Writing a post about a Janet Albrechtsen column is almost certainly an advanced symptom of insanity, ranking just behind hairy palms and checking to see if you have them. Nevertheless, her effort in yesterday’s Oz about the alleged perils of an Australian charter of rights merits a response, if only because it appears to embody the current centrally mandated universal neocon talking point((along with “global warming stopped 10 years ago but the evil scientists are keeping it secret” ~ KP)), at least in the wake of the 2020 Summit’s expression of enthusiasm for moving towards a Victorian-style charter at federal level.
Albrechtsen claims that a legislative (i.e. not constitutionally entrenched) charter of rights would be a “post-democratic model” which would “vest power to decide major social issues in an unelected group of guardians of the greater good: the judiciary”.
However, Albrechtsen’s claim is hyperbolic to the point of being almost totally fictional. The very purpose of a legislative charter of rights is to ensure that Parliament remains responsible for law-making and that the courts are not empowered to override the clearly expressed will of Parliament. As with any other legislation, a law enacted after the charter of rights will always prevail provided that it unequivocally expresses an intention to abrogate any of the rights enshrined in the charter. It’s hardly revolutionary to insist that parliaments should be required to express themselves unambiguously if they wish to remove fundamental rights and freedoms; indeed far from being “post-democratic” this concept is a basic aspect of democratic accountability.
Moreover, it has been the prevailing approach to interpreting statutes since at least shortly after Federation. In Potter v Minahan in 1907 the High Court observed that it was “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”.
More recently, in Coco v The Queen in 1994 the Court explained that “curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights”.
However, Albrechtsen echoes American UQ academic James Allan in claiming that the Victorian charter’s provisions for “reading down” statutes to conform with charter rights and freedoms is a radical and dangerous extension of this longstanding principle of statutory interpetation. Allan refers to a couple of fairly “fast and loose” reading down exercises by the UK House of Lords in exercise of that country’s somewhat similar “reading down” provision in its Human Rights Act 1998 which “enabled a court to depart from the unambiguous meaning that a piece of legislation would otherwise bear”.
However, the Victorian Charter was drafted with the British experience in mind, and contains words directed at ensuring that no such result can occur here. The UK provision reads:
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.
The Victorian provision (section 32(1)) reads:
So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
The words in bold explicitly reproduce the obligation imposed on courts by the federal Acts Interpretation Act (and similar provisions in all states and territories) requiring judges always to ascertain and give effect to Parliament’s purpose when interpreting legislation. Thus, and in contrast to the UK provision, the Victorian charter is at most a modest incremental enhancement of human rights protection, adding not much to the long-accepted interpretive practices enunciated in cases like Potter v Minahan and Coco v The Queen.
Moreover, should some future Mason-style activist High Court bench nevertheless take indecent liberties with these provisions, it would always be open to Parliament to tighten them still further. Parliament remains the definitive creator of legal rights and duties under a Victorian-style charter of rights system. The charter is in no sense constitutionally entrenched and can be amended by Parliament just like any other law.
Despite that, Albrechtsen (again echoing James Allan) seeks to obscure that fact by claiming that another mechanism from the Victorian charter, the declaration of inconsistent interpretation, would in some dastardly manner rob Parliament of its will to disagree with the courts:
Relax, say the charter advocates. A charter of rights is a tame little law, a modest one which will not transfer power from the people. Just look at Britain, they say. Britain has a special provision in its Human Rights Act to ensure parliament is not stripped of power: that there is simply a dialogue between the judiciary and parliament. Courts in Britain can only issue a declaration of incompatibility, telling government that a law offends their Human Rights Act. On paper, thats right. Governments can ignore the courts. However, the political reality is different.
Only a brave government will ignore a declaration of inconsistency from a court.
But even if it was true that Parliament would seldom simply express disagreement with a court’s declaration of inconsistency, does that mean that Parliament is demonstrating a lack of intestinal fortitude and surrendering to the “imperialist judges”? Might it not be rather that the system would be working exactly as intended, with Parliament and judiciary effectively engaging in constructive dialogue to find ways of achieving legislative objectives without infringing fundamental human rights any more than absolutely necessary?
In fact we don’t need to look very far to find out how Britain’s analogous mechanism for a judicial “declaration of incompatibility” has been functioning. As its Parliamentary Joint Committee on Human Rights reports:
The Ministry of Justice reports that between the Human Rights Act coming into force on 2 October 2000 and 23 May 2007 a total of 24 declarations of incompatibility have been made by domestic courts under the Human Rights Act. Of these, 6 were overturned on appeal; 1 remains subject to appeal; 10 have been addressed by new primary legislation; 1 is being addressed by a Bill currently before Parliament; 1 was addressed by remedial order; leaving a total of 5 in which the Government is considering how to remedy the incompatibility.
