President speeches: The influence of human rights on judicial decision-making
Commission – General
The influence of human rights on judicial decision-making
The Hon Catherine Branson QC
Federal Magistrates Court 2009 Plenary
29 September 2009
1 Introduction
May I acknowledge the Gadigal people of the Eora nation, the traditional
owners of the land upon which we meet, and pay my respect to their elders past
and present.
I would like to thank Chief Federal Magistrate John Pascoe for inviting me to
speak with you today.
It is almost a year since I left the Federal Court to become President of the
Australian Human Rights Commission. The first year of my term has been an
exciting and an enlightening one. I have met with an extremely diverse range of
people and have had the opportunity to speak to many audiences about human
rights protections in Australia. Many of the things that I have been able to do
are not things that I could have done as a Federal Court judge.
As you will be aware, this year we have had a National Consultation on Human
Rights which asked Australians what human rights are important to them and
whether and how they think human rights could be better protected in
Australia.
Consequently, human rights have been a hot topic, with the consultation
reigniting debate about whether Australia needs to have a federal law protecting
human rights. You may be relieved to know that I do not propose today to
rehearse the arguments in favour of an Australian Human Rights Act. But
questions about how human rights impact on the law and what role courts and
tribunals should play in enforcing human rights have been fiercely debated.
Today, I would like to illustrate the present relevance of human rights to
judicial decision-making, including the work of the Federal Magistrates Court.
That is, to explore how, even without a Human Rights Act, it is legitimate and
appropriate for judicial decisions to be influenced by the jurisprudence of
human rights.
2 General observations about human rights and the
work of courts
I would like to begin, however, by sharing some general observations on human
rights and their relationship with the work of courts generally.
(a) Introduction to human rights
Respect for human right underpins every well-functioning democracy, including
our own. Absent respect for human rights, the rule of law will break-down.
Absent respect for human rights there will be members of our community whose
voices are not heard on issues of importance to us all or whose contributions to
public debate are not received with appropriate respect.
So what do we mean by ‘human rights’? International law
recognises human rights falling into two broad categories – civil and
political rights and economic, social and cultural rights. Civil and political
rights include such rights as the right not to be arbitrarily detained, the
right to a fair hearing, the right to vote, respect for privacy, freedom of
speech and freedom of religion and belief. These rights are often described as
requiring the state to refrain from interfering with individual liberty.
Economic, social and cultural rights include rights such as the right to an
adequate standard of living, the right to education, the right to health care,
the right to social security, and the right to take part in cultural life. These
rights are commonly understood as obligations on the state to take positive
steps to provide for individuals. Of course, international law recognises that
it is not possible for all economic, social and cultural rights to be instantly
realised. The obligation on states with respect to these rights is to take steps
towards achieving their full realisation progressively.
One important right that does not really belong to either category is the
right to be able to exercise all human rights without discrimination.
In practice, the distinction between civil and political rights on the one
hand, and economic, social and cultural rights on the other, is somewhat
artificial. The realisation of all human rights is necessary for an individual
to live with dignity and to enjoy equality. Many civil and political rights
cannot be realised unless economic, social and cultural rights are also secured.
For example, if a person does not enjoy their economic right to adequate
housing, they might have difficulty enjoying various civil and political rights
including the right to privacy and the right to vote.
It is important to remember that very few human rights are absolute. Some
human rights should not be infringed in any circumstances, such as the right not
to be tortured or held in slavery. But most human rights can be subject to
reasonable limitations.
Circumstances often require that different rights be balanced. This might
involve the competing rights of individuals. The right to freedom of speech, for
example, is subject to the right of others to privacy and not to be defamed or
to be the subject of racial or religious vilification. In other cases the rights
of individuals might need to be balanced against the rights of the community. An
individual’s right of freedom of movement might need to be balanced
against the right of community members to health (think of the early days of
swine flu); an individual’s right not to be detained might need to be
balanced against the right of members of the community to live free from
violence (think of national security laws). Where rights must be balanced the
test of proportionality is critical - is the restriction a proportionate
response to a pressing social need?[1] In extraordinary circumstances, it may even be permissible to suspend or
restrict certain rights provided that the limitations are reasonable and
justifiable in a free and democratic
society.[2] In short, human rights
jurisprudence is much more nuanced than is often suggested.
