‘A Human Rights Act for Australia’

The Hon Catherine Branson QC
President, Australian Human Rights Commission

Dame Roma Mitchell Memorial Luncheon

RACV Club, 501 Bourke Street, Melbourne

4 March 2009

I would like to begin by acknowledging the traditional owners of the land on which we meet, the Wurundjeri People of the Kulin Nation, and pay my respects to their elders past and present.

It is a great honour to be invited to speak here today, in celebration of the many and quite varied achievements of the Honourable Dame Roma Mitchell AC, DBE, CVO, QC.

As I think all of you will be at least generally aware, Dame Roma became in 1962 the first Australian woman to be appointed Queen’s Counsel; she became in 1965 the first to hold office as a judge of a superior court; she became in 1983 the first to be elected as Chancellor of an Australian university; and she became in 1991 the first to hold vice-regal office. Particularly dear to my heart is the fact that in 1981 Dame Roma became the founding Chair of the Australian Human Rights Commission.

Dame Roma remains an inspiration to many Australian women and particularly those in the legal profession.

I think it is also important to record that Dame Roma was a particularly nice person. While in her professional roles she brooked little nonsense and was something of a stickler for the proper formalities, she was, when away from her official duties, warm, generous and funny.

While a Supreme Court judge, Dame Roma hosted occasional lunches for women lawyers, and this is how I first got to know her outside the courtroom. I know that she was a supporter of other women because I was a beneficiary of that support. When Attorney-General Chris Sumner was considering appointing me, then a relatively young woman, as Crown Solicitor of South Australia and Permanent Head of the South Australian Attorney-General’s Department, Dame Roma encouraged him to do so.

When she was appointed a judge in 1965 Dame Roma said that she hoped that, in her lifetime, appointments of women to high judicial office would not excite comment in the way her appointment had done. Women should be able to take whatever place they are fitted to take in the professions, she said. And she was concerned about women’s rights generally. She often spoke about the issues facing working mothers. She was concerned about the professional development needs of women returning to work after having children and the need for housework to be shared.

Since Dame Roma was appointed a judge, there have been significant advances in the rights of women – although the appointment of women to high judicial office is still not seen as commonplace.

But today many women can pursue opportunities that our predecessors could not have imagined possible. Women have a place in the public life of our nation – as members of parliament (indeed as Deputy Prime Minister), in boardrooms, courtrooms, university lecture theatres and worksites. We have had the benefit of 25 years of operation of the federal Sex Discrimination Act. There is legal protection from sexual harassment and violence against women is seen to be a serious criminal matter, not a private one.

However, as my colleague, Sex Discrimination Commissioner Elizabeth Broderick, consistently reminds us, substantive equality between men and women remains elusive. Women earn 84 cents to the male dollar, and continue to bear the great burden of unpaid work in our community. Women face a struggle in balancing paid work and caring responsibilities. They tend to retire with less financial security than men. Men continue to lead the majority of our public institutions. In the words of Commissioner Broderick, women, and Australian society, deserve better.

We can do better.

And enhanced protection of women’s rights is only the beginning.

It seems to me that the entire system of human rights protection in Australia needs an overhaul. This is why I am particularly delighted that the government’s promised National Human Rights Consultation is underway, headed by a committee chaired by Father Frank Brennan.

The reality is that while Australia is a great country for most of us, most of the time, human rights protections in Australia are ad hoc and incomplete. The position is, of course, somewhat better here in Victoria and in the ACT, than elsewhere in our nation – but my concentration today is on human rights protection at the national level.

It is true that nationally we have some limited rights protections in our Constitution, some common law rights, and numerous laws that protect specific human rights. It is true that we have a reasonably robust democracy and an independent judiciary.

However to those who say that our strong democratic tradition and the independence of our courts are enough to ensure that our human rights are protected, I say, we can do better.

