with the legislature’s directions,
including the direction to give the statutory language, if possible, a
meaning consistent with prescribed human rights. Under these statutes,
the validity of a law is not affected by any incompatibility with human
rights. If there is incompatibility, the court’s jurisdiction is limited to the
making of a declaration of inconsistency, leaving remedial action, if any,
to be taken by the legislature. The courts will from time to time have to
67
68
69
70
By the Human Rights Act 1998 (UK).
See Ghaidan v Godin-Mendoza [2004] 2 AC 557; [2004] UKHL 30.
Human Rights Act 2004 (ACT).
Charter of Human Rights and Responsibilities Act 2006 (Vic.), s 32(1); Human Rights Act
2004 (ACT), s 30.
20
decide the political question whether a law infringes a human right “only
to such reasonable limit as can be demonstrably justified in a free and
democratic society” but they will not be empowered to strike down a law
if the law is found to exceed that limit. That will be for the legislature to
consider.
Of course, if the court, construing a provision in accordance with the
legislature’s directions, concludes that an executive action is in
disconformity with statutory power construed as the Charter directs, the
court will review the executive action and grant the appropriate remedy.
But jurisdiction to review executive action for disconformity with
statutory power is a commonplace in our constitutional arrangements,
applying the rule of law to government as well as to the governed71.
In Victoria and the ACT, the legislative code of human rights
awaits judicial interpretation, but the innovative mechanism for giving
effect to the listed human rights is most significant.
The primary
responsibility for giving human rights their intended operation rests not
with the courts but with the Parliament. The Victorian Act requires that,
before any second reading speech on a Bill introduced into the
Parliament, a statement of compatibility must be laid before the House,
showing either the Bill’s compatibility or incompatibility with the defined
human rights72.
A Parliamentary Committee must report on
compatibility73, and the Parliament may include a declaration of override
in an Act, declaring that the Act or a provision of the Act is effective
71
72
73
Church of Scientology v Woodward (1982) 154 CLR 25; Attorney General (NSW) v Quin
(1990) 170 CLR 1, 35-36.
Section 28.
Section 30.
21
despite any incompatibility74.
Although the courts are directed to
interpret a statute compatibly with human rights so far as it is possible to
do so consistently with the purpose of the statute75, the purpose is the
Parliament’s purpose ascertained in accordance with a ordinary rules of
interpretation76. Public authorities are directed to act compatibly with the
Charter rights, subject to certain exceptions77. The significance of a wide
definition of “public authority” is pointed out in a valuable paper by the
Solicitor General, Ms Pamela Tait78.
The term extends to statutory
bodies, local councils, Victoria police and “[i]mportantly, [it] extends to
those bodies that discharge functions of a public nature” thus sweeping in
private corporations to which government might contract out public
functions such as the control and management of prisons.
Although many of the rights listed in the Charter are already
familiar to, and would in any event have found a measure of protection
in, the common law, their enactment might affect the interpretation of
ambiguous terms79 and, one might surmise, will heighten judicial
sensitivity to circumstances in which human rights are possibly at risk.
But, having interpreted a statute or statutory instrument as the Charter
directs, a court which finds the provision to be incompatible with a
Charter right has no jurisdiction to affect the operation of the provision.
The court is limited to the making of a declaration of inconsistency
which, in turn, enlivens a statutory obligation on the part of the
responsible Minister to prepare and lay before the Parliament a written
74
75
76
77
78
79
Section 31.
Section 32.
Interpretation of Legislation Act 1984 (Vic), s 35(b).
Section 38.
Protecting Human Rights in a Federation, 33 Monash University Law Review (No 2) 217 ff.
As the Solicitor General illustrated by reference to Hopkinson v Police [2004] 3 NZLR 704
22
response80. The political branches of government may repeal, amend or
leave standing the incompatible provision.
Political responsibility
remains with the political branches. The traditional separation of powers
is unaffected.