(b) The application of human rights
It is often said that human rights are ‘universal’. But does this
claim to universality mean that human rights are to be applied in an identical
manner in every part of the world, irrespective of the specific social context
in which they are realised?
I agree with Lord Hoffman who, in a recent
lecture, answered this question in the negative. He pointed out that while human
rights may be universal at the level of abstraction (for example, everyone is
entitled to a fair trial), they are, at the level of application, national in
character (for example, in one jurisdiction the prevalent police culture may
call for an absolute ban on the admissibility of illegally obtained evidence
while in another jurisdiction a judicial discretion to admit such evidence if
strongly probative will be justifiable).[3] As this example makes clear, the application of human rights, through the enactment and interpretation
of legislative provisions giving rise to enforceable rights, does not take place
in a social and legal vacuum. As I have already mentioned, and as you as
judicial officers will appreciate intuitively, individual rights are recognised,
denied or qualified by courts by reference to a balancing exercise against other
rights and ‘the public aspects...of the public
interest’[4]. These aspects
include functional efficiency, resource allocation and other pragmatic
considerations relevant to the particular decision. Such an exercise, as Lord
Hoffman pointed out, is best carried out ‘in the context of a given
society and its legal system’[5] by an arbiter with an appreciation of the culture in which those rights operate.
I am unable to refrain from pointing out that an Australian Human Rights Act
would enable Australian courts to do just that.
(c) Respect for human rights when acting in
administrative capacity
The final general observation which I wish to make is that, as judicial
officers, you are in a position to demonstrate respect for human rights not only
through your decisions but also through the manner in which you exercise the
power vested in you. It perhaps goes without saying, but is worth remembering,
that simple things like treating courteously and respectfully those who come
before you can do much to help create a culture in which human rights are
respected as a matter of course. I note that your court’s Service Charter
for the provision of administrative services is a positive initiative in this
regard.
3 The influence of human rights on the development of
Australian law in the courts
As you all know, in Australia, as in many countries, international human
rights instruments do not become part of our domestic law without the passage of
appropriate legislation. Our Federal Parliament has enacted a number of statutes
which recognise particular human rights but we are unique amongst Western
democracies in not having any over-arching protection of human rights -
either a constitutional Bill of Rights or a form of Human Rights Act.
However, even without a Human Rights Act there is considerable scope for
Australian decision-makers, including judicial officers, to take human rights
principles into account. Decisions which are informed by human rights principles
are likely, for the reasons that I will expand upon shortly, to be better
decisions leading to better outcomes for individuals while nonetheless being
based on sound legal principle.
Human rights principles can legitimately
influence judicial decisions in three principal ways:
- first, through statutory interpretation
- secondly, as a guide to the development of the common law, and
- thirdly, by informing the exercise of discretions.
3.1 The use of human rights in statutory
interpretation
Statutory interpretation is a core function of modern courts and tribunals so
let me turn first to the influence of human rights on statutory interpretation.
(a) Interpretation of laws incorporating
international human rights instruments
As I have mentioned, there are a number of federal and state laws which have
incorporated into domestic law aspects of major human rights instruments. For
example:
- federal and state anti-discrimination laws implement aspects of the right to
non-discrimination and equality - privacy laws protect aspects of the right to privacy
- employment laws protect various employment-related rights such as the rights
to fair wages and conditions of work and not to be discriminated against on a
number of specific grounds; and - laws governing civil and criminal procedure protect important procedural
rights such as the right to a fair hearing.
The High Court and the
Federal Court have identified several principles for the interpretation of
statutes such as these which enact treaty obligations.
