Horrigan, Bryan --- "Submission for the National Human Rights Consultation" [2009] ALRS 7

Last Updated: 7 May 2010

Submission for the National Human Rights Consultation

Focus of This Submission

Much of the political debate, media ‘op-ed’ contributions, and public submissions to the National Human Rights Consultation Committee (‘Committee’) understandably focus upon the pivotal questions of whether or not Australia should have a national statutory charter of rights and responsibilities of some kind (‘Charter’) and what kinds of rights such a Charter might contain. Equally important to the Committee’s task of considering and assessing new rights-enhancing options are matters such as the following, which are the main focus of this submission:

(1) democratic implications of the process beyond consultations and submissions;
(2) implications of new rights-protection infrastructure for norms of legal interpretation;
(3) enhancement of vehicles and mechanisms of parliamentary scrutiny of laws on rights-based grounds, as either a complement or alternative to a Charter;
(4) the relationship between interpretative provisions of a Charter and reference by all three arms of government to relevant international and foreign human rights material; and
(5) the relationship between global and transnational developments affecting business and human rights, the Rudd Government’s publicly stated support for corporate social responsibility, and the Committee’s terms of reference.

Importantly, the task before the Committee (and indeed the Government) must be approached with one eye on Australia’s internal affairs and another on Australia’s place in the international community. This includes Australia’s international obligations and reputation, international scrutiny of Australia’s human rights track record, Australia’s participation in and response to major global initiatives in standard-setting for rights-protection, Australia’s part in a global net of rights-protection as a geopolitical concern for both developed and developing economies and their political leaders, and Australia’s contribution to research and practice surrounding such new human rights infrastructure and the fields of knowledge and training that support its development. Such a twin focus informs the options and outcomes of the Consultation too. For example, the fact that the Australian Government has obligations to protect human rights under ‘hard’ and ‘soft’ norms of international law that can be affected by what governmental and non-governmental actors do throughout Australia is a relevant factor in deciding the levels of government to which a Charter applies and also how far it reaches into the private and community sectors too.

Democratic Significance of What Happens Beyond the Consultation

Framing the Committee’s and the Government’s Baseline of Options

Although the public debate and many submissions frame the Committee’s Charter options in the balance between judicial and other governmental rights-protection roles as a zero-sum choice between the status quo and enhancing the rights-protecting role of judges through a Charter, the Committee has a more nuanced set of options available to it than that stark choice. In light of the gaps and weaknesses in the web of rights-protection nationally,[1] together with the scrutiny by the international community of Australia’s compliance with its international human rights obligations, the real choices facing the Committee and the Rudd Government (just in institutional terms) lie somewhere between optimally bolstering the existing measures of governmental rights-protection at the national level for the legislative and executive arms of government, on one hand, and giving a new rights-protecting role to the judicial arm of government in conjunction with the other arms of government under a Charter, on the other.

Equally, in terms of a Charter, the choice is not simply between having no Charter at all and having one that inevitably gives more rights-deciding power to judges than politicians, as there are Charter models and interpretative devices available that can limit and otherwise condition judicial interpretation and application of a Charter within strict boundaries imposed by parliament and conventional norms of legal interpretation. For example, devices such as limiting judges to possible interpretations that accord with parliament’s purpose and other conditions laid down by parliament, and allowing for legislation that is inconsistent with Charter rights to prevail, together can dissolve many (though not all) concerns about engaging judges in something beyond their conventional judicial roles. Moreover, even if those who argue against a judicially interpreted Charter prevail, that is not the end of the matter in terms of legal measures, as the question then becomes one of improving the ways and means by which the other arms of government address the issue of synchronicity between laws and human rights that would otherwise become a matter for courts under standard Charter models.

A Democratic Imperative for the Committee and the Rudd Government

Democratic conditions attach to the process and outcomes adopted by the Committee and the Rudd Government arising from the Committee’s report to the Government, whatever it contains. Those democratic imperatives are not fulfilled simply by the Committee recommending particular rights-protective measures and the Government simply adopting implementing those with which it agrees. In other words, the role for public engagement and feedback does not start and end with public consultations and submissions about a range of new rights-protection options in the abstract. Consistently with our system of representative democracy and responsible government under the rule of law, other features of our contemporary system of government also come into play, including sovereignty of the people as the ultimate source of political and legal authority and what this really means in this national exercise in terms of deliberative democracy[2] and participatory governance of the kind exemplified in the 2020 Summit.

Whether grounded alternatively in notions of democracy as a ‘partnership’ between governments and the people,[3] a concept of democratic citizenship guaranteeing citizenship participation in democratic government as well as freedom from unwarranted state interference with liberty,[4] or even a form of ‘republican sovereignty’ that captures sovereignty of the people in ways that transcend national sovereignty, parliamentary sovereignty, and other forms of sovereignty,[5] democratic governance has different normative justifications, paradigmatic manifestations, and systemic features. Indeed, the democratic bases for incorporating or alternatively rejecting a Charter of rights and responsibilities presuppose a justified and articulated conception of democracy as enshrined in Australia’s politico-legal order. One former Chief Justice of the High Court of Australia expressed the view towards the end of the 20th century that our democratic process has evolved ‘beyond an exclusive emphasis on parliamentary supremacy and majority will’ and towards ‘a notion of responsible government which respects the fundamental rights and dignity of the individual and calls for the observance of procedural fairness in matters affecting the individual’.[6] In 2008, the outcomes of the Governance Stream at Australia’s 2020 Summit focused in part on ‘the need to strengthen the participation of Australians in their Governance’, through the development of ‘innovative mechanisms to increase civic participation, collaborative governance to strengthen civic engagement and trust, facilitate “deliberative democracy” and strengthen citizen engagement’.[7]

Most usages of the ‘dialogue’ notion in this context refer to the institutional dialogue between legislatures and courts on human rights decisions. Yet, there is a broader and more potent notion of ‘dialogue’ also in play in the national process commenced through this Consultation. Glimpses of it are sketched in approaches to community-based bills of rights.[8] It offers a means by which the debate that is often stuck in a zero-sum competition between legislator-orientated rights-protection and judge-orientated rights-protection for the highest expression of democratic rights-protection can be reframed as a debate in which all three arms of democratic government and the people are joined in a common enterprise of holding one another to the requirements of democratic governance in the new regulatory state.[9]

One way for the Committee to break the deadlock between the pro-Charter and anti-Charter wings of Australian politics is to assess each of those fixed positions against the suggested measure of what best holds all institutions of government accountable to the Australian people as the ultimate source of political and legal authority. We can all agree that courts are best positioned to make instance-specific decisions through accepted legal reasoning processes about conflicts between different legal rights and interests in particular circumstances involving particular parties in litigation before them, in a way that adds something beyond the general character of legislating rights from a community-wide perspective undertaken properly by government,[10] without necessarily agreeing that courts are the ideal institutions in Australian conditions to make decisions that go beyond interpreting laws on rights to evaluating what are inherently socio-ethical judgments about limits on rights or conflicts between rights and other interests. So, where there is a meaningful controversy about the relationship between different laws in terms of their impact on individual rights and liberties, there is much value in the Committee recommending a balanced package of institutional rights-protecting measures that engage each of the legislative, executive, and judicial arms of government in the one enterprise of rights-orientated outcomes, all against the background of the three arms of democratic government individually and collectively justifying their actions to the Australian people. One balanced institutional mechanism for doing this would be to allow the Australian people meaningful entry points for raising matters affecting their rights with each of the institutions of government, and for each of the institutions of government to have an interactive role in the process of resolving questions of interpretation and limitation of rights under a Charter. Some of these suggestions are pursued in more detail at various points in this submission.

All of this has implications for the processes of the Consultation beyond its community consultations and review of public submissions. Any new rights-protecting mechanisms recommended by the Committee and adopted by the Government should be released in a public consultation draft of specific measures, whose structure and terms can be the subject of meaningful input from the community, once there are concrete proposals in front of the community, especially if one of those proposals is to have a Charter of whatever structure and content. The devil is always in the detail and, at present, nobody making submissions has anything in front of them other than a series of different models and arguments in the abstract. Accordingly, it is important for the Committee to include amongst its recommendations to the Rudd Government a recommendation to issue a public consultation draft of whatever new rights-protection measures are ultimately proposed. This already happens in the case of drafts for public exposure and comment on important legislation, prior to its introduction into parliament. The same democratic imperatives apply here too, especially for something as significant as an escalation in the national governmental infrastructure for rights-protection.

Reforming the Norms of Interpretation Relating to Rights

Legislative Codification and Modification of Rights-Based Rules of Interpretation

The most fundamental norm of statutory interpretation of relevance to rights is that contemporary Australian legislation is interpreted and applied according to a trilogy of principles of statutory construction based upon legislative purpose, context, and legality.[11] In particular, what is now commonly called ‘the principle of legality’ is reflected in interpretative rules about the common law’s protection of individual liberty and autonomy, specific presumptions and canons of construction about legislative curtailment of fundamental rights, and other approaches to interpretation, as enshrined by the immediate past Chief Justice of the Australian High Court in the following statement of principle in a 2004 case: ‘Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.’[12] Arguably, this legality principle forms part of a wider approach to legislative intention that starts from the baseline that parliaments who intend to erode or override basic legal principles, fundamental rights and liberties, and essential aspects of a legal system must do so with unmistakeable clarity and precision.[13] Conceived in this way, the principle of legality is also deeply implicated in the notion of a liberal democracy governed by the rule of law as enshrined in our political and legal systems, whose requirements are still a work in progress in judicial interpretation.

