Australia's Human Rights Scrutiny Regime

Democratic Masterstroke or Mere Window Dressing?

Adam Fletcher

• Publisher: MUP Academic Digital
• Year: 2018
• Print ISBN:
  9780522874112
• eBook ISBN:
  9780522874129
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

In 2010 the Australian Government decided that it would not propose a Human Rights Act, despite the relevant recommendation of the 2008-09 National Human Rights Consultation. Instead, it introduced a Human Rights Framework comprising several measures to enhance human rights protection, including the Human Rights (Parliamentary Scrutiny) Act 2011. The scrutiny regime under that Act was designed to ensure rights would be given due consideration before Commonwealth legislation was passed. The Act created a unique 'bipartite dialogue' system, involving a formal interchange on rights compatibility between the executive and Parliament, while excluding the courts. This set the Commonwealth apart from jurisdictions such as the ACT, Victoria, New Zealand and the UK, which have statutory rights instruments administered by their courts. The book presents a detailed study of all aspects of the scrutiny regime, and compares the regime with its closest counterparts overseas. In assessing the regime's impact, it argues that a system in which the executive and Parliament are responsible both for protecting rights and for remedying rights breaches is neither more legitimate nor more effective than one involving all three branches of government. Accordingly, it calls for strengthening reforms.

CHAPTER 1

Rights protection in Australia: overview and history

The present system of protection for human rights in Australia has been aptly described as an ‘intricate patchwork of international, Commonwealth and state laws and institutional arrangements’.¹ This chapter traces the development of this patchwork to explain why Australia does not have a more cohesive, comprehensive rights protection system.

Australia’s ‘reluctance about rights’, which has been identified by authors such as Hilary Charlesworth,² is deep-seated and has its origins in the legal philosophies of the lawyers of the colonies, many of whom later became the architects of Federation. Their belief in the superiority of Parliament, over and above other governmental institutions, helps to explain some of the major differences between Australia’s system for protecting rights and those of most like-minded countries.³ An understanding of the historical precedents will assist in the explication, in later chapters of this book, of the present system of rights protection.

Early history of institutional rights protection—the Constitution of the Commonwealth of Australia

Throughout the 1890s, the drafters of the Commonwealth Constitution held conventions to discuss the content of the document upon which Australian federation would be founded. With few exceptions, the drafters were reluctant to include civil rights protections.⁴ The High Court has since observed that this was no accident:

The adoption by the framers of the Constitution of the principle of responsible government was perhaps the major reason for their disinclination to incorporate in the Constitution comprehensive guarantees of individual rights … The framers of the Constitution accepted, in accordance with prevailing English thinking, that the citizen’s rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy.

So it was that Professor Harrison Moore, writing in 1901, was able to say of the Constitution:

The great underlying principle is that the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power.⁵

Nevertheless, thanks largely to the influence of the Tasmanian Attorney-General, Andrew Inglis Clark, limited protections of rights relating to jury trials, political participation and religion were included.⁶ Clark, a noted admirer of the United States Constitution and friend of prominent American jurist Oliver Wendell Holmes Jr, also pressed for guarantees of due process and equal protection under the law.⁷ However, these were voted down because of concerns about, for example, state laws concerning differential taxation and concessions to non-white labourers.⁸

It should be noted that the guarantees which were included were limits on Commonwealth Government powers, rather than those of the state governments which were represented at the Constitutional Conventions.⁹ In fact, preservation of the plenary legislative powers of the states was a primary concern for many of those attending the Conventions. It doubtless played a role in weakening, for example, s 117, which deals with discrimination between residents of different states, but was originally conceived as a guarantee of equal protection under the law akin to that in the Fourteenth Amendment to the US Constitution.¹⁰ The drafters, Charlesworth observes:

… noted the deep racial inequality in American society, which the fourteenth amendment had been designed to ameliorate, but they were unable to recognise as such any parallel features in their own. The grossly oppressed position of the Australian Aborigines, for example, was simply never adverted to in any of the constitutional debates.¹¹

Although Clark’s contributions to the drafting process were inspired by the US Constitution, he did not attempt to insert guarantees which now seem fundamental in the US, for example freedom of speech and of the press, protection for peaceful assembly and petition for grievances, or the fair trial guarantees of the Sixth and Eighth Amendments. Charlesworth suggests that ‘[t]he modesty of Clark’s proposals may have been due to the fact that many of the protections granted to civil rights and liberties in the American Constitution had not been invoked by the early 1890s … and did not appear as basic then as they do now’.¹²

Apart from faith in representative government and parliamentary sovereignty, it has been suggested that the modesty of the included rights protections reflect the fact that the drafters:

… had no recent memory of a bitter struggle against tyrannical devices to make them determined to erect permanent protections against their use again.

Like anyone else within the English tradition, they must have felt that the protections to individual rights provided by the traditions of acting as honourable men were quite sufficient for a civilised society.¹³

If there had been any wariness of potential tyranny in the British mindset, it was firmly focused on the Crown rather than the Parliament.¹⁴ In fact, the Legislature was seen as the bulwark protecting the rights of citizens against executive overreach, and reinforcing its representative nature was a higher priority than restricting its powers.¹⁵

At least two further explanations have been proposed for this reluctance about rights. Charlesworth posits:

A deeper reason for the resistance of the drafters of the Constitution to the inclusion of individual rights is that the Australian attachment to the ideology of utilitarianism made the idea of natural rights appear alien. If the aim of political society is simply to achieve the greatest happiness of the greatest number, the institutional means of securing it (for example through representation) become the focus of political discussion.¹⁶

The strong tradition of Diceyan legal philosophy in Australian law also contributed to the desire to limit the scope of judicial power which may be inferred from the omission of a Bill of Rights.¹⁷ AV Dicey preferred what he saw as concrete common law remedies to the grand pronouncements of rights found in many European constitutions. He saw little merit in judicial review of parliamentary action, which he warned could lead to weak, conservative government and a surfeit of legalism.¹⁸ Dicey’s strong emphasis on parliamentary sovereignty has been criticised by former High Court Justice Michael Kirby, who contends that it can diminish fundamental rights, and that Australian sovereignty properly belongs to the people as the ‘electors’¹⁹ of the Constitution.²⁰

Similarly, James Bryce’s The American Commonwealth was an important source of information on the US Constitution and federalism for the Australian drafters.²¹ Like his Oxford colleague Dicey, Bryce saw the Bill of Rights as an outmoded supplement to the US Constitution. Indeed, there had been very few cases which had found violations of the Bill of Rights at the time, and it was not nearly as important as it is today.²² Bryce preferred the relative flexibility of British constitutional arrangements.²³

The arrangements for constitutional protection for human rights in Australia have remained largely unchanged since 1901, apart from some innovations in judicial interpretation outlined later in this chapter.²⁴

Rights protection under the Commonwealth Constitution

Express constitutional rights

The express rights protections included in the Commonwealth Constitution a...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• Abbreviations
• Preface
• Introduction
• 1. Rights protection in Australia: overview and history
• 2. Australia’s Human Rights Framework: a unique rights protection system
• 3. Statements of Compatibility with human rights
• 4. Joint Committee on Human Rights: the first four years
• 5. The impact of the human rights scrutiny regime
• Conclusion
• Appendix 1: Commonwealth Statements of Compatibility with Human Rights 2012–2015
• Appendix 2: Ministerial Reponses to Joint Committee on Human Rights Queries 2012–2015
• Bibliography
• Index