The first principle is that where the provision of a treaty is transposed
into the statute, the assumption is that the language of the statute should
carry the same meaning as in the
treaty.[6] For example, this principle
has been applied to the interpretation of the term ‘refugee’ under
the Migration Act which has the same definition as under the Convention on
Refugees.[7]
The principles which govern the construction of a treaty are not identical to
those that govern the construction of a statute. Articles 31 and 32 of the Vienna Convention on the Law of
Treaties[8] set out the
international rules for treaty interpretation. The High Court has recognised the
applicability of these rules in Australia and made it plain that treaties should
be given a broad, contextual interpretation ‘unconstrained by technical
rules of [domestic] law, or by [domestic] legal precedent’, considering
the objects and purpose of the
treaty.[9] It is legitimate to seek
assistance from the jurisprudence of specialist international courts, tribunals
and specialist UN Committees when interpreting
treaties.[10]
Furthermore, courts
have supported the principle that statutes that are intended to give effect to
an international human rights treaty should be beneficially
construed.[11] For example, in IW
v City of Perth, the High Court considered whether a local council which
refused to grant planning approval for a drop-in centre for people with AIDS had
breached anti-discrimination laws. The Court was required to decide whether the
giving of planning approvals by the Council was a ‘service’ for the
purposes of anti-discrimination legislation. The majority said that because the
anti-discrimination law is designed to give effect to human rights, the term
‘service’ should be construed broadly. However, in the end, the
court did not form a majority view about whether this case fell within the
definition.
Unfortunately, the number of statutes which expressly implement human rights
obligations, or which transcribe treaty provisions, is relatively small.
Legislative protection of human rights in Australia is ad hoc, with the
law protecting only a limited number of human rights and usually only limited
aspects of those rights. As a result, the utility of these particular
interpretive principles is somewhat limited.
(b) Use of international
human rights instruments as interpretive aids
Australia also has well-established principles relating to the use of
international agreements as aids to the interpretation of statutes, even when
those agreements are not referred to in the statute. For example, you would be
familiar with the interpretive principle that where legislation is ambiguous,
courts should favour an interpretation that accords with Australia’s
international obligations.[12] And
also the related principle that courts should not interpret legislation as
intending to interfere with fundamental rights and freedoms, unless such an
intention is clearly manifested in unambiguous
language.[13]
Although both these principles have been regularly applied by the courts, the
manner in which they been applied has varied. As it appears to me, this
variation commonly arises from differences in opinion about when a statute is to
be considered ambiguous. Some judges have commented that ambiguity should not be
narrowly construed.[14] Others have
adopted a narrow and strict approach to the notion of
ambiguity.[15]
This divergence of opinion was clearly illustrated in the majority and
minority judgments of the High Court in Al-Kateb v
Godwin.[16] In Al-Kateb v
Godwin the High Court was asked to decide whether the Migration
Act[17] authorised the
indefinite detention of an unlawful non-citizen when there is no real prospect
of his removal from Australia. By the slimmest of majorities (four judges in
favour; three against), the High Court said that it did.
Mr Al-Kateb argued that the High Court should interpret the Migration Act in
a way which was consistent with Australia’s obligations under the International Covenant of Civil and Political Rights which protects the
right to liberty and prohibits arbitrary detention. One of the clearest
indicators that detention is arbitrary is that the person being detained has no
idea when they will be free again.
Mr Al-Kateb’s legal submissions relied on those two principles of
statutory construction that I mentioned earlier: that courts should only assume
Parliament intends to interfere with fundamental rights if it does so in
unambiguous language; and that where the meaning of a law is ambiguous, the
Court should interpret the law consistently with Australia’s international
treaty obligations.
The majority of the High Court found that the plain words of the Migration
Act required Mr Al-Kateb to be detained until he could be removed from Australia
notwithstanding that there was no reasonable prospect of his removal in the
foreseeable future. Because the majority decided the words were unambiguous,
they did not consider the human rights of Mr
Al-Kateb.[18] Justice McHugh
observed that it is ‘not for the courts ... to determine whether the
course taken by Parliament is... contrary to human
rights’.[19]
In contrast, the minority - Gleeson CJ, Kirby J and Gummow J -
did not believe the words of the Migration Act provided an unambiguous
authorisation for indefinite detention of Mr Al-Kateb. Instead, they interpreted
the Migration Act in a way which protected the right of Mr Al-Kateb not to be
arbitrarily detained.[20] They
concluded that the power to detain was intended to be ancillary to the power to
remove from Australia with the consequence that the law did not require his
ongoing detention in circumstances where there was no real prospect of his
removal from Australia.
