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University of New South Wales Law Journal |
[2] Thus, while the language of
human rights has universal currency, its practical value is determined to a
large extent by domestic
arrangements. Indeed, history suggests that, regardless
of how and where rights are expressed, they are likely to be meaningless
if they
are not supported by free and democratic domestic institutions such as an
elected legislature, an independent judiciary and
a free
press.[2] Achieving the
best means for recognising and protecting human rights in Australia is a
continuing challenge. We should not be afraid
to compare our record or our
system of human rights protection with that of other nations.
[4] The Constitution does not adopt the same approach to the protection of individual rights as that adopted by the Constitution of the United States of America (‘US Constitution’). It does not contain a ‘Bill of Rights’. However, it does expressly guarantee some important freedoms: trial by jury (s 80); freedom of religion (s 116); prohibition on discrimination on the basis of State residence (s 117); freedom of inter-State trade and commerce (s 92); and the acquisition of property only on just terms (s 51(xxxi)). The framers also placed great faith in parliamentary democracy and in the ability of the Parliament to give adequate protection to individual rights. The Constitution embodies the key democratic principles of parliamentary democracy and representative government.
[5] In recent times, the High Court of Australia (‘High Court’) has focused on these democratic principles and inferred from the sections of the Constitution which embody them freedoms that are not expressly guaranteed by the Constitution. In particular, the High Court has found that the Constitution protects freedom of political communication.[4] This freedom was seen to derive from ss 7 and 24 of the Constitution. These sections provide, respectively, that the Senate and the House of Representatives shall be composed of members ‘directly chosen by the people’.
[6] The principle of representative government plays a
vital role in the protection of rights in Australia. The Australian people
can
hold political leaders accountable for breaches of whatever rights those leaders
undertake to protect and enforce. Grand statements
of human rights contained in
a constitution may mean little if the government of the day is not accountable
for protection of those
rights.
[8] An entire body of administrative law grew up at common law as the result of courts applying basic principles of justice in disputes between individuals and governments. The common law guarantees a right to natural justice in many cases, which includes the right of a person to be heard before a decision is taken which would adversely affect that person.[5] The common law also guarantees a number of rights for individuals involved in criminal trials. For example, in Dietrich v R[6] the High Court identified a common law right to a fair trial. In Mabo v Queensland [No 2] (‘Mabo’),[7] Brennan J expressed the view that the common law can be modified to take into account ‘contemporary notions of justice and human rights’. He found, as did a majority of the High Court, that the doctrine of terra nullius was no longer a part of the common law of Australia. This cleared the way for the historic recognition of native title in Australian law.
[9] The common law of Australia is constantly evolving and has proved an
important element in Australia’s system of rights protection.
The
limitations of the common law in protecting rights should, however, be
acknowledged. The rights protected by the common law are
limited. They evolve
slowly over time depending on the disputes that come before the courts and are
designed to resolve those particular disputes. Moreover, the rights
protected by the common law are by no means cast in stone – they are
subject to legislation.
However, the relationship between judge-made law and
legislation allows for a constructive interaction between the legislative and
judicial arms of government about rights. Elected Australian legislatures can
ultimately determine whether the courts are truly giving
expression to
contemporary notions of justice and human rights. This is an appropriate role
for elected parliaments.
[11] The
rights contained in these legislative instruments can be taken away or modified
by the Commonwealth Parliament. However,
the statements of rights in these Acts
of Parliament are powerful public statements. Governments that wish in any way
to change these
rights will be closely scrutinised. The strength of legislative
protection of rights should therefore not be underestimated.
[14] A Bill of Rights may or may not be constitutionally entrenched. Probably the best known entrenched Bill of Rights is the first ten amendments to the US Constitution. An example of a non-entrenched Bill of Rights is the New Zealand Bill of Rights Act 1990 (NZ). Unlike the United States (‘US’) and Australia, New Zealand does not have a written constitution. The Bill of Rights Act 1990 (NZ) has the status of an Act of the New Zealand Parliament. Somewhere in between is the Canadian Charter of Rights and Freedoms 1982 (‘Canadian Charter’). The Canadian Charter has constitutional status in Canada, but a number of its provisions can be overridden by an Act of the Canadian Parliament or a provincial legislature, if done so expressly.[15]
[15] There is a number of arguments commonly raised in support of a Bill of Rights. Proponents argue that rights are currently not given sufficient protection under Australian law. They point out that Australia is one of the few remaining democracies that does not have a Bill of Rights. It is said that a Bill of Rights would improve protection for minorities by tempering majoritarianism. It is also argued that a Bill of Rights would play an important role in educating people about their rights and the rights of others.
[16] Those who question
the need for a Bill of Rights in Australia raise a number of opposing arguments.
They counter that rights
are in fact well protected in Australian law; by
statute, the common law and under the Constitution. They argue that
rights are best protected in a healthy democracy by Parliament and not by
unelected judges. A Bill of Rights may
create a culture in which rights are
protected mainly through expensive and protracted litigation. There would also
be a danger that
it would be difficult to amend a Bill of Rights (particularly a
constitutionally entrenched one) to reflect changing community views
on what
rights should be protected and the appropriate balance to be struck between
competing rights.
