Law Institute of Victoria

LIJ: Volume 78: No.12 (December 2004)

HUMAN RIGHTS

IT’S TIME

• Ten reasons why Victoria needs a Charter of Rights

Cite as: (2004) 78(12) LIJ, p. 40

A Charter of Rights would play a valuable role in reconnecting Australian law with international human rights jurisprudence.

By Jamie Gardiner and Dominique Saunders

Prospects for the systematic protection of human rights in Victoria took a step forward earlier this year with the release of the Attorney-General’s Justice Statement (the Statement). [1]

Attorney-General Rob Hulls has nominated “protecting human rights” as one of “four strategic areas requiring further reform”, and one of 25 specific initiatives in the Statement. He plans to “[e]stablish a process of discussion and consultation with the Victorian community on how human rights and obligations can best be promoted and protected”. His plan includes “the examination of options such as a charter of human rights and responsibilities”.

As we wrote last year, it is indeed time to reopen the debate about both a Charter of Rights in particular, and, more generally, the development of a human rights culture.[2]

“We consider it vital,” we wrote, “that the next attempt to introduce a Bill of Rights consider its public education strategy as integral to the process, and at least as important as the passage of the Bill itself”. It is therefore particularly gratifying to see the Statement’s emphasis on these aspects: “The discussion of a Charter ... is a relevant part of a policy directed to the enhancement and protection of human rights”. Critically, the Statement avows the importance of encouraging “a culture and awareness of rights protection”.

There are two important questions to consider about the Charter, in addition to whether we need it at all. One is how it conceptualises “human rights”. The other is how it implements their protection.

Implementation options

The options usually canvassed are three: a declaratory statement, an ordinary statute and a constitutionally entrenched statute.

We would note the possibility of some intermediate, or parallel, ones: a requirement for a human rights statement to accompany every Cabinet submission and any Bill; a duty for ministers, public servants and public bodies (at least) to act in ways that conform to human rights standards; a requirement that every Act state, with its purpose and objectives, which human rights it is specifically concerned to uphold, protect and enhance; and a human rights institution to monitor or audit performance, to investigate and conciliate complaints of breaches, to assist courts when human rights questions arise, and to promote public awareness.

Members of Westminster-system Parliaments have been concerned to ensure that parliamentary supremacy survives a Charter of Rights. In this, they are noting the difference between the US system and the Westminster system of responsible government, and shying away from the perceived problems with the role of the US Supreme Court. The principle of parliamentary supremacy is itself a human rights principle, at least so long as it is not used to perpetrate a majoritarian trampling on the rights of minorities – which is, of course, precisely why a Charter might be needed.

The ways in which the dignity and integrity of unpopular or insignificant – in general, powerless – minorities can be traduced are many and subtle. Even when laws or official actions harm members of such groups by accident or mistake, in the absence of a mechanism to force the issue back to Parliament the damage may be long lasting.

There is no single system of democracy, and the supremacy of Parliament, notwithstanding its historical importance, is not an absolute requirement. Democracy is not an end in itself, but rather can best be seen as an implementation of the human right to self-determination, found in the common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is not self-limiting, and it needs limits, as the Long Parliament of 1640–60 demonstrated when it dispensed with elections.

Julie Debeljak[3] points out that “[h]uman rights, by declaring minimum standards of behaviour, preclude majorities acting in certain ways ... Thus arises the supposed tension between democracy and human rights ... However, there is no necessary tension between democracy and human rights”. Restraint, including respect for minorities and indeed individuals in face of the majoritarian principle, is in fact necessary to safeguard democracy itself against corruption.[4]

Untrammelled parliamentary supremacy is not, in fact, essential to democracy, but harmful; the same observation applies to what is sometimes demonised as “judicial supremacy”, as the contested role of the Court in interpreting the USA’s Bill of Rights makes clear.[5]

We believe that neither Parliament nor the Court should have supremacy. A Charter of Rights for Victoria is needed, and should use features from the UK, NZ and South Africa, and from the ACT, whose Human Rights Act 2004 is Australia’s first “Bill of Rights”. By involving the people in a continuing conversation about our mutual obligation of respect for each other’s human rights, we can have a system to be proud of.

