The Protection of Rights in Australia
Sir Harry Gibbs
The enactment by the Parliament of the United Kingdom of the Human Rights Act 1999, which is already in force in Scotland and will soon take effect in England, means that Australia is the only developed Common Law country which has no Bill of Rights. This strengthens the argument of those who contend that the protection of human rights and freedoms in Australia is inadequate, and that our legal system will become increasingly isolated from developments elsewhere in the common law world unless we adopt a Bill of Rights. On the other hand there are strong arguments that the disadvantages of a Bill of Rights outweigh its advantages and that (to quote words used by Professor de Smith as long ago as 1964) the widespread sentiment in favour of a Bill of Rights is "yet another manifestation of the familiar process in which the deplorable becomes recognised as the inevitable and is next applauded as desirable".
The issue is a live one in Australia. There is consistent advocacy in favour of a Bill of Rights. A committee of the New South Wales Parliament is at present considering whether New South Wales should adopt a Bill of Rights, and if so whether or not it should be constitutionally entrenched.
Most people agree that there are basic human rights and freedoms that deserve protection, although there is less agreement as to what those rights and freedoms are. Of course, rights and freedoms are not without protection in Australia; in addition to the rules of the common law, which favour liberty, there are many statutes which give detailed protection to particular rights, and which in some cases give wide powers to the Commissions which they establish for that purpose. Constitutional protection is however of a very limited kind property cannot be acquired by the Commonwealth except on just terms; there must be trial by jury for offences against Commonwealth indictable offences, and some protection for religion is afforded against Commonwealth laws. More general protection is given to trade, commerce and intercourse which is to be "absolutely free" (although recently the High Court has narrowed the scope of that protection) and residents of one State must not be subjected to discrimination in another State because they do not reside in the latter State. In addition, the High Court has discovered in the Constitution an implied protection for freedom of speech on political or governmental matters. The kind of Bill of Rights which is often advocated would go much further and would describe the rights and freedoms which it is intended to protect in the most general terms, such as those in Bills of Rights elsewhere, for example, "the right to life", "the right to liberty and security of the person", "the right to respect for his or her private and family life", "the right to freedom of expression" and "the right to be secure against unreasonable search and seizure".
Those Bills of Right now in force in other countries differ in their approaches to the question whether legislation should be subordinated to their provisions. The Bill of Rights in the Constitution of the United States invalidates all legislation inconsistent with it. In Canada, the legislature is given by the Constitution a limited power to pass laws which are exempt from the provisions of the Charter of Rights and Freedoms (as it is there called). The Canadian Constitution requires a legislature, when exercising that power, to declare expressly that the statute is intended to operate notwithstanding a particular provision of the Charter.
In countries such as the United Kingdom and New Zealand, which have Constitutions which may be altered without special formality, it is not possible to entrench a Bill of Rights. Both the New Zealand Bill of Rights Act 1990 and the Human Rights Act of the United Kingdom require an enactment to be interpreted, if possible, so that it has a meaning consistent with the rights which it protects, but in New Zealand an enactment cannot be held to be invalid or ineffective by reason of inconsistency with the Bill of Rights. The Human Rights Act of the United Kingdom enables the courts to declare that a provision of legislation is incompatible with the rights which the Act is intended to protect. If such a declaration has been made, a Minister of the Crown, if he or she considers that there are compelling reasons to do so, may by order make such amendments to the legislation as he or she considers necessary to remove the incompatibility. This apparently drastic power is limited by the requirement that the Minister's order must be laid before and approved by each House of Parliament. In both countries, the Bill of Rights is made applicable to public authorities, an expression which includes courts. This has given rise in England to controversy as yet unresolved on the question whether the courts are obliged to apply the provisions of the Bill of Rights in litigation between subject and subject.