Democracy doesn’t always work quickly enough to stop human rights breaches, or to help people whose rights have been breached. Sometimes, especially in times of perceived emergency, governments either disregard or fail to consider the human rights implications of new laws or policies in ways that nearly everyone comes subsequently to regret.

I strongly believe that what Australia needs is a national law protecting human rights: a federal Human Rights Act.

A Human Rights Act would provide a comprehensive framework for protecting human rights in Australia. A Human Rights Act would also be a powerful tool for fostering a stronger human rights culture by promoting greater respect and understanding of human rights among all Australians.

Let us turn to some recent examples where a Human Rights Act would have made a real difference to the protection of human rights in Australia.


Indefinite detention: Al-Kateb

Many of you will be familiar with the story of Mr Al-Kateb. Mr Al-Kateb was a stateless Palestinian man who arrived in Australia by fishing boat and was taken to Curtin, an immigration detention centre in the Western Australian desert. Mr Al-Kateb’s application for a protection visa to stay in Australia was rejected. The Department of Immigration tried to remove Mr Al-Kateb to Kuwait, Egypt, Jordan, Syria and the Palestinian territories. They found they couldn’t do so.

In Al-Kateb v Godwin[1] the High Court of Australia was asked to decide if the Migration Act[2] authorised the indefinite detention of an unlawful non-citizen when there is no real prospect of his removal from Australia.

By the slimmest of majorities (four judges in favour; three against), the High Court said that it did.

Mr Al-Kateb argued that the High Court should interpret the Migration Act in a way which was consistent with Australia’s obligations under the International Covenant of Civil and Political Rights which protects the right to liberty and prohibits arbitrary detention.[3] One of the clearest indicators that detention is arbitrary is that the person being detained has no idea when they will be free again.

Mr Al-Kateb’s legal submissions relied on two principles. The first principle is that courts should only assume Parliament wants to interfere with fundamental rights if it does so in unambiguous language.[4] The second related principle is that where the meaning of a law is ambiguous, the Court should interpret the law consistently with Australia’s international treaty obligations.[5]

The problem for Mr Al-Kateb was that the majority found that the plain words of the Migration Act required Mr Al-Kateb to be detained until he could be removed from Australia notwithstanding that there was no reasonable prospect of this happening in the foreseeable future. Because the majority decided the words were unambiguous, they did not consider the human rights of Mr Al-Kateb.[6]

In contrast, the minority– Gleeson CJ, Kirby J and Gummow J – did not think the words of the Migration Act provided an unambiguous authorisation for indefinite detention of Mr Al-Kateb. Instead, they interpreted the Migration Act in a way which protected the right of Mr Al-Kateb not to be arbitrarily detained.[7] They concluded that the law did not require his ongoing detention in circumstances where there was no real prospect of his removal from Australia. The power to detain, they found, was a power ancillary to the power to remove from Australia; where removal was not possible, the Act did not authorise detention.

At the time the High Court decided Mr Al-Kateb’s case he was twenty-eight years old. He was detained when he was twenty-four.[8] He was kept in immigration detention for years with no idea when he would be free again. ‘Tragic’ as his situation was, Australia’s highest court told him it ‘was not for the courts ... to determine whether the course taken by Parliament is unjust or contrary to human rights’.[9]

What I want to do now is to explore how an Australian Human Rights Act could have changed what happened in the case of Mr Al-Kateb.

Let us start by imagining that the High Court was required to interpret the Migration Act consistently with the human rights protected by the Australian Human Rights Act.

In the ACT and Victoria interpretive provisions require the Courts to interpret laws in a way that is compatible with human rights so far as it is possible to do so consistently with the purpose of the legislation being examined.[10]

Perhaps the most important feature of this type of interpretive obligation is that it applies to all laws, whether or not enacted before the interpretative provision itself and regardless of whether an individual judge thinks the ordinary meaning of the law is ambiguous.