United Kingdom

The Human Rights Act (HRA (UK))[6] handles the supposed tension between Parliament and human rights by “institutional dialogue”.[7] The institutions expressly involved are the courts, executive government and Parliament; although the institutions of civil society, and especially “the media” also participate, so that ultimately the conversation takes place where it ought to: among the people.

A Minister, introducing a Bill to Parliament, must state[8] that it is compatible with Convention rights[9] or that the government intends it to be passed in spite of being incompatible.[10] “Section 19 squarely places human rights at the heart of the legislature’s role: law-making. Parliament’s formal role thus includes defining and refining the meaning of human rights, which in turn defines and refines our understanding of democracy. Parliament has a legitimate voice in the human rights project.”[11]

The Court joins the conversation when a claim that a statute breaches Convention rights arises. It must either find an interpretation of the provision in question that does not breach Convention rights, or, if it cannot, then it may make a “declaration of incompatibility”.[12] The government must respond, as a matter of political necessity, though not of law.[13] It can refuse to act on the declaration, in which case it must face public debate, as well as possibly seeing the case taken to the European Court of Human Rights, with the possibility of losing again, and being required to amend the legislation after all, albeit after a few years delay. Or it can decide to amend the statute, using a special “remedial order” which enables the offending provision to be amended by the Minister.[14]

Judicial deference to Parliament does not extend to subordinate legislation, or to public authorities, whose actions must be consistent[15] with Convention rights (unless the inconsistency is necessitated by Act of Parliament).[16] Nevertheless “[t]here has been no overloading of the Courts with frivolous cases as predicted [before the HRA (UK)] by numerous critical commentators”.[17]

New Zealand

In spite of a different statutory framework the situation in New Zealand is similar.

The New Zealand Bill of Rights Act 1990 (BORA) embodies that country’s commitment to the ICCPR and applies to acts done by the three branches of government. This includes legislation, policies, practices and delivery of services. Under the BORA, legislation is to be interpreted by the courts and applied in a manner consistent with the BORA where possible.[18]

The BORA contains a mechanism for alerting Parliament to inconsistencies in draft legislation, as it requires the Attorney-General to report to Parliament on anything inconsistent with any of the rights and freedoms contained in the BORA.[19] It accepts, however, that the rights and freedoms contained can be subject to reasonable and justified limitations of a free and democratic society,[20] thus setting a standard to be met by the legislature and in the common law developed by the courts.[21]

As in the UK, the courts in New Zealand have not seen a torrent of cases requiring consideration of the scope of individual rights. To invoke the Bill of Rights, however, a statutory meaning must be shown to establish a breach of or limit on a protected right. If the breach is no more than a “reasonable limit” it is not a breach under the BORA.[22]

NZ and UK: a good start

New Zealand’s BORA has been successful, after a slow beginning. It “sets the benchmark for acceptable conduct, policy and law” and continues to grow in stature.[23] The Attorney-General’s s7 obligation to report on inconsistencies has both improved policy development and public administration, and contributed to healthy public debate.[24]

The HRA(UK) is much newer, and began with much higher hopes, not all of which have been fulfilled. It has “certainly enhanced the quality of debate...between judiciary, executive, and legislature”, and public debate too. “Government departmental reviews on human rights compliance” have produced good results “without prompting from litigation”, and both public and private bodies have “skilfully used the standards in the Act” to improve their own procedures.[25] Its major success, however, seems to have come as a surprise: the effect of the s19 ministerial statement in improving government policy development, and parliamentary procedure (through the Joint Committee on Human Rights) has been considerable.[26]

Canada

Although the Canadian Charter[27] is entrenched in the Constitution, unlike the UK and NZ statutes, it too follows the institutional dialogue model.[28]

It allows the Parliament to declare that a legislative provision is to apply “notwithstanding”[29] the Charter, and it also provides for the Charter rights to be “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.[30]

Conceptualising human rights

Human rights are not legal rights, or “entitlements”, though Parliament should create legal rights and entitlements to ensure their protection and promotion, and remedies for their breach. Human rights are an expression of being human, and the very meaning of human dignity.