In other words, there have only been just over 2 unreversed declarations for each year the UK charter has been in operation, and in most of those cases Parliament has proceeded to re-legislate to achieve its objectives in a non-rights infringing manner. Frightening takeover by an “imperialist judiciary”? Hardly.
There are arguments both for and against a charter of rights, and we certainly need to have a proper public debate before embracing such a model. However, Albrechtsen’s straw man hyperbolic nonsense makes little useful contribution to such a debate. Incidentally, my own view is that a charter would be neither a frightening imposition of an imperialist judiciary nor a magical solution to human rights protection. At most it would simply provide an additional fairly modest check and balance against overweening political power, an objective entirely consistent with ordinary notions of liberal democratic constitutionalism. The fact that people like Albrechtsen regard it as radical and anti-democratic says more about them than it does about a charter of rights.
Bob Carr takes a similar line. But why put your money on shutting the gate after the horse has bolted?
Well said, Ken. A constitutional bill of rights would be a whole other matter but a legislative Charter is about as frightening as a new born lamb.
Completely agree. A much more common-sense approach, which is doubtless why Albrechtsen can’t follow the logic.
I’d still love to know if that’s the same “James Allan” that greenswatch.com is apparently registered to (http://whois.ausregistry.com.au/whois/whois_local.jsp?tab=0 lists it as “Allan James”; greenswatch.com is an alias for greenswatch.id.au).
Actually, ignore that, a bit more poking around, and I’m now 99% certain that site is Andrew Landeryou’s.
Well, I broadly agree with the legal analysis, although I note that it assumes no major changes in Australian jurisprudence. I don’t see one in the next decade, but who knows?
More seriously, let’s consider the Victorian one:
Does this add anything to our legal system?
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Ditto. This one is so qualified as to be essentially meaningless. What does a right to life that only applies to certain classes of humans say about us a society?
Fine. Oh wait, isn’t there a Crimes Act in each state? And even a Crimes (Torture) Act 1988 (Cth)? So what does this add?
Pretty sure this one is covered also, by doctrines of duress and unconscionability in contract if nothing else. But I can go along with this one.
I reckon that if they were put to it, the High Court could find this one in the Constitution, albeit it might be somewhat limited. And really this is only taking the existing strong negative right and supplementing it with a weak positive right. Generally, I think that is a bad supplement which dilutes the strong (and usually essential) negative right. In this particular case, I am happy with this one.
Bad right. Subject to ridiculous misuse where it means anything. The latter is covered by defamation, the former is perhaps a useful rule for Government departments. I think the privacy part is worth keeping for that reason.
Not applicable in Victoria, as demonstrated. Already partly a federal constitutional right. Shouldn’t add anyhign to the next one. Only use is to protect Scientologists. Scrap.
Fine. Already exists to some degree in federal Constitution, however.
Ditto, even more so.
Not practically worth anything.
Means governments have to translate documents. Ditto.
Bad rights. Scrap.
WTF? Adds nothing, especially at Federal level.
Potential to be useful, probably won’t be. Keep anyway.
Keep, subject to no major changes in Australian jurisprudence.
I believe this basically reproduces the relevant parts of the Children’s Court Act or whatever it is called.
Adds nothing. Scrap.
Maybe a criminal lawyer can set me straight but my understanding was that this added nothing.
Already exists.
In practice extremely rare anyway. This wouldn’t override them anyway in the manner in which they tend to be drafted.
So, whilst I am being harsh above, I would say that there are five which are worth adding. Out of 27!!
Now, one can fairly make the point that to the extent that most of these exist already to some degree, why not make a single list of them? That is a strong argument – if something is already there and you aren’t complaining, it can’t be that bad.
I would respond that the legal process of centralising and formalising the list can give it a status and force that it didn’t have. Whilst this can be useful, there is a second point, which combines with the first: the temptation to add ‘p ‘bad’ rights such as the reputation part of 13 and, especially, 19.
So whilst despite the tone of the above, I don’t have a very strong objection to some such exercise, I am not convinced that Albrechtson’s points are all bad either. I am sure, for example, that a Mason court with one of these might have given us a completely different idea of these. And who is to stop Australia having a Warren court? Or something like the House of Lords that decided Factortame? Or a LaForest court? Or a Lord Cairns court?
Wow – that’s every single one of our legal neighbours!!