Because of the difficulty of securing assent to referenda in Australia, it is unlikely that an attempt would be made by the Commonwealth to amend the Constitution to include provisions for the protection of rights additional to those few that are already protected by the Constitution. However, if the Commonwealth Parliament passed a law of general application containing a Bill of Rights, the effect on the States would be almost the same as if the Constitution had been amended, because all State legislation inconsistent with the Commonwealth Act would be invalid. The drastic effect on the States of legislation of this kind has already been experienced. The decision in Mabo (No. 2), which affirms the continued existence of native title, was made possible only because Queensland legislation which would have extinguished native title had been held in Mabo (No. 1) to be inconsistent with the Racial Discrimination Act of 1975 of the Commonwealth. If a Commonwealth Bill of Rights proved to have an inconvenient or damaging effect on a State, there would be nothing that the State itself could do to ameliorate the situation. Indeed the power of the Commonwealth itself to amend such a statute would be limited, because legislation of that kind could be enacted only under the external affairs power and an amendment which caused the statute to be significantly at variance with the international instrument which called for the exercise of the external affairs power might well result in the invalidity of the statute. In any case, statutes protecting rights tend to assume a sort of sanctity and parliamentarians are reluctant to amend them. We have seen this in Australia when proposals to amend the Racial Discrimination Act have raised a political storm. And in Canada, a similar reluctance has meant that the power to legislate inconsistently with the Charter of Rights and Freedoms has been very rarely used. If the Commonwealth does enact a Bill of Rights it may at least be hoped that its provisions will be restricted to Commonwealth instrumentalities.
The disadvantages of a Bill of Rights have been clearly shown by the experience in the United States and Canada. When rights are described in general terms, the Courts are left with a wide discretion to determine what falls within the description. Courts which have been adventurous have taken advantage of that discretion and have given to apparently simple words a meaning that was never contemplated by those who drafted them, and in the process have decided matters of policy that might more appropriately have been decided by the legislatures, which, unlike the courts, are accountable to the public. For example, the protection given in the United States to "the right to life" has enabled the Supreme Court to determine at what stages of a pregnancy an abortion may take place, and in Canada "the right to security of the person" has been held to invalidate a law forbidding abortion. The right to "freedom of speech" has invalidated a law forbidding nude dancing in public and has required the Supreme Court of the United States to decide whether a student might be prevented from wearing hair braided in a particular way.
In Australia also, we have seen the unexpected consequences of the enactment of a provision protecting rights in general terms. For example, the section of the Constitution that requires Commonwealth indictable offences to be tried by jury has been held to mean that State laws which provide for majority jury verdicts, or which allow an accused to be tried by judge alone, cannot validly apply when indictable offences against Commonwealth law are tried in State Courts. Opinions may differ as to the merit of laws of those kinds, but the constitutional provision forbids their operation even if they have widespread public support and are thought to be necessary to the interests of the efficiency of the system of criminal justice.
The description of rights in imprecise general terms leads also to uncertainty in the law caused by fluctuations of judicial opinion. Thus the provision of the United States Constitution that prevents the States from denying to any person the equal protection of the laws at one time was held not to invalidate laws which discriminated against blacks and women; later the judicial pendulum swung to the other extreme, and the provision was held to require the desegregation of schools and compulsory busing of students to achieve that end. In applying Bills of Rights, the courts have drawn fine distinctions. To fly over a man's land in a helicopter looking for marihuana plants is an unlawful search; to fly over the land in an aircraft at a height used in commercial flights is not an unlawful search, even though conducted for the same purpose.