[18] There have also been several attempts to introduce
statutory Bills of Rights at the federal level. The Human Rights Bill 1973
(Cth)
sought to implement the International Covenant on Civil and Political
Rights (‘ICCPR’) in Australia. It encountered
considerable opposition and was never enacted. An attempt to introduce the
watered down Australian
Human Rights Bill 1985 (Cth) also failed.
[20] It is true that countries with similar political and legal systems to our own, such as Canada, New Zealand and the US, now have a Bill of Rights in one form or another. The newest member of the Bill of Rights ‘club’ is the United Kingdom (‘UK’) – the Human Rights Act 1998 (UK) came into force on 2 October 2000.
[21] Of course, Australia should not seek to ignore international opinions or trends or to isolate itself from the world community. But we must not simply follow trends. Given that a Bill of Rights is often seen as a vehicle for protecting minorities, there would be more than a hint of irony in Australia rushing to enact a Bill of Rights in order simply to cast aside any perceived ‘minority’ status. The key question in relation to an Australian Bill of Rights is whether it would actually improve the current situation.
[22] A Bill of Rights may be seen as one way of protecting minority rights from majority rule through broad statements of principle. However, the various approaches adopted by other nations must be considered very carefully in the light of Australia’s existing legal, governmental and democratic processes. For example, it might well be argued that the need for a Bill of Rights is not so great in Australia as it is in Canada, the UK or New Zealand, given the existing rules regarding the composition and role of the Australian Parliament and, in particular, the Senate and its committee system.
[23] The Canadian Senate is appointed by the Canadian Governor-General on the recommendation of the Prime Minister. It is not elected. The composition of the Canadian Senate is controlled by the government of the day. The Australian Senate is much more likely to be attuned to the need to protect minority interests. By virtue of proportional representation, it is rare for the Senate to be controlled by the government of the day. Smaller parties representing various interests often wield considerable power in the Senate and often have a significant impact on the legislative process. Smaller parties or individuals may thus exert considerable influence.
[24] The House of Lords in the UK, like the Canadian Senate, is an unelected house of review. It is not directly representative and may not represent diverse interests in the way that the Australian Senate does. New Zealand has had no upper house of parliament since 1950.[16]
[25] Federalism can also be an important check on majoritarianism. Australia’s federal Constitution establishes a division of governmental power between the Commonwealth and State governments. A federal system clearly limits the power of the central government and potentially allows for greater representation of smaller and more diverse interests.
[26] Additionally, less populous States may exercise influence through the Australian Senate. Canada is a federal state, and provincial interests are represented in the Canadian Senate, but only indirectly as the Senate is not elected. The House of Lords does not represent regional interests in the UK. Recent reforms to the House of Lords in fact mean that the remaining hereditary peers are now ‘elected’ by the political parties in proportion to their representation in the House of Commons.
[27] Unlike some other countries that have a Bill of Rights, Australia has a written Constitution. For that reason, there are greater limits on parliamentary sovereignty in Australia than in the UK and New Zealand (which do not have written constitutions). In countries without written constitutions, there are surprisingly few checks on the supremacy of parliament.
[28] Apart from express restrictions on governmental powers and the division of powers between the Commonwealth and the States, the Constitution also embodies the separation of powers doctrine. This doctrine is an important means of protecting rights. It prevents the concentration of governmental power. It protects the independence of the judiciary, which is vital for the protection of individual rights against abuses of power by government. Countries like New Zealand and the UK, which do not have written constitutions that embody the separation of powers doctrine, clearly have independent judiciaries. However, our written Constitution gives the separation of powers doctrine a particular vitality in Australia.[17]
[29] It was decided, as early as 1915,[18] that the strict separation of judicial power was a constitutional imperative in Australia. Only Chapter III courts can exercise the judicial power of the Commonwealth.[19] The High Court has not been reluctant to find government legislation invalid for violating the separation of powers doctrine.[20] By contrast, Quick and Garran noted in 1901 that in Great Britain, ‘owing to the supremacy of the legislative power’, the distinction between the three arms of government had not been the subject of decisions in the courts, although it had been recognised by commentators.[21] Probably due to the dominance of the principle of parliamentary supremacy in the UK, lawyers and politicians there have also traditionally been far less comfortable with the idea of unelected judges striking down legislation on any ground.[22]
[30] Comparisons
such as these show that, so far as a Bill of Rights is concerned, it is
certainly not the case that ‘one size
fits all’.
[32] The US experience shows how a constitutional Bill of Rights may entrench the values of a particular generation. One wonders whether a majority of Americans would now choose to entrench a right ‘to keep and bear arms’ if it were not already guaranteed by the US Constitution. This is a notorious example of an historical ‘right’ which sits uneasily in the modern world.
[33] As noted above, the framers of our Constitution placed considerable faith in democratic institutions as a bulwark against bad governance. They chose not to include an American-style Bill of Rights in the Constitution. The principles of parliamentary sovereignty and representative democracy are important features of our political and governmental landscape. These are durable principles which have served us well. It is not clear that a constitutional Bill of Rights would serve us so well.