Another relevant norm of interpretation here is that international instruments to which Australia is a party, including international human rights instruments, are legitimate sources of reference for judges in resolving legislative ambiguities or developing the common law.[14] At its strictest in the context of statutory construction, this rule of interpretation does not apply at large to make Australian law compatible with international law and Australia’s place in the community of nations, but rather applies only where the legislation in question is ambiguous and incorporates or otherwise contemplates a specific international instrument. Given the rapid escalation of international instruments and range of material evidencing international law and custom, there might be some doubt about the ongoing viability and scope of a related but still accepted doctrine that Australian courts should interpret Australian legislation as far as possible in a way that does not violate the existing rules of international law at the point of enactment.[15] In the context of a Charter, questions inevitably arise about the interplay between such rules of interpretation and any legislative instruction to interpret laws in rights-compatible ways. As is clear from decisions in jurisdictions with comparable charters, the hierarchy and interplay between such interpretation provisions can both become problematic in judicial practice, even producing results that the legislatures enacting their respective rights charters might not have foreseen at the time. For example, if a charter legislatively identifies protected rights, and also contains both a legislative instruction to interpret other laws in rights-compatible ways and a legislative instruction to permit necessary democratic limits on rights, is it only those meanings that unjustifiably limit the identified rights that are precluded?[16]

Is there anything that the Committee should recommend in this area that is not already covered by the judge-made rules and presumptions of interpretation that NSW Chief Justice Spigelman has described as ‘a common law bill of rights’?[17] The short answer is that there is something meaningfully to be added to the human rights equation in Australia by legislatively codifying or amplifying such rules and, in any case, a Charter inevitably interacts with such rules and presumptions, so some degree of legislative clarification and handling of this interaction is desirable. Chief Justice Spigelman identifies the interaction between a Charter’s possible interpretative provisions and his common law bill of rights, as well as what legislative bolstering of this interaction might add beyond that achieved by rights-sensitive judge-made rules and presumptions of statutory interpretation, as follows:[18]

When the rights-compliant interpretation provision is made expressly subject to the purposive requirement, its operation would probably be very similar to the principle of legality. Nevertheless, it can have some additional force when there is doubt about Parliament’s intention in other legislation because it is more likely that the judiciary will apply an express parliamentary authority than a common law principle.

In other words, the Charter exercise of selecting from the range of possible meanings the one that is the best rights-respecting interpretation of those that meet the legislation’s purpose under ordinary norms of legal interpretation is very close to the outcome achieved by reading legislation in a way that only affects fundamental rights and liberties if that is clearly and directly manifested by parliament in its legislation. However, the first additional advantage of Charter interpretative provisions to this effect is that, in making Charter rights in one Act fit with interpretations of other Acts with possible rights-limiting effects, an express legislative requirement of some kind to read legislation in rights-friendly ways applies one legislative instruction to another, thereby trumping the force of a judge-made norm of interpretation in the hierarchy of legislative and judicial norms of interpretation. Moreover, the additional advantage of such interpretative provisions in a Charter is that the source and scope of rights to which judge-made norms of interpretation apply is anchored heavily in the individual rights and liberties acknowledged under existing Australian law, which is not necessarily inclusive of all of the rights recognised under international human rights law, whereas a Charter offers the potential for the parliament to expand the catalogue of human rights that matter for interpretative purposes and to set conditions for their interpretation by courts.

Finally, on an expert view of the Constitution, it is clearly constitutionally permissible for the Australian Parliament to legislate that prospective legislative intrusions upon rights and overrides of any Charter rights must be clearly and unmistakeably manifested in the Australian Parliament’s law-making. The relevant conclusions from one of Australia’s leading constitutional law experts, the late Professor George Winterton, writing in the context of ‘manner and form’ legislative requirements as they relate to statutory bills of rights, make this plain[19].

Until the Commonwealth Parliament’s freedom of action is restrained, the protection of civil liberty is feeble indeed. Of course, only a constitutional amendment could completely immunise civil rights from the operation of inconsistent federal legislation, but a ‘manner and form’ provision, if the Commonwealth could validly enact one, would offer statutorily-protected rights some protection against offending federal legislation ... by requiring a breach of the Bill of Rights to be express ... Moreover, provisions of ‘form’ in a Bill of Rights requiring inconsistent legislation to declare expressly that it should operate notwithstanding the Bill of Rights if it is to be effective ensure that the protected rights are not eroded surreptitiously ... Although the Commonwealth Parliament cannot enact ‘manner and form’ legislation requiring laws to be passed by specified majorities in Parliament or by a legislature other than the Parliament established by section 1 of the Constitution, it can validly enact two types of ‘manner and form’ provisions of great utility.

First, Parliament could enact a provision, like section 2 of the Canadian Bill of Rights 1960, which makes conflicting legislation not enacted in the specified form ‘inoperative’. Indeed, Parliament could probably go further and provide that conflicting legislation, even if enacted after the Bill of Rights, should be invalid, not merely inoperative. These ‘form’ provisions are useful devices for entrenching a statutory Bill of Rights against inadvertent amendment, as has been done in Canada.

Legislating Principles of Judicial Interpretation under a Charter

If Australia adopts a Charter, there is no avoiding the prospect that courts will have to interpret Charter rights and other laws in ways that also bring into play their interaction with existing statutory and non-statutory rules and presumptions of statutory interpretation, at least on the conventional models of bills of rights available to the Committee. As the equivalent UK and Australasian jurisprudence on rights-based interpretative provisions reveals, there are distinct judicial exercises involved, which include interpreting legislation’s potential impact upon rights, ascertaining potential inconsistencies between Charter rights and other laws, resolving different possible interpretations of rights-affecting legislation, making decisions about the legal justifiability of limits on Charter rights, and reaching conclusions about the consistency of other laws with Charter rights, each of which generates its own set of questions and controversies in practice.[20] The fact that judicial interpretation of Charter rights according to whatever interpretative boundaries are laid out in a Charter potentially brings into play three different sets of norms - the interaction between ordinary norms of statutory interpretation, Charter-specific norms of interpretation, and relevant international and foreign human rights material as it bears upon both sets of those norms of interpretation - is amply illustrated by the following passage from the recent decision of the Victorian Civil and Administrative Tribunal in Kracke v Mental Health Review Board under Victoria’s statutory bill of rights:[21]

(T)he first stage of the interpretative analysis involves considering whether the statutory provision engages a human right specified in the Charter. The provision is interpreted according to the standard principles of interpretation, including those calling up Australia’s international obligations and the principle of legality.

Constitutional Concerns About a Charter

Here, two aspects need further elaboration. On the constitutional side, the difficulties that a model Charter must navigate include the following:

(1) whether or not a court ruling under a Charter will constitute a constitutional ‘matter’ within the applicable jurisdiction of the High Court;
(2) the precedential implications of court determinations in a particular federal or state/territory jurisdiction about laws if associated rights rulings do not meet the criteria for constitutional ‘matters’;
(3) the elements of judicial decisions about Charter rights that legitimately fall within the notion of judicial power;
(4) the constitutionality of institutional dialogue between the courts and parliament in the form of judicial declarations/findings of incompatibility/inconsistency and parliamentary responses to such judicial determinations; and
(5) the constitutionality of legislative instructions for judicial interpretation of a model Charter that trespass beyond conventional legislative interpretation.

Political and legal concern focuses largely upon the constitutional permissibility of judicial determinations about the relation between Charter rights and other laws, whatever other governmental processes they might trigger.[22] If the Australian Constitution truly does prohibit the kind of joint institutional involvement of both courts and parliament in the one exercise of settling how Charter rights fit with existing law, Australia’s constitutional arrangements will be revealed to be out of kilter with the constitutional arrangements with comparable countries, and another major weakness in our constitutional infrastructure will be revealed for attention in the future. The danger in the interim will be developing Charter mechanisms at the lowest common denominator of what will clearly pass constitutional muster on any view, but below the level of new rights-protection that could be legitimately be secured under the Constitution and might even be necessary for optimal rights-protection coverage.

In theory, it might be possible to detach an interpretative role for courts under a Charter from any justificatory role for them, in the sense of limiting their Charter role to identifying a real issue of possible inconsistency between two laws, in the form of Charter rights under that Act and the operation of another Act. However, disconnecting that role from the follow-up conventional judicial role of resolving such inconsistency by one interpretative means or another exacerbates potential constitutional concerns about the inappropriateness of judicial advisory opinions and other judicial roles that are one step removed from making final and binding determinations about people’s rights under the law. As other submissions to the Committee argue, this form of demarcation is also both arbitrary and unnecessary, at least on legal grounds (as distinct from political grounds), if judicial ascertainment of legislative consistency with Charter rights is an integral part of judicial interpretation of legislation as an exercise of judicial power.[23]

At the same time, confining the judicial role under a Charter simply to deciding whether or not there is an inconsistency between two laws within interpretative boundaries that are clearly anchored within the legislative meaning of the law in question and the interpretative rules for ascertaining it as set by parliament, as the trigger for a series of meaningful institutional steps that engage other arms of government in the ultimate resolution of the issue, would limit without completely removing the involvement of courts in making socio-ethical judgments about the justified relationship between Charter rights and other laws, all constitutional concerns aside. Of course, Australian courts are already engaged in socio-ethically controversial decisions about rights of the same order that could arise under a Charter. For example, judges already make decisions about the kinds of limits on the fundamental right of freedom of political speech that are legally acceptable, without any clear scheme for doing so under the Constitution,[24] just as courts who authorise medical decisions about life-threatening surgery for conjoined twins or withdrawal of medical treatment from a comatose patient in that patient’s supposed best interests are already engaged in equally controversial socio-ethical decisions about rights in which the boundaries between legal and societal values are porous or even crossed. However, one difference between a new Charter and those court decisions is that there is at least a bedrock of existing positive law and interpretative techniques developed in Australian conditions to form the baseline for such legal judgments, whatever other value-judgments might also be involved. In contrast, the source of much reference material for Australian courts under a Charter lies in the realm of international and foreign human rights material, as supplemented by the evolving body of case law in those Australian jurisdictions with statutory bills of rights.

