The Principle of Legality and Human Rights in … principle of legality_Sara.pdf · The Principle...
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The Principle of Legality and Human
Rights in Australia:
An Overview
Sara Aurorae
The narrow definition of the principle of legality is an applied value that presumes that in the
instance where the clarity of language within a specific law is unclear, the courts have the
authority to interpret legislation under the general presumption that the law itself had been
established to protect individual rights. Whilst common law is a normative process intended to
overcome any venality between the judicial, parliamentary and executive branches of
governance - thus as courts protect the rights of individuals inadvertently improve the political
process - there remains a plethora of issues that continue to cause concerns with safeguarding
human rights.
In January 2012, the Human Rights (Parliamentary Scrutiny) Act 2011 was established
to effectively uphold human rights norms in Australia by ensuring that any Bill introduced in
Parliament is complemented with a Statement of Compatibility. This compatibility statement
CCC 0362-6784/84/020151-13
requires parliamentarians to make certain the Bill is compatible with Human Rights as
explained in section three of the Act. The Act also sanctions that a Human Rights Committee
is established to monitor all Bills and ensure consistency with the core human rights values set
out by the United Nations treaties.
Australia is currently taking small steps to uphold and preserve human rights and that
legislation is compliant with our international human rights obligations. However, discussions
have been raised to the fore regarding whether Australia requires any human rights legislation
or whether the current system of common law and the principle of legality are sufficient to
protect the rights of individuals. These arguments also include whether the codification of
particular rights may involuntarily distress its correct application. Other key issues also include
the common law principle of legality vis-à-vis the definition of what ‘fundamental rights’ means
in common law. What is the definition of human rights and who makes that decision?
Common Law and the Principle of Legality
The phrase “Common Law” was first established in the 12th
century England during the reign
of Henry II and refers to a “body of principles or rules of law worked out on a case-by-case
basis by courts in England and latterly in this country [Australia].”1
The High Court of
Australia has stated that Common Law is the: “ultimate constitutional foundation in
Australia"2. Common or case law is an example of where the courts are authorised interpreters
of the constitution and statutes and subsequently provide a legal precedent to be utilised for
future interpretations of that specific statute or law. Common law in Australia has provided an
effective repository of rights including freedom of movement and of speech3, the right of access
to courts and immunity of interference with equality of religion.4
It is considered to have
evolved as a process to protect fundamental rights by guarding any legal intrusions made by
the state and other institutions.
In contrast to the common law system applicable in Australia, many European countries
employ Civil Law. Comparatively, civil law predominately employs the use of codified statutes
without specific reference to judicial case law opinions by the courts. Codified civil law can be
traced as far back as the Roman Empire, whereby legal codes are rooted in the judicial system
and more often than not, judges in a civil law country do not have the same professional
training and are instead employed and positioned based on connections that are often political.
1 Chief Justice RS French, “The Common Law and the Protection of Human Rights,” 4 September 2009, Sydney 2 Wik Peoples v Queensland (1996) 187 CLR 1 at 182. 3 Cunliffe v The Commonwealth (1994) 182 CLR 272. 4 Corrin J, "Australia: Country Report on Human rights", (2009) Victoria University of Wellington Law Review, 37 at 41-42.
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Accordingly, courts assume that the legal codes regulate all aspects of the law and under
very specific circumstances, uphold particular principles where there exists a gap in the law.