While critics suggest that the interpretive obligations contained in human rights Acts in the ACT and Victoria turn judges into law-makers, human rights acts do not authorise courts to give laws a meaning which is inconsistent with their purpose.[11]

So would the application of this interpretive principle have led to a decision which required Mr Al-Kateb to be released from detention?

If an Australian Human Rights Act had been in force at the time Al-Kateb was decided, I think the judges in the majority may have been convinced to join the ranks of the minority. I know that I am not alone in holding this view.[12] A Human Rights Act would have required the majority to explore if there was a possibility that the Migration Act could be interpreted consistently with the purpose of the mandatory detention provisions and the human rights of Mr Al-Kateb. The minority judgments show that such an interpretation was possible. Indeed the unanimous judgment of the Full Federal Court in Al Masri[13] had already shown this to be possible.

Even if the High Court had still found that the Parliament clearly intended to create a law which authorised indefinite detention, under an Australian Human Rights Act the court could have made a declaration of incompatibility, alerting Parliament to a breach of the rights protected by the Human Rights Act. This declaration would not invalidate the law but it would require Parliament to consider if the law should be changed to protect human rights.

A declaration would, I suspect, have provided a degree of comfort to Mr Al-Kateb who turned to the law in search of justice. It is better, I would venture, to be told Australia’s highest court believes your rights have been breached and has asked Parliament to consider altering the law than to be told the Court has no interest in whether the law under which you were detained is ‘unjust or contrary to basic human rights’.[14]

So far I have focused on the difference a Human Rights Act could have made to the outcome of Mr Al-Kateb’s court case. However, the greatest achievement of an Australian Human Rights Act may be to prevent human rights violations happening in the first place. It seems likely that no Parliamentarian turned his or her mind to the circumstances such as those in which Mr Al-Kateb found himself when the mandatory detention provisions of the Migration Act were enacted. A more careful consideration of the possible impact of the provisions might have resulted in their operation being qualified in the case of stateless individuals. Moreover a requirement on government to explain publicly whether new laws and policies comply with human rights may be expected to create a culture in which our parliamentarians are reluctant to pass laws that are demonstratively inconsistent with the human rights protected by a Human Rights Act.

There is a postscript to Mr Al-Kateb’s story. After the High Court’s verdict, he was not returned to immigration detention. Instead, he remained in the community on a bridging visa and in 2007, he was told he could stay in Australia, indefinitely.[15] Some people might suggest that the fact that Mr Al-Kateb was eventually released is evidence that our democracy does protect people’s rights. This argument cannot be accepted. A young man spent years of his life behind razor wire with no apparent prospect of being removed from Australia before he was released into the community. We can – we should – do better than this.

Sedition

It is not only non-citizens and other minorities who need greater protection of their basic rights. The anti-terror laws introduced since 2001 have significantly undermined the fundamental human rights of all Australians. Of course we need laws that protect our personal security from terrorist attack. However, these laws should not unreasonably compromise our democratic freedoms.

Let’s take the example of the sedition laws.[16] The Howard Government’s Anti-Terrorism Act (No 2) 2005[17] was enacted to target activity promoting terrorist violence. The Act sought to modernise the old sedition offences in the Commonwealth Crimes Act 1914 by introducing new sedition offences. The media, the public and a Senate inquiry all voiced concerns that the new sedition offences may intrude unreasonably upon freedom of expression. Under the laws a person could be charged with sedition for rhetorical statements, parody, artistic expression or other communications that the person does not intend anyone to act on.

At the request of the then Attorney-General, Philip Ruddock, the Australian Law Reform Commission conducted a review of the new sedition provisions.[18] It made 27 recommendations, all of which the Rudd Government has now accepted.

In its review, the ALRC identified a ‘chilling effect’[19] which the laws would have on freedom of expression among journalists, artists, satirists and activists: criticism of government policy or legitimate political protest could be inhibited by fear of a seven-year sentence. The problem was that the sedition offences were so vague that they had the potential to prohibit a broad spectrum of legitimate speech.

