01 Apr 2009

Statutory protection of rights: lessons from the common law

by John Carroll, James Stellios

Courts continue to assume that legislation is drafted on the basis that parliaments will make it clear before rights are taken away - but it's unclear what rights benefit from the presumption.

The protection of human rights is high on the political agenda. The Commonwealth Government has renewed its commitment to the international community by ratifying key human rights instruments, and has launched its National Human Rights Consultation to seek the community's views on human rights in Australia. The consultation follows in the steps of inquiries undertaken in the ACT and Victoria that have led to the enactment of human rights legislation. Like the human rights schemes in those jurisdictions, any future human rights charter at the Commonwealth level is likely to affect the way in which statutory powers and functions are to be exercised by government officers and agencies.

Of course, human rights already affect the way in which government goes about its business. The common law has long recognised that, when enacting legislation, parliaments do not intend to remove certain rights unless they make it absolutely clear that they intend to do so. Thus, statutory powers and functions are read down so as not to encroach upon those rights. However, the application of this interpretive presumption is not always an easy process. What rights are to benefit from the presumption of interpretation? In discerning a legislative intention to override rights, how is the protection of rights to be weighed against the policy objectives that are sought to be achieved by the legislation? These questions are complicated further when one considers the reach of legislative reform of the common law in a modern regulatory state.

Two recent cases show how difficult these questions are.

Fundamental rights vs ordinary rights?

Harrison v Melhem involved NSW reforms to damages awards for negligence. NSW provisions modified the entitlement at common law to receive compensation for domestic care. The provisions were read by the NSW Court of Appeal in a way that protected the claimant's common law claim for recovery. In the course of doing so, there was a difference of opinion on the extent to which statutory provisions should be interpreted narrowly so as not to affect common law rights. Some judges considered that the right to recover damages at common law was a right that benefits from an interpretive presumption.

Others, however, differentiated between fundamental common law rights and ordinary common law rights. In their view, only fundamental rights should benefit from a presumption because, in the modern regulatory state, legislative amendment of the common law - including the common law relating to personal injury - has been wide-ranging and fundamental. Although this second approach sounds persuasive, how does one distinguish fundamental rights from ordinary rights? While we might all agree that freedom from deprivation of liberty or property, and free speech, are fundamental common law rights and freedoms, where do we draw the line? Indeed, common law rights to damages for personal injury are considered to be property rights in some contexts.

Annoying and inconvenient protesters

The second case of Evans v State of New South Wales involved NSW regulations giving police the authority to stop behaviour that caused "annoyance" or "inconvenience" to World Youth Day participants. The applicants, who were members of the "No to Pope Coalition" - an association which opposes certain teachings of the Catholic Church - wanted to spread their message at World Youth Day celebrations and would have been affected by the regulation.

A Full Federal Court held that, to the extent that the regulation authorised prevention of behaviour causing annoyance, the regulation was invalid as the authorising legislation had to be read in a way that did not encroach upon common law freedom of expression.

In the process of doing so, the Full Court acknowledged some of the difficulties in applying the interpretive presumption in a modern regulatory state, however, concluded that parliamentary drafters may be taken to be aware of the need for clear words before 'long established (if not "fundamental")' rights and freedoms are taken away. By contrast to its conclusion on behaviour causing annoyance, the Full Court held that the regulation validly authorised the prevention of behaviour causing inconvenience. That part of the provision did not sufficiently impair freedom of expression.

Determining the parameters

What can we take from these two cases? It is clear that courts continue to assume that legislation is drafted on the basis that parliaments will make it clear before rights are taken away. As to the width of the category of rights that benefits from the presumption, there appears to be some uncertainty. It might include any common law right, or a subset that we can label "fundamental" or "long established". If it is a subset, it is not entirely clear how the parameters of the subset are determined. How is a common law right to damages for personal injury different to a common law property right? In relation to the application of the interpretive presumption, there is the inevitable task of line drawing. Causing annoyance to others is not behaviour that is self-evidently different from causing inconvenience.

The introduction of human rights legislation in Australia presents further challenges for governments and their advisers. In the ACT and Victoria, statutory provisions are to be interpreted in a human rights-friendly way. If a scheme is adopted at the federal level, an interpretive rule is likely to be an integral component. If a Commonwealth charter is to resemble the ACT and Victorian Acts, the range of protected rights will extend well beyond those recognised at common law, even if they are limited to rights drawn from the International Covenant on Civil and Political Rights.

Commonwealth officers and their advisers will need to be aware of what those rights are, how far they extend, and how they are to be weighed against the policy objectives to be achieved by the legislation in question. As the recent cases on the common law presumption suggest, this will not always be an easy task and one that may draw different approaches from the courts.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.