“Italian Civil Code art 12 para 2 provides that "if a controversy cannot be decided by a precise
provision, consideration is given to provisions that regulate similar cases or analogous matters;
if the case still remains in doubt, it is decided according to the general principles of the legal
order of the State." Similar provision is contained in article 4 of the French Code Civil.”5
Common law plays a significant role over both constitutional and statutory
interpretation. It has been noted that over the last twenty-five years, statutory interpretation
has shifted in Australia and has become the “most important single aspect of legal practice.”6
Broadly speaking, discussions continue relating to the various methods of interpretation, such
as objects clauses at the beginning of a piece of legislation that explains the purpose to
potentially resolve any ambiguity in the language, the mischief rule where the courts
themselves resolve ambiguity in a piece of legislation by focusing on the intention of the
legislators, the purposive versus the literal approach – the former being the mischief rule whilst
the latter resorting to the use of specific canons or rules of interpretation.7
Relevant legislation such as the Acts Interpretation Act 1901 [Cth] provides the
limitations and methods required for interpreting the law, and it can also be utilised by legal
practitioners where courts have yet to interpret a section of legislation. Section 15AA explains
the general approach to statutory interpretation: “In the interpretation of a provision of an Act,
a construction that would promote the purpose or object underlying the Act (whether that
purpose or object is expressly stated in the Act or not) shall be preferred to a construction that
would not promote that purpose or object.”8
This is further elucidated in Mills v Meeking (1990) whereby the court considers the purpose of an Act in order ascertain or consider various possibilities that may construct a result according to that purpose rather than to the literal
interpretation of the Act.9
This is commonly known as The Golden Rule, whereby Judges
assume prima facie the meaning of words in a statute unless such interpretation results in an absurd outcome, at which point the court can depart from the traditional meaning by
determining the purpose of the law to ensure integrity in a decision or outcome.10
It is clear that there is a strong relationship between common law and statutory
interpretation vis-à-vis fundamental rights and liberties. Should there be any ambiguity of
language in a statute, the court can assume that the legislators intention was not to nullify the
fundamental rights and liberties of individuals thus in effect safeguarding human rights.11
5 Pejovic, Caslav, “Civil law and common law: two different paths leading to the same goal.” Victoria University of Wellington Law Review, v.32, no.3, August 2001, p.817-841 6 JJ Spigelman, “The Poet’s Rich Resource: Issues in Statutory Interpretation” (2001) 21 Australian Bar Review 224 7 RS Geddes, “Purpose and Context in Statutory Interpretation,” (2005) 2 UNELJ 5 8 §15AA Acts Interpretation Act 1901 [Cth] 9 Mills v Meeking (1990) 169 CLR 214, Dawson J, 235 10 Grey v. Pearson (1857) 6 HL Cas 61, 106; 10ER 1216, 1234. 11 James Spigelman, “The Principle of Legality and the Clear Statement Principle,” Australian Law Journal, Vol. 79, p. 769, 2005
“[T]he duty of a court is to give the words of a statutory provision the meaning that the
legislature is taken to have intended them to have.”12
The principle of legality involves both
statutory interpretation and linguistic clarity, known as the clear statement principle. The
intention of the clear statement principle is to ensure that basic fundamental rights are
safeguarded as is the purpose of the law and to generally assume what legislators originally
envisioned. “The claims were ‘positive’ in the sense that they sought to describe authentic
legislative intentions — that is, what the legislature actually meant or intended.”13
While it has been argued that there remains no clear process that determines the correct
application of interpreting the intentions of legislators, it has been recognised that the
customary process involves an impartial and factual procedure. “When a court ‘takes’ a
legislature to have intended words to have particular meaning, it engages in an objective
exercise, and not a subjective exercise, of discerning and attributing intention.”14
This objective process includes a study of the meaning and context behind the words, the potential ramifications of a literal interpretation of the words, and the overall purpose of the statute
itself.15
The fundamental aspect to statutory and constitutional law is the clarity of language and
the specificity of intention. Only when the words are ambiguous do the courts have the
authority to apply an interpretation of the law with the underlying appreciation that the law
itself has been established to protect the rights of individuals.