Judicial Reference to International and Foreign Human Rights Material

This brings us to the second main point that needs discussion in this context, covering the relationship between a Charter and the body of human rights guidance available from international and foreign law. The internationalisation of domestic law now happens through multiple means and points of connection.[25] All jurisdictions with a bill of rights (and other jurisdictions in the common law world too) face the common challenge of the legitimacy and boundaries of internationalization of domestic law and policy, with implications for law reform possibilities as well. The high-profile manifestations of this development occur in transnational controversies about references to international and foreign legal material in national constitutional interpretation,[26] as well as the incorporation of internationalized guides for judicial interpretation of bills of rights by legislatively sanctioned reference to international human rights jurisprudence in those jurisdictions with particular kinds of bills of rights.[27]

Whatever the ultimate outcome of the current internal battle in the High Court and other ultimate national courts over the legitimacy of judicial reference to international and foreign legal material in domestic constitutional interpretation,[28] the relevance of such material in other judicial, legislative, and executive contexts is clear, especially rights-based contexts. This is the subject of major contributions to the literature on internationalisation of judicial decision-making in both Charter and non-Charter contexts that informs the theory-building that necessarily accompanies the work of courts worldwide in this enterprise.[29]

Some submissions to the Commission express concern about the possible threat to Australia’s control over its own destiny that might accompany judicial reference to international and foreign human rights law in interpreting and applying a Charter. First, reference to such international and foreign material is built into the interpretative provisions of a number of model bills of rights, so this is clearly and directly an issue in designing interpretative provisions for a Charter as well as identifying the range of acceptable sources of international and foreign human rights law for Charter purposes.[30] In the Victorian model, for example, permissive (rather than mandatory) reference to relevant international and foreign material is structured within the task of interpreting legislation according to its purpose as set by parliament, as follows in section 32 of Victoria’s Charter of Human Rights and Responsibilities Act:

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

Secondly, international and foreign human rights material informs the methodology used by judges when interpreting and applying at least particular kinds of interpretative provisions under as Charter. For example, judicial decisions about justified limitation on rights under legislative instructions on interpretation raise issues of proportionality and other elements for which comparative guidance is available in non-Australian sources, of a kind directly relevant to the judicial task at hand, provided that judges exercise true judicial independence in deciding what and how much of that material actually is usefully transposable to Australian conditions.[31] Australian scholarship of legislative and judicial practice in the field of rights-protection reinforces the multiple ways in which international and foreign legal material on human rights relevantly informs parliamentary scrutiny of legislation, ascertainment of justified legislative limits on rights, and other interpretative purposes under statutory bills of rights in Australia.[32]

Thirdly, concerns about threats to Australian sovereignty or democracy from judicial reference to such material must not be overstated. Writing in the American constitutional context, one of the leading North American constitutional scholars, Professor Mark Tushnet, argues bluntly and forcefully as follows on this point: ‘As I have argued elsewhere (and without refutation of which I am aware), US sovereignty is not undermined when judges appointed by the President and confirmed by the Senate – that is, Justices of the Supreme Court – make a decision for themselves to refer to non-US sources of law.’[33] In Australian terms, what democratically appointed Australian judges decide independently as an official exercise of judicial responsibility, within constitutional bounds of judicial power, under norms of interpretation set by Australian law, with publicly transparent and justified accounts of judicial recourse to non-Australian material and its evidential or other value for Australia, cannot truly be characterised as a diminution of Australian sovereignty or democracy, at least not simply because of the mere fact of reference to non-Australian source material anyway. Accordingly, there is a clear difference between Australian courts treating non-Australian material as binding in a precedential sense and Australian courts using such material in ways that fit within conventional techniques of legal reasoning and analogy. For example, non-Australian material might shed light on the collective experience of humanity in facing common problems and developing common solutions.[34] Moreover, even legally conservative judges might happily consider evidence of comparable rights-compliant readings by international and foreign courts, as an important piece of evidence in testing submissions put to an Australian court interpreting a Charter about the potentially problematic consequences of adopting a particular view, as some evidence of whether or not such predictions are unfounded, based upon comparable experience elsewhere.[35]

Finally, legitimate concerns about Australian judges knowing enough about the background context of such international and foreign material to transpose and filter their lessons for Australian conditions, the problems inherent in selecting only those international and foreign decisions that suit particular preconceived judicial views, and other concerns about the costs and benefits of Australian judicial reference to such non-Australian material are not inherently fatal to the use of such material by Australian courts. Nor are such concerns unique to a Charter (as distinct from other objects of judicial interpretation), non-Australian source material (as distinct from judicial reliance upon scholarly insights), or even the judicial domain alone (as distinct from parliamentary reference to non-Australian material in scrutinising legislation as well as executive reference to non-Australian material in policy and regulatory modelling). Rather, they are matters seriously to be addressed in the design of interpretative provisions for a Charter, judicial articulation through cases under a Charter of the conditions under which such material can justifiably be used, and development of what others have called the ‘scholarly infrastructure’ (or ‘theory-building’) that necessarily accompanies the development of ‘a theory of the authority [and citation] of foreign law’ that is still in a relatively early stage of development worldwide,[36] and which is needed to educate and train the judiciary on what is clearly a new order of judicial work on any side of the Charter debate.[37]

Here, any recommendation by the Committee that embraces a Charter (or other legislative instrument) with interpretative provisions that facilitate reference to international and foreign human rights material by courts (or other organs of democratic government, such as parliamentary scrutiny committees) could usefully also highlight the flow-on systemic implications of implementing such legislative machinery. This includes support for essential research and development (eg a sound theoretical framework that maps and justifies the conditions under which such reference to foreign and international material is acceptable, and the matrix of factors that filter that material’s usefulness and applicability under Australian conditions),[38] policy and regulatory assessments of the demonstrated societal costs and benefits of this new institutional rights-protective infrastructure, creation of public and judicial education and training programs, innovative use of public submissions to parliamentary scrutiny committees and public amicus curiae briefs to courts that offer guidance on comparative reference to international and foreign human rights material, and standard-setting guidelines for the selection and sophistication of material in courts briefs and submissions by legal practitioners that incorporates reference to such non-Australian material.[39]

Legislative Scrutiny of Bills and Laws for Human Rights Implications

The Committee should recommend that parliamentary scrutiny of laws is bolstered in the following ways. (In what follows, I agree with and build upon the broad thrust of Michael Tate’s submission to the Consultation on enhanced legislative scrutiny, although there are differences between us in some of the details.) First, the time has now arrived for an exercise of cooperative federalism in which there is a national legislative declaration and enshrinement of the principles for the drafting of legislation, administration of government, and content of important democratic aspects of human rights and the parliamentary process that are accepted in practice across all Australian jurisdictions, as evidenced by the legislative practices, parliamentary scrutiny reports, and parliamentary scrutiny criteria in place around the country. This includes legislatively cataloguing the main indicative considerations for parliament in its institutional work of scrutinising laws for rights-based implications, modelled on both the legislative drafting principles affirmed in Queensland’s Legislative Standards Act and the of common rights-concerns affirmed in the scrutiny requirements adopted by all Australian parliaments.[40] It is possible to enshrine such considerations as a guide for good executive and legislative practice without falling into the usual traps of controversies about the content and scope of rights, the exhaustiveness of a catalogue of rights, and so on. While there is mutual respect and dialogue between the various Commonwealth, State, and Territory scrutiny committees, there are also important differences in their mandates, approaches, and practices.[41]

Secondly, the important institutional work of scrutinising legislation for human rights (and parliamentary and democratic) implications should be institutionalised in the formulation of a joint federal parliamentary committee charged with the following responsibilities and modelled on the UK Joint Committee on Human Rights, especially if a Charter is also adopted in Australia. Those responsibilities include the assessment of all proposed and existing laws operative at the national level against the yardstick enshrined in the legislated standards of law-making, executive action, and other legal action (including judicial interpretation of laws) outlined above, as well as bolstering resources and mechanisms for the Australian people to approach and make submissions to such parliamentary committees when their rights and liberties are meaningfully affected by proposed or existing legislation.[42]

Thirdly, building upon other suggestions relating to enhanced legislative scrutiny of laws, the resourcing of such a joint parliamentary committee must be sufficient to allow at least the following mechanisms for public engagement with the committee: (a) public submissions and evidence to the committee on public inquiries into significant rights-related matters initiated by the committee in its own right and on referral by parliament; (b) public submissions and evidence about public consultation drafts of legislation released by the government, in sufficient time for meaningful public and parliamentary consideration of major legislative proposals affecting rights (which might not be possible as a standard procedure for all legislation given the timelines and pressures of the usual legislative agenda); (c) opportunities for individuals to request the committee to investigate and report to parliament on any proposed or existing national laws that fundamentally affect their individual rights and liberties in a way that is special and particular to them (and not simply as a member of the community affected by all laws); and (d) a mechanism for institutional dialogue between the executive and legislative arms of government on important questions about possible conflicts in national laws affecting rights, possibly including interactions between bodies such as the Australian Human Rights Commission and this joint federal parliamentary committee.[43]

Finally, enhancement of legislative scrutiny of laws can embrace business and human rights too. Legislative rules and other requirements for pre-enactment scrutiny of legislation by legislatures can incorporate reference to the impact of proposed laws upon human rights, both generally and in contexts that concern corporations in particular. Where proposed laws and amendments must also be rights-compliant, the human rights dimensions must be factored into law reform advocacy by companies seeking to influence the direction of governmental policy-making and law-making, as well as other submissions and commentary surrounding exposure drafts of legislation for public comment.

Impact of a National Charter upon the States and Territories

Even if a Charter is expressly precluded from applying beyond the Commonwealth level of government, potentially it will still have other effects upon the States and Territories that need open canvassing and addressing in the options before the Committee. Consider, as just one opening example, the impact on national uniform legislation agreed between the Commonwealth and the States/Territories, and enacted in common terms in each jurisdiction. Under a Charter, judicial interpretation of what the Commonwealth legislates as national uniform law so that it conforms to Charter rights will have a flow-on impact upon judicial interpretation of equivalent provisions in the States and Territories. This situation will also be affected by the recent precedential instruction from the High Court of Australia to all intermediate appellate courts and trial judges to follow the lead of the first intermediate appellate court decision on questions of interpreting Commonwealth legislation, uniform national laws, or the common law of Australia, unless the earlier decision is ‘plainly wrong’.[44]

A similar potential problem in interpreting national uniform laws already exists, but is confined at present to the two Australian jurisdictions with statutory bills of rights. Writing with the Victorian and ACT bills of rights in mind, the Chief Justice of the Supreme Court of New South Wales recently flagged this potential problem in these terms:[45]

One of the issues that will arise with respect to the interpretation sections in Victoria and the ACT is what, if any, impact they will have on the interpretation of national uniform legislation. For example, in 2004 and 2005 the Commonwealth and all states and territories enacted inter-locking anti-terrorism legislation.

Given the current state of Australian federalism, together with ostensibly irreconcilable political and electoral division over a Charter, the optimal politico-legal solution for Australian conditions at this point in time is to minimise the impact of a Charter beyond the Commonwealth level of government. This could be achieved by undertaking all of the following five steps:

(1) confining the direct impact of a Charter to Commonwealth legislation and probably the national common law too (as any division between statutory and non-statutory laws operating at the national level would be undesirable in theory and problematic in practice);
(2) inserting safeguard provisions into a Charter that preserve the concurrent operation of cognate rights-based statutory regimes in the states and territories (eg anti-discrimination regimes) and otherwise address the ongoing constitutionality of co-existing Commonwealth and State/Territory rights-protection regimes;
(3) making a Charter subject to constitutionally acceptable ‘manner and form’ requirements that guard against its inadvertent repeal or displacement by anything other than subsequent legislative action passed in full parliamentary contemplation of its rights-limiting effect;[46]
(4) legislatively creating an exceptional carve-out from the Charter for anything specifically authorised under cooperative Commonwealth and State/Territory legislative arrangements;[47] and
(5) addressing through cooperative federalism the residual but unavoidable areas of impact of a Charter for the States and Territories.