As most of you will know, Mr Al-Kateb, who is now lawfully resident in
Australia, was kept in immigration detention for years without any idea of when
or whether he would be free again. It was, no doubt, small comfort to him that
his case led to a re-examination of the need for mandatory detention in cases
such as his.
(c) The fundamental rights principle
The principle that Parliament should be presumed to legislate in accordance
with, not contrary to, fundamental rights is based on a recognition of the
long-standing and central place which fundamental rights hold within the common
law.
There is a passage from the judgment of Lord Hoffman in the case of Simms[21] which discusses
this issue in the context of the English ‘principle of legality’,
the nearest equivalent of our fundamental rights principle. His Lordship
said:
... the principle of legality means that Parliament must squarely confront
what it is doing and accept the political cost. Fundamental rights cannot be
overridden by general or ambiguous words. This is because there is too great a
risk that the full implications of their unqualified meaning may have passed
unnoticed in the democratic process. In the absence of express language or
necessary implication to the contrary, the courts therefore presume that even
the most general words were intended to be subject to the basic rights of the
individual.
The principle of legality may be somewhat stronger than the principles
recognised by Australian courts - although I should not be understood to
be asserting that it necessarily is. In Australia, courts generally seem
cautious in their application of these interpretive principles for fear of
overstepping their judicial role.
It was therefore encouraging to read the address by French CJ to the
Australia and New Zealand Scrutiny of Legislation Conference, in which he
expressed support for the view that common law rights, such as the freedom of
movement and speech, are more than merely residual liberties, existing only
insofar as the law does not curtail
them.[22] Rather, he said,
fundamental rights are essential elements of the common law and their importance
under the common law justifies the interpretation of legislation and the common
law in a way which ensures their protection.
3.2 Human rights in the development of the common
law
Thus far I have discussed how human rights provide useful principles for
resolving ambiguity or uncertainty in statutory interpretation. I would now like
to provide some illustrations of human rights jurisprudence guiding the
development of the common law of Australia - as I would suggest, for the
better.
(a) International law and conventions
It is well-established that international human rights instruments may serve
as legitimate guides in developing the common law. Brennan J expressly
recognised this in Mabo v Queensland (No
2)[23] where he stated that:
[T]he international law is a legitimate and important influence on the
development of the common law, especially when international law declares the
existence of universal human
rights.[24]
The Mabo (No 2) decision is a striking illustration of the High
Court’s development of the common law by reference to international human
rights jurisprudence. Brennan J (with Mason CJ and McHugh J agreeing) said:
The opening up of international remedies to individuals pursuant to
Australia's accession to the Optional Protocol to the International Covenant on
Civil and Political Rights brings to bear on the common law the powerful
influence of the Covenant and the international standards it
imports.[25]
Therefore in light of Australia’s accession to the First Optional
Protocol to the ICCPR and the Covenant’s ‘powerful influence’
it brought to bear on the common law, in Mabo terra nullius was found to
be ‘an unjust and discriminatory doctrine’ that was no longer
acceptable.[26]
As you may know, the effect of Australia’s accession to the Protocol is
to give an individual who is subject to Australia’s jurisdiction and has
exhausted domestic remedies, a right of complaint to the UN Human Rights
Committee regarding any Australian legislative or executive action which is in
violation of the ICCPR.
Since Mabo (No 2), Sir Anthony Mason has written extra-curially
highlighting the significance of this for the development of the common law not
only by the High Court but by all courts and tribunals in Australia:
[t]he fact that the I.C.C.P.R. exists as a body of supra-national
law...capable of being invoked by an Australian complainant and applied by the
Human Rights Committee to Australia, means that there is a possibility that
Australian courts will have regard to its provisions and to the interpretation
placed upon them by the Committee and other courts and tribunals in formulating
the common law.[27]
Sir Anthony points to the status of the European Convention on Human Rights
(ECHR) in English law as an example, noting the ‘tendency of English
courts in recent times to formulate the common law in such a way that it
involves no disconformity with the European Convention on Human
Rights.’[28] (I should add
that at the time of Sir Anthony’s writing of this paper, the UK Human
Rights Act of 1998, which more or less incorporates the ECHR into English
domestic law, was not in force.)