They provide a philosophical, and indeed a spiritual, framework in which we can develop our lives both as individuals and in relation to others. A central idea of human rights is the respect that we owe each other for our inherent human dignity.[31] Human rights amount to a question of values, which covers not only the consequences set out in the Universal Declaration of Human Rights (UDHR),[32] and in the subsequent treaties,[33] but also questions of how we should relate to each other.[34]

Legal protections for human rights are of course necessary, but they are not human rights themselves.

Rights and responsibilities

When we get away from the misconception that human rights are legal rights (or entitlements) and the sole province of lawyers, it becomes clear that human rights are mutual, because they are about respect and dignity.

To assert that I have a right to respect as a human being necessarily involves a correlative duty on others to respect me, and vice versa.

The impulse of some commentators to say, “Aha, but what about responsibilities?” derives either from confusion between legal rights and human rights, or from a reluctance to take human rights seriously, perhaps from a frame of reference which is inherently hierarchical, by class and gender and race, and which uses the question to sneer at the notion of equality.

It is obvious that human rights necessarily entail responsibilities,[35] so we would argue against the too cautious locution suggested in the Statement, of a “Charter of Human Rights and Responsibilities”, which suggests a polarisation where none exists.[36]

Human rights are indivisible

Peter Bailey has pointed out that the ACT’s Bill of Rights debate seemed to suggest a trade-off between the strength of the judicial remedies for breach of rights and the breadth of rights to be given legal protection, but the trade did not happen: “[t]he very limitations of the ACT HRA present a stunning opportunity to [include Economic, Social and Cultural Rights (ESC rights)]. The enforcement mechanism is so weak that there can be hardly any objection to, and some advantages in, including ESC rights in the HRA”.[37]

As we advocate an “institutional dialogue” model for Victoria’s Charter, we therefore have no hesitation in urging that the Cold War distinction between ICCPR and ICESCR rights can have no place in it.

As a modern Charter it should fulfil the obligations Australia accepted in ratifying the Covenants. The Justice Statement very properly acknowledges examples of “civil and political” rights, and also “economic, social and cultural” rights, drawn from both.[38] As the UDHR makes clear, human rights are indivisible.

The international human rights framework is not capricious,[39] and we see no value in picking and choosing, as if from a smorgasbord, the rights to protect through a Charter. This would merely invite meretricious argument and divert people from the real project of promoting a human rights culture in which a continuing conversation between people, Parliament, government and the courts will refine and adapt the international framework of human rights to our Victorian circumstances. Victoria’s Charter should simply adopt and import into our law the full treaty obligations Australia has accepted, as indeed international law requires. (It would be desirable, though, to update the outmoded use of the “generic” male pronoun, and similar linguistic archaisms.)

If we were to single out some rights for special mention, the South African Constitution provides a model, as it imports the language of equality and human dignity in a way that has sufficient generality to ensure that human rights, ESC as well as CP, are amply protected.[40]

The Human Rights Act 2004 (ACT)

Australia’s first Bill of Rights came into force on 1 July this year. It followed an extensive consultation, headed by Professor Hilary Charlesworth, and generally follows the UK model. Unlike the UK, and contrary to the Charlesworth recommendations, it leaves economic, social and cultural rights to another day.[41]

The Court may declare legislation incompatible with human rights, but not invalid; the Attorney-General must prepare a “compatibility statement” for all Bills; a parliamentary committee scrutinizes them, and the public service process has been redesigned to ensure that human rights are built in to policy development. In implementing the Human Rights Act the government’s goal is to “build a human rights culture within the ACT community”.[42]

The ACT law has already inspired a South Australian private member’s Human Rights Bill, introduced by Australian Democrats MP Sandra Kanck.[43]

Conclusion

Victoria does need a Charter of Human Rights, for the reasons we have sketched or implied.

