Why courts should not balance rights against the public interest.

• Jurisdiction: Australia
• Date: 01 December 2007
• Author: Meyerson, Denise

[Most bills of rights allow for the restriction of rights in the interests of the public. But how should courts decide when the public interest should prevail? This article draws on philosophical work on practical reasoning to argue against the popular view that courts should use a balancing test which weighs the consequences of protecting the right against the consequences of restricting it. Using two United Kingdom cases as illustrations, it argues that there are good reasons to 'overprotect' rights. Judges, in their reasoning, should assign more weight to rights and less weight to the public interest than they would on an application of the balancing model.]

CONTENTS I Limits on Rights II The Balancing Model III The Reweighting Approach IV The Superiority of the Reweighting Approach A Rejecting the Monist and Consequentialist Assumptions of the Balancing Model B The Counterproductive Nature of the Balancing Model C The Blurring of Law and Politics on the Balancing Model V The Case of Marper VI The Case of Ghaidan VII Conclusion I LIMITS ON RIGHTS

It is a commonplace to observe that few rights are absolute, a commonplace which is expressly recognised in most bills of rights. One frequently used device to reflect the non-absolute character of rights is a general limitation clause. This is a clause applying to all the rights in a bill of rights, which sets out criteria that may justify the restriction of those rights. Both the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter') contain a clause of this kind. In particular, s 28 of the Human Rights Act 2004 (ACT) provides: 'Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a flee and democratic society', and s 7(2) of the Victorian Charter provides:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-- (a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve. Specific rights can also be made subject to limitation, either as an alternative to a general limitation clause or in addition to one. Provisions of this kind generally permit governments to interfere with specific rights in order to achieve certain specified purposes. Section 15(3) of the Victorian Charter follows this route in providing that the right to freedom of expression 'may be subject to lawful restrictions reasonably necessary--(a) to respect the rights and reputation of other persons; or (b) for the protection of national security, public order, public health or public morality'.

Rights can also be defined in such a way that their coverage does not extend to certain kinds of circumstances or to certain classes of people. (1) For instance, both the Human Rights Act 2004 (ACT) s 26 and the Victorian Charter s 11 protect against forced work, but define 'forced or compulsory labour' so as not to include certain kinds of obligatory work or service. Both also guarantee the right to life, but narrow its scope by limiting the protection to protection against 'arbitrary' deprivation of life. (2) The Human Rights Act 2004 (ACT) s 9(2) further limits the entitlement to 'a person from the time of birth'. These can be described as 'internal limits' on rights. They tell us when a right is applicable and therefore whether it has been infringed in the first place. 'External limits', by contrast, allow the government to act inconsistently with a right in order to promote a competing value. (3)

It is clear that the point of these and analogous devices is to assist in resolving two kinds of conflict: conflict between the rights of different individuals, and conflict between the rights of individuals and governmental goals which are not rights-based. Examples of such governmental goals are providing for economic well-being, protecting public safety and preventing crime. Section 15(3) of the Victorian Charter provides examples of both kinds of conflict: the right of one individual to freedom of expression may conflict with another's right not to have their reputation impaired, and an individual's right to freedom of expression may conflict with the government's interest in protecting national security.

In this article, I will be concerned only with the second type of conflict--that between the rights of individuals and the government's public policy objectives. The resolution of conflicts between different individuals' rights is not as theoretically problematic, for reasons that will become evident in the course of this discussion. To illustrate my argument, I will discuss two cases in which the House of Lords confronted limitation issues under the Human Rights" Act 1998 (UK) c 42, which incorporates most of the rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms ('European Convention'), (4) as well as various articles from the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (5) and Protocol No 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, (6) into the domestic law of the United Kingdom. UK citizens can as a result now rely on these so-called 'Convention rights' in the UK courts. The aim is to draw some lessons for Australian courts bound to confront similar questions.

There are, of course, differences between the Human Rights Act 2004 (ACT), the Victorian Charter and the Human Rights Act 1998 (UK) c 42, but the differences are, for the purposes of this discussion, less important than the similarities. For example, although the Human Rights Act 1998 (UK) c 42 does not contain a general limitation clause, it does contain a number of qualified rights which are subject to broadly framed limitations permitting them to be overridden on specified public interest grounds as well as to secure the rights and freedoms of others. Article 8, for instance, which provides that '[e]veryone has the right to respect for his private and family life, his home and his correspondence', (7) goes on to provide that:

There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. (8) Under the Human Rights Act 1998 (UK) c 42, the rights to freedom of thought, conscience and religion; (9) freedom of expression; (10) freedom of assembly and association; (11) and to the enjoyment of property (12) are subject to limitation on similar public interest grounds. Even some of the rights which are not expressly qualified, such as the prohibition of discrimination under art 14, have been qualified in practice. Article 14 provides:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Yet despite the apparently absolute language, the European Court of Human Rights takes the view that art 14 does not entirely exclude differential treatment in respect of a European Convention right on the basis of a proscribed ground, for different treatment will survive challenge if it is objectively justifiable. (13) UK courts have followed this approach. (14)

A second difference between the three bills of rights is of little significance in practice. This is the list of factors to which the Victorian Charter calls attention as relevant to the limitation enquiry. (15) Although there is no comparable guidance in either the Human Rights' Act 2004 (ACT) or the Human Rights Act 1998 (UK) c 42, the Victorian Charter's list of relevant factors is merely a codification of an established approach to limitation issues which has developed in the case law under international human rights instruments and in jurisdictions which have enacted bills of rights. These factors are therefore routinely investigated even when, as in the Human Rights Act 2004 (ACT) and the Human Rights Act 1998 (UK) c 42, there is no express mention of them.

Thus, Canadian judges have interpreted the very open-ended limitation clause in the Canadian Charter of Rights and Freedoms (16) (on which, in fact, the limitation clause of the Human Rights Act 2004 (ACT) is modelled) by reference to factors of the kind to which the Victorian Charter explicitly calls attention. Section 1 of the Canadian Charter of Rights and Freedoms provides: 'The Canadian Charter of Rights' and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'. In the seminal case of R v Oakes, Dickson CJC said that a limit must satisfy two criteria before it can pass the s 1 test. (17) First, the 'objective ... must be of sufficient importance to warrant overriding a constitutionally protected right or freedom'. (18) Secondly, 'the means chosen' must be 'reasonable and demonstrably justified'. (19) The latter involves, Dickson CJC said, 'a form of proportionality test'. (20) In particular, 'the measures adopted must be carefully designed to meet the objective in question'; (21) the means 'should impair...