Why we need an Australian Bill of Rights - Hon John von Doussa QC

A joint forum to consider human rights in Australia and to launch the New Matilda campaign for a Human Rights Act

The Hon John von Doussa QC, President of the Australian Human Rights and Equal Opportunities Commission

I am very grateful to the organisers of this evening’s Forum for the invitation to be a speaker, for two reasons. 

The first is that HREOC has been suggesting for a considerable time that there needs to be renewed public debate on whether Australia should have a charter of human rights of some sort. It seems that the launch of the New Matilda campaign will give momentum to such a debate. A lot has changed, both nationally and internationally since the unsuccessful attempts of the 1970s and the 1980s to interest Australians in a bill of rights. As is so often said, Australia has now become the only major Western democracy that does not have a bill of rights. 

Secondly, and I think this was why I was invited, there seems to be a perception held at least by some of those promoting the New Matilda campaign in Adelaide, that I do not support a bill of rights in Australia. My invitation suggested that my participation would put a different viewpoint. The perception is not correct. I think it stems from remarks made by me in casual conversation to the effect that I thought there were difficulties with some notions of what could be achieved by a bill of rights. 

To ask, as I was asked, “Are you in favour of a bill of rights?" is like asking how long is a piece of string. It is a meaningless question incapable of a sensible short answer. You must know the content and meaning which the questioner gives to the expression "Bill of Rights". 

The possible combination of features of a bill of rights is endless from a very light touch model to something that looks like a codification of all international human rights law. 

Let me outline some of the central possibilities.

First, what will be the status to be given to a bill of rights? Is it to be constitutional entrenched or is it to be a legislative instrument? In the latter case its terms can be amended at later times by Parliament. Our Racial Discrimination Act 1976 (Cth) is an Act of this type which was amended in relation to the Native Title Act and again to allow construction of the Hindmarsh Island bridge. 

Then, what fundamental rights will the bill recognise? 

As you know, the two most important international human rights conventions divide fundamental rights into two classes - civil and political rights; and economic, social and cultural rights. I think there are both historical and political reasons for this division which I will explain later. 

Civil and political rights include the fundamental rights to life, liberty and security, to the rights not to be arbitrarily arrested or detained, to be treated with humanity, to freedom of movement, to a fair trial, to the protection of property, to protection against retrospective application of criminal law and to participate in the government of the country.

Economic, social and cultural rights on the other hand deal with such matters as the right to housing, clothing, food, education, and to social security. 

Most of the bills or charters of rights in other countries concentrate on civil and political rights but there is some precedent for the inclusion of some of the recognised economics social and cultural rights. 

The Australian Capital Territory, the New Zealand and the United Kingdom Acts only offer protection for civil and political rights. 

Whatever the rights to be protected, it is essential that they be precisely defined in the Bill to avoid uncertainty and to avoid the criticism that through a process of interpretation courts and judges will become the ultimate law makers – as has happened in the USA. 

Once the rights are settled, other difficult questions arise: to whom will the bill apply and what will be the available remedies? 

The light touch approach of the ACT Bill of Rights Act 2004 is an example. So far this is the only bill in Australia, although Victoria is contemplating something similar. The Act applies only to legislation, and it limits remedies to an application to the Supreme Court for a declaration that a particular piece of legislation is incompatible with rights enumerated in the Human Rights Act.

In considering an application the court must endeavour to read down the language of the challenged legislation so as to be compatible with the Human Rights Act, but if that is not possible then a declaration of incompatibility may be made. 

The declaration does not affect the validity of the legislation or the rights of anyone. Rather the declaration is transmitted to the Attorney-General who must present a copy of the declaration to the Legislative Assembly, and within six months give the Legislative Assembly a written response. It's up to the Legislative Assembly to decide what, if anything, it will do. 

This light touch approach is not to say that the Human Rights Act is useless - far from it. The prospect of a judge ruling on incompatibility makes the legislature give serious consideration to bills. Proper consideration is also promoted by the Attorney-General being required to present to the Legislative Assembly with each new bill a compatibility statement. The statement must set out whether the bill is compatible with the Human Rights Act, and if not how it is incompatible. The direction to the court to construe Acts so as to give effect so far as possible to the protected rights is also a powerful tool. 