What’s so objectionable about this (cultural rights):
However this seems a bit redundant, since it’s covered by (1):
As for this:
At most, it says that in common with a lot of other societies (both present and historical) ours has recognised that there are some areas in life where it’s undesirable to attempt to enforce moral codes of behaviour through the legal system – that there are some decisions, albeit difficult ones, which are best left to individuals. The little recognised alternative in the debate you are coat-trailing is to compel people to make bad moral choices in the name of upholding faulty moral principles.
which is no reason for keeping it.
As for the former, an honest answer would be that I just don’t like positive rights. ‘But’, I also don’t see the point of it. Either it does something I don’t like or it has no real effect!
Patrick, isn’t the point of the Bill of Rights to encode existing laws, so then when there is talk of changing those laws, somebody can wave the Bill of Rights around and say “you can’t do that”? At least, that’s how the Constitution (and its various Amendments) seems to get used in the U.S.
Well, if you mean that ‘the Constitution (and its various Amendments) … get used in the U.S’ as something to be waved around in order to found a claim of you cant do that, broadly, yes. Although in the US if the court upholds the claim then you really can’t, which is not proposed here.
But the US Bill of Rights was certainly not encoding existing laws, it was founding rights.
And the point of those laws already existing is that they can already be waved around in the manner you speak of. But the problem with lumping them all together is that they come to mean something else – because in our legal tradition it does matter, a lot, that things are written, where things are written and in what company.
Legal philosophers call it ‘reification’ and wank on an awful lot about it, but in short writing a statutory rule is a big change from simply passing down a common law rule; and written rules must always be interpreted in context, ie, in the context of what is written next to them and the reason why those things were written a) at all and b) next to one another.
So even a bill of rights that was no more than a centralisation of existing doctrines could, and probably would, be a significant change in legal practice.
Well unfortunately we can’t go back in time and create a Bill of Rights that represents “founding rights” without the baggage of a century’s worth of Australian parliamentary law (and several more century’s worth of Common Law), but there doesn’t seem to be much harm in having a Bill of Rights that does “centralise” and re-inforce existing laws. Is it interesting that it seems to be the right-wingers objecting to the idea here, when the U.S. concept is very much about ensuring that individuals are protected from over-reaching government power, surely something that right-wingers would agree is a good thing.
Having said that, the complete failure in the U.S. of the Bill of Rights to prevent things like the Patriot Act etc. seems to indicate that it’s not exactly doing its job particularly well. Plus of course, it’s arguably remained the biggest obstacle to the U.S. reigning in its gun culture.
NPOV, there is nothing preventing us. The US also had a few centuries of established common law to deal with. The issue is that if we are not creating new rights why bother?
Because the US bill of rights is substantially one of negative (ie real) rights. It is interesting to note that the one you cite as the most problematic is problematic largely because it is a positively expressed right. A further, and apt, illustration is that they have intrepreted their right to religious freedom positively, with much rancour and unhappiness as a result, whilst we have interpreted an almost identical right to religious freedom negatively, and accordingly you probably didn’t even know we had one.
I would be lergely in favour of creating new real rights, such as the right to life; where it only so! I agreed with the right to freedom of expression, also, and to privacy (with some qualms).
Negative rights are indeed about protection from government. Inherent in positive rights is not protection from government but exposure to government.
Also, finally, there is a difference between conservatives here and in the US – in short, we are conserving different things! There is also a difference between libertarians and conservatives. Edmund Burke would have rolled in his grave to see the Human Rights Act in the UK! In fact Mill probably would have too given what a crock it is, but hopefully the point is clear enough even with such a bad example.
Well, I don’t personally accept that the distinction between positive and negative rights is as clear as some like to make out – and further, it’s very easy to be dismissive of positive rights when you’ve never personally been in a position where you had a real need for them. What’s the use of the right to freedom of expression if your situation is so dire that you can’t even afford to eat?
“Negative rights” per se may have originated as a form of “protection from government”, but most of the time they are violated is it surely by other individuals, not by government (when was the last time the government intentionally robbed anyone of their right to life in Australia?), and its been the government that has stepped in to penalize those responsible.
I don’t see that as significantly different to the government stepping in to ensure that individuals have the right to adequate food and shelter etc.
Gummo asks what wrong with this:
“(1) All persons with a particular cultural, religious, racial or linguistic
background must not be denied the right, in community with other persons of
that background, to enjoy his or her culture, to declare and practise his or
her religion and to use his or her language.”
Not all cultural practices are worth preserving, Gummo. Child sacrifice and slavery are two that come readily to mind. As to indigenous Australians, old men taking 13 year old brides and inter-tribal warfare for the purpose of abducting women aren’t worth preserving either IMHO. Ditto for payback.
mel,
Name me one modern religion that practises child sacrifice – just one. Ditto child slavery.