While we have an implied freedom of political communication in our Constitution, we have no other mechanisms to protect freedom of expression.

How would a federal Human Rights Act have made a difference? It might have prevented the sedition offences from being enacted in such vague and broad terms in the first place. The pre-legislative scrutiny process would have put the laws through a ‘human rights test’. Such a test would create a ‘culture of justification’ – a culture in which every exercise of power that interferes with our fundamental freedoms would have to be publicly and transparently justified.[20]

Parliament has final say

A common refrain of those who oppose a federal Human Rights Act is that it would transfer power to the judiciary and undermine parliamentary supremacy. However it is important to remember:

  • We are talking about an ordinary piece of legislation which could be amended or repealed by the usual parliamentary processes.

  • A Human Rights Act would not give courts the power to strike down legislation. Rather, in the situation where a law could not be read consistently with human rights, courts could only make a ‘declaration of incompatibility’. Parliament would make the final decision as to whether to amend the law to resolve the incompatibility.

  • Pre-legislative scrutiny would ensure that Parliament makes its intention clear, and this would significantly assist the judicial process of interpreting statutes.

A Human Rights Act, far from transferring decision-making from Parliament to the Judiciary, would actually enhance democracy through a more open and transparent consideration of the human rights impacts of proposed legislation.

What a HRA would do for Australia’s human rights culture?

Al-Kateb and the sedition laws are powerful examples of how an Australian Human Rights Act would make a real difference to the protection of human rights in Australia.

However, it is important to remember that a Human Rights Act would also have a significant impact upon the lives of ordinary people.

Such a law would ensure that those who make decisions affecting the lives of ordinary Australians respect human rights. It would ensure that Parliament thinks of human rights when making laws; that ministers and government departments and agencies think about human rights when developing policy; that public service providers like Centrelink and Medicare think about human rights when dealing with the public.

Let us look at the UK experience. The UK passed its Human Rights Act in 1998. The government then explained that ‘the idea was that principles such as dignity, equality, respect, fairness and autonomy would be used by individuals and groups to negotiate improved public services, and by public service providers as a tool to improve the quality of their services’.[21] So the Human Rights Act was intended to have its greatest impact not in the courts of law, but in the wider community.

Eleven years on, that impact on the wider community is apparent. In a publication titled ‘Changing Lives’, the British Institute of Human Rights has recorded real life stories of how the UK Human Rights Act has improved the lives of ordinary people.

In one story, a mother fleeing domestic violence with her children was told by social services that her children would be taken from her because she was an ‘unfit’ parent who had intentionally made her children homeless. However, the mother was able to keep her family together, not by going to court but by invoking the right to respect for family life.[22]

The right to respect for family life was also invoked by the family of a couple who had lived together for over 65 years but were separated when the husband fell ill and needed to be placed in a residential care home. The wife was told she could not move with him because she did not fit the applicable criteria. With support from local community organisations and the media, the couple’s family argued that the couple’s right to respect for family life had been breached. As a result, the authority reversed its decision and allowed the wife to join her husband in the care home.[23]

In another story, a man with learning disabilities, living in a care home, needed a carer to sit in the room with him while he bathed. This was because he had in the past slipped in the bath and was anxious about bathing. One of his carers learnt about the right not to be treated in an inhuman or degrading way and decided to implement measures to respect the man’s dignity, including erecting a screen in the bathroom to sit behind while he bathed.[24]

So there is reason to believe that a Human Rights Act will not only change lives; it will change attitudes. It should help build a human rights culture in Australia – a culture of rights-based thinking; one in which everyone understands their basic rights and respects the rights of others. I believe that we need cultural change of this kind in Australia.

Closing

There are those who say that we do not need greater human rights protections in Australia. I think that it is clear that we do. As I have said, as a nation we can do better.