Sir Anthony’s reference to the European Convention was perhaps inspired
in part by argument in a case over which he presided three years earlier. That
case was Dietrich v R.[29] In
submissions in that case, Counsel for the applicant pointed to the status
accorded to the ECHR in English law and the ‘common-sense
approach’[30] of some English
courts of having regard to international obligations in order to resolve
uncertainty or ambiguity in judge-made
law.[31]
I make reference to Dietrich for a second reason.
Many of you will be familiar with the decision, so I will confine discussion
of it to that which is relevant for present purposes. The applicant contended
that where an accused person charged with a serious crime punishable by
imprisonment cannot afford counsel, that person has a right to be provided with
counsel at public expense. Counsel for the applicant argued that one source of
that right is to be found in Australia’s international obligations, in
particular as contained in Art 14(3)(d) of the ICCPR to which Australia is a
party. Art 14(3)(d) gives an accused the right ‘to have legal assistance
assigned to him, in any case where the interests of justice so require, and
without payment by him in any such case if he does not have sufficient means to
pay for it.’[32] In other
words, it provides for the right of an accused in criminal proceedings to legal
aid.
Mason CJ and McHugh J, in their joint reasons, said that this provision of
the ICCPR, though not part of Australian municipal law, ‘is a legitimate
influence on the development of the common
law’.[33] Toohey J, in a
separate judgment, recognised that ‘[w]here the common law is unclear, an
international instrument may be used by a court as a guide to that
law’.[34] The problem for the
applicant, however, was that there was no ambiguity or uncertainty that needed
to be resolved in this case; the Court was being asked to declare the existence
of a right that had until that point never been recognised. As you know, the
Court declined to do so.
This brings me to some caveats on the influence of unincorporated human
rights conventions on Australian common law. The first is that, just as a
provision in a Covenant might provide the source for a right, its particular
wording will also define and qualify the content of that right. Dietrich is an instructive example of this. The right provided by Art 14(3)(d) is not an
absolute right; the provision contains the phrase ‘when the interests of
justice so require’. It therefore could not support the absolute right to
legal aid which Mr Dietrich sought to establish. The second caveat might be
described as a normative one. As Mason CJ and Deane J remarked in Minister
for Immigration and Ethnic Affairs v
Teoh[35], such development of
the common law must be approached with caution, for it ‘must not be seen
as a backdoor means of importing an unincorporated convention into Australian
law.’[36] The High Court in Dietrich recognised that courts could ‘not, independently of the
legislature and the executive, legitimately declare an entitlement to legal
aid’;[37] to do so would have
been to import into Australian law Art 14(3)(d) of the ICCPR through the
backdoor.
Also worth noting is the extent to which Australian judges have been willing
to refer to decisions of the European Court of Human Rights in giving content to
the concept of a ‘fair trial’ under Australian common law. In Dietrich, Mason CJ and McHugh J considered the approach taken by the
European Court on Human Rights to a provision in the ECHR almost identical to
Art 14(3)(d) of the ICCPR. They noted that the Strasbourg Court’s approach
was to ‘emphasis[e] the importance of the particular facts of the case to
any interpretation of the phrase ‘when the interests of justice so
require’ and ‘that approach is similar to the approach which, in our
opinion, the Australian common law must now
take.’[38]
4 Using human rights to inform the exercise of
discretion
The third way in which human rights can influence judicial decision-making is
by informing the exercise of discretion.
In the course of your work you are often called upon to exercise discretion.
The exercise of discretion invariably involves a certain degree of normative
judgment. I am inclined to believe that where there is a judicial discretion to
be exercised, it is preferable that it be exercised in accordance with
internationally accepted human rights principles rather than by reference to
the, sometimes unconscious, subjective values or opinions of the
decision-maker.