Have to agree on the indigenous Australians though – those recent Northland woman abduction and payback riots got pretty nasty, though you won’t have heard much about it from the mainstream media. Talk about your cover-ups – if I hadn’t bumped into someone who was in the know at the local fish & chippie, I would never have heard about it.
Mel and Gummo, note that it is already a crime to remove someone from Victoria so as to carry out a female genital mutilation.
Gummow, that is facetious and overlooks a genuine point. Payback has already been argued for, and excused, in the name of cultural practice (in the NT). Why shouldn’t it happen again? Surely an express right makes it even more likely?
NPOV, the quintessence of a ‘right’ is that it is ‘opposable’. That is, you can take your right to free expression and oppose a law or action on the grounds that it infringes your right. Against whom, and what laws or actions, might one usefully found one’s opposition in a right to eat? Sue the government to feed you?
I think that positive ‘rights’ are political and cultural issues. They are the proper domain of policy and government. I think that real rights should be just that: rights. They restrict and define the proper domain of policy and government.
The danger with this kind of bill is both that it gives positive rights a greater status than they ought have by establishing them as quasi-boundaries of policy and government action (broadly, Albrechtson’s point) and more importantly from my view, that it dilutes real rights into mere quasi-boundaries. ie, at the same time as a ‘real’ right might be more easily overriden because instead of being a traditional doctrine it is now expressly stated to be an overridable ‘quasi-right’, it also has to be weighed up against a non sequitur such as ‘the right[sic] to eat’ or ‘the right to cultural expression’.
I don’t think the right to freedom of expression should be weighed up against the ‘right’ to cultural anything, to be honest.
Surely the “right to eat” is very much a useful protection against government excess: if the government legally and fairly arrests and places you in jail, they’ve violated no rights, but if they then fail to feed you adequately, they have fairly clearly overstepped the boundaries of acceptable behaviour. Indeed, in general I would argue that a government that failed to give prisoners the best possible chance of rehabilitation and resuming a normal life after imprisonment is neglecting its duties, and acting in violation of basic human rights. This is true even for convicted multiple murderers, if for no other reason than because there is always the possibility that a prisoner has been falsely convicted.
I certainly agree that the primary purpose of a Bill of Rights should be protection against oppressive government, and it’s fair enough to be concerned about one or two or the proposed entries in such a bill, but I can’t see the justification for the sort of general negativity against the idea that some have expressed.
But that example highlights the irrelevancy of the right to eat – what is complained of is not really ‘breach of a right to eat’, but torture, or a breach of a duty of care, or so on.
And whilst I kinda loosely agree on the broader point of criminal treatment, I can only repeat my comments above about the the difference between being in the domain of political and government action and defining that domain.
“Right to eat” is subset of duty of care, sure, but torture is a fairly strong term where there is obvious intent to inflict pain upon someone for the purposes of punishment or gaining information. But if a government-run (or indeed privately-run) gaol is failing to feed its prisoners a diet that keeps them healthy, then I don’t see any reason why the avenue of suing whoever is responsible for violating a ‘right to eat’ shouldn’t be available. Likewise, if a future government ever decided to universally strip away welfare entitlements, leaving people in a situation where they could no longer access food, then sure, we should be able to sue the government for violating their right to eat, by failing to provide for them when they were clearly capable of doing so.
Of course, in practice all this should mean is that no future government would ever consider stripping away welfare entitlements in a manner that could potentially lead to hunger or malnutrition, because they are knowingly breaching a previously agreed on Bill of Rights that defines what the nation considers an acceptable set of parameters by which human beings treat each other.
I’m curious as to what difference you think the bill of rights would make in the latter example.
There are lots of technical legal/jurisprudential reasons why a charter might be problematic (ie not necessarily undesirable, but problematic). These reasons, though uncool and unglamorous, will have big impacts on the application of any Charter rights in Australia just as they have had in the UK, Europe, etc.
For example it’s amazing no-one has mentioned the problematic doctrine of proportionality in the context of this discussion. An almost inevitable result of introducing a Charter, it does not seem to fit very well in a common law system (viz, UK, Canada).
My point: leaving aside the political concerns (too much power to judges! too much power to parliament! we can’t trust judges! we can’t trust parliament!) there are an array of other concerns, not to be ignored.
I haven’t explicitly mentioned it, but this was an allusion to it:
.
That said, I don’t think proportionality is hard to fit into a common law system. What I think is undesirable is mixing up things in the calculus of proportionality, as the above quotes hopefully point out.