The courts have an important role in the interpretation of the
Charter rights. The construction which a Victorian court places on a
statutory provision affecting the rights or duties in issue, whether affected
by a Charter right or not, is open to review in the course of an appeal to
the Court of Appeal. There may be a question whether a further appeal
would lie to the High Court under s 73 of the Constitution against a mere
declaration of inconsistency if the declaration does not affect the interests
involved in the litigation. The Solicitor General gives an affirmative
answer to this question, noting that such a declaration is made only in
litigation which determines the issues between parties. Ms Tait relies
inter alia on the judgment of the High Court in Mellifont v Attorney
General (Queensland)81. In that case, the High Court entertained an
appeal from a Court of Criminal Appeal deciding a point of law on an
Attorney General’s reference after acquittal.
There will be a degree of forensic fascination with the
jurisprudence which emerges under the Charter.
But it may not be
premature to make two suggestions. First, as the Victorian model does no
violence to the traditional separation of political and judicial powers,
adoption of the model by the Commonwealth would work no change to
the current distribution of federal powers. The genius of the Charter is
the solution of the problem which beset earlier models, namely, the risks
80
81
The Charter of Human Rights and Responsibilities Act 2006 (Vic) s 37.
(1991) 173 CLR 289.
23
of transferring political powers to the judiciary. The Charter has brought
the judiciary into constructive dialogue with the Parliament, but that is no
more than utilising the interpretative skills of the courts to promote good
government in the interests of the community. However, if a judicial
declaration of incompatibility had no effect on a litigant’s rights or
liabilities, there would be a question whether such a declaration can be
made in the exercise of federal jurisdiction82. An appeal to the High
Court from Victoria or the ACT under S 73 may indicate an answer to
this question.
Second, a statutory enactment of human rights in the Victorian
model would surely inhibit legislative or executive infringement of those
rights – and thus enhance the quality of good government; it would also
heighten judicial sensitivity to possible infringements and sharpen
judicial ability to construe provisions so as to avoid infringements. If, for
example, a Commonwealth statute in terms similar to the Victorian
Charter had been in force in 2004 when Al-Khateb83 came before the
High Court, the Court may not have held that a stateless migrant who
could not be deported in the foreseeable future was liable to be held in
executive detention for an indefinite and unlimited period. The relevant
provision84 prescribed detention of the migrant until deportation or the
grant of a visa; it did not contemplate the situation of refusal of a visa and
practical impossibility of deportation. Had the Court been directed to
give effect, if possible, to the right to liberty and freedom from arbitrary
detention85, a majority86 may have construed “detention” as meaning
82
83
84
85
See In re Judiciary and Navigation Acts (1921) 29 CLR 257.
[2004] 219 CLR 562
Migration Act 1958 (Cth), s 196
Charter of Human Rights and Responsibilities Act 2006 (Vic.) s 21
24
detention limited to the time needed and taken for the processing of Mr
Al-Khateb’s visa application and ascertaining the prospects of
deportation87.
By mandating legislative machinery to ensure that individual
human rights are not improvidently overridden in the course of legislating
for the community at large, and by requiring the courts to understand that
the Parliament has no such intention unless the contrary is expressed, the
Charter of Human Rights and Responsibilities Act is a valuable
instrument of good government. It leaves the constitutional distribution
of powers intact, allowing the political branches of government to do
what is needed to secure the common good while protecting human rights
and fundamental freedoms except to the extent that “can be demonstrably
justified in a free and democratic society based on human dignity,
equality and freedom”. These are lofty ideals. It will be the satisfying
privilege of both the political and the judicial branches of government to
implement the Act’s provisions and to make those ideals a reality.
86
87
See the reference by Justice McHugh to the absence of a Bill of Rights in his reference to Al
Kateb in "The Need for Agitators - the Risk of Stagnation" reported at
http://www.hcourt.gov.au/speeches/mchughj/mchughj_12oct05.pdf.
Cf Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126
FCR 54.