"The courts should not impute to the legislature an intention to
interfere with fundamental rights. Such an intention must be clearly
manifested by unmistakable and unambiguous language. General words
will rarely be sufficient for that purpose if they do not specifically deal
with the question because, in the context in which they appear, they
will often be ambiguous on the aspect of interference with fundamental
rights."16
It has often been noted that the origin of the principle of legality in Australia began
through the high court decision of Potter v Minahan, whereby James Minihan was rejected
from coming into the country based on his failure to pass dictation test, although he was born
in Victoria.17
This, however, raised the question as to the definition of the word immigration as
was applied in the Immigration Restriction Act 1901 (Cth). Accordingly, O’Connor J stated:
12 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (‘Project Blue Sky’). 13 Op.cit, The Normativity of the Principle of Legality, 3 14 Ibid., 4 15 Project Blue Sky (1998) 194 CLR 355, 384 [78] 16 [1994] HCA 15; (1994) 179 CLR 427 at 437 17 Potter v Minahan (1908) 7 CLR 277
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“It is in the last degree improbable that the legislature would overthrow
fundamental principles, infringe rights, or depart from the general
system of law, without expressing its intention with irresistible
clearness; and to give any such effect to general words, simply because
they have that meaning in their widest, or usual, or natural sense,
would be to give them a meaning in which they were not really used.”18
While there was nothing considerably new about common law decisions basing its
judgment on such a principle, the case became the seminal ruling that designated it as the
current judicial authority of the principle of legality. Essentially, the positive claim the principle
of legality proposes is that legislatures do not intend to abrogate fundamental rights and under
circumstances where the language of the statute is ambiguous, the principle will need to be
assumed by the court when interpreting the legislation. “[T]he rationale of the presumption
against the modification or abolition of fundamental rights or principles is to be found in the
assumption that it is "in the last degree improbable that the legislature would overthrow
fundamental principles, infringe rights, or depart from the general system of law, without
expressing its intention with irresistible clearness.”19
The principle of legality was further explained in the industrial relations case of
Electrolux Home Products Pty Ltd v Australian Workers' Union. Confusions between
enterprise bargaining agreements and in effect the result had a positive impact on such rights
including the right of entry and training leave among other industrial relation rights. “The
presumption is not merely a common sense guide to what a Parliament in a liberal democracy
is likely to have intended; it is a working hypothesis, the existence of which is known both to
Parliament and the courts, upon which statutory language will be interpreted.”20
However, the landmark decision also raised questions about the effectiveness of common law verdicts such as this being superseded by new statutes, as it was made obvious with legislation like the amended
Workplace Relations Act introduced by the Howard Government.21
This struggle between
legislatures and the judicial system in effect exposes the opportunity to protect fundamental rights and it has been argued that codifying a Bill of Rights in Australia would be the solid
answer to this conflict.22
Lord Steyn in R v Home Secretary; Ex parte Pierson stated that the presumption –
namely the presumption that without the express authorisation of the curtailment of a
fundamental right, freedom or immunity that the courts have the capacity to presume the
purpose of the statute exists under the general view of individual rights – is a relevant part of
the principle of legality in order to ensure just governance between parliament, the executive
18 Ibid. 304 19 Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1; (1990) 93 ALR 207 20 (2004) 221 CLR 309. 21 Workplace Relations Amendment (Work Choices) Act 2005 22 Andrew Byrnes, Hilary Charlesworth, Gabrielle McKinnon, Bills of Rights in Australia: History, Politics and Law, UNSW Press, 2009 xv
and the courts.23
The intention of the principle of legality is merely a general and
commonsensical view that promotes the purpose of what parliament, liberal democracy and the
law itself had envisioned. Taking a normative perspective, the principle could also go so far as
to assume the role of the courts is to ensure accountability and promote liberal democratic
principles and human rights. “This justification advances a set of claims about the
constitutional relationship between courts and legislatures: courts should, it is claimed, prevent
legislatures from abrogating rights, otherwise than by clear words, in order to enhance electoral
accountability and the political process.”24
Thus the principle of legality can be an example of
the rule of law and the freedom of the individual, that “[e]verybody is free to do anything,
subject only to the provisions of the law.”25
What is Human Rights?
It is essential to understand the definition of human rights in order to proceed with an
exploration of its relationship with the principle of legality. Whilst there is a plethora of
controversies relating to the precise meaning of human rights, the theoretical framework is said
to be understood as: ‘S has a right to x against o in virtue of j.’26
The Human Rights (Parliamentary Scrutiny) Act 2011 aim at ensuring that any member of parliament wishing to
propose a Bill is required to ensure that it remains compatible with Human Rights.
