Take judges out of human rights process (2009)

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Take judges out of human rights process

By Catherine Branson, QC, President of the Australian Human Rights Commission

Publication: The Australian, Page 27 (Fri 8 May 2009)

There is a way around constitutional problems with courts and any human rights act, argues Catherine Branson.

DEBATE about improving human rights protection in Australia has focused on a critical question: would a human rights act be constitutionally valid?

I am able to say with confidence there is no constitutional barrier to a human rights act.

In March, former High Court judge Michael McHugh expressed doubt about whether elements of a human rights act would be constitutionally valid.

He is not the only respected lawyer to have done so. Former Chief Justice Sir Gerard Brennan has expressed similar doubts.

Predictably, opponents of a human rights act reacted swiftly to Mr McHugh's comments, misrepresenting concerns about specific aspects of one model of a human rights act as a reason to reject any such act.

In an attempt to clear the air, the Australian Human Rights Commission recently held a roundtable, bringing together some of Australia's leading constitutional and human rights lawyers to discuss the constitutional validity of a human rights act.

The group included some of our best legal minds, including former High Court judges Sir Anthony Mason and, importantly, Mr McHugh himself.

It reached unanimous agreement on a number of important issues. The most important is that a human rights act can be drafted so it is constitutionally valid.

Opponents of a human rights act repeatedly raise the concern that courts could make laws by interpreting legislation in a way that is contrary to the intention of parliament. The roundtable agreed there was no constitutional impediment to a human rights act requiring courts to interpret federal legislation consistently with the human rights identified in the act, so long as that interpretation was consistent with the purpose of the legislation. In other words, courts would still have to respect the clear intention of parliament.

A second concern raised by opponents is that a human rights act would allow a court to issue a declaration of incompatibility.

Declarations of incompatibility are made if a court is unable to interpret legislation in a way that is compatible with human rights to inform parliament of the incompatibility. It is then up to parliament to decide whether it should change the legislation.

The concern is that our Constitution prevents a court exercising federal jurisdiction -- such as the High Court making an order that does not directly affect any person's rights.

The roundtable agreed this concern could be avoided if the courts were taken out of the notification process. Instead, an independent body such as the Australian Human Rights Commission could keep watch on these cases and notify the attorney-general that a court had been unable to interpret the legislation in a way compatible with the human rights act.

Why would a mechanism like this be a good thing for Australian democracy?

Over the past decade we have felt uncomfortable that our laws may have trespassed on our fundamental rights and freedoms.

We have not been confident that our democratically elected representatives had the possible implications of the laws made clear to them. Take, for example, sedition laws, mandatory detention laws, the Northern Territory Emergency Response.

Requiring courts to interpret laws consistently with human rights where possible and requiring the parliament to reconsider laws that do not respect human rights would enhance the accountability of our elected representatives and the transparency of our democratic processes.

It is my hope that discussion and debate will concentrate on the truly important issues: what human rights do we in Australian want formally protected and how do we want them to be protected?

My view is that the time is right for Australia to join with other Western democracies in giving formal protection to human rights in Australia.

I urge all who agree with me to set aside concerns about the Constitution and concentrate on sending the clear message to the National Consultation on Human Rights that we want Australia to be a country in which human rights matter.

Catherine Branson QC is president of the Australian Human Rights Commission