Rights, courts & the constitution

Michael McHugh

The dialogue model - as exemplified by the New Matilda Bill - as a vehicle for implementing the protection of human rights in the federal sphere, and indeed at the State level, has a number of significant weaknesses in terms of protecting human rights.

First, at the very least, there is grave doubt as to the constitutionality of its declaration of incompatibility provisions which are at the heart of the dialogue.

Second, even if those provisions are upheld, by reason of the Parliament's inability to confer legislative power on courts exercising federal jurisdiction, an interpretive provision such as s.49(1) may often fail to protect the human rights that are exercisable under the Act.

Third, if s.4 means what it says and the "human rights in this Act are exercisable by everyone within Australia's jurisdiction", the New Matilda Bill will affect the interpretation of State legislation because, by reason of section 109 of the Constitution, the State laws would be inoperative to the extent that they were inconsistent with section 4. Yet there is no dialogue between the Federal courts and the State legislatures, nor constitutionally could there be.

Fourth, if the human rights referred to in section 4 only engage with federal laws, there will be a very large gap in the protection of human rights in Australia unless and until all the States and Territories adopt similar legislation.

Fifth, apart from the right of action against public authorities, the dialogue model creates no rights or causes of action.

Sixth, as a result, those whose human rights have been infringed have no remedies for infringements of those rights. They cannot obtain damages or injunctions to restrain the conduct that infringes their rights. This is a breach of Article 2 (3) of the International Covenant on Civil and Political Rights which provides that, if a person's rights under that Covenant have been violated, that person has a right to an effective remedy. Under that Article, each State Party - and Australia is one - undertakes to ensure that any person whose rights or freedom is violated shall have an effective remedy and that the person claiming such a remedy shall have his or her right determined by a competent judicial, administrative or legislative authorities, or by another competent authority provided by the legal system of the State.

Seventh, even if the Parliament amends its legislation after receiving a declaration of incompatibility, considerable time will usually elapse before anything is done. Even when the amendment has been made, it may be of no benefit to the person whose rights have been infringed.

Eighth, because courts, exercising federal jurisdiction, cannot be given legislative type powers that the courts of the United Kingdom have been using, it seems a near certainty that declarations of incompatibility will be made far more frequently in Australia than in the United Kingdom. This may have serious consequences for the work load of the Parliament. Although the Attorney-General's response must be presented to the House of Representatives not later than six months after the day a copy of the declaration is presented to that House, there is no time limit imposed for the Parliament to take action in respect of that response.

What may have been overlooked by those who champion the enactment of a dialogue model of human rights for Australia is that what may work effectively in a jurisdiction with an unwritten constitution and a single legislature, as in the United Kingdom and New Zealand, may not work as effectively in a federal jurisdiction with a written constitution that incorporates the political doctrine of the separation of powers.

Instead of the dialogue model, the Parliament should give effect to the International Covenant on Civil and Political Rights and, if thought necessary, the International Covenant on Economic, Social and Cultural Rights by legislation that empowers courts invested with federal jurisdiction to hold that legislation that is inconsistent with the human rights legislation is invalid in the case of State and Territory legislation and that, in the absence of an express statement to the contrary, all federal legislation is to be read subject to the human rights legislation of the Parliament.

The result would be that private citizens would have judicially enforceable human rights that were not affected by State, Territory or federal legislation inconsistent with those rights and would have immediate judicial remedies for breaches of those rights. In the absence of a 'notwithstanding' clause, their rights would not be dependent upon whether their right was consistent with the purpose of the legislation, but would be judged and applied on its merits and by reference to the federal equivalent of s.10 of the New Matilda Bill.

A human rights legislative model on these lines would have only a minimal effect on parliamentary sovereignty. Under my preferred model, it would be open to the Parliament of the Commonwealth to insert in any federal legislation a "notwithstanding' clause which required the courts to give effect to that particular legislation notwithstanding the enactment of the human rights legislation. And, of course, it would be open to the Parliament after any decision with which it disagreed to insert a 'notwithstanding' clause in the legislation which the court had said should be ignored in determining rights and obligations. Finally, such a model would be well within federal constitutional power and would not be open to the constitutional attacks that undoubtedly await the dialogue model.

I am conscious that my criticisms of the dialogue model will provide ammunition for those who are opposed to the enactment of any form of a Bill of Rights, statutory or constitutional. I regret that this is so. But it would be a tragedy for the human rights movement in Australia if the dialogue model was enacted and the declaration of incompatibility provisions was struck down as unconstitutional.

In that event, there would be no dialogue between the judiciary and the legislature and the executive, and, apart from the admittedly important right of action against federal public authorities, the human rights of the people of the Commonwealth would have only marginally more protection than they presently do under the common law principles of statutory interpretation. Moreover as I have pointed out, the dialogue model has other deficiencies, not the least of which is the lack of judicially enforceable remedies, except as against public authorities of the Commonwealth.


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