[34] We may be able to agree on certain rights that are deserving of recognition at a particular time or for a particular period. It may even be possible to agree that certain rights are timeless. However, there can be no getting away from a constant balancing of interests. Rights do not exist in isolation. Rights and responsibilities are different sides of the same coin.[23] Granting a right to one person or group may effectively impose obligations on others or may restrict or interfere with the competing rights or interests of others. One person’s right to free speech may infringe another’s right to a free and fair trial or to privacy. The granting of rights therefore requires the striking of a balance. Getting the right balance is often not easy, and may depend on evolving standards of justice and fairness.
[35] If we list a
number of broad rights in our Constitution (eg, a right to free expression, a
right to privacy, a right to equality before the law, a right to life), it may
be left to the
courts to strike an appropriate balance between competing rights
in individual cases. It may also fall to the courts to strike a
balance between
the rights listed in the Bill of Rights and competing interests and rights
which, for whatever reason, are not included
in the Bill of Rights. The Canadian
Charter makes express provision in relation to this latter issue. Section 1 of the
Charter provides:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be justified in a free and democratic society.
[37] The more general the
statement of rights, the more difficult it becomes to predict how it will apply.
There is good reason for
leaving the job of developing guidelines on such issues
to the elected representatives of the Australian people. In his 1996 Mitchell
Oration, Fr Frank Brennan went to the heart of this issue:
There can be no getting away from a balancing of interests. Who best to do the weighing, the legislators elected by all or the judges nominated by the few? ... Without a constitutional Bill of Rights unelected judges and elected politicians can each play a role in getting the balance right ... Were the Australian Constitution to contain equal protection and due process clauses, there would be a whole set of controversial policy issues reserved as the exclusive province of the judges.[24]
[39] A statutory Bill of Rights might provide scope for refinement of statutory statements by the Parliament over time. However, there is the risk that it will introduce a new rigidity into the protection of rights. Attempts to change a statutory Bill of Rights, or to change its effect by enacting new legislation, may run into opposition if the statute is perceived as an immutable statement of principles.
[40] Further, if Parliament can change a Bill of Rights or modify its impact by an ordinary Act of Parliament, one must ask if there is any great advantage over our current situation, in which Parliament can enact specific legislation to protect rights as the need becomes apparent. The current approach probably also allows the Parliament to give more detailed and careful consideration to a particular right and how it should be protected in different circumstances. The temptation with a Bill of Rights is to enact a statement of right-sounding principles. The real difficulty is in knowing how those principles will be applied or operate in the future.
[41] As noted above, Australian governments have already shown they are prepared to enact legislation to protect human rights. The Australian statute book already contains many such laws. Future governments may see the need to enact further legislation. Australian governments are well aware of their international obligations to protect human rights. They do not take those obligations lightly. Australia will continue to be influenced by world opinion on the most appropriate way to protect rights. However, up until now, governments have generally regarded Parliament as the most appropriate machinery for making decisions about protecting rights and balancing competing rights. This approach has served us well. It has given us an enviable reputation for human rights protection.
[42] Parliaments must be responsive to the views of the community on human rights. They must also be sensitive to the reasonable concerns of minority interests. Both sides of the Bill of Rights debate should agree on one point – that a healthy democracy is not just about majority rule. Australian Parliaments have demonstrated that they are capable of protecting minority interests. The courts are also very important players in protecting individual rights against the state and against other powerful interests. The executive government is sometimes portrayed as an oppressor of individual rights. However, the executive arm of government can and does play an important role in recognising and protecting individual rights. Administrative bodies have the advantage of potentially offering speedier, less expensive and less complicated access to remedies for the enforcement of individual rights. They can also specialise in human rights protection, or in a particular area such as race discrimination. Under a Bill of Rights, it is likely that individuals would need to litigate their rights in the courts at greater expense and with more significant delays.
[43] HREOC, in strict legal terms part of the executive
but in fact a body independent of the government, has achieved some success
as
an advocate for human rights protection. The executive, and additionally bodies
like HREOC, can also undertake the important educative
function of raising
awareness about rights and avenues for rights protection in the community. The
Howard Government’s commitment
to practical measures such as education
about human rights is demonstrated by proposed reforms to
HREOC.[25] These reforms
will increase the Commission’s capacity to promote and protect the human
rights of all Australians and to deal
with a broad range of human rights
issues.
[45] The proponents of a Bill of Rights have the onus of convincing their opponents that there is, on balance, a benefit in having an Australian Bill of Rights. Australia should not join the Bill of Rights ‘club’ unless it is clear that membership represents an improvement on the very powerful system of rights protection that we already have.
[46] All three arms of government – the legislature, the executive and the judiciary – have important roles to play in protecting human rights in Australia. They have undertaken the task with considerable success. There is no reason why this partnership should not continue to be an effective means of protecting rights.
[47] Australia
has a proud record of protecting and recognising rights. We should be confident
that this record will continue without
Australia adopting a Bill of Rights. If
we can foster a culture of tolerance and respect for the inherent dignity of all
human beings,
such a culture will go a long way towards guaranteeing lasting
protection for human rights.
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