Cross party briefing on a proposed Human Rights Act

Creating a culture of human rights compliance

The Hon. John von Doussa QC

President, Human Rights and Equal Opportunity Commission

Parliament House, Canberra

28 February 2007

Debates about a charter of rights are often monopolised by the contentious issue of the proper role of the courts. While this is undoubtedly an important question, it overlooks the impact a charter would have on the role of Parliament as a guardian of rights of freedoms.

We need a debate about how to improve human rights protection in Australia which leaves behind the tired old bogeyman of a United States style constitutional bill of rights and explores the many different options for strengthening human rights protection which do not endanger the sovereignty of parliament.

One option is a statutory charter that creates a dialogue between the judiciary, the legislature and the executive, while carefully preserving parliamentary sovereignty.  A second, weaker, option is legislation which only requires Parliament to pay more attention to human rights principles in the law and policy making process but does not create a new role for the court. A third option (and one which would ideally form the foundation for options one or two) is aggressive, well funded and ongoing human rights education – not just for kids - but for politicians, bureaucrats and judges.

Today, I want to focus on how we can improve the capacity of parliament to protect human rights by legislation which expressly requires the executive, the legislature and the government departments that serve these bodies to pay attention to human rights principles at every stage in the law and policy process.

The means I shall propose would be common to both the legislative options. The differentiating factor between the two is that the first option gives the courts the role of identifying incompatibility with the prescribed human rights standards whereas the second leaves it to Parliament to honour the manner and form processes laid down in the legislation.

The starting point of this discussion is that democratic responsible government, once described by Sir Robert Menzies as the ‘ultimate guarantee of justice and individual rights’1, needs new tools to discharge its responsibility to protect human rights. 

Traditionally, both sides of politics have seen Parliament as ‘the great liberating force’; preserver of our rights and freedoms.2 The suggestion that Australia needs a Charter of Rights has been met with simple rebuttal: ‘we don’t need one’.

But where once this argument was received wisdom, it is now increasingly difficult to defend.   In recent years we have borne witness to Parliament’s refusal to protect the rights of asylum seekers and a raft of new counter-terrorism bills proposing to erode previously untouchable rights.  The wrongful detention of Cornelia Rau and the wrongful deportation of Vivan Alveraz stand as evidence that the doctrine of ministerial responsibility is not a sufficient safeguard for human rights.

Currently, the Human Rights and Equal Opportunity Commission (HREOC) is compiling a catalogue of legislation which discriminates against same sex couples and their children by denying same sex couples access to financial benefits and workplace entitlements that their heterosexual counterparts can take for granted.

The first question is simply, how did these discriminatory laws get passed in the first place?  The second question is, would these same laws have been passed if Parliament was required to explicitly justify why the laws breach the fundamental human rights principle of non-discrimination? 

The realisation that Parliament needs better tools to protect human rights has led to the introduction of statutory charters in England, New Zealand, the ACT and, most recently, the Victoria. Tasmania, Western Australia, South Australia and New South Wales are all investigating the prospect of a state charters.

Experience suggests the most significant impact of a statutory charter of rights – at least in its formative years - is the way it changes the law and policy making process. This is welcome news. Ultimately, protecting human rights depends on having laws and policies which comply with human rights standards.

Of course, legislative scrutiny of proposed laws already occurs, albeit subject to increasingly tight timetables, through parliamentary committees scrutinising new Bills. However, this process is subject to fundamental limitations. The federal parliamentary committee process occurs after the legislation has been drafted, the policy objectives formulated and, more often than not, after politicians have publicly committed to the Bill’s implementation.  There is no ‘human rights yardstick’ which must be applied to measure whether a law goes too far.

Whether as part of a Charter of Rights or otherwise, legislative provisions which explicitly recognized the responsibility of the legislature and the executive to consider the human rights impact of proposed laws and policies, would create a culture of human rights compliance. The Charter of Human Rights and Responsibilities Act (Vic), for example, requires the legislature and the executive to undertake a kind of human rights self-education program by requiring:

  • submissions to Cabinet about proposed laws and policies that will have a significant impact on human rights to be accompanied by a Human Rights Impact Statement.
  • Bills must be accompanied by a human rights compatibility statement;
  • a Joint Standing parliamentary scrutiny committee must assess the compatibility of the Bill with human rights; and
  • Parliament must publicly explain its actions in the event that it decides to enact or maintain legislation that is inconsistent with human rights principles.

Similar provisions exist in the Human Rights Act 1998 (UK), the Human Rights Act 2004 (ACT)  and New Matilda’s Human Rights Bill 2006 (Cth). In 2002 the Lord Chancellor of the United Kingdom said such provisions have helped move ‘public decision-making in this country up a gear, by harnessing it to a set of fundamental standards’.3

The review of the first 12 months of the operation of the ACT Human Rights Act found that the biggest impact of the Act has been during the formulation of new laws and policies.4 Notably, the ACT Government went to great lengths to ensure ACT counter-terrorism laws comply with human rights standards.