I am, of course, not alone in holding this view. Kirby J, for example, is
well known for his view that international standards may lend legitimacy to the
views of judges when carrying out their judicial functions, particularly in the
case of ambiguity or
discretion.[39]
Indeed, there are several examples of decisions from different jurisdictions
in Australia which support the view that human rights obligations are a relevant
consideration in exercising discretionary powers. A large proportion of these
decisions concern the criminal law – an area in which discretionary powers
clearly invoke human rights principles concerning the deprivation of liberty and
procedural fairness.[40]
The remarks of Maxwell P in the Royal Women’s
Hospital[41]case provide
further support. His Honour there said:
...over the past two decades Australian courts have been prepared to consider
the use of international human rights conventions in:
- exercising a sentencing
discretion;[42] - considering whether special circumstances existed which justified the grant
of bail;[43] - considering whether a restraint of trade was
reasonable;[44] and - exercising a discretion to exclude confessional
evidence.[45]
In Tomasevic v Travaglini[46],
which was concerned with the right to a fair trial, Bell J added two more
to Maxwell P’s list. These were:
- granting or refusing injunctions, and
- adopting procedures or exercising powers to ensure a trial or hearing is
fair and
impartial.[47]
Let us
take one of the cases which both Justices Maxwell and Bell cited and look at it
in greater detail. In Schoenmakers v Director of Public
Prosecutions,[48] the Federal
Court considered the appeal of a man who was refused bail after being arrested
in Australia pending extradition for offences relating to the growth and
distribution of cannabis under US law. At the time of the appeal, he had already
been in custody for 11 months. The man was a joint citizen of Australia and the
Netherlands and regularly travelled between both countries.
Under the Extradition Act, French J had to decide whether there were special
circumstances justifying his release from remand. French J said that decision
necessarily involves making a value judgment about the range of circumstances
favouring the grant of bail.[49] In
his view, that judgment was to be made with reference to the purpose of the law
and what he called ‘broader community
standards’.[50] In
assessing ‘broader community standards’, French J remarked:
‘it can never be regarded as anything other than a special circumstance
that a person should have to spend a year in prison unconvicted of any
offence.’[51] He also referred
to article 9 of the ICCPR which protects the right not to be arbitrarily
detained and commented that this article ‘serves as an indication of the
value placed by Australia, as part of the international community, on the
liberty of the individual and the presumption in favour of that liberty. That
presumption must, of course, give way to specific statutory provisions. But
where those provisions do, as in the case of the Extradition Act, allow for
normative judgments... then the presumptions arising under the common law and in
relevant international instruments may be taken into
account.’[52]
I would like to conclude this section of my address by sharing with you some
pertinent observations made by Bell J in Tomasevic v Travaglini in the
context of the relevance of ICCPR provisions to the right to a fair trial under
Victorian law:
Without impairing, indeed by asserting, the independence of our own law,
judges can, and in my view should, act consistently with the international
obligations specified in the ICCPR by accepting that, when appropriate, the
exercise of relevant judicial powers and discretions, such as the duty to ensure
a fair trial, can take into account the human rights specified in the ICCPR.
That, I think, is the state and rationale of the current law. Of course the
inherent duty to ensure a fair trial always remains the source of the binding
law, but its nature is better understood, its function in the law is
strengthened, its application is more penetrating and its capacity to evolve is
enhanced once it is appreciated that its performance has an international
dimension.[53]
In other words, just as human rights are recognised as useful principles for
resolving ambiguity or uncertainty in interpretation of statutes and the common
law, human rights are also useful principles for resolving the uncertainty
inherent in discretionary decisions.
5 Impact of the enactment of a Human Rights
Act
Although I will stick to my undertaking not to rehearse the arguments in
favour of an Australian Human Rights Act, I would like to give brief
consideration to what impact such an Act would have on judicial decision-making.
In doing so, we are fortunate to have emerging experience from Victoria and the
ACT which have introduced their own human rights Acts.
5.1 Interpretative provisions
Let’s first look at the impact of a Human Rights Act on statutory
interpretation.
The ACT and Victorian human rights Acts contain special interpretive
provisions which require courts to interpret legislation in a way that is
compatible with the rights set out in the Act, so far as it is possible to do so
consistently with the purpose of the legislation being
examined.[54]
The Chief Justice Spigelman has described the introduction of these special
interpretation provisions as the most significant statutory change to the law of
statutory interpretation in
Australia.[55]
An important feature of this type of interpretive obligation is that it
applies to all laws, whether or not enacted before the interpretative provision
itself and regardless of whether an individual judge thinks the ordinary meaning
of the law is ambiguous.