But this form of human rights Act gives no rights to individuals to challenge decisions of the executive that contravene a protected human right. The United Kingdom Human Rights Act 1998 gives a right to an individual to challenge a discretionary decision of a public authority that is incompatible with a protected right. Any court or tribunal can set aside the decision, and courts may award damages if the public authority has contravened the Human Rights Act. 

There is a further possibility again. A declaration of incompatibility and a remedy against a public authority are described as vertical remedies. It would be possible to enact a horizontal remedy as well, that is a remedy open to one individual against another individual who has acted contrary to a protected human right enjoyed by the plaintiff. To go this far would be to add a new layer of rights and responsibilities across the general laws of the country that regulate the rights of individuals among themselves. Perhaps this goes much too far, but it is one of the possibilities.

So until all these variables are put in place it is pointless to ask or debate the general question: is a Bill of Rights to be supported?

New Matilda has recognised this, and launches its campaign with a draft bill. This is an excellent approach. It provides the means of understanding what is being promoted. 

With any law reform proposal, especially one like the present where there are divided and sometimes strongly held views, there are always two broad considerations. First, what is the ideal, and secondly what realistically can be achieved recognising that the reform has to get the support of an elected government and parliament. Sometimes it is necessary to hive-off part of the ideal, and settle for something less on the basis that the something is better than nothing. 

That happened in the ACT. The Report of the ACT Bill of Rights Consultative Committee published in May 2003 recommended remedies enforceable against public authorities, but that part of the recommendation did not find its way into the Act. Nevertheless their Act seems to be having a significant impact. The Chief Minister, Jon Stanhope's insistence that of the Territory’s counter-terrorism legislation, that compliments the Commonwealth laws for preventive detention orders, must be compliant with the Human Rights Act is an example.

May I now say something about why I think the time and opportunity has come to consider the question of a Bill of Rights? 

Our legal system has its history in the English common law. The common law's protection of fundamental rights can be traced back to the Magna Carta. In Blackstone’s "Commentaries on the Laws of England" published in 1735 the author states that the right to personal security, the right to personal liberty, and the right to private property are the absolute rights of all mankind. Statements like the following which stress the importance of the common law rights abound in Blackstone:

"To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom: but confinement of the person by secretly hurrying him to goal, where his sufferings are unknown and or forgotten, is a less public, less striking, and therefore a more dangerous engine of arbitrary government". 

The recognition and respect of common law principles in England carried through to the parliamentary process. It was assumed than a government comprised of members of the public would act in the interest of the nation as a whole. Any minister who failed in his duty to the uphold public interest, for whatever reason, would resign, ensuring that no one remained in government if they were irresponsible or personally deficient. To depart from the fundamental protections of the common law was treated as not in the interest of the nation.

The common law developed a great number of the fundamental rights which now find expression in International Covenant of Civil and Political Rights. When the United Nations agreed the Universal Declaration of Human Rights in 1948, and then through the Human Rights Commission, developed the International Covenant on Civil and Political Rights, those historical rights were regarded as a source from which the whole philosophy of human rights developed. The civil and political rights are regarded as “first generation rights". They have the feature that they are negative rights in the sense that the state is required to refrain from certain actions against individuals so that the individual can enjoy a freedom to be left alone to pursue, within acceptable limits, happiness and prosperity. 

Economic, social and cultural rights on the other hand are often described as "positive" or "distributive" rights, since they require an activist response by the state to ensure the provision of the money and services necessary for the realisation and enjoyment of the rights. These rights are often defined as "second generation" rights. It will be apparent from the nature of these rights that their enjoyment is dependent upon the policies and philosophy of the government of the day. In this sense there is a political element in their enjoyment. 

As the influence of Parliament in the day-to-day regulation of public life grew, statutes began to confine the enjoyment of common law rights. Over time, this led to common law principles that historically had been "rights" in the sense that they were enforceable through the courts, to become not rights but presumptions to be applied in the interpretation of statutes. 