While we might prefer a constitutional charter, to give human dignity due weight, the UK and NZ experience shows it is not essential.

What the experience of the countries we have discussed confirms, however, is that the Charter should promote institutional dialogue, and encourage public participation and shared responsibility, and take a generous view of human rights as expressed in the Universal Declaration, the two Covenants and the other human rights treaties.

Victoria’s Human Rights Charter can play a valuable role in reconnecting Australian law with the international human rights jurisprudence that Australia has publicly promised the world to uphold and implement, but in the past eight years has increasingly and shamefully retreated from.

In doing so Victoria will join the ACT in setting a good example to its own people, to other states, to other nations and, indeed, to the commonwealth government.

With Victoria’s formal embrace, through a Charter, of Australia’s promises under treaties like the ICCPR, the High Court and Australian common law may be nudged back on course, once again to be invigorated by, as Sir Gerard Brennan described it in Mabo, “the powerful influence of the Covenant”.[44]

Ten reasons why Victoria needs a Charter of Rights

JAMIE GARDINER is a member of the Equal Opportunity Commission Victoria and the Mental Health Review Board, and a vice-president of Liberty Victoria. He is a member of the Human Rights Committee and of the Executive of the LIV’s Administrative Law and Human Rights Section. DOMINIQUE SAUNDERS is a special counsel with Russell Kennedy Solicitors, a member of the Mental Health Review Board and a member of the LIV Council.

The views expressed in this article are those of the authors and should not be ascribed to any organisation with which they are associated.

[1] Attorney-General’s Justice Statement: New Directions for the Victorian Justice system 2004–2014, State Government of Victoria (Department of Justice) May 2004. See http://www.justice.vic.gov.au.

[2] Jamie Gardiner and Dominique Saunders, “The protection of human rights – time to re-open the debate” (2003) 77(4) LIJ 36.

[3] Julie Debeljak, “Rights protection without judicial supremacy – a review of the Canadian and British models of Bills of Rights” [2002] MULR 17; (2002) 26 Melbourne University Law Review 285 (vicinity note 42).

[4] Note 3 above, at n42 (quoting Mauro Cappelletti): “far from being inherently antidemocratic and antimajoritarian, [rights emerge] as a pivotal instrument for shielding the democratic and majoritarian principles from the risk of corruption. Our democratic ideal ... is not one in which majoritarian will is omnipotent”.

[5] Note 3 above (V. Conclusion): “structures that encourage and respect an inter-institutional dialogue should be preferred to both legislative and judicial monopolies”.

[6] Human Rights Act 1998 (UK), c 42 (in force from 2000).

[7] This point is eloquently made in Debeljak, note 3 above.

[8] Note 6 above, s19(1)(a).

[9] The HRA (UK) in effect incorporates the rights in the European Convention on Human Rights, a treaty to which the UK has been a party since 1950. One motivation for the HRA may have been the embarrassing number of adverse decisions by the European Court of Human Rights, finding UK laws in breach.

[10] Note 6 above, s19(1)(b).

[11] Note 3 above, vicinity n116.

[12] Note 6 above, s3. In many situations other remedies are available, including damages.

[13] Note 6 above, s4(6)(b) (declaration is not binding), s10 (Minister may take remedial action).

[14] Note 6 above, s10. The remedial order is subject to parliamentary disallowance.

[15] Note 6 above, s6.

[16] Note 6 above, s6(2).