Accordingly, “Human Rights” is defined as “the rights and freedoms recognised or declared by
the following international instruments: the International Convention on the Elimination of all
Forms of Racial Discrimination… International Covenant on Economic, Social and Cultural
Rights… International Covenant on Civil and Political Rights… Convention on the Elimination
of All Forms of Discrimination Against Women… Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment… Convention on the Rights of the
Child, the Convention on the Rights of Persons with Disabilities.”27
The enacted Victorian Charter of Human Rights and Responsibilities Act 2006 is a
charter founded on international human rights principles that all people are born free and
equal in dignity and rights. Unlike the Human Rights (Parliamentary Scrutiny) Act, human
23 [1997] UKHL 37; [1998] AC 539 at 587, 589 24 Op. Cit., The Normativity of the Principle of Legality 3 25 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 283 (Lord Gough); Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564. 26 David Boersema, Philosophy of Human Rights: Theory and Practice (Boulder CO: Westview Press, 2011). “Where S stands for the right- holder, a moral or legal agent, which can be either a human individual or a collective agent such as a corporation or government; X is the content and the scope of the right; O are the addressees or duty-bearers of the correlative obligations; and J stands for the moral or legal justification(s) of the claim that there is such a right.” 27 §3 Human Rights (Parliamentary Scrutiny) Act 2011
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rights is defined the charter as meaning civil and political rights.28
The charter’ endeavour is to
build a culture of human rights, working as a legal umbrella over government and other public
authorities to ensure that policies and laws are compatible with human rights obligations and
standards set out within the charter. It currently protects twenty fundamental human rights
visible in the International Convention of Civil and Political Rights [ICCPR], however §44
requires that the charter is reviewed four years following full effect [January 1, 2008] and must
consider other relevant human rights obligations that have not yet been incorporated into the
charter. These include rights set out in the International Covenant on Economic, Social and
Cultural Rights [ICESCR], the Convention on the Rights of the Child [UNCRC], the
Convention on the Elimination of All Forms of Discrimination against Women [CEDAW],
and the right to self-determination. The Government review found the charter to be beneficial
to Victorians and will introduce some amendments particularly regarding the parliamentary
scrutiny process.
It is also important to ascertain some complications between particular human rights
principles in order to understand the difficulties faced by judges and legal practitioners,
particularly with the problematic nature of imposing enforceable rights. Whilst both embody
similar principles, significant differences between civil and political rights [CPR] and economic,
social and cultural rights [ESCR] exist, particularly since the latter contains progressive
achievements and may require a very different approach to its application. With the application
of particular rights, rights such as property rights or rights visible in tort law that involve
interpersonal relations are binding, however rights such as freedom of religion cannot be
binding as it is circumstantial and the enforcement through statute law could potentially
become detrimental to the remedies human rights attempts to proscribe [for instance, freedom
of speech vs. hate speech].
So a common law "freedom" is not really like a human rights type
claim. A common law "freedom" is built up as a general principle
appears to be established by individual cases. The single instances
come first; the "freedom" follows as a kind of title. In human rights,
the "right" comes first and the remedy (if one can be achieved)
follows.29
Common law thus ensured that through a case-by-case basis, the fundamental rights and
freedoms remain solid within the judicial system. In the Derbyshire County Council Case, the
House of Lords ensured that freedom of Speech remained protected by maintaining that
governmental authorities cannot sue for libel at common law30
, which was later applied in
Australia.31
Clarity of language through the use of unambiguous words that refrain from any
28 §3 Victorian Charter of Human Rights and Responsibilities Act 2006 29 Bailey P, “The Human Rights Enterprise in Australia and Internationally” (LexisNexis, 2009) [1.5.3]. 30 Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 549. 31 Ballina Shire Council v Ringland (1994) 33 NSWLR 680.
presumptuous intention rather than the necessary demonstration of actual intention remain
necessary in statutory law; in its absence, the courts to assume that the basic underlying
principle of the law is to protect individual rights. Only when the clarity of words used is
completely specific that to rescind it would be impossible.