The principle was stated in these terms by a Justice of the High Court of Australia in 1925 (Ex parte Walsh and Johnson; In re Yates, per Isaacs J, 37 CLR 36 at 93)

"…even where Parliament confessedly possesses plenary power within its own territory, the full literal interpretation will not ordinarily be ascribed to general words where that would conflict with recognised principles that parliament would be prima facie expected to respect". 

In short, Acts of Parliament were read down so far as possible to be consistent with recognised human rights principles, on the basis that Parliament would not have intended to depart from them. 

In the early stages of this process the presumptions had great influence. However in more recent times courts have come to emphasise another principle, that if parliament has directed its attention to the question of abrogation or curtailment of a basic human right, and has used clear language to do so, that language will be given effect. 

The diminishing influence of the common law on the construction of legislation has gone hand-in-hand with a diminution in the Westminster notion of ministerial responsibility. As Sir Anthony Mason noted recently in a speech to the Law and Justice Foundation of NSW (6th October 2005):

"Now the convention seems to be largely of historical interest. Ministers rely on the mistakes of subordinates as their response to criticism and as a reason why they should not be expected to resign. Failure to give relevant, perhaps embarrassing, information to the minister is not an occasion for the minister's resignation. Nor, it seems is it inevitably an occasion for disciplining the public servant. The modern practice is scarcely a recipe book for good government". 

Furthermore, it now seems to be a well accepted part of the political process that members of Parliament are required to observe party discipline and loyalty. This has the effect that those members of parliament who would otherwise be disposed to vent their concerns about an infringement of fundamental common law rights are denied the opportunity of injecting their views into parliamentary debate. 

The sum total of these influences is that common law rights are no longer a strong protection in our law legal system. 

When I went through the Law School, more than forty years ago, human rights law was not a subject on the curriculum. Lectures we received about the English common law system and the unwritten British constitution, led us to believe that the protection of fundamental rights and freedoms would always be the cornerstone of our legal system, and that there was no need to reduce those rights to a statutory form. 

This view was eloquently given by Sir Robert Menzies in a speech to an American audience in 1967. He said;

“[R]esponsible government in a democracy is regarded by us as the ultimate guarantee of justice and individual rights. Except for our inheritance of British institutions and the principles of the Common Law, we have not felt the need for formality and definition.

I would say, without hesitation, that the rights of individuals in Australia are as adequately protected as they are in any other country in the world.”

Plainly this view was held by a many judges who receive their legal grounding at about the same time, or before. In a more recent years when the possibility of a human rights bill of some sort arose, the attitude of most judges was unsympathetic, on the ground that it was unnecessary, and that to have a bill of rights would transfer power from the elected government to unelected judges. It was views like these that caused a suggestion made during the Constitutional Conventions in the 1890s to include a “due process” clause in the Australian Constitution to fail.

It is remarkable how things have changed in recent years. We now have a number of leading former judges expressing the view that the time has come for some form of a legislative protection for human rights. I suspect similar views are held by many serving judges but it is not appropriate that they canvass them publicly. 

For these judges I think the tide turned because they have been closely involved in unsuccessful attempts to protect human rights in the courts. Their experience in relation to migration cases in particular must have been one of disillusionment. 

In the 1980s, the law allowed the merits of claims by asylum-seekers to be thoroughly investigated, and if at first their claim was not successful, review could be sought under the Administrative Decisions (Judicial Review) Act. The grounds for review included the full range of natural justice principles. 

However, things have changed. I well remember an occasion in 1992 when one of my colleagues was about to hear an application by asylum-seekers who had arrived in Darwin by boat. At that time, judges of the Federal Court were granting bail to asylum-seekers who arrived unlawfully whilst their claims were processed. On the night before the case was to be heard, the mandatory detention provisions were rushed through Parliament. The protection against detention without trial was removed in one strike. 

Many other amendments followed to limit the power of the court to do justice according to common law principles. Resort to the Administrative Decisions (Judicial Review) Act was removed. The Federal Court was given only restricted jurisdiction to review decisions, and available grounds specifically excluded that a breach of the rules of natural justice had occurred in the making of the decision, or that the decision was one that was so unreasonable that no person acting reasonably could have come to it.