Including or Exempting Corporations from a Human Rights Charter

Overview

As already displayed in material produced for the National Human Rights Consultation Committee,[48] the Terms of Reference for the National Human Rights Consultation allow for possible new rights-protection options involving business that include both state measures (such as a national statutory human rights charter affecting business as well as government) and non-state measures (such as enhanced human rights education and training for professions that advise or work in business). In particular, the National Human Rights Consultation Background Paper outlines existing and new mechanisms that potentially open up enhanced business engagement in rights-protection on multiple levels:

1. business interaction with ‘a strong human rights non-government organization sector’ (p 10);
2. business participation in ‘bilateral human rights dialogue’ on the world stage (p 10);
3. business engagement in lobbying and influencing rights-based parliamentary scrutiny of laws (p 12);
4. business consequences of enhanced rights-based incorporation in decisions by governmental departments and agencies on matters affecting business (p 12);
5. application of a charter to business (p 13);
6. business involvement in a new National Human Rights Action Plan (p 13);
7. business adoption, use, and advocacy of a non-binding ‘community charter of people’s rights and responsibilities’ (p 14);
8. business consequences and uses of ‘greater community participation in policy and legislative development’ (p 14); and
9. ‘human rights training and education [in] specific professions’ (p 14).
   

As this submission outlines, there are also additional options and matters for consideration by the Committee in recommending the best new business and rights-protection measures. If, as has been suggested,[49] the basic kind of charter in contemplation for Australia is one that applies mostly to the public sector, except for when the private sector undertakes public responsibilities, then the twin points of this submission are that, even within its scope such a charter has a wide range of direct and indirect consequences for business that all need due attention in framing a charter, and that the potential nexus between business and human rights (and hence set of available rights-protection options) is broader than what might be contained in any Charter and fits within the structure of rights-protection options canvassed in the National Human Rights Consultation Background Paper. The fact that the UK Joint Committee on the Human Rights undertook an inquiry into the relationship between business and human rights in early 2009, within the new framework for international rights-protection recommended in his official UN capacity by Professor John Ruggie from Harvard University, suggests that the Committee and the Rudd Government must squarely confront one way or another the interaction between new rights-protective measures (including any Charter) and the relationship between business and human rights in Australia, through the prism of Australia’s international commitments and contributions too.

If the corporate social responsibility of business means anything, it points to at least a socio-ethical responsibility (and sometimes even a responsibility that is regulated in more direct ways) to advance the cause of human rights in business organizations, and the advent of a charter might be expected to foster a national human rights culture of which that forms part, regardless of who amongst the public, private, and not-for-profit sectors is formally bound by any Charter that might result from this Consultation. It might even help to shape the results in securing the benefits for business that others have identified as a by-product of enhanced rights-protection in Australia, including a cost-benefit analysis of the ‘compliance costs’ measured against the business benefits, such as:[50]

(1) offering business and market advantages of ‘minimizing human rights breaches and maximizing economic participation’;
(2) ‘improving the overall regulatory framework’, especially in advance scrutiny of proposed laws for human rights implications, with a view to reducing the need for subsequent changes in the laws affecting business;
(3) giving businesses the opportunity ‘to show their corporate social responsibility credentials’, with flow-on multiple benefits for business, in generating goodwill and credibility with governments in contributing to their social, economic, and environmental justice agendas, as well as in achieving competitive advantages and market differentiation;
(4) optimizing the financial performance of business, given the link between sustainable business profitability and human rights as an aspect of corporate social responsibility; and
(5) enhancing the capacity of business to address human rights risks within an integrated approach to financial and legal risk management.

What External Regulatory Environmental Pressures a Charter Addresses

The Committee and the Rudd Government desirably should address mechanisms that give effect to the contemporary interactions between state and non-state actors across the public, private, and community sectors, both nationally and internationally, in enhancing the undoubted relationship between business and human rights, given the important and widely acknowledged connection between business and human rights as a core aspect of corporate social responsibility in the 21st century.[51] Indeed, corporate social responsibility (including the relation between business and human rights) figures prominently in the recent public commitments of G8 and G20 leaders, both before and after the recent global financial crisis. In the last 18 months, both the Prime Minister and Australia’s first Minister for Superannuation and Corporate Law have committed the Australian Government to a number of significant funding and other support measures for corporate social responsibility, possibly as part of a wider commitment to a social inclusion agenda that fosters sustainable businesses and communities in interdependent ways.[52] These wider developments have a significant impact upon the scope of rights-protection involving business and therefore are integral to the Consultation.

Corporate responsibility for human rights is one of the great CSR issues of the late 20th and early 21st centuries.[53] The need for ‘a common conceptual and policy framework’ as a new platform for global discussion and action on business and human rights is recognized on all sides of the corporate social responsibility (CSR) and human rights debates.[54] The unfolding global CSR project covered throughout this book includes new developments in the relation between CSR and human rights that are broadly heading in the same rights-enhancing direction. These developments include the stimulus to debate generated by the promulgation of the draft UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (UN Norms), the subsequent search for new global frameworks for regulation and practice surrounding business and human rights, and the emerging intersections between human rights and various areas of national and international law. They also include the increasing sophistication of business tools for incorporating human rights issues in corporate operations and reporting, the incorporation of human rights elements in business supply and distribution chains, and the potential for multi-faceted corporate due diligence on human rights to mainstream human rights consideration in corporate decisions and actions.

Business is a key player in the integration of human rights and corporate concerns that forms a large part of this grand global CSR project. Strong connections exist between CSR, human rights, and business ethics. These connections cover theory (eg theories about corporate models), education (eg the design and content of MBA and law courses), and regulatory practice (eg codes of conduct). For example, legal theorist and human rights scholar, Professor Tom Campbell, argues for meta-regulatory steering of transnational corporations (‘TNCs’) towards voluntary codes of conduct (‘VCCs’) with strong human rights dimensions and deep integration in corporate structures and cultures, so that these rights-focused VCCs become ‘totally binding within the organisation and used internally as the basis for the full range of management incentives and sanctions, including performance assessment, promotions, disciplinary procedures, training opportunities and dismissal’.[55]

At the heart of these developments, however, twin tensions remain between state and non-state responsibility for human rights, on one level, and the effective justification and operationalization of any business responsibility for human rights, on another. As the European Commission announced in its landmark 2001 Green Paper on a European framework for CSR:[56]

Corporate social responsibility has a strong human rights dimension, particularly in relation to international operations and global supply chains ... Companies face challenging questions, including how to identify where their areas of responsibility lie as distinct from those of governments, how to monitor whether their business partners are complying with their core values, and how to approach and operate in countries where human rights violations are widespread.

The future global agenda on business and human rights occupies a spectrum between enhancing nation-state and intergovernmental responsibility for holding business accountable on human rights grounds, on one hand, and improving business self-regulation and cooperative initiatives on human rights and business, on the other.[57]

Implications for a Charter and Business

So, the first basic question concerns a Charter’s capacity to address aspects of the political, legal, and diplomatic agendas at national, regional, and international levels that concern Australia’s responsibility for the relation between business and human rights. Contemporary models for bills and charters of rights have a variety of direct and indirect implications for corporations, human rights, and corporate social responsibility, which in turn have important connections to major national and geopolitical concerns such as sustainable development, responsible markets, and the rule of law. Whatever differences of views might exist on all sides of politics about their merits, the Rudd Government’s CSR and social inclusion initiatives arguably steer Australia already in the direction of these broader global concerns. Here, the major point is that a number of discrete developments on domestic and international fronts are implicated in how a Charter serves as a manifestation of this area of Australia’s responsibility, in terms of its own governmental agenda and within the international community.

For example, the option of a Charter might be assessed as part of Australia’s ongoing response to the mandate and work of the UN Secretary-General’s Special Representative on Business and Human Rights (‘UNSRSG’), Harvard University’s Professor John Ruggie. The 21st century work of the UNSRSG sets a new platform and agenda for human rights policy, regulation, and practice for government, business, and civil society worldwide. His mid-2008 report for the UN Human Rights Council articulates a three-pronged ‘protect, respect and remedy’ framework for human rights action across the governmental, business, and community sectors worldwide, as follows:[58]

The framework rests on differentiated but complementary responsibilities. It comprises three core principles: the State duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights; and the need for more effective access to remedies. Each principle is an essential component of the framework: the State duty to protect because it lies at the very core of the international human rights regime; the corporate responsibility to respect because it is the basic expectation society has of business; and access to remedy, because even the most concerted efforts cannot prevent all abuse, while access to judicial redress is often problematic, and non-judicial means are limited in number, scope and effectiveness. The three principles form a complementary whole in that each supports the others in achieving sustainable progress.

Under this framework,[59] the relevant prongs therefore cover ‘the State duty to protect against human rights abuses by third parties, including business’, ‘the corporate responsibility to respect human rights’, and ‘the need for more effective access to remedies’, all of which relate to how a charter impacts upon business and human rights. For example, a Charter that applies in some way to business is a means, although not necessarily the only or best means, by which nations can fulfil their international legal obligations to protect human rights, both within their sovereign borders and as part of a united international front in the war against human rights abuses.

Importantly, human rights due diligence by corporations forms the bedrock of ‘the corporate responsibility to respect human rights’ in the eyes of the UNSGSR. A Charter has both direct and indirect effects upon corporate human rights due diligence. Even where corporations do not have human rights obligations imposed upon them directly under a Charter, corporate human rights due diligence is still necessary on other levels. For example, government contracting for essential services delivery can require the private sector to demonstrate good CSR credentials generally and good human rights practices in particular (including workplace and employment practices throughout a business value chain), and corporations themselves might incorporate human rights impact assessments along with standard social and environmental audits as good business practice in securing community and governmental approval for major business projects.

Moreover, in the wake of the UNSGSR’s 2008 report, the Australian Senate passed a motion urging the Australian Government, amongst other things, to ‘encourage Australian companies to respect the rights of members of the communities in which they operate and to develop rights-compliant grievance mechanisms, whether acting in Australia or overseas’, and ‘consider the development of measures to prevent the involvement or complicity of Australian companies in activities that may result in the abuse of human rights, including by fostering a corporate culture that is respectful of human rights in Australia and overseas’. Clearly, whatever the ultimate outcome concerning a Charter, it can be a way of meeting these recommendations.

