Cutting through the bill of rights hyperbole

Like Canadian UQ legal academic James Allan, former NSW Premier Bob Carr is a vehement long-term opponent of a bill or charter of rights for Australia (or any  State). A post on Carr’s blog only last week confirms that his attitude has not mellowed:

More judge-made law a fine thing for Australia? Endless litigation over the meaning of rights?  The prospect of Australia being saddled with a charter of rights is continuing to recede, with Tasmania today announcing such a document is now off the agenda because of budgetary restraints.

The government has other reform priorities, according to Attorney General and former Premier, David Bartlet.

These attitudes are quite strange when you actually compare this rhetoric with the modest reality of the existing charters of rights in Victoria and the ACT, not to mention that Carr is an unabashed fan of just about everything else American. I used to be a moderate bill of rights skeptic myself, but more recently I’ve become a cautious supporter partly because of cases like that of Haneef and the continuing saga of abuses of migration detention in Australia.  Last year I even lodged a submission to the federal Human Rights Consultation chaired by Father Frank Brennan,  in conjunction with Colin McDonald QC and frequent Troppo commenter Patrick.  We advocated a very conservative bill of rights enacted by ordinary federal legislation and merely extending existing Commonwealth Constitution rights to bind the States (where possible); and adding a general guarantee of due process and equal protection like the US Fifth and Fourteenth Amendments. We also advocated provisions against slavery, torture and capital punishment, which I doubt even Bob Carr would regard as dangerously liberal.  However we strongly argued that broader social, economic and group rights should not under any circumstances be included.

The practical reality of Victoria’s Charter of Human Rights and Responsibilities is well described in a 2009 article by Labor lawyer and MLC Brian Tee.  It’s subscription only but here’s a substantial extract:

When the charter was introduced it was criticized as being a “lawyers picnic” that would increase litigation, transfer power to an unelected judiciary and provide a legal shield that protects scoundrels, rogues and criminals from justice.

Two years later the scaremongering, which continues in some quarters, has proved to be without foundation. …

The charter acts as a restraint on the power of the executive by bringing human rights to the fore of the decision making process. Government departments and agencies,local governments, police, prisons, mental institutions all have to act in a manner which is consistent with the human rights of a citizen.

Parliament is required to consider and report on the human rights implications of legislation that it is considering; courts have to interpret legislation in a way that is compatible with the human rights charter.Where legislation cannot be interpreted in a way consistent with human rights the legislation is referred to the Victorian Parliament. The democratically elected Parliament then decides whether to keep or amend the offending legislation.

To date only 55 court cases have raised charter issues. Of those cases the Attorney General has intervened in 16 cases where significant human rights questions where raised. In six of the cases where the attorney intervened, the charter arguments were withdrawn or abandoned after submissions were filed. While four proceedings are currently on foot thus far no legislation has been held by the courts to be incompatible with the human rights charter.

Also see this article by Adam McBeth. In fact only a single declaration of incompatibility has to date been made by a Victorian court, and that was last year by the Court of Appeal in R v Momcilovic. That case is currently reserved on appeal before the High Court, a fact which has led the Murdoch media to drag out the predictable oppositional mantra that the Charter will “provide a legal shield that protects scoundrels, rogues and criminals”.  In fact, it appears from my reading of the appeal particulars and transcript of argument that there IS a real chance that the case may result in many hundreds of drug trafficking convictions being overturned throughout Australia, but that will likely have nothing whatever to do with Victoria’s Charter of Rights.  However I’ll  consider the Momcilovic case in a separate post, because it raises numerous fascinating legal and constitutional issues worth discussing in themselves.

The general reality of bills or charters of rights simply doesn’t match the hyperbole of either strong supporters or opponents.  A conservative, carefully drafted legislated model would not result in an avalanche of litigation, nor transfer power to “unelected judges” nor provide a haven for criminals.  Nor is it a magical protection for human rights or even a critically important measure in my view. It would simply be a modest incremental improvement to the existing strong array of cultural, institutional and legal checks and balances which make Australia such a free, fair, prosperous and democratic society.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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15 Responses to Cutting through the bill of rights hyperbole

  1. Patrick says:

    I think the interesting part of Momcilovic is the detailed trawling through Parliamentary debates – I could be wrong but I would have guessed that the prevailing mood, at least in Federal Courts, was for a vastly reduced reliance on EMs and other Parliamentary material in favour of the actual statutory words and context.

    Maybe it is different where it is a completely new piece of legislation so the only real context is the Parliamentary debates and documents?

  2. James Farrell says:

    It sound like a good idae. But it has always seemed a little paradoxical that whereas the Americans have a Bill of Rights, we still see things like Bush’s military tribunals, torture and electronic surveilance, and under Obama the Bradley Manning outrage. Australia, with no Bill, is largely free of such abuses. Also our government was free to ban guns (though I assume your submisson didn’t include the right to bear arms).