The International Bill of Rights includes the United Nations Declaration of Human
Rights (1948), the International Covenant of Economic, Social and Cultural Rights (1966) and
its optional protocol, and the International Covenant on Civil and Political Rights (1966) and
its optional protocol. The UNDHR is a non-binding declaration following the atrocities of
World Wars I & II that recognises equal and inalienable rights of human beings and that the
disregard of human rights is the cause for the outrageous acts of violence.32
Incorporating civil and political rights as well as economic, social and cultural rights, the non-binding status led to the adoption of the two conventions in 1966 in order to pressure states to embrace human
rights into domestic law.33
The preamble in ICESCR states that it recognises rights derive from
the inherent dignity of the human person and therefore the right to work in just and
favourable conditions,34
the right to an adequate standard of living,35
and the right to
education36
are the groundwork reinforcing individual happiness. The ICCPR on the other
hand, while containing the same preamble contained in ICESCR has detailed rights such as the
right to life,37
right to liberty and security of person,38
and right to be treated equally before the
court or tribunal.39
At stages during the very beginning of drafting the conventions, a schism of views as to
whether or not the ICESCR and the ICCPR are mutually exclusive or mutually dependent
occurred and whether the two conventions should be treated as separate or remain as one
treaty.40
For instance, the assumption that equality and freedom are both mutually dependent
contained a paradox that exposed a mutually exclusive phenomenon; providing freedom may
result in inequality whilst providing equality may require the sacrifice of freedom.
“A strict and mechanical equal distribution between all individuals
does not sufficiently take into account the differences among
individuals and their situations… With simple equality, personal
freedoms are unacceptably limited and distinctive individual qualities
32 Preamble, United Nations Declaration of Human Rights. 33 Articles 1-21 United Nations Declaration of Human Rights covers much of the International Covenant of Economic, Social and Cultural Rights and Article 22-29 of the United Nations Declaration of Human Rights covers much of the International Covenant of Civil and Political Rights. 34 Article 6& 7 ICESCR 35 Article 11 ISECR 36 Article 13 ICECR 37 Article 6 ICCPR 38 Article 9 ICCPR 39 Article 14 ICCPR 40 The drafting of the conventions had been ongoing from 1947 and took 19 years before it was ratified. See the Memorandum by the Secretary-General on the Draft International Covenant on Human Rights and Measures of Implementation, 6th Sess, UN Doc A/C.3/559 (November 5, 1955).
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insufficiently regarded; in this manner they are in fact unequally
regarded.”41
Human rights are essentially the adoption of the latter under the auspices that sacrificing
some proportional freedoms will nevertheless provide greater individual or moral freedom
through social peace and order. The chair of the Human Rights Council in 1947, Eleanor
Roosevelt, influenced the decision to divide the conventions into two and provided four reasons
for this division.42
1. Time, in particular the time required to develop the economic and social
conditions as they are progressive obligations; 2. Legal differences as civil and political rights
can easily be enacted in appropriate legislation; 3. Methods of implementation, for instance
civil and political rights has a complaint procedure, whereas economic, social and cultural
rights required a reporting procedure; 4. Drafting, whereby a broad language in economic,
social and cultural rights required ambiguity to assist with the broad objectives and differences
in states.43
Thus, civil and political rights can be understood as an individual exercising their
right against the state while economic, social and cultural rights can be understood as rights
being implemented by the state for the individual. The latter is largely dependent on the
economic and social conditions of the state, whereas the former is applied no matter the
conditions.
The economic conditions of some countries made the ideal of economic, social and cultural rights impossible to implement, however it was accepted that both ICESCR and
ICCPR are binding and equally important.44
ICESCR requires adequate economic and social
conditions that can assist in the realisation of the broad rights present within the convention.
The preamble of ICESCR states that: “[T]he ideal of free human beings enjoying civil and
political freedom and freedom from fear and want can only be achieved if conditions are
created whereby everyone may enjoy his civil and political rights, as well as his economic,
social and cultural rights.”45
International law as a whole is dependent on international cooperation and together with the process and vast expansion of globalisation and
transnational corporations together with the massive poverty visible in the Global South,
ICESCR is increasingly confronting parliamentarians and other state actors who are expected
to focus on the equal distribution of wealth.