As judges placed narrow interpretations on some of these amendments, and to the best of their ability continued to apply accepted principles, further limitations on their powers were imposed, until finally in 2001 section 474 was inserted into the Migration Act, the so called privative clause. This purported to remove all jurisdiction to review decisions unfavourable to asylum-seekers. Whilst that section was ultimately read down by the High Court, the approach of Parliament and of the executive to the rights of the asylum-seekers demonstrates the failings of traditional protections. 

Then came a string of cases concerning unfortunate failed asylum-seekers who could not be returned to their countries of origin, either because they were stateless, or their countries would not permit their return. The question was whether Parliament, by the language used in the Migration Act, intended that these people could be held in mandatory detention indefinitely. Some of these people had been in detention for any many years. 

Ultimately, in Al Katab in 2004 the High Court by a 4 to 3 majority held that the legislation did authorise indefinite detention, even though the detention was recognised as arbitrary, contrary to article 9 of the ICCPR. In the course of his reasons in that case, Justice McHugh observed that:

"the justice and 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 basic human rights." 

At the same time, the High Court held Parliament had sufficiently expressed its intention that children could be detained, not withstanding that their detention ran foul of human rights principles. 

It is a matter of record that many human rights advocates were at the time complaining vigorously about the injustices of the migration system, a view endorsed by the HREOC report, “ A Last Resort”, on children in detention. However it was not until the revelations of the Palmer inquiry following the detention of Cornelia Rau that public sentiment swung strongly behind the criticisms. 

Although there was strong public support for the actions of the government at the time of the Tampa incident, and for the announcement of the first counter-terrorism legislation in 2002, I sense that public sentiment is at last changing. I have already referred to changed attitudes about migration detention. I think that the debate that has occurred over the lack of judicial oversight in propose counter-terrorism measures provides further evidence of change. 

Had there been a human rights charter of some sort, I doubt whether the occasion for the recent debate over the counter-terrorism legislation would have arisen. It is likely that human rights principles relating to a fair trial and judicial oversight would have been incorporated at the outset, and even if that had not occurred, a human rights remedy would in itself have provided protection. 

It is interesting to observe that there is no close analogy to be drawn between the counter-terrorism legislation in the United Kingdom, and that proposed by the Australian counter-terrorism bills of 2005. Whilst a form of preventive detention is possible under the UK legislation, because of their Human Rights Act, people in the United Kingdom are not without remedies. This was demonstrated by the decision of the House of Lords in A v Secretary of State in December 2004 which held to be incompatible with human rights principles a law which permitted the detention of unlawful non-citizens who were suspected of terrorist leanings, but who were not charged with any offence. 

So now is the right time for the debate which New Matilda seeks to enliven. 

My I conclude with two further comments.

First, what happened with the Migration laws is being mirrored across the executive branch of government. More and more discretionary power is given to the executive, and less and less detail of conditions governing the rights and duties of individuals is stated in legally enforceable statutory provisions. It is all very well for government to say we are all protected by the rule of law and the respect that Australia accords to that core principle. However, if the regulation of our lives is not stated expressly in the law, but is a matter of discretion, what protection does the rule of non-existent law give? To give real substance to the principle, enforceable and certain rights need to be express - and this could be achieved in a charter of rights.

Secondly, one important purpose of a human rights charter will be to protect the rights of people in minority groups. One minority group in Australia that is particularly in need of enforceable fundamental rights is the Indigenous community. Aboriginal people have advocated for a treaty, but their advocacy has fallen on a deaf ears. I perceive that there are strong self-interest groups in our community who treat the notion a treaty as giving one section of our community something which they would not have. For that reason they oppose it. Without debating the merits of that proposition, if there were a universal charter to protect the rights of everyone, the basic rights recognised in it would go a long way to giving protection to one community which plainly needs it. 

I commend New Matilda and the co-hosts of this Forum for advancing the debate on a very important topic.

Thank you.