  3. Alan says:

    It’s unfortunate that people look automatically at the US Bill of Rights rather than contemporary documents like the Universal Declaration of Human Rights or the International Covenants. The US bill was not a bad start, apart from ignoring slavery, but it is 200 years old and seriously showing its age. Moreover US law has developed an obsessive doctrine of deference to the Executive that allowed Bush to get away with many things that a contemporary charter of rights would not.

  4. Ken Parish says:

    “Moreover US law has developed an obsessive doctrine of deference to the Executive that allowed Bush to get away with many things that a contemporary charter of rights would not.”

    Yes, but that doesn’t flow from the terms of any of the rights guarantees, so we wouldn’t be importing it by adopting a legislated bill of rights binding the States.

    Essentially what we submitted to the Brennan consultation was that just about the full range of ICCPR covenants (but with speech limited to the current implied political speech doctrine) should be applied to the States by ordinary legislation but with none of the ICESCR rights (social, economic or group rights). Spelling out due process and equal protection in greater detail as ICCPR does would of itself go a long way towards preventing some of the Bush abuses, not that they have actually occurred here to any significant extent, as James Farrell observes. That’s partly why I observed that we already had a pretty respectable range of cultural, institutional and legal protections, and that a bill of rights wouldn’t magically increase the scope of that protection.

  5. Jacques Chester says:

    The ICCPR is a useful statement of the rights that are mostly agreed on. The ICESCR is a leftie’s shopping list, you’d never get it up.

  6. Nicholas Gruen says:

    I’m glad you mention “slavery and torture”. I’m an opponent of capital punishment, but not sure it should be enshrined as a right – as opposed to debated in the normal way.

    In any event, the point of this comment is to say that one of the things a BoR should do is to put sand in the wheels by which we could slide towards tyranny. It seems a long way off in Oz, and I think it is, but there’s no reason for not trying to put obstacles in the way in case a day comes when things get nasty.

    This was one of my objectives when I persuaded John Button, back in Opposition in 1981, to present a private member’s bill I’d drafted up with Harry Evans and (from memory) based on a bill initially drafted by Latham (the Latham who went onto the High Court) to subject convictions of contempt of Parliament to due process. (On checking on Wikipedia it seems to me that the bill couldn’t have been drafted by Latham, who was last in Parliament in the 30s. I thought the bill I dug up had been written in the 1950s – anyway I digress).

    The members were not impressed, and it didn’t get very far. In fact as I recall, Button got much less enthusiastic about it after his peers asked why the hell you’d want to pass a bill like that.

  7. Ken Parish says:

    Just dealing with Alan’s point at #3 in a little more detail, I mentioned the 5th and 14th Amendments in the primary post just as shorthand. In fact our submission to the Brennan Consultation relevantly argued:

    Although the due process provisions of the ICCPR, which we propose should be enshrined in Australia’s national bill of rights, are broader than the British/Australian common law concept of natural justice, we employ both terms throughout this submission to emphasise the fact that the processes involved are overwhelmingly familiar ones long protected by the common law. …

    We propose that all the ICCPR provisions relevant to due process or natural justice should be enacted in a national bill of rights.

    (footnote) Articles 9 (arrest or detention), 10 (separate imprisonment of accused persons and juveniles), 11 (prohibition on imprisonment for inability to fulfill a contractual obligation), 13 (right of aliens to reasons for expulsion and judicial or other review), 14 (equal protection; fair and open hearing; presumption of innocence; procedural fairness; double jeopardy) and 15 (prohibition on retrospective criminal laws).

  8. Patrick says:

    Your point, James Farrell, is not paradoxical at all, it is simply illustrative of the fact that formal rights are of only narrow application – they define the legitimate scope for democratic debate.

    This is why no-one of sound mind should ever endorse economic and social ‘rights’, since these are the very heart of legitimate democratic debate. This is why KP wanted a minimalist bill of rights that largely built on what we already had but formalised and entrenched that.

    South Africa, much to George bloody William’s delight, constitutionally protects more rights than I ever knew existed, including the right to life (helpfully), the right to join a union and to strike, as well as the rights for that union to organise as it pleases, and to a protected environment, and to property unless the government wants to take your well-managed business and give it to underskilled buddies of appropriate colour, and adequate housing, and health care, and food, and social security, and a job, and a couple of wives, and healthy kids, and the benediction of the gods, to boot.

    But I can’t think of any single thing that South Africa’s Constitution protects that is, in fact, better enjoyed in South Africa than Australia, or America, or even pre-EU Britain.

    This has two aspects. One, whilst life without the most fundamental rights might well be not worth living, in almost every case, every time, social, cultural and economic ‘rights’ are best satisfied by wealth. Two, historically, countries have found that they got richest (and thus enjoyed the best social, cultural and economic welfare) by NOT protecting social cultural and economic rights but by leaving these to democratic consensus.