Making human rights a mainstream element of the law and policy making process require the legislature and the executive to improve their understanding of human rights issue. Hopefully this enhanced understanding should overcome the perception of human rights as a wishy washy feel good concept that lacks objective legal articulation.

When I studied law 40 years ago there was no such course as human rights law. But today, there is an international legal framework of human rights treaties, supplemented by the detailed and complex jurisprudence of United Nations Treaty Bodies.

To many parliamentarians and public servants the legal language of rights is unfamiliar territory. Some human rights violations are obvious: the ongoing detention of David Hicks, for example, is such a clear departure from basic human rights principles. However, often the question of human rights compliance is more complex.  In debates about counter-terrorism laws, for example, striking the right balance between the interests of national security and protecting human rights can be a complex and contentious exercise. Sometimes the problem is not the new power itself, but the absence of checks and balances to make sure that the use of the power is lawful, necessary and proportionate in the circumstances of the particular case.

In this context, for example, I believe that if Parliament was required to measure bills against a specific list of human rights standards, Parliament would enact legislation which protects national security, without sacrificing fundamental rights and freedoms.

So how do we go about cataloguing the human rights standards that our laws and policies should meet?  The objective of the New Matilda Human Rights Bill is to make the law of Australia better conform to our obligations under the major human rights treaties.

In my view, all proposed laws should be assessed by Parliament against the standards set out in the human rights instruments that the Australian Government has already agreed to be bound by.  Parliament can still choose to depart from these standards, but such a decision must be debated, discussed, and publicly justified. Ultimately the end result is a more accountable, more rigorous process which not only produces better human rights complaint laws, but laws where the exercise of executive power is less likely to be challenged in the courts.

Integrating human rights principles into pre-legislative processes is only part of the reforms envisaged by the New Matilda Bill. The Bill also provides for the ‘reconsideration by Parliament of primary and subordinate legislation that the courts decide is incompatible with human rights and provides for just and appropriates remedies where public authorities infringe individual’s human rights’. By including economic, social and cultural rights, the New Matilda Bill enters territory uncharted by the ACT, Victorian, UK and New Zealand Charters which all focus on protecting civil and political rights.

I have always been cautious about joining the cheerleaders for an Australian Charter of Rights. This is not because I oppose a charter outright, but because I want to know precisely what it is I am to support. Whatever form a charter takes, it must preserve parliamentary sovereignty and the proper role of the judiciary.  While the introduction of a statutory, rather than a constitutional, charter obviates some concerns about the impact of a charter on the proper functions of the parliament, the provision of a role for the courts and a right of action for violations of economic, social and cultural rights trespasses into uncertain and controversial territory.

Civil and political rights and economic and social rights are two very different beasts. Civil and political rights are negative rights in the sense that they require restraint from certain actions, so that an individual can enjoy the freedom to pursue, within acceptable limits, happiness and prosperity. Courts regularly decide the meaning and scope of this type of right, and the legal training of judges equips them for this task.  Economic, social and cultural rights on the other hand can be described as ‘positive’ or ‘distributive’ rights because they require an activist response by the state to ensure the provision of the money and services necessary to realize the right.

While economic, social and cultural rights may properly be brought into focus during the pre-enactment scrutiny process, I believe the role of judges should be restricted to adjudicating civil and political rights. Economic, social and cultural rights, like the right to an adequate standard of living inevitably raise questions of resource allocations which are better left to parliament.

These are subjects upon which there is fierce debate. One of the most important features of any statutory charter is the provision for periodic review of the Charter’s operation  Such a clause not only allows Parliament to assess the operation of the Charter it provides an opportunity to reassess whether the rights enumerated by the Charter are the rights we need to respond to the challenges of the day.

I would like to conclude by congratulating New Matilda for fostering debate about a federal human rights Act, and for bringing the debate to Parliament House, where Parliamentarians can make up their own minds.  This is an important conversation that deserves serious consideration not glib dismissals.

Now is time to consider new and better ways to protect human rights. Integrating human rights principles into the pre-legislative process seems like a logical first step. But ultimately, if we are serious about protecting human rights, we need to engage all three arms of government – the legislature, the executive and the courts – in a dialogue about human rights protection.

[1] R.G Menzies, Central Power in the Australian Commonwealth, London, 1967, p. 54.

[2] See discussion in Goldsworthy J, ‘Introduction’ in Campbell T, Goldswrothy J, Stone A (eds), Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia, 2006, Ashgate Publishing Limited, pp2-3.

[3] Lord Chancellor, Lord Irvine, ‘The Impact of the Human Rights Act: the Parliament, the Courts and the Executive’, (2003), Public Law, 308-325.

[4] ACT Department of Justice and Community Safety, Human Rights Act 2004: Twelve-Month Review – Report, June 2006.