At the same time, this simply imports into this debate many of the controversies surrounding previous attempts to introduce corporate codes of conduct into Australian corporate law. If a Charter affecting corporate responsibility for human rights has extra-territorial effect beyond Australia, this can generate additional legal and diplomatic implications, such as opening up to enhanced domestic and international scrutiny the human rights track record under Australian law of Australian companies, their subsidiaries, and their business chain members in their business activities abroad, which legal commentators acknowledge is ‘a key consideration given that numerous allegations regarding corporate impacts on human rights concern activity outside of Australia’.[60]

None of this means that Australia can only respond to these developments by introducing a Charter that affects business and human rights in these ways. Rather, the point is that debate about a Charter needs to be framed with such considerations in full view, whatever impact they might or might not have upon the ultimate shape of a Charter, and that any decision one way or another on this front has implications for national and international assessments of Australia’s performance in meeting the global business and human rights agenda.

Charter Mechanisms that Affect Business and Human Rights

‘Vertical’ and ‘Horizontal’ Effects of a Charter

Contemporary models for bills of rights have a variety of direct and indirect implications for corporations, human rights, and CSR, in ways that also promote human rights due diligence by corporations – a matter that is of increasing importance in light of the emphasis placed upon business human rights due diligence by the UNSRSG. National and sub-national jurisdictions with legislative bills of rights can foster human rights protection in corporate contexts in a variety of ways. Bills of rights can engage political, business, and community actors in legislative scrutiny, advocacy, or reform at various levels of legal, moral, and political debate that concern the regulation of business and its social responsibility. Even in jurisdictions where companies are not completely precluded from claiming the protection of human rights, there are often limits on the nature and extent of rights that might be claimed by corporations.[61] In both the UK and a couple of Australian jurisdictions with legislative bills of rights, corporations that undertake functions of a public kind, especially through public outsourcing and contracting arrangements for essential public services and venues, can find themselves subject to similar obligations as governmental entities in accommodating relevant human rights considerations.[62] Indeed, the gap in the scope of protection for human rights in outsourcing essential service delivery is a key area of controversy surrounding human rights implications at the point of intersection between the public and private sectors.[63]

The vertical effect of a Charter directly upon citizens’ rights vis-à-vis the state is matched by a horizontal effect upon other relations too, including citizen-business dealings in their own right or as they arise in areas of policy-making and regulation engaged in by arms of the state, with rich potential for impacting upon the private sector. Accordingly, it would be unrealistic for anyone to assume that debate about a charter is inherently confined to how governments treat the human rights of individuals in all state-individual interactions, as experience in the UK and other jurisdictions with bills or charters of rights shows:[64]

It is indeed now a trite observation that the question of the effect that the HRA gives to the Convention rights in relation to private common law has been one of its most controversial and contested aspects. This is partly because of its complexity and normative implications – the courts of virtually every country with a Bill of Rights have had to face this question, giving varying answers, depending only partly upon the text of the Bills of Rights themselves.

In theory, interpretation of legislation compatibly with specified human rights is not limited to interpreting legislation that creates obligations upon the state, but extends also to interpreting legislation that regulates legal rights and obligations in the private and not-for-profit sectors too. More broadly, as the state acts through executive decision-making and judicial adjudication as well as through legislative action, obligations upon the state to take adequate account of human rights considerations potentially affects all arms of government, in ways that impact upon how the state addresses human rights concerns that arise in matters concerning the legal rights and obligations of others, including business. For example, in Lord Falconer description’s of the UK Human Rights Act’s ripple effect beyond legislation, ‘the Human Rights Act places a positive obligation on public authorities to consider human rights implications when they are developing policy’.[65] Similarly, unless instructed otherwise, judges as public officials can have obligations under a charter to ensure conformity of their decisions with applicable human rights principles, including development of judge-made law. Both judicial interpretation of legislation and judge-made law itself fall under this obligation, as modified by any particular rules of interpretation for courts that might also be enshrined in a charter.

In this way, the broad-ranging horizontal effect of a charter has both direct and indirect levels of application, described by one law professor in the context of the UK Human Rights Act (HRA) as follows:[66]

(T)he courts, as ‘public authorities’ themselves, have a duty not to act incompatibly with the Convention rights; if this duty applied even when dealing with private common law, it was bound to create some role for the rights even in common law litigation between private parties, thus giving rise to a form of ‘horizontal effect’, though the HRA left it wholly unclear what this role should be ... It is important to start by pointing out that the notion of ‘horizontal effect’ signifies effects in the private sphere both upon the common law and upon the interpretation of statutes [and] it has been accepted by the courts without hesitation that all statutes should be interpreted compatibly with Convention rights, regardless of whether they regulate the behaviour of public authorities or private persons ... (A) basic distinction may be drawn between what is often termed ‘direct’ and ‘indirect’ horizontal effect. A measure has ‘direct’ horizontal effect if it lays duties directly upon a private body to abide by its provisions and makes breach of these duties directly actionable at the instance of an aggrieved party. In contrast, if a measure has only indirect horizontal effect, this means that, whilst the rights cannot be applied directly to determine private relations and are not actionable per se in such a context, they may be relied upon indirectly, to govern or at least influence the interpretation and application of pre-existing law. It has been accepted by most scholars that the HRA does not give rise to direct horizontal effect ...

The potential impact of any interpretative provisions of a Charter at the national level for Australia are illustrated by the equivalent potential impact that already applies to the Australian jurisdictions with statutory bills of rights, as indicated by two leading Australian commentators on parliamentary scrutiny in human rights as follows:[67]

The interpretative obligations under the Charter and the ACT HRA apply to all statutes, not just those that regulate relationships between individuals and government. They therefore have the potential to impact on private relationships and to benefit corporations.

Another basic question concerns the capacity of business and those associated with it to claim the benefit of any rights under a Charter. If human rights are rights that belong to human beings because of intrinsic human dignity, autonomy, and freedom, their extension to artificial legal entities such as corporations is problematical, which is why some modern charters allow only individuals to claim the benefit of human rights against the state. Moreover, any extension of human rights to corporations must overcome the hurdle of inconsistency with other aspects of corporate and commercial law.[68] None of this prevents individuals associated with corporations (eg corporate employees and even executives) to claim the benefit of rights-protection, and not only under mechanisms that extend Charter responsibilities beyond the state to those organizations that perform public functions or services on behalf of the state. For example, a corporate executive investigated and prosecuted by state regulators and authorities still has basic rights of due process and equal justice, just as corporate employees have basic socio-economic rights secured through the vehicle of their employment.

Although corporations are sometimes perceived simply as potential abusers of human rights, such a mono-dimensional view of corporations and human rights does not do justice to the multiple roles that corporations play in the global human rights arena.[69] Nor are those roles limited to the two polar extremes of corporations as destroyers or alternatively claimants of human rights. For example, Professor Stephen Bottomley describes a basic four-dimensional matrix of relations between corporations and human rights, which embraces corporations as violators of human rights, beneficiaries of human rights, venues for the ventilation of human rights issues (eg workplace non-discrimination), and supporters of human rights.[70] So, corporations might become the subjects of human rights protection, as when corporations assert that they are the holders of particular human rights under national or international laws. Conversely, corporations might be the objects of a human rights regime, as when corporations use their power in rights-supporting ways or alternatively abuse their power in violating acknowledged human rights.[71]

More discrete relations might also be extrapolated from this matrix. Corporations act as multi-faceted regulators of human rights, as when they hold members of their business service chains to account for maintaining accepted human rights standards, and scrutinize potential business or multi-stakeholder partners on human rights grounds. The legitimization and modelling of good corporate performance concerning human rights is facilitated by corporate due diligence on human rights and inclusion of human rights performance in corporate disclosure and reporting. Holders of human rights also hold interests as corporate stakeholders, and any serious account of corporate responsibility must address the extent to which concern for human rights holders in either capacity is an in-built imperative of corporate responsibility and governance.

Finally, beyond the conventional legal sense in which a corporation might also be a forum in which important questions of human rights arise and sometimes become litigated, corporations are also important institutions of society, sites of human flourishing, members of multi-stakeholder networks, and corporate systems within wider systems of governance, regulation, and responsibility – all of which have important links to human right concerns. One important question for the future concerns the extent to which international and national legal systems can develop suitable doctrines that mediate between public interests, business needs, and human rights protection.

A related question concerns the identity of institutions, organizations, and individuals who are bound by the obligations under a Charter. Here, a number of subsidiary issues arise in framing a Charter. For example, a major issue generated by comparable Australian and overseas charters is whether only ‘public authorities’ are bound, and who constitutes a ‘public authority’ for this purpose. Building upon suggestions in the literature and some other submissions, available legislative devices here include:

(1) limiting a charter’s binding effect to public entities that are clearly identified with the various arms of democratic government, whether they formally represent or act on behalf of ‘the Crown’, thus minimizing the cost of legal uncertainty, advice, and litigation surrounding this issue;
(2) prescribing identified ‘public authorities’ (and categories of them) by law;
(3) exempting some kinds of public authorities from Charter compliance, consistently with a charter’s scope of operation (eg exempting legislatures and courts as public authorities from having to conduct their own affairs in charter-compliant ways);
(4) making the notion of ‘public authorities’ embrace non-state actors who undertake public functions and services on government’s behalf;
(5) legislating criteria for courts to follow in deciding who counts as a ‘public authority’ for any of these purposes; and
(6) creating opt-in mechanisms for non-state organizations to adopt human rights obligations under a charter (as for business organizations and others in the ACT).

Obviously, these are important matters in settling the scope of a Charter’s application beyond government to the private and not-for-private sectors, especially in governmental tendering, procurement, and contracting for the delivery of essential public services. Indeed, the way in which the UK courts have approached this aspect of public functions and activities undertaken by others is one of the most controversial aspects of the UK HRA, at least in terms of differences of view between the legislative and judicial arms of government.[72] In addition, governmental practice can also have an impact here, as when governments make it a condition of securing governmental work that a non-government organization contractually submits to the status and obligations of a ‘public authority’ under a charter, with potential flow-on implications for the remedies that might attach to a breach of contract, beyond the remedies that might otherwise be available under a charter.[73]

Yet another issue concerns clarification of how the administration of government by its executive arm conforms to a Charter’s protection of rights in policy-making and administrative decision-making, in ways that might affect the private sector even if the private sector is not otherwise officially bound by a Charter. Here, a likely area of concern for business relates to public officials (including ministers and other public servants) who must make official decisions about public licences and approvals in ways that conform to Charter rights, by ensuring that a business proposal or project treats relevant human rights properly. In practice, this can generate an instrumental need for businesses to undertake human rights due diligence and impact assessments as part of the material submitted to these public officials in an effort to secure the necessary licence or approval. This might also be done by business for other reasons too, such as demonstrating its corporate social responsibility, adopting recommendations by the UNSRSG as good business practice in the treatment of human rights by business, and laying the groundwork for governmental and local community support for subsequent business developments, extensions, and renewals.

