Rights protection without judicial supremacy: a review of the Canadian and British models of bills of rights.

• Jurisdiction: Australia
• Author: Debeljak, Julie
• Date: 01 August 2002

[Since the enactment of the Human Rights Act 1998 (UK) c 42, Australia is the only common law jurisdiction without a comprehensive system of legislative or constitutional protection of human rights and fundamental freedoms. As a result, Australia is at risk of legal and philosophical isolation. A reassessment of Australia's stance on human rights protection is necessary. This reassessment must include a new examination of the link between democracy and human rights. This article focuses on institutional models of human rights promotion and protection that are consistent with Australia's democratic tradition. It explores modern notions of democracy, and the balance of power between the institutions of government under modern bills of rights. Particular features of modern bills of rights, which institutionalise the debate about human rights between the three arms of government, are discussed The discussion proceeds in the context of two modern rights protective instruments: the Canadian Charter of Rights and Freedoms and the British Human Rights Act 1998 (UK) c 42. This comparative study aims to be instructive for Australia, particularly as the question of the means of enforcement of a bill of rights has historically been an impediment to the adoption of an Australian Bill of Rights.]

I INTRODUCTION

Australia does not have a comprehensive system of legislative or constitutional protection of human rights or fundamental freedoms. As Charlesworth has noted, the `Australian discussion about rights seems locked into a repetitive debate about the legitimacy of judicial scrutiny of governmental action.' (1) It is often asserted that democracy requires parliamentary sovereignty. If the judiciary were empowered to review legislative and executive actions under a comprehensive rights protection instrument, as the argument goes, we would have a system of judicial sovereignty. (2) The judiciary is not elected and so judicial sovereignty is undemocratic. Thus, to preserve this democracy, our elected arms of government retain a monopoly over the scope of the protection of human rights.

This simplistic view of democracy as requiring unfettered parliamentary sovereignty cannot be sustained. Modern models of rights protection give the judiciary some capacity to review the decisions of the elected arms of government against minimum human rights standards. Breaking the parliamentary monopoly on rights protection has not undermined democracy. Rather, self-role and political equality are enhanced by an inter-institutional debate about democracy and its limits. The essence of enhanced control by citizens over decisions that affect them is self-role. The crux of overcoming disparities in rights and opportunities is concerned with political equality. This is a debate in which the perspectives of each institution are recognised as valid and constructive.

This article briefly describes the current parliamentary monopoly over rights in Australia. It then explores the potential congruence between democracy and human rights, adopting the principle of `democratic inclusion' as its foundation. The principle of democratic inclusion promotes improved notions of self-rule conditioned by political equality. The judiciary has a legitimate role to play in securing self-rule and political equality, but this should not be to the exclusion of the representative arms of government. The modern rights protection instruments in Canada and Britain, (3) which recognise the need for an inter-institutional debate about democracy and rights, are then assessed against the elements of the principle of democratic inclusion. The article concludes by criticising all governmental monopolies over the democracy and rights debate (whether they be representative or unrepresentative). In a dynamic, pluralistic society, a continuing debate about the directions of society, informed by legislative, executive and judicial perspectives, is the way forward.

II THE MONOPOLY OVER HUMAN RIGHTS PROTECTION IN AUSTRALIA

Human rights are increasingly part of the common parlance in Australia today--one need look no further than the daily newspaper to find debate and discussion about the state of human rights promotion and protection in Australia. Human rights debates have been sparked by a wide and varied array of issues: the mandatory sentencing laws in the Northern Territory and Western Australia; (4) the continued denial of self-determination for indigenous Australians in a non-discriminatory manner; (5) the diversion of asylum seekers to neighbouring countries following the `Tampa crisis'; the mandatory detention of asylum seekers; the debate over the post-September 11 laws designed to deal with modern forms of terrorism and the widening of the powers of the Australian Security Intelligence Organisation; (6) the provision of welfare to the less able; and even the appointment of a religious leader as Governor-General.

Currently in Australia, the elected representatives have a monopoly on deciding the breadth of our human rights. This is due to the lack of constitutionally protected human rights guarantees, the fragile nature of statutory human rights protection, and the domestic impact (or lack thereof) of our international human rights obligations. The elected arms of government are, consequently, subject to very few human rights constraints when enacting and executing laws and implementing policy.

A Domestic Protection of Human Rights

The domestic protection of human rights is a mixture of constitutional and statutory protection.

1 Protection of Rights in the Australian Constitution

There are only a handful of expressly guaranteed rights in the Australian Constitution. (7) These express rights have most often been interpreted narrowly by the courts, (8) giving greater freedom to the elected arms of government in their creation and enforcement of Commonwealth law.

The Constitution also contains a handful of implied limits restricting the legislature and executive. (9) The trend of the High Court of Australia to imply `rights proper' into the Constitution appears to have stalled, as evidenced by the denunciation of the implied right to legal equality and curial rejection of the implied right to equality in voting power. (10) Whether or not one is in favour of a restricted reading of our express rights or the practice of implying rights into the Constitution, (11) the fact remains that the Constitution does not provide comprehensive protection of our human rights and fundamental freedoms. (12)

2 Statutory Protection of Rights

The Commonwealth and States also protect human rights by statute. (13) Although the scope of the rights protected under statute is much greater than that protected under the Constitution, the statutory regimes are subject to limitations. First, the scope of the rights currently protected by statute is much narrower than that protected by international human rights law. Second, there are exemptions from the statutory regimes. Third, the interpretation of human rights legislation by courts and tribunals has been restrictive. (14) Finally, the commissions established under the statutes to promote, protect and implement the human rights are only as efficacious as the elected arms of government allow them to be. Cases in point include: the ongoing and prolonged failure to appoint a permanent Aboriginal and Torres Strait Islander Social Justice Commissioner; (15) the proposed changes to the overall structure of the Human Rights and Equal Opportunity Commission (`HREOC'), particularly changes to the role of the Aboriginal and Torres Strait Islander Social Justice Commissioner; (16) and the general reduction in resources and staffing to HREOC. (17) The statutory human rights regime is particularly vulnerable to legislative and policy changes. In short, the vulnerability of statutory protection enhances the existing representative monopoly over human rights delimitation and enforcement.

B The International Regime

In addition to the domestic human rights regime, Australia has international legal obligations that it must protect and promote. Australia has ratified numerous human rights treaties. (18) Because of our constitutional arrangements, ratification gives rise to international legal obligations only. An international human rights convention does not form part of domestic law until it is incorporated into domestic law by the Parliament. (19) Even under the international human rights system, the elected arms of government retain a monopoly over our human rights obligations.

All of the international human rights treaties create treaty bodies that receive and comment on periodic reports submitted by states parties, and some allow individual complaints to be made. (20) The expert personnel on these treaty bodies may, and often do, have different opinions on the human rights record of a state. It is the manner in which a state responds to the `constructive dialogue' of these bodies that warrants examination. For example, in relation to an urgent reporting request, the Committee on the Elimination of Racial Discrimination (`CERD') not only criticised the Australian government for its proposed amendments to the functions of HREOC, (21) but also for its amendments to the Native Title Act 1993 (Cth) and the consultation process preceding the amendments. (22) The Australian government rejected the views formed by the expert treaty body in no uncertain terms:

[CERD] is not a court, and does not give binding decisions or judgments. It provides views and opinions, and it is up to countries to decide whether they agree with those views and how they will respond to them. (23) The Australian government has shown similar contempt toward communications and decisions made as a result of individual complaints processes. There are numerous outstanding complaints against Australia awaiting determination by the UN Human Rights Committee: (24) 16 complaints are awaiting...