International law has vastly changed since the gestational period of human rights; this is
particularly due to the process of globalisation. Whilst globalisation is itself a contentious topic,
41 Gosepath, Stefan, "Equality", The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), Edward N. Zalta (ed.), URL =
<http://plato.stanford.edu/archives/spr2011/entries/equality/>. 42 Statement on Draft Covenant on Human Rights, Eleanor Roosevelt, 1951. http://www.udhr.org/history/biographies/bioer.htm - please note that the United States delegation voted in 1946 in the General Assembly against the inclusion of economic, social and cultural rights in the same covenant with civil and political rights. The USA has signed but not ratified the convention of ICESCR till this day. 43 Ibid. 44 Op. Cit., Statement on Draft Covenant on Human Rights 45 Preamble ICCPR; please note that ISECR has the same preamble.
the role of financial institutions and the growing inequalities exposed the necessity of urgently
rather than progressively applying ICESCR into the broad framework of human rights.46
This
is particularly the case with the illegalities for the most part relating to foreign debt.47
The
rights of workers and migrant labourers, asylum seekers and refugees, and the cultural crises
and destruction of heritage exposes how international cooperation vis-à-vis the application of
ICESCR is necessary for the protection of the rights set forth in the convention. “The ICESCR
does not mention territory or jurisdiction as delimiting criteria for the scope and application
for the treaty. Instead, it refers to international and transnational dimensions of the realisation
of esc rights.”48
Part IV of ICESCR shows that reporting on the measure of adoption and progress relating to the rights set out in ICESCR must be made to the Secretary-General of the United
Nations.49
This implies that while it is generally accepted that economic and social conditions
are significant for the implementation of economic, social and cultural rights into domestic
legislation and thus may take time, the progress and reporting of the status of implementation
demonstrates that the implementation of ICESCR is still required. It must be understood that
with suitable economic and social conditions and therefore economic, social and cultural rights,
civil and political rights will capture its actual form; protesting political conditions becomes
null and void without an education or adequate housing. While ICESCR is broad and complex
and certainly contains elements that require a different attitude and method of implementation,
ESCR are nevertheless co-dependent on civil and political rights and vice-versa.
Economic, social and cultural rights are positive, resource intensive, progressive and
vague while civil and political rights are negative, cost-free, immediate and precise.50
Although states sign and ratify the conventions, it essentially relies on the good faith of legislative
representatives when applying or codifying international law into domestic legislation. Whilst
the problem relating to the enforcement of international human rights law has often focused
on the arguments using a top-down formula [should the UN impose states to implement
IHRL], it would be appropriate to instead focus on the problem of good-will relating to
Australian legislatures, as the former is an argument at this stage too circular and unnecessary.
It has been argued that since Australia is in an advantageous position both economically
and socially, unlike other nation-states that continue to experience civil, political and economic
discord and therefore require a codified Human Rights system to protect the rights of its
citizens, Australia does not need one as the political and judicial system already protects the
rights of its citizens. Contrary to this, reliance on common law traditions does not in effect
46 See the Report on the Commission IV – Globalisation, Social, Economic and Cultural Rights, IADL, XVII Congress, June 8, 2009. 47 Ibid 48 Fons Coomans, “Application of the International Covenant on Economic, Social and Cultural Rights in the framework of International Organisations.” Max Planck Yearbook of United Nations Law, Vol 11: 2007, 359 - 390 49 Article 16 ICESCR 50 Dr. Daniel Warner, “An Ethics of Human Rights: Two Interrelated Misunderstandings,” Denver Journal of International Law and Policy, Spring 1996.
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absolutely ensure the protection of fundamental rights and therefore without legislative
protection can fail to safeguard human rights. In Gifford v Strang Patrick Stevedoring Pty Ltd
McHugh J stated that modern legislatures often enact laws that invalidate or alter common law
rights.51
In addition, comparisons with other nation-states may show that to a degree our
human rights record is certainly good, but it does not necessarily imply that there remains no
room for improvement.52
Judicial independence is necessary in a democratic and free society to ensure that the law
is governed and administered impartially. “Judicial independence does not exist to serve the
judiciary; nor to serve the interests of the other two branches of government. It exists to serve
and protect not the governors but the governed.”53
The Nuremburg Trials, more notably The United States of America vs. Josef Altstötter, et al., exposed the prospective abuse of the judicial
process for ideological and political motivations and the importance of judicial independence. It
was at this time that safeguarding human rights became paramount to avoid any repetition of
Nazi Germany and the atrocities of World War Two. This led to the Universal Declaration of Human Rights, the beginning of a global endeavour to uphold and enforce human rights both
domestically and internationally.