In particular circumstances, governmental officials might even be required to take human rights consequences into account as relevant considerations in exercising statutory discretions and other forms of statutory decision-making authority. Indeed, a failure to take human rights considerations into account adequately or at all might generate other legal consequences and remedies for third parties seeking to overturn any governmental approval or otherwise obstruct a business project. For example, a public official’s failure to take proper account of relevant human rights considerations might constitute grounds for judicial review or other claims of unlawfulness.[74]

In addition, a business entity whose business relies upon governmental procurement and outsourcing might find that human rights compliance is explicitly or implicitly built into performance conditions for their contracts with government, given that the contracting public authority might be bound to honour human rights protected under a bill of rights. Indeed, where there are concerns within a legislating jurisdiction about any possible gaps in available protection for human rights in the context of governmental procurement, outsourcing, and other contracting arrangements with the private sector, public policy reasons might justify reference to standard contractual provisions governing human rights in all such arrangements, with flow-on implications for human rights standards in the private and not-for-profit sectors.[75]

In particular, this introduces related issues of standard-selection, risk allocation, and contractual performance requirements for businesses securing governmental work, in terms of ensuring that their supply and distribution chains also meet these human rights standards. Where these primary and secondary contractual provisions reflect requirements of national or sub-national bills of rights that themselves implement or otherwise draw upon a country’s international human right obligations, they form part of a global system of rights-protection that transcends a country’s politico-legal borders. In these ways and more, bills of rights that ostensibly belong to the realm of government, public law, and even international law can also have CSR-related implications.[76]

Implications for Reform of Corporate Law and Regulation

Embedding human rights within ordinary corporate governance, decision-making, and reporting activities is an important part of mainstreaming human rights within corporate responsibility and governance. In terms of directors’ duties under UK law, for example, human rights concerns are most relevant to ‘the interests of the company’s employees’ and ‘the impact of the company’s operations on the community and the environment’, as well as ‘the desirability of the company maintaining a reputation for high standards of business conduct’, which are all mandatory considerations for directors in meeting their duty to promote the company’s success for the benefit of its members.[77] Human rights information is also relevant to designated categories of information for inclusion in the UK business review, including matters relating to ‘the impact of the company’s business on the environment’, ‘the company’s employees’, and ‘social and community issues’, at least ‘to the extent necessary for an understanding of the development, performance or position of the company’s business’.[78] While recent Australian governmental inquiries into possible reform of corporate law and regulation to make business more socially responsible largely resist significant changes to corporate law in general and the law of directors’ duties in particular, they preceded the advent of the Rudd Government and the recent global financial crisis. At the very least, there is a correlation between some of the Rudd Government’s public initiatives on corporate governance and reporting, on one hand, and business management and reporting of human rights as an aspect of corporate social responsibility, on the other. This has implications for the Consultation too, in terms of how its recommendations fit with the Rudd Government’s stated agenda in other areas of governmental business.

Beyond formal corporate social responsibility policies for individual business (including codes of ethics and conduct), the human rights of corporate stakeholders harmed by corporate abuses of power might be the subject of corporate and directors’ obligations, as when corporate boards can or must consider the impact of their decisions upon various corporate stakeholders. Where corporate governance regulatory requirements embrace notions of accountability to stakeholders, human rights issues might factor into corporate governance arrangements. Corporate risk assessment and management requirements might require corporations and their boards to account to investors and other reporting audiences for material business risks, which might include human rights risks and ways of addressing them, including HRIAs and other aspects of corporate human rights due diligence explored later in this chapter. To the extent that institutional investors and other bodies investing in corporations have a legal responsibility to consider and disclose how their investment decision-making is informed by socio-ethical, environmental, labour, and human rights considerations, a company’s external business environment exerts pressure upon corporate activity in ways that are responsive to human rights concerns.

As part of a whole-of-organization approach, a corporation therefore might do a number of things. It might include reference to human rights standards in contractual arrangements for the company’s supply and distribution chain. It might also include human rights reporting within standard internal and external reporting practices. It might even initiate human rights impact assessments (‘HRIAs’) along with socio-economic impact studies and environmental impact assessments (EISs) for all major new business projects and developments, and commit publicly to a range of rights-related and CSR-orientated standards (eg the UN Global Compact and the Global Reporting Initiative (‘GRI’), recently endorsed by the Rudd Government). Considered from an organizational perspective, human rights and business concerns might be integrated within organizational strategising, decision-making, and reporting systems. Corporate boards might adopt an organizational CSR policy that includes business-related human rights concerns, confer particular rights-related responsibilities upon designated directors and other corporate actors, and develop human rights management plans along with other standard corporate plans. In terms of the Committee’s work, what the Government does from here to mandate or otherwise to encourage and facilitate business behaviour concerning human rights is worthy of consideration as part of any menu of new rights-protection options, not least because of the ways in which cross-sectoral networks are already working in developing the relation between business and human rights.

Corporate Due Diligence on Human Rights

In the aftermath of global debate about the UN Norms, human rights due diligence constitutes one of the key priorities for the UNSRSG in his mandate beyond the UN Norms. Due diligence on human rights is a crucial part of what he framed for the UN Human Rights Council in 2008 as ‘the corporate responsibility to respect human rights’.[79] Due diligence has more than one meaning in legal and business contexts. Professor Ruggie explains the concept of due diligence in the human rights context as ‘the steps a company must take to become aware of, prevent and address adverse human rights impacts’.[80] In the human rights context more broadly, due diligence embraces compliance due diligence, project due diligence, investment due diligence, contract due diligence, takeover due diligence, public sector due diligence, and other forms of human rights due diligence too. As with other ways in which CSR-related elements are folded into standard business matters, due diligence in the context of human rights is a growth area of research, regulation, and practice in the 21st century.

Importantly, human rights due diligence is already incorporated in, or at least facilitated by, what many companies already do in meeting their general legal obligations, even in the absence of an overriding legal obligation under international or national law for companies to respect internationally recognized human rights. ‘Comparable processes are typically already embedded in companies because in many countries they are legally required to have information and control systems in place to assess and manage financial and related risks’, as the UNSRSG explains.[81] Business elements of human rights due diligence include a company’s rights-compliant standard business contracts, rights-compliant supply and distribution chain, contingent liabilities from current or prospective human rights litigation, and prospective litigation and reputational risk assessment from a human rights perspective.

According to Professor Ruggie, due diligence by business on human rights has the following critical elements.[82] A company should have a human rights policy. Ideally, it must be backed with high-level boardroom and management commitment, outlined with sufficient operational guidance to give it meaning, and integrated throughout the company. Viewed from a global perspective, the corporate obligation to respect rights covers the rights recognized in the international bill of rights and ILO conventions as a minimum baseline, whatever the extent to which those rights are actually recognized and enforced in any place where the company does business. As a corporate obligation to respect rights also includes avoiding undue harm to human rights, human rights impact assessments must become a standard feature of corporate planning and operations. This extends beyond conventional risk assessments, social impact studies, and environmental impact studies. Finally, a holistic approach to monitoring, auditing, and reporting a company’s progress on human rights will contribute to a wider system of multi-stakeholder dialogue and standard-setting, as well as lead to continuous improvement in that company’s human rights performance.

In practical terms, the UNSRSG suggests a three-pronged framework of principles for corporate activation of human rights due diligence.[83] First, companies must relate human rights issues to their various places of business operation, as part of assessing the national contexts in which their business occurs and hence the human rights challenges they face. This includes learning from governmental, NGO, and related reports about human rights and business in particular national contexts, as well as taking account of the totality of national and international laws bearing upon human rights in each country as well as the ‘potential gaps between international standards and national law and practice’. Secondly, companies must assess the human rights impact of their activities in those contexts, including an identification and adjustment of those corporate policies and practices that harm human rights, drawing from a set of activities defined by corporate capacities ‘as producers, service providers, employers, and neighbours’ that includes ‘the production process itself; the products or services the company provides; its labour and employment practices; the provision of security for personnel and assets; and the company’s lobbying or other political activities’. Finally, companies must avoid potential complicity in human rights abuses, ‘through the relationships connected to their activities, such as with business partners, suppliers, State agencies, and other non-State actors’. This includes preventative monitoring of core business activities (eg providing goods and services) and non-core business activities (eg providing vehicles, equipment, or other support to third parties), vigilant scrutiny of the human rights track records of others with whom companies deal, and active avoidance of companies’ own potential involvement in human rights abuses committed by others.

Both now and into the future, a series of human rights ‘due diligence’ contexts arise for business. Despite other differences, the common element in all of these contexts is a need for some reason to know and perhaps disclose how an organization meets relevant human rights standards. Such organisational knowledge and disclosure presupposes the existence of a suitable human rights due diligence program, as part of an otherwise comprehensive organizational due diligence program. Risk management systems required under corporate law and regulation can encompass human rights risks as one form of material business risks, as part of an overall system of corporate compliance and risk management. An aspect of ‘approaching the risk-management side of CSR’, for example, involves ‘proper systems for monitoring risk across the supply chain’.[84]

Business due diligence on human rights is also an essential precursor for any public claims by businesses who seek reputational or other competitive advantages from their human rights performance. Otherwise, even in the absence of binding international or national human rights obligations for corporations, the public statements and compliance record of corporations concerning human rights can lead to legally actionable claims under public and private law, including failure to satisfy preconditions for governmental approvals and licences, loss of governmental certification or other standard-setting qualifications, breach of contract performance conditions, failure to meet legal standards of reasonable care and due diligence, misrepresentation and misleading conduct, and wrongful corporate disclosure and reporting.[85] Even in the absence of a comprehensive international framework for corporate human rights responsibility, TNCs ‘may have little choice but to address human rights concerns as part of their business management strategy, particularly where they invest in conflict zones, politically corrupt states or less developed countries’.[86]

Accordingly, due diligence processes needed to meet general legal obligations might require or permit attention to human rights aspects of the following kinds:[87]

(1) corporate compliance with laws with specific human rights elements (eg anti-discrimination, employment, and privacy laws);
(2) business impact assessments for project and infrastructure development (eg socio-economic impact studies, EISs, and HRIAs);
(3) rights-related preconditions for granting governmental approvals and licences for business infrastructure and development proposals;
(4) compliance with directors’ duties and defences (eg adequate consideration of the relation between rights-related stakeholder interests and long-term corporate success);
(5) corporate responses to shareholder action including litigation (eg shareholder proposals, institutional investor dialogue, and climate change litigation);
(6) satisfaction of the concerns of institutional investors about environmental, social, and governance (‘ESG’) considerations and socially responsible investment (‘SRI’) considerations in investment decision-making;
(7) conformance with investment decision-making requirements (eg ethical, labour, environmental, and human rights considerations in choosing or realizing investments);
(8) corporate governance requirements for corporate responsibility and sustainability reporting (eg reportable human rights risks and business success drivers as ‘material business risks’); and
(9) integrated risk management for corporations and their business chains of rights-based business risks.