We remain the only liberal democracy in the world without a charter or bill of rights. The National Human Rights Consultation is a rare opportunity. So I urge each of you to talk to your friends, your colleagues, your neighbours and your community about the kind of society you want to live in. I urge you to make a submission to the National Human Rights Committee. As we say at the Australian Human Rights Commission, human rights belong to everyone, everywhere, everyday.

 



[1] (2004) 219 CLR 562 (‘Al-Kateb’). The Australian Human Rights Commission was granted leave to intervene in this case.
[2]Migration Act 1958 (Cth) (‘Migration Act’), s 189, s 196, s 198.
[3] ICCPR, Article 9(1).
[4]Coco v The Queen (1993) 173 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).
[5] Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38 (Brennan, Deane and Dawson JJ).
[6]Al- Kateb, 581 (McHugh J); 642-643 (Hayne J); 661 (Callinan J); see also 662 (Heydon J agreeing with Hayne J ‘subject to reserving any decision about whether s 196 should be interpreted in a manner consistent with treaties to which Australia is a party but which have not been incorporated into Australian law by statutory enactment’).
[7]Al-Kateb, 577 (Gleeson CJ) citing Coco v The Queen (1993) 173 CLR 427; 607 [ (Gummow J), 616 (Kirby J).
[8] Mr Al-Kateb was released on a bridging visa in 2003 and presented with a $83,000 bill for his detention. For an account of Mr Al-Kateb’s life on a bridging visa see David Marr, ‘A life in limbo’, The Sydney Morning Herald, 27 October 2007.
[9]Al-Kateb, 595 (McHugh J).
[10]Human Rights Act 2004 (ACT) s 30; Charter of Human Rights and Responsibilities 2006 (Vic) s 32(1). For example, s 32(1) of the Victorian Charter states: ‘So far as is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’.
[11] This is consistent with s 15AA of the Acts Interpretation Act 1901 (Cth) which provides that: ‘[i]n the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose of object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object’.
[12]J Spigelman AC, ‘Statutory Interpretation & Human Rights’ Second Lecture in the 2008 McPherson Lectures on the Application of Quasi-Constitutional Laws, 11 March 2008, 40-44; See A Rolls, ‘Avoiding Tragedy: Would the Decision of the High Court in Al-Kateb Have Been Any Different if Australia Had a Bill of Rights like Victoria?’ (2007) 18(2) Public Law Review 119; The Hon Sir Gerard Brennan AC KBE, ‘The Constitution, Good Government and Human Rights’ paper presented at the Human Rights Resource Law Centre, 12 March 2008; Hon J J Spigelman AC, ‘Blackstone, Burke, Bentham and The Human Rights Act 2004’, Keynote address, 9th International Criminal Law Congress, Canberra, 28 October 2004
[13]Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54.
[14]Al-Kateb, 595 (McHugh J).
[15] For an account of Mr Al-Kateb’s life on a bridging visa see David Marr, ‘A life in limbo’ The Sydney Morning Herald, 27 October 2007.
[16]Criminal Code Act 1995 (Cth), s 80.2, s 80.3.
[17]Anti-Terrorism Act (No 2) 2005 (Cth), Schedule 7.
[18] See ALRC Report 104, Fighting Words: A Review of Sedition Laws in Australia, 31 July 2006 (‘Fighting Words’).
[19]Fighting Words at Ch 7.
[20] Murray Hunt, Legal Advisor to the UK Joint Standing Committee on Human Rights, ‘The UK Human Rights Act as a ‘parliamentary model’ of rights protection: lessons for Australia’, Seminar at the Australian Human Rights Commission, 17 February 2009.
[21] British Institute of Human Rights, ‘The Human Rights Act – Changing Lives’ (2nd ed., 2008) (‘Changing Lives’) at 3.
[22] Changing Lives at 18.
[23] Changing Lives at 14.
[24] Changing Lives at 7.

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