However, I tend to agree with French CJ when he said that an interpretive
Charter operates in much the same way as common law rights and freedoms
currently inform the interpretation of
statutes.[56]
Contrary to the suggestions of critics that the interpretive obligations
contained in human rights Acts in the ACT and Victoria turn judges into
law-makers, human rights Acts in Australia do not authorise courts to give laws
a meaning which is inconsistent with their
purpose.[57] This is not the case
with the interpretive provisions under the UK Human Rights Act which contain no
limitation on purpose. Indeed, in giving a judge’s perspective on the
first 18 months of the Victorian Charter’s operation, Maxwell J’s
observations are telling:
Fears of judicial adventurism under the Charter have...proved to be wholly
unfounded...Judges are not in a headlong rush to utilise the Charter and impose
their own human rights perspectives. On the contrary, we are adhering - as
we try always to do - to the rule of
parsimony.[58]
I am not aware of any case so far in Victoria or the ACT in which a court has
made a declaration of incompatibility on the basis that a law was not able to be
interpreted consistently with human
rights.[59]
However, it is still early days and the courts are yet to identify a
preferred approach for the application of the special interpretive provisions.
Even in the UK and New Zealand, where human rights Acts have been in place for
many years, courts continue to debate the best approach to interpretation under
a Human Rights Act.
5.2 The duty on public authorities
As I mentioned earlier, a Human Rights Act may impose on ‘public
authorities’ a duty to act compatibly with, and give proper consideration
to, human rights.
This means that where courts and tribunals are considered ‘public
authorities’ for the purposes of the Human Rights Act, they will be
required to act compatibly with human rights.
The definition of public authority excludes courts and tribunals, except when
they are acting in an administrative capacity. According to recent decisions in
Victoria, activities which are considered to fall within the definition of
‘administrative capacity’ include those ‘operational’
aspects of courts and tribunals, such as employment of staff and treatment of
customers at a registry.[60] Therefore, in carrying out these administrative functions, courts are bound by a
Human Rights Act in the same way as any other public authority to respect human
rights.
6 Conclusion
Before I finish, I would like to comment that during the course of the
National Human Rights Consultation, I perceived considerable trepidation about
the idea of a federal Human Rights Act. It is understandable that changes should
be threatening. But for me, this brought back memories of the last time that
Commonwealth administrative laws were comprehensively overhauled. These changes
evoked a similar reaction in many minds. But now we look at the AAT and the ADJR
Acts with pride and rightly see them as initiatives which represent world best
practice in administrative law.
I believe that a Human Rights Act that, while respecting the sovereignty of
Parliament, requires the executive, legislature and judiciary to integrate human
rights principles into their daily work would have a real and positive impact on
the culture of this country - including the culture that informs judicial
decision-making.
[1] See Handyside v United
Kingdom (1976) 1 EHRR 737 at 754, paras 48-49 (cited in Theophanous v
Herald & Weekly Times Ltd (1994) 182 CLR 104 at 162 and Leask v
Commonwealth of Australia (1996) 187 CLR 579 at 615); see also Sunday
Times v United Kingdom (1979) 2 EHRR
245.
[2] See, for example, Charter of Human Rights and Responsibilities Act 2006 (Vic), s 7(2) and Human Rights Act 2004 (ACT), s
28(1).
[3] Lord Hoffman, ‘The
Universality of Human Rights’, Judicial Studies Board Annual Lecture, 19
March 2009, p 8.
[4] von Doussa, J.
W., ‘Natural Justice in Federal Administrative Law’ (1998) 17 AIAL Forum 1, p 3
(original
emphasis).
[5] Lord Hoffman, above,
n1.
[6] Applicant A v Minister
of Immigration and Ethnic Affairs (1997)190 CLR 225,
230-231.
[7] Applicant A v
Minister of Immigration and Ethnic Affairs (1997)190 CLR 225,
230-231.
[8] Minister of Foreign
Affairs and Trade v Mango (1992) 37 FCR 298,
[303]-[305].
[9] Pilkington
(Australia) Ltd v Minister of State for Justice and Customs (2002) 127 FCR
92 at [26].
[10] AB v
Registrar of Births, Deaths and Marriages [2007] FCAFC 140,
[14]-[16].