In each context for human rights diligence, it is necessary to distinguish between ‘hard’ and ‘soft’ law requirements, mandatory and permitted actions under existing law, and current and emerging (or potential) practice. For example, a company might introduce a due diligence procedure to ensure that its treatment of human rights concerns in business operations meets its voluntary commitment to a designated business code (eg ‘soft’ law). Similarly, a company might need a due diligence procedure to ensure that relevant human rights concerns are adequately covered in boardroom decision-making and corporate reporting frameworks in those jurisdictions (eg UK) where considering relevant non-stakeholder matters and reporting on supply and distribution chain arrangements are mandatory under the law. Finally, even if human rights concerns have not figured hugely in due diligence practice in merger, acquisition, and takeover contexts, clearly they are now on the forward-looking corporate radar (eg rights-based litigation risk assessments).

Responsible investment and sustainable development generate their own due diligence needs covering human rights. ‘Beyond the basics, prudent companies include a CSR perspective when considering new projects [as] part of systematic due diligence for new investments’, notes The Economist in its 2008 CSR report.[88] In the finance and investment community, there is growing appreciation among some analysts that ‘looking at the quality of a company’s CSR policy may be a useful pointer to the quality of its management more generally’, adds The Economist.[89] ‘Hard’ and ‘soft’ law standards on investment decision-making can lead to due diligence to ensure that relevant human rights matters are considered as preconditions for financial and security arrangements in project-based corporate lending, and disclosed in investment decision-making as part of an assessment of socio-ethical, environmental, and other considerations affecting responsible investment, at least where they fit within the overarching notion of ‘labour standards or environmental, social or ethical considerations [that] are taken into account in the selection, retention or realisation of the investment’, for example.[90] Project infrastructure development needs due diligence procedures to meet conditions of sustainable development, especially in satisfying public approval and licensing requirements through socio-economic impact studies, HRIAs, and other necessary evidence of rights-sensitivity as an aspect of business-community relations, sustainable development, and now climate risk too.

Human rights due diligence also arises in a variety of public sector contexts. At the level of policy-making and regulation, governments might have due diligence procedures in place to check compliance with ‘human rights criteria in their export credit and investment promotion policies, or in bilateral trade and investment treaties’, which are ‘points at which government policies and global business operations most closely intersect’.[91] Nation-states also need a means of demonstrating to the international community that they are meeting their international legal obligations in holding corporations to account for any human rights breaches, as part of state obligations to protect human rights under ‘hard’ international law, as well as in standard-setting and monitoring mechanisms under ‘soft’ international law.[92] Public officials making rulings on business project applications or objections might need to satisfy themselves that all relevant human rights aspects are in order, especially in jurisdictions with an overarching bill of rights, as must business enterprises that are subject to such requirements in performing or managing public activities. Finally, governments that seek to become models of human rights practice, in requiring all business and community suppliers of advice and services to government (and even government-associated entities as well) to meet applicable human rights standards, need effective monitoring and compliance checks as another form of rights-related due diligence.[93] In short, corporate due diligence on human rights operates on multiple levels, embracing a range of state and non-state regulatory mechanisms, at least some of which relate directly or indirectly to a legislated human rights charter, and all within the UNSRSG’s postulated three-pronged framework for a better global web of rights-protection.

Accordingly, whatever the Committee recommends and the Rudd Government decides about a Charter, and however they address the need for new Australian human rights infrastructure involving business, it is clear that business cannot be left out of the human rights equation and will be affected one way or another. In particular, the Committee’s recommendations frame options for the Government that themselves fall to be assessed in the light of the international community’s ongoing work in developing appropriate regulation of business and human rights, particularly as part of Australia’s contribution and response to the UNSRSG’s three-pronged framework for rights-enhancement concerning business.

Professor Bryan Horrigan
Louis Waller Chair of Law and Associate Dean (Research), Monash University

Main References[94]

Allens Arthur Robinson (AAR), Corporate Duty and Human Rights Under Australian Law, Report on behalf of the International Bar Association for the United Nations Special Representative of the Secretary General for Business and Human Rights (UNSRSG), 2008 (The author was involved as a consultant in the preparation of this report)

Australian Human Rights Commission Roundtable (2009), ‘Constitutional Validity of an Australian Human Rights Act’, 22 April 2009

Australian Law Reform Commission (2008), For Your Information: Australian Privacy Law and Practice, ALRC Report No 108

Bottomley, S. (2002), ‘Corporations and Human Rights’, in Stephen Bottomley and David Kinley (eds), Commercial Law and Human Rights, Aldershot, UK: Ashgate Dartmouth

Braithwaite, J. and P. Drahos (2000), Global Business Regulation, Cambridge: Cambridge University Press

Brennan, F. (1998), Legislating Liberty: A Bill of Rights for Australia?, Brisbane: University of Queensland Press

Campbell, T. (2007), ‘The Normative Grounding of Corporate Social Responsibility: A Human Rights Approach’, in Doreen McBarnet, Aurora Voiculescu, and Tom Campbell (eds), The New Corporate Accountability: Corporate Social Responsibility and the Law, Cambridge: Cambridge University Press, 529-564

Campbell, T., ‘A Human Rights Approach to Developing Voluntary Codes of Conduct for Multinational Corporations’ (2006) 16:2 Business Ethics Quarterly 255

Charlesworth, H, and M. Chiam, D. Hovell, and G. Williams (2006), No Country is an Island: Australia and International Law, Sydney: UNSW Press

Dalla-Pozza, D. and G. Williams (2007), ‘The Constitutional Validity of Declarations of Incompatibility in Australian Charters of Rights’ 12:1 Deakin Law Review 1

de Jersey, P. (2009), ‘A Reflection on a Bill of Rights’, in J. Lisa and R. Hadrick, eds, Don’t Leave Us With The Bill; The Case Against an Australian Bill of Rights, Canberra: Menzies Research Centre Ltd

Dworkin, R. (1996), Freedom’s Law: The Moral Reading of the American Constitution, Cambridge, Mass.: Harvard University Press

Evans, C. and Evans, S. Australian Bill of Right; the law of the Victorian Charter and ACT Human Rights Act 2008 Australia LexisNexis Butterworths

Fenwick, H. and G. Phillipson and R. Masterman, eds (2007), Judicial Reasoning Under the UK Human Rights Act, Cambridge: Cambridge University Press

Gleeson, M. ‘The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights’ (2009) 20 Public Law Review 26

Gutmann, A. and D. Thompson (2004), Why Deliberative Democracy?, Princeton: Princeton University Press

Horrigan, B. (2009), Corporate Social Responsibility in the 21st Century: Debates, Models, and Practices Across Government, Law, and Business, UK: Edward Elgar Publishing

Horrigan, B. (2006), ‘Improving Legislative Scrutiny of Proposed Laws to Enhance Basic Rights, Parliamentary Democracy and the Quality of Law-Making’ in T. Campbell, J. Goldsworthy, and A. Stone eds, Protecting Rights without a bill of Rights, Institutional Performance and Reform in Australia, UK Ashgate Publishing Ltd

Horrigan, B. and B. Fitzgerald (1998), ‘International and Transnational Influences on Law and Policy Affecting Government’, in B. Horrigan, ed, Government Law and Policy, Sydney: The Federation Press

Kirby, M. (2008), ‘The Growing Impact of International Law on Australian Constitutional Values’, Australian Red Cross national Oration

Lester, Lord and D. Pannick (2004), eds, Human Rights Law and Practice, 2nd ed, London: LexisNexis UK

Markesinis, Sir B. and J. Fedtke (2009), Engaging with Foreign Law, Oxford and Portland (Oregon): Hart Publishing

McMugh, M. (2009), ‘A Human Rights Act, the Courts, and the Constitution’, Presentation at the Australian Human Rights Commission

Nicolson, R. (2007), ‘The Impact of the Charter of Rights on Corporations’, LIV Conference on the Victorian Charter of Rights

Phillips, C. and R. Nicolson, ‘The UN, Business and Human Rights’, Lawyers Weekly, 27 February 2009

Posner, R. (2008), How Judges Think, Cambridge (Mass.): Harvard University Press

Rudd, K. (2008), ‘Leadership for Long Term Sustainability: The Roles of Government, Business and the International Community’, Speech to the National Business Leaders Forum on Sustainable Development’, Canberra

Ruggie, J. (2009), Business and Human Rights: Towards Operationalising the ‘Protect, Respect and Remedy’ Framework, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises for the UN Human Rights Council, UN (A/HRC/11/13)

Ruggie, J., Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, 2008, A/HRC/8/5

Santow, E. and F. Johnson (2009), ‘Would an Australian Charter of Rights be Good for Business?’, Position paper for the National Human Rights Consultation, UNSW Gilbert + Tobin Centre of Public Law (Santow and Johnson, 2009a)

Santow, E. and F. Johnson, ‘All Need to Protect Rights’, The Australian Financial Review, 3 April 2009, at p 42 (Santow and Johnson, 2009b)

Scalia, A. (2004), ‘Foreign Legal Authority in the Federal Courts’ 98 American Society of International Law Proceedings 305

Sherry, N. (2008), ‘Speech to Committee for Economic Development of Australia’, Australian Treasury, Canberra

Sherry, N. (2009a), ‘Closing Keynote Address to Australian Centre for Corporate Social Responsibility 3rd Annual Conference’, Australian Treasury, Canberra

Sherry, N. (2009b), ‘Corporate Responsibility – Alive and Well’, Keynote Address to Property Council of Australia, Australian Treasury, Canberra

Spigelman, J. (2008) Statutory Interpretation and Human Rights The McPherson Lecture Series, Brisbane: University of Queensland Press

Stacy, H. (2009), Human Rights for the 21st Century: Sovereignty, Civil Society, Culture, Stanford: Stanford University Press