  9. Mike Pepperday says:

    Patrick – surely you have only confirmed James’s paradox – though I otherwise agree with you.

    The US bill tends to be about negative rights, not positive social ones but it often fails, e.g., with Bradley Manning and Guantanamo. Do we say it is ineffective or would things be worse without it? The Swiss constitution has lots of rights, also I think mainly negative, which seem to work all right. Culture? Genuine democratic institutions?

    Fifteen years ago I wrote an essay about the Canadian Charter and concluded that I didn’t care for it. Since then we have seen several pushes here by the left-inclined to legislate a bill of rights. They know, from those four failed referendum questions in the late 80s (and as Jacques points out), that the people do not endorse their proposals. This supports Malcolm Turnbull’s claim on Q&A the other night: the Liberals would have you free to do as you think fit; Labor would tell you what to do. Can democracy be compulsory?

    Nicholas – it is a legitimate question as to whether such legislation does create an obstacle. Perhaps making an obstacle explicit gives it a certain normality and allows its legalistic contravention. I remember once reading, in the official information of some university course or department, a couple of pages explaining the crime and punishment of plagiarism. Going on about it gave the unspeakable a degree of acceptability and I wondered if the problem wouldn’t be better countered if it were only spoken of in whispers. This might explain the paradox. Haneef is regrettable but if there had been an explicit rule, perhaps the authorities would have covered themselves by sticking to the letter and still perpetrated the affront. That seems to be what happens in the legalistic US.

  10. wizofaus says:

    Patrick I suspect you may find what we consider ‘fundamental’ rights today would not have been seen as such even in the most enlightened nations 1 or 200 years ago. And what exactly is the distinction between fundamental rights and, e.g., ‘social’ rights? E.g. most people today would probably consider that the damage caused by discrimination on the basis of skin colour to be just as dangerous as that caused by physical harm and hence agree on the need for rights to protect against such discrimination, making such rights just as fundamental as the right not to be enslaved or tortured, but I’d bet there are definitely those who still see such rights as dangerously close to being a ‘social’ (or ‘positive’) right.

  11. Patrick says:

    That’s called the right to equal treatment or non-discrimination. It is probably more often considered a fundamental right than a ‘social’ right.

    I would agree that starving to death is pretty bad for you. But I don’t consider that you are any less likely to starve to death because someone has granted you the right to food, for example. It is pretty much just a non-sequitur.

    Mike, I guess it is only a paradox if you agree with the implicit premise that formally enacted rights protect rights. What I probably should have said was that on the whole I disagree, instead I think that more than anything else wealth and democracy protect rights – it is certainly only wealth and democracy which provide any ‘positive’ content to rights. Law can only really, in my view, provide the negative content.

  12. Mike Pepperday says:

    Wizofaus, the (exact) distinction is that the advocate of fundamental (better: negative) rights says, “Leave me alone,” whereas the advocate of social (positive) rights says, “Disadvantaged people have a right to help.”

    The negative advocate objects that such compulsory positive help infringes the right to be left alone, both by undermining initiative on the part of the purportedly helped and by taxing everyone else to police the rights and fund the help. The positive advocate replies that without the help, lives are wasted and costs of dysfunction such as drug abuse and crime may cost more than the taxation.

    It is the culture war of our time.

  13. Mike Pepperday says:

    Btw the positive – negative distinction was noted over 200 years ago by Kant, Bentham, and Schiller.

  14. Ken Parish says:

    My main objection to positive social and economic rights (health, education, housing etc) is that they integrally involve decisions about resource allocation, consequential tax rates etc which are and should remain the province of elected governments not judges.

    Non-discrimination is, as Patrick observed, generally regarded as a first generation civil and political right rather than a social/economic one, in part because it’s a negative rather than positive one (freedom from something rather than a right to something). In a very limited sense non-discrimination is an aspect of the basic liberal notion of rule of law said to underpin Australia’s Constitution. It’s also very partially covered in ICCPR, but mostly in various other treaties to which Australia is a party (gender and sexuality, political, racial, religious, age discrimination etc). We didn’t recommend that these forms of discrimination be covered in a legislated charter of rights, but only because they’re already covered in anti-discrimination legislation federally and in every state and territory.

  15. wizofaus says:

    Mike, I’m well aware of the what the formal distinction between negative and positive rights is – I’m just rather skeptical about how much it really matters in determining what sort of rights are worth protecting via legislation (and ever since the distinction was first made there has been debate about it). The “freedom from” vs “right to” difference in particular seems unhelpful – what’s the difference between *genuine* “freedom from racial discrimination” and “right to the same opportunities as others of different races”? And can we safely assume that such a freedom/right can be meaningfully protected purely by reactively and coercively preventing employers etc. from patently/intentionally acting in a discriminatory manner?
    Ken your point about resource allocation/tax rates is true to a certain point, but even protecting the most fundamental unambiguously negative rights requires this.

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