Does Australia Need A Bill Of Rights?
It is claimed that Australia does not need a bill of human rights as both the constitutional and
common law systems protects the rights of individuals. During the Federal Convention when
the Australian constitution was being drafted, key member R. O’conner QC proposed that the
constitution should include a bill of rights as was documented in the British constitution.54
This never came to pass as a bill of rights would conflict with legislation at the time that
discriminated against particularly the indigenous populations.55
While there were many
attempts over the course of the last century to amend the constitution so that it can include
specific rights, there contains explicit individual rights including the right to vote56
, prohibition
51 Gifford v Strang Patrick Stevedoring Pty Ltd. (2003) 198 ALR 100 52 For instance, the treatment of Refugees and Asylum Seekers; M61/2010E v Commonwealth of Australia & Ors; M69 of 2010 v
Commonwealth of Australia & Ors held that off-shore processing failed to observe the requirements of procedural fairness as set out in
the provisions of the Migration Act 1958 (CTH). Also see the “Review of the Power to Proscribe Organisations as Terrorist Organisations”
Submission of the Office of the High Commissioner for Refugees, 16th April 2007 relating to anti-terror legislation and proscribing terrorist
organisations. 53 Judicial Independence, The Australian Judicial Conference, University House, Australian National University, The Hon Sir Gerard Brennan, AC KBE, Chief Justice of Australia, 2 November 1996 54 A Bill of Rights for Australia - But do we need it? Date: 14 December 1997 Organisation: Queensland Chapter - Young Presidents Association 55 For instance, the White Australia Policy and Immigration Restriction Act of 1901 56 § 41 Commonwealth of Australia Constitution Act
of discrimination on the bases of State residency57
, right to a trial by jury58
, protection against
acquisition of property on unjust terms,59
and importantly freedom of religion.60
Additionally,
the language as expressed in the constitution can also infer freedom of speech particularly to
discuss political issues.61
Another important argument is that Australia’ common law system protects the rights of
individuals; however there has been some debate over its effectiveness. Initially, the
constitution did not specifically guarantee the protection of the rights and freedoms established
through common law procedures against any legislative challenges. “Although Commonwealth
statutes in Australia are made under a written constitution, the Constitution does not in terms
guarantee common law rights and freedoms against legislative incursion.”62
This was clearly visible with the recognition of Native Title in 1992, which through the judgement in Mabo vs Queensland (No 2) agreed [Dawson J dissenting] that there is an entitlement at common law
that recognises Native Title of the indigenous inhabitants.63
The case itself also presented the
purpose of common law as effectively being a system to promote human rights.
“According to the cases, the common law itself took from indigenous
inhabitants any right to occupy their traditional land, exposed them to
deprivation of the religious, cultural and economic sustenance which the
land provides, vested the land effectively in the control of the Imperial
authorities without any right to compensation and made the indigenous
inhabitants intruders in their own homes and mendicants for a place to
live. Judged by any civilized standard, such a law is unjust and its claim
to be part of the common law to be applied in contemporary Australia
must be questioned.”64
The relationship between the judicial, legislative and executive branches of governance has
always been problematic and an important discussion on safeguarding human rights also
includes the relationship between democracy and the law. Good governance and the rule of law
are considered to be the foundation to a society that upholds human rights, but the primary
component is democracy and the election of parliamentarians by the people. Whilst it would be
unfeasible for me to discuss the relationship of democracy, the rule of law and human rights
with the limited word count that I have in this essay, I will briefly discuss the issue of
unelected judges. The success of Australia’s common law system has been based on the
57 Ibid., §117 58 Ibid., §80 59 Ibid., §51 60 Ibid., §116 61 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. 62 Op. Cit., The Common Law and the Protection of Human Rights 63 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 64. 64 Ibid., 28.
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independence of the judicial system from politics and social policy and should statutory
legislation such as a Human Rights Act be implemented in Australia, would that position
judges as functioning social policy agents that consequently may cause tensions with judicial
independence?65
And if that were so, as unelected judges how can we resolve the problem
between democracy and the rule of law? This argument exposes important tensions between
the rule of law and democracy and concludes that enforcing a Bill of Rights in Australia
requires time and research.