The rights that Bills of Rights seek to protect do not necessarily have a timeless appeal; rather they reflect notions that are fashionable at the time of the enactment. The United States Bill of Rights includes the right to carry arms and the right to trial by jury in civil cases involving $20 provisions that are not merely inappropriate today but are actually harmful. It is significant that the protection against the acquisition of property otherwise than by due process or on just terms, which is provided by the Constitutions of the United States and Australia, does not appear in the more recent Bills of Rights of Canada, New Zealand and the United Kingdom. However, those three Constitutions now provide for a right to be free from discrimination on a number of grounds. Discrimination is the fashionable bane of today. One person's right to be free from discrimination infringes another's right of choice, and anti-discrimination legislation in Australia has invaded the rights of those affected by its provisions in ways that are unlikely to have been given express legislative sanction or to meet with general public approval. One would doubt, for example, whether a majority of the public would agree that a church should be obliged to employ a person who flouts its doctrines, or that an international airline should not be allowed to dismiss a pilot who is too old to be able to fly into foreign ports, or that a State should be required to permit the use of in vitro fertilisation by women who are lesbian and have no physical impairment to ordinary conception, or that it should not be permissible in a public commentary on atrocities committed in a foreign country to describe the perpetrators, members of a particular race, in harshly adverse terms. Although a statute might contain provisions that would avoid results such as these, the wide words which appear in existing Bills of Rights would not permit of the necessary exceptions.
It is not accidental that Bills of Rights bring about results that could not directly be achieved by legislation. Many of those who advocate the enactment of a Bill of Rights do not hope merely to protect rights already recognised by the law; they wish to achieve social change of a kind that might not be supported by the legislatures or the public, by securing a generous interpretation of the wide and ambiguous words of the Bill of Rights.
In Canada and New Zealand, it has been provided that the rights and freedoms which are protected are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Those words do not limit the powers of the courts or make their decisions liable to be corrected by legislation. They introduce another element of uncertainty into the law.
Because a Bill of Rights would pass from the legislature to the judges the power to decide important questions of policy, the temptation, which some politicians in any case experience, to appoint judges who favour their views on social policy becomes irresistible. We have seen that in the United States for instance, political and social attitudes can be deemed more important than legal capacity in the choice of judges.
The disadvantages of a Bill of Rights may be less if its provisions enjoy no constitutional protection so that the legislature has (at least in theory) the power to correct anomalies or inconveniences caused by the application of its provisions. However, as has been mentioned, politicians regard provisions of this kind as having a special status and are reluctant to amend them.
The rights of citizens in Australia are as secure as in any other country in the world. No doubt, there are some laws and practices that would be struck down if a Bill of Rights were enacted. It is, however, doubtful whether Australia would in consequence become a more just society. An excessive concentration on rights can lead to injustice. There are few rights that are absolute; limitations need to be imposed on most rights if justice is to be done to those affected by their exercise. It would be better if the legislature were to define rights precisely and in detail, and to provide the conditions on and limitations of their exercise, rather than to state a general principle and leave it to the courts to work out its detailed application. It may be doubted whether the Bill of Rights has meant that the United States has a system of criminal law which is more fair than that of Australia. Criminal proceedings there drag on at inordinate length, while the courts examine whether there have been technical breaches of the Bill of Rights, while in Australia the courts consider the substantial question whether a conviction was safe and satisfactory.
Many countries which have had Bills of Rights have been subjected to dictatorial and tyrannous rule.The maintenance of a free society depends primarily on the spirit of the people, supported by a constitution that provides checks on the exercise of power and by an independent judiciary to uphold the law. Australia is fortunate in these respects. It has an independent judiciary, and the constitutions of the Commonwealth and the States do provide checks and balances. The Federal system divides power between the Commonwealth and the States, and the upper houses (in all legislatures except that of Queensland) to some extent curb the abuse of majority power. It is rather unfortunate that these valuable features of our Constitution seem to be disparaged in the community generally, whereas a Bill of Rights is regarded as plausibly attractive.
It will be instructive to see what effect the English judges, who would have hitherto been more conservative than those in the United States, will give to the Human Rights Act. Also, since the existence of a Bill of Rights tends to fan the flames of litigation, it will be seen whether a steep increase in the number of judges will be needed as a consequence of that enactment.
It is understandable that the idea of a Bill of Rights has popular appeal. That appeal is specious, since rights can better be protected by careful and detailed definition. The support for a Bill of Rights is influenced (consciously or unconsciously) by a distrust of, or in some cases a disdain for, the democratic process. It is to be hoped that such distrust is unwarranted.
National Observer No. 47 - Summer 2001