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.