Stone, 1999, ‘The Limits of Constitutional text and Structure: Standards of Review and the Freedom of Political Communication’ [1999] Melbourne University Law Review 26

Sunstein, C. (2009), A Constitution of Many Minds, Princeton (NJ): Princeton University Press

Tushnet, M. (2006), ‘When is Knowing Less Better Than Knowing More?: Unpacking the Controversy Over Supreme Court Reference to Non-US Law’ 90 Minnesota Law Review 1275

UK Joint Committee on Human Rights (2004), The Meaning of Public Authority Under the Human Rights Act, Seventh Report of Session 2003-4, HL Paper 39, HC 382

UK Joint Committee on Human Rights (2007), The Meaning of Public Authority Under the Human Rights Act, Ninth Report of Session 2006-7, HL Paper 77, HC 410

Waldron, J. (2005), ‘Foreign Law and the Modern Ius Gentium’ [2005] HarvLawRw 28; 119 Harvard Law Review 129

Webber, J. (2006), ‘A Modest (But Robust) Defence of Statutory Bills of Rights’, in T. Campbell, J. Goldsworthy, and A. Stone (eds), Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia, UK: Ashgate Publishing

Williams, G. (2003), ‘Constructing a Community-Based Bill of Rights’, in T. Campbell, J. Goldsworthy, and A. Stone (eds), Protecting Human Rights: Instruments and Institutions, Oxford: Oxford University Press

Winterton, G. ‘Can the Commonwealth Parliament Enact “Manner and Form” Legislation?’ (1980) 11 Federal Law Review 167

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[1] See the Submission by the Castan Centre for Human Rights Law.
[2] Gutmann and Thompson, 2004: 3-4; original emphasis.
[3] Dworkin, 2005: 15; Dworkin, 1996.
[4] Dworkin, 2005: 15; Breyer, 2005: 3.
[5] Braithwaite and Drahos, 2000.
[6] Mason, 1987: 163.
[7] 2020 Summit Report, 2008: 32-33.
[8] Williams, 2003.
[9] Dworkin, 1996: 17.
[10] Eg Webber, 2006.
[11] Eg Gleeson, 2009: 29, 31, and 33.
[12] Al-Kateb v Godwin [2004] HCA 37 at [19].
[13] Eg see the terms in which this proposition is discussed, especially in the authoritative reference sources cited by Gleeson CJ, in Al-Kateb v Godwin [2004] HCA 37 at [19]- [20].
[14] Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20.
[15] Al-Kateb v Godwin [2004] HCA 37 at [63]- [65].
[16] Eg Hansen v The Queen [2007] NZSC 7 at [57]- [61].
[17] Spigelman, 2008.
[18] Spigelman, 2008: 65: emphasis added.
[19] Winterton, 1980: 168-169, 171, and 201: original emphasis
[20] Eg Ghaidan v Godin-Mendoza [2004] UKHL 30 (in the UK); Hansen v The Queen [2007] NZSC 7 (in New Zealand); Kingsley’s Chicken Pty Ltd v Queensland Investment Corporation [2006] ACTCA 9 and The Queen v Fearnside [2009] ACTCA 3 (in the ACT); and RJE v Secretary to the Department of Justice, Attorney-General for Victoria and Victorian Human Rights and Equal Opportunity Commission [2008] VSCA 265 and Kracke v Mental Health Review Board [2009] VCAT 646 (in Victoria).
[21] [2009] VCAT 646 at [97].
[22] Eg McHugh, 2009; AHRC Roundtable, 2009; and Dalla-Pozza and Wiliams, 2007.
[23] See the Submission by the Castan Centre for Human Rights Law.
[24] Eg Stone, 1999.
[25] Eg Horrigan and Fitzgerald, 1998; and Charlesworth, Chiam, Hovell, and Wiliams, 2006.
[26] As exemplified in the political, judicial, and academic debates surrounding such reference in Lawrence v Texas [2003] USSC 4776; 539 US 558 (2003) (in the USA), and Al-Kateb v Godwin [2004] HCA 37 (in Australia), for example.
[27] See, for example, this form of official guidance for statutory interpretations of bills of rights for the different formulations of bills of rights that exist now in the UK (Human Rights Act 1998, sections 2 and 3), South Africa (Constitution of the Republic of South Africa 1996, Ch 2, section 39), and the Australian jurisdictions of Victoria (Charter of Human Rights and Responsibilities Act 2006, section 32), and the ACT (Human Rights Act 2004, section 31).
[28] For a summary of the Australian debate on all sides by one of its chief protagonists, see Kirby, 2008.
[29] Eg Sunstein, 2009; Markesinis and Fedetke, 2009; Stacy, 2009; Posner, 2008; Fenwick, Phillipson, and Masterman, 2007; and Lester and Pannick, 2004.
[30] Eg see the range of international and foreign sources (and the conditions of their use) discussed in Kracke v Mental Health Review Board [2009] VCAT 646 at [201]- [202].
[31] In Kracke v Mental Health Review Board [2009] VCAT 646 at [111], proportionality is incorporated within the Victorian Charter’s interpretative approach and described as ‘a foundational concept in the international human rights jurisprudence’.
[32] Eg Evans and Evans, 2008: [2.40], [5.15], and [6.78]-[6.81].
[33] Tushnet, 2006: 1286.
[34] Eg Waldron, 2005.
[35] Compare and contrast Scalia, 2004.
[36] On the quoted concepts, see Waldron, 2005: 129 and 131; and Tushnet, 2006: 1298.
[37] Eg de Jersey, 2009.
[38] The building blocks for such a framework appears in the recent literature for this field of internationalization of national law and policy, as referred to in this submission.
[39] On some of these practical implications, in an American constitutional context, see Tushnet, 2006.
[40] The catalogue of drafting and other rights-sensitive requirements enshrined in legislative standards should acknowledge (at least for the governmental purposes of drafting legislation, scrutinising legislation, and making executive decisions) the ‘common law bill of rights’ outlined publicly in 2008 by the Chief of Justice of the NSW Supreme Court: see Spigelman, 2008.
[41] As detailed, for example, in Horrigan, 2006 and Evans and Evans, 2008.
[42] In his suggested Commonwealth Charter of Espoused Freedoms, Frank Brennan suggests a mechanism by which ‘ (a) person whose rights or freedoms, as espoused by this Charter, could be infringed or denied by a proposed law of the parliament may petition the Senate Committee for Rights and Freedoms to institute an inquiry’: Brennan, 1998: 182. In his submission for this Consultation, Michael Tate suggests bolstering the existing mandate and resources for the Senate Scrutiny of Bills committee, to cover proposed and existing Acts as well as other sources of legal rights.
[43] Possible mechanisms are detailed, for example, in AHRC Roundtable, 2009 and the Submission by the Castan Centre for Human Rights Law.
[44] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [135].
[45] Spigelman, 2008: 68: emphasis added
[46] See Winterton, 1980 and the Submission of the Castan Centre for Human Rights Law on this point.
[47] As with national competition policy and such mechanisms under the Trace Practices Act, in theory some aspects of Commonwealth payments to the States/Territories could be related to rights-related governmental compliance. This is properly a matter for the mechanisms of cooperative federalism (eg COAG).
[48] Australian Government, National Human Rights Consultation Background Paper, 2008.
[49] Santow and Johnson, 2009b: 42.
[50] Santow and Johnson, 2009a; and Santow and Johnson, 2009b: 42.
[51] These and other aspects of corporate social responsibility and its significance for Australia’s place in the international community of nations are canvassed in more detail in Horrigan, 2009.
[52] Eg Rudd, 2008; Sherry, 2008; Sherry, 2009a; and Sherry, 2009b.
[53] Much of the material in this part of the submission draws upon material on corporate social responsibility, business, and human rights that appears in Horrigan, 2009.
[54] A/HRC/8/5 at [8].
[55] Campbell, 2006: 263.
[56] At 14.
[57] Ruggie, 2007a: 13.
[58] A/HRC/8/5 at [9].
[59] A/HRC/8/5, [9].
[60] Phillips and Nicolson, 2009: 10. In the interest of full disclosure and transparency, the author of this submission is a consultant to the firm at which these authors work, and is also a member of the Corporate Responsibility practice group to which they belong.
[61] Walker, 2007: 3; and R v Broadcasting Standards Commission ex parte BBC [201] QB 885.
[62] Eg Human Rights Act 1998 (UK), section 6 (3); and Charter of Human Rights and Responsibilities Act 2006 (Vic), section 4 (1).
[63] Eg HL UK JCHR, 2007; and L v Birmingham City Council [2007] UKHL 27.
[64] Phillipson, 2007: 146; emphasis added.
[65] Quoted in the 18th Report of the UK Joint Committee on Human Rights (2007), at [141].
[66] Phillipson, 2007: 147 and 150; original emphasis.
[67] Evans and Evans, 2008: 109-110
[68] ALRC, 2008: [7.58]-[7.60].
[69] On some of these roles, see Bottomley, 2002.
[70] Bottomley, 2002.
[71] Bottomley, 2002.
[72] Eg JCHR, 2004; and JCHR, 2007.
[73] Nicolson, 2007: 10-11.
[74] Eg Charter of Human Rights and Responsibilities Act 2006 (Vic), sections 38-39.
[75] UK JCHR, 2007: 16-23, and 38-39; and EU Directive on Public Sector Procurement, as implemented in the UK in the Public Contracts Regulations 2006.
[76] On some of these implications, see O’Donahoo and Howie, 2006.
[77] Companies Act 2006 (UK), section 172.
[78] Companies Act 2006 (UK), section 417(5).
[79] A/HRC/8/5 at [9].
[80] A/HRC/8/5 at [56].
[81] A/HRC/8/5 at [56].
[82] Ruggie, 2008: [59]-[64]
[83] Ruggie, 2008: [19]-[22].
[84] The Economist, 2008: 12.
[85] Muchlinski, 2007: 456-457.
[86] Muchlinski, 2007: 448.
[87] Some of these aspects appear in AAR, 2008, in which the author was involved.
[88] The Economist, 2008: 12.
[89] The Economist, 2008: 22.
[90] Eg Corporations Act 2001 (Cth), section 1013D(1)(l).
[91] Ruggie, 2007: 16.
[92] Ruggie, 2007: 13.
[93] The author acknowledges the benefit of discussions on such aspects of human rights due diligence with his Allens Arthur Robinson colleagues, Rachel Nicholson, Craig Phillips, and David Robb, in the course of work for the UNSRSG. However, the views presented in this submission are those of the author alone.
[94] Other references mentioned in this submission but not listed here are available from the author on request (contact: [e-mail]).