06 May 2008
Key Points:
If the Commonwealth Government wants to implement the full scale model adopted in the ACT and Victoria, it will have to convince the High Court that the scheme does not offend the Court’s conception of what is an appropriate judicial function.
The ripple from the Australian Capital Territory has started to swell. Following the lead of the ACT, Victoria has enacted human rights legislation that largely adopts the same legislative framework for the protection of rights as that enacted in the ACT. Western Australia and Tasmania also look likely to adopt legislative schemes to protect rights, and following the change of government at the federal level, the Commonwealth Attorney-General has foreshadowed that the Rudd Government is committed to engaging the public in consultations in relation to the adoption of a charter of rights.
No doubt, the Commonwealth will learn from the experience in the jurisdictions which, to date, have ridden the human rights wave. Decisions will have to be made about the mechanisms that will be used for taking the initiative forward, for example, the composition of the steering or consultative committee and the methods of public consultation that will be used. As to the content of the charter, there will have to be, as there has been in the ACT and Victoria, serious thought given to the types of rights that will be included within the charter. Will the protected rights be limited to those traditionally categorised as civil and political rights as has been the case in the ACT and Victoria, or will it extend to economic, social and cultural rights, or perhaps stretch even further to group rights?
Thought will also have to be given to the question of how the charter will protect those rights. ACT and Victoria have adopted the main components of the United Kingdom model of rights protection. First, before legislation is enacted, the executive government has to explain to the legislature whether proposed legislation breaches charter rights, and a legislative committee looks into human rights issues arising from proposed legislation. Secondly, legislation of the enacting jurisdiction has to be interpreted as consistently as possible with the charter rights and, if not possible, then the respective Supreme Courts have the power to declare that the legislation in question is inconsistent with charter rights. The making of such a declaration has no impact on the validity of the legislation or on the rights of anyone: the declaration is forwarded to the executive government for presentation to the legislature.
It is highly unlikely that a stronger model for the protection of rights (for example, that contained in the United States Constitution that allows US courts to invalidate legislation that breaches the Bill of Rights) would be on the table for consideration. And, in any event, such a fundamental redistribution of power among our arms of government would require a constitutional amendment.
The UK model, on the other hand, preserves parliamentary supremacy and merely (its supporters argue) creates a dialogue amongst the arms of government for rights protection. If the courts think that rights have been breached, then the ball is back in the executive and legislature’s court to explain why they disagree with the court’s assessment or try to justify the infringement. There are both supporters and critics of this model, and the criticisms range from the philosophical to the practical. In the ACT and Victoria at least the supporters so far have prevailed.
Thirdly, in Victoria (and probably also in the ACT), it is unlawful for a public authority to act in a way that is incompatible with a charter right or make a decision without giving proper consideration to a relevant right. A finding of incompatibility may constitute the basis of an action for a common law or administrative remedy which would otherwise arise on the basis of the unlawfulness of government action. Thus, a future Commonwealth charter may not only affect the policy development behind the enactment of legislative measures, but also may affect the day-to-day business of government. Serious thought will have to be given to how a Commonwealth charter will impact on decision-making, and the training that government officers will need to adjust to a new rights climate.
Any Commonwealth consultative process will not only have to think about these issues, but also others that were not the subject of significant attention during the ACT and Victorian processes. Any future Commonwealth scheme has the potential to impact on State and Territory agencies and officers performing functions under federal legislation pursuant to a co-operative scheme. A similar problem is currently faced by Commonwealth agencies and officers performing functions under ACT and Victorian legislation, for example, Australian Federal Police officers operating pursuant to ACT laws. While agencies and officers from the ACT and Victoria (and perhaps by then Western Australia and Tasmania) will have acclimatised to a charter culture, agencies and officers from other jurisdiction may not have.
Furthermore, the Constitution, in the hands of the current High Court, may prove to be an obstacle to what the Commonwealth can do. First, there are serious doubts as to whether a federal court (including the High Court) can be given the power to make a declaration of inconsistency. The declarations have no legal effect on enforceable rights, and the High Court has always emphasised that the federal judicial function is circumscribed by the need for a determination of rights in dispute. This problem currently exists under the ACT and Victorian schemes when the Supreme Courts are exercising federal judicial power (along with the related question of whether such declarations can be appealed to the High Court). However, the conferral of a similar power on federal courts will make this problem more pronounced.
The Commonwealth Attorney-General has quite a task ahead of him to ride the human rights wave. From the ripple first started in the ACT, it has reached a sizable swell. Not only must the Government convince the people that a human rights scheme is worth implementing, but it will have to prepare its agencies and officers to adjust to a charter culture and be conscious that its scheme may impact on jurisdictions which have not to date indicated a desire to enact a similar scheme. Perhaps most challenging of all, if it wants to implement the full scale model adopted in the ACT and Victoria, it will have to convince the High Court that the scheme does not offend the Court’s conception of what is an appropriate judicial function.