In addition to the abovementioned, Australia also has other important safeguards to
human rights without a Bill of Rights, which include anti-discrimination laws66
together with the Human Rights Commission following the implementation of Australian Human Rights Commission Act 1986 that ensures the protection of individuals from discrimination in
Australia. Other issues relating to the problems implementing a bill of rights includes the
difficulties legislating civil and political rights. While I have already spoken of how a Bill of
Rights could actually limit rights earlier, I will express another issue not yet spoken of.
Universality is a philosophical doctrine that purports all significant ethical principles are
consistent between all individuals, no matter their geographical location, religion, sex or any
other arrangement that distinctly separates and/or collectively assembles communities or
beliefs. The ‘state of nature’ as discussed by philosophers such as Thomas Hobbes, John Locke,
and Jean-Jacques Rousseau among others suggests that innate human characteristics are the
same and that society or civilisation and religion or cultural systems are created structures that
promotes unity and therefore order. The application of both human rights and universality
thus encourages a paradox that includes both a positive and negative algorithm; a double-
standard of tolerance and rights as principles that must be categorically applied universally and
that appears to lack sensitivity to belief-systems. Cultural relativism exposes that the very
concept of universality fails to adhere to the model of tolerance and acceptance.
Nonetheless, the case for a Bill of Rights continues and the growing support of it over
the recent years is proving the case to implement human rights laws as strong. “There are still
areas in which the domestic legal system does not provide an effective remedy to persons
whose rights under the [International Covenant on Civil and Political Rights] have been
violated … [Australia] should take measures to give effect to all Covenant rights and
freedoms.”67
Whereas I spoke of earlier regarding the risk of judicial independence, another argument for a Bill of Rights state that it will overcome the limits of judicial power and ensure that the rights of individuals supersedes the power of the government and in effect
strengthening democracy.68
65 Op. Cit., The Common Law and the Protection of Human Rights 66 Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 1996 67 Concluding observations of the Human Rights Committee: Australia, UN Doc. CCPR/CO/69 AUS, 28 July 2000 68 Anthony Mason, “Human Rights: Interpretation, Declarations of Inconsistency and the Limits of Judicial Power” New Zealand Journal of Public and International Law Volume 9 Issue 1 (June 2011)
Conclusion
The principle of legality is multi-layered and faceted and involves an understanding of a
multitude of ambiguous issues, including human rights and the definition of fundamental
rights, philosophical problems such as how universality conflicts with fundamental freedoms
ingrained within the principle of legality, the position of unelected judges, the relationship
between the judicial, executive and parliament branches of governance, whether common law
procedures are not safeguarded from legislatures whom can simply create new laws that
distress any court made decisions among many more. However, it can be assumed that with
the human rights track record of Australia, judicial independence, economic and social
conditions that promote well-being together with our excellent common law system and the
principle of legality, codifying what is already a very complex subject may not be an absolute
requirement at this point in time.
It is well known that Australia is the only democratic State in the world that does not
have a Bill of Rights. The Human Rights and Responsibilities Charter 2006 is the first in
Australia’s history to be enacted and ensure that a culture of equality and rights are established
upon the principles of international human rights law. While many declare that human rights
in Australia already exists through parliamentary representatives and common law processes,
concerns relating to the reliability of good-will without codification of rights or other forms of
accountability may lead to an abuse of human rights.
The key word in the question for this essay is adequate; does the principle of legality
provide an adequate safeguard for human rights in Australia and essentially it does. But
whether adequate is enough raises the question of what more can be done to ensure that
Australia safeguards its human rights obligations. Issues such as off-shore processing and the
treatment of asylum seekers and refugees together with the treatment of the indigenous
population exposes that adequate may not enough. At the same time, the process for
safeguarding human rights requires time and progress – as is visible in the United Kingdom –
and it can be assumed that gradual progress is being made. Any bill of rights or human rights
act will need to be considered a “living document” whereby the courts will consistently
interpret on a case-by-case basis. The major issue was to ensure that legislators adapt bills that
are consistent with human rights norms as expected by international bodies, and with the
development of Human Rights (Parliamentary Scrutiny) Act 2011, the gradual process to
safeguarding human rights is certainly on its way.
15
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