Albeit I would happily accept any charter of rights drafted (or at least reviewed and endorsed) by:
Murray Gleeson;
Michael McHugh;
William Gummow;
Geoffrey Nettle;
Tom Bathurst;
Brett Walker;
John Roberts (US);
Robert Goff (UK);
Peter Millet (UK); and
Beverley McLachlin (CAN).
:)
#15 “Name me one modern religion that practises child sacrifice – just one. Ditto child slavery.”
Slavery – Islam. See Sudan and Mauritania, also Saudi Arabia (which also adds weight to the oft repeated argument athat Islam is often a great vehicle for Arab supremacism.). See recent cases in the U.S. e.g Saudi national Homaidan Al-Turki imprisoned for sexually assautling his maid and keeping her a virtual prisoner. Al-Turki stated: “The state has criminalized these basic Muslim behaviors. Attacking traditional Muslim behaviors was the focal point of the prosecution” whereas his his defense tried to argue “cultural differences”. See Suras 2:178, 2:221, 4:92, 5:89, and many more. This is why too, there has never been an anti-abolitionist movement from within Islam.
A different form of slavery, recently highlighted in Yemen. The reason why marrying off 8-10 year old girls is prevalent in Yemen and why the Yemeni government won’t oppose this practice on Islamic principles is because it’s what Mohammed did (Aisha). More recent reports confirm that the girl’s marriage was ‘terminated’ by virtue of the payment of ‘compensation’. There are plenty of Muslim feminists who oppose such barbarity, but despite all the publicity of this recent case, they are not getting much concrete support from the wider Muslim community especially male leaders and statesmen.
The case of the FLDS sect at the YFZ ranch currently all over the U.S. press is a sordid mix of children being forced into marriages while under the age of consent, as well as other state/religion issues concerning polygamy etc
Child sacrifice – well it still goes on in say, parts of India
as part of religious rituals.
Or are you going to say that none of these are not “modern” religions? Or that somehow good ol multi cult Australia is immune?
It’s interesting how Gummo’s normally quite accurate bullshit-piercing appears to be just so much auto-pilot fluff on this topic.
I’m afraid the ‘prisoners eating’ example is also covered by present legislation and international treaties.
However, property rights might make a significant change at the federal level. You may have noticed that the Government only resumed land in NT, not in other areas, from indigenous communities. It may have been because child abuse stopped at the border, or it could have been that the right to resume land in a State, as opposed to a territory, is accompanied by the right to just compensation for the former landholder.
I think I agree with the general point that a Bill of rights that recapitulates existing rights is useless, or will be used for unintended purposes and I haven’t actually seen anything that adds to our freedoms or protections arising out of the discussion.
2 tanners, it might be covered by present legislation – but often it’s legislation that can be overturned by nothing more than a majority parliamentary vote. The point of a Bill of Rights is that it embodies rules that can’t just be changed because a different political party is in power.
“I think I agree with the general point that a Bill of rights that recapitulates existing rights is useless”
WTF? You know what a constitution is, right?
Whatever “rights” we may have under existing legislation, they are just that – subject to the law. A bill of rights would reverse this relationship. Whether you like this idea or not, it’s pretty frickin’ different to what we’ve got.
oops, crossed.
NPOV, I share your POV.
Well, FDB, that is part of the controversy. There is, on one hand, no suggestion that we get a bill of rights that overrides parliament. So nothing in it has more than moral force beyond the force of ordinary law. And a very great deal of it, including most of the useful or desirable bits of it, are in existing law.
So on that view this won’t change anything.
The other view accepts that position as a given but claims that they will gain greater force simply by the manner in which they, and other legislation as a result of that, will be intrepreted, contextually, by the courts. So that in fact it is a pretty big change, particularly in terms of the weight and significance it accords some pretty damn dodgy ideas of rights.
But I don’t think anyone seriously thinks we are changing the constitution, except perhaps a tiny bit at the margin. Whilst you and NPOV might be right about ‘the point’, that has precious little to do with the practice as far as I would guess!
None of the statists has been able to argue why we need a Bill of Rights. I am sorry, but the argument “everyone else has got one” doesn’t wash.
The core argument for the anti-BOR nutters is that it is impossible for a democratically elected govt to act illegally, their real concern is less with legislation being overruled than with any challenge to executive authority. We have seen plenty of this under Bush and Howard.
Greenfield, a Bill of Rights exists precisely to restrict the powers and scope of the state. Why would “statists” be promoting it?
Hey, twins!
NPOV, the judiciciary is part of the state.
So you’re a statist if you want to see some additional responsibility given to the judiciary in exchange for substantial restriction of the potential power of parliament?