[17] Francesca Klug, “The United Kingdom Experience” in Christine Debono and Tania Colwell (eds), Comparative Perspectives on Bills of Rights, National Institute of Social Sciences and Law, 2004, p6.

[18] Bill of Rights Act 1990 (NZ) s6.

[19] Note 18 above, s7.

[20] Note 18 above, s5.

[21] Rishworth, P et al, The New Zealand Bill of Rights, Oxford University Press 2003.

[22] Moonen v Film & Literature Board of Review [2000] 2 NZLR 9 (CA).

[23] Note 21 above, l–li.

[24] Note 21 above, 11.

[25] Note 17 above, 7.

[26] Thomas Poole, “The Role of Parliament” in Gilbert + Tobin Centre of Public Law, Conference Papers, ACT Bill of Rights Forum 1 July 2004, http://www.gtcentre.unsw.edu.au/Conference-Papers-ACT-Bill-of-Rights-Forum-2004.asp, viewed 29 October 2004.

[27] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11.

[28] See note 3 above for a full discussion.

[29] Charter, s33 (the Canadian Parliament, or a provincial legislature, may declare a provision to so act; the declaration has a 5 year sunset: sub-sec (3), but is renewable: sub-sec (4)).

[30] Charter, s1.

[31] South Africa’s Constitution expressly recognises that “Everyone has inherent dignity and the right to have their dignity respected and protected”: s10, cited in Penelope Andrews, “The South African Bill of Rights: Lessons for Australia” in Debono and Colwell, note 17 above, p12 (n12).

[32] See http://www.unhchr.ch/udhr/lang/eng.htm, viewed 3 November 2004.

[33] Note 2 above (refers to http://www.aph.gov.au/house/committee/jsct, valid 3 November 2004, for links to the treaty lists and text). For an overview see the Australian government’s 2004 Human Rights Manual http://www.dfat.gov.au/hr/hr_manual_2004/index.html.

[34] See, for example, note 17 above, p8 (“in diverse, democratic societies where there is no single dominant religion or moral code, it is the values of human rights, inspired by all the great religions of east and west, that have a unique capacity to unite and heal”).

[35] As the ICCPR notes, every “individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant”.

[36] It is also, we submit, undesirable, because attempting to head off what in mistaken generosity might be seen as “legitimate criticism” could instead be taken for a capitulation to that hostile discourse.

[37] Peter Bailey, “Limitations and opportunities – economic, social and cultural rights” in Conference Papers, note 26 above.

[38] Note 1 above, p53.

[39] “I cannot, however, for my part accept that these [ECHR] Articles represent some transient sociological mood, some flavour of the month, the decade, or the half-century. They encapsulate legal, ethical, social, and democratic principles, painfully developed over 2000 years. The risk that they may come to be regarded as modish or passé is one that may safely be taken.” Lord Bingham, “The European Convention on Human Rights: Time to incorporate” in Gordon and Wilmot-Smith, Human Rights in the United Kingdom (1996) 1, 10, cited in Debeljak, note 3 above. Debeljak notes: “Any number of human rights instruments, including the ICCPR and the Canadian Charter, could be substituted for the reference to the ECHR”.

[40] It “centres equality as its primary principle, stating that ‘everyone is equal before the law and has the right to equal protection and benefit of the law’ [Constitution, s9(1)]” Penelope Andrews, note 31 above, p12.

[41] Hilary Charlesworth, “What rights are covered in the ACT Human Rights Act?” Conference Papers, note 26 above.

[42] Elizabeth Kelly, “How does the ACT HRA protect human rights?” Conference Papers, note 26 above.

[43] SA Hansard, Legislative Council, 15 September 2004 ( http://www.parliament.sa.gov.au/han/6_hansard.shtm ).

[44] Mabo v Queensland (1992) 175 CLR 1, 42. His Honour said (footnotes omitted): “The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the ICCPR brings to bear on the common law the powerful influence of the covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.”