[11] IW v City of
Perth (1997) 191 CLR 1 at 22-23, 27, 39, 41-42 and
58.
[12] Chu Kheng Lim v
Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR
1 at 38, per Brennan, Deane and Dawson JJ; Salomon v Cmrs of Customs and
Excise [1967] 2 QB 116.
[13] Coco v R (1994) 197 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and
McHugh JJ.
[14] Minister for
Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ
and Deane J.
[15] Al-Kateb v
Godwin (2004) 219 CLR
562.
[16] Al-Kateb v
Godwin (2004) 219 CLR 562 at
590.
[17] Migration Act 1958 (Cth) (‘Migration Act’), s 189, s 196, s
198.
[18] Al- Kateb, 581
per McHugh J; 642-643 per Hayne J; 661 per Callinan J; see also 662 per Heydon J
agreeing with Hayne J ‘subject to reserving any decision about whether s
196 should be interpreted in a manner consistent with treaties to which
Australia is a party but which have not been incorporated into Australian law by
statutory enactment’.
[19] Al-Kateb, 595 per McHugh
J.
[20] Al-Kateb, 577 per
Gleeson CJ citing Coco v The Queen (1993) 173 CLR 427; 607 per Gummow J,
616 per Kirby J.
[21] R v
Secretary of State for the Home Department, ex parte Simms [2002] 2 AC 115
at 131.
[22] French CJ,
‘Adding Value to Law Making’, Australia and New Zealand Scrutiny of
Legislation Conference, Canberra, 6 July
2009.
[23] (1992) 175 CLR 1
(‘Mabo (No
2)’).
[24] (1992) 175
CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J
agreed).
[25] (1992) 175 CLR 1 at
42 per Brennan J (with whom Mason CJ and McHugh J
agreed).
[26] (1992) 175 CLR 1 at
42 per Brennan J (with whom Mason CJ and McHugh J
agreed).
[27] Sir Anthony Mason,
A.C., K.B.E., ‘An Australian Common Law?’ Paper delivered at 1995
Australiasian Law Teachers Association 50th Anniversary Conference,
La Trobe University, 1 October 2005, p
14.
[28] Sir Anthony Mason,
‘An Australian Common Law?’, pp
14-15.
[29] (1992) 177 CLR 292
(‘Dietrich’).
[30] Dietrich at 306 per Mason CJ and McHugh
J.
[31] See, for example, Derbyshire County Council v Times Newspapers Ltd [1992] 1 QB 770 at pp
812-813 per Balcombe LJ (cited in Dietrich); Sir Anthony in ‘An
Australian Common Law?’ cites Derbyshire County Council v Times
Newspapers Limited [1993] A.C. 534 and Attorney-General v Guardian
Newspapers Ltd (No 2) [1990] 1 A.C.
109.
[32] ICCPR, Art
14(3)(d).
[33] Dietrich at
321 per Mason CJ and McHugh
J.
[34] Dietrich at 360
per Toohey J.
[35] (1995) 183 CLR
273.
[36] Teoh at 288 per
Mason CJ and Deane J.
[37] Dietrich at 321 per Mason CJ and McHugh
J.
[38] Dietrich at 307
per Mason CJ and McHugh J (citations
omitted).
[39] Kirby J,
‘The Role of the Judge’, Australian Law Review, 1988, vol
62, p514 at p526.
[40] Cases in other areas have concerned, among other things, contractual disputes,
extradition and family law matters: W. Lacey, Implementing Human Rights
Norms: Judicial Discretion and Use of Unincorporated Conventions, 2008,
Presidian Legal Publications,
p155-156.
[41] (2006) 15 VR 22,
38-9.
[42] R v Togias (2001) 127 A Crim R 23, 37 [85] per Grove J; 43 [123] per Einfield AJ; R
v Hollingshed (1993) 112 FLR 109,115, contra Smith v R (1998) 98 A
Crim R 442, 448.
[43] Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70, 75; see
also Re Rigoli [2005] VSCA 325.
[44] Wickham v Canberra
District Rugby League Football Club Ltd (1998) ATPR 41–664, [64]-[70]; McKellar v Smith [1982] 2 NSWLR 950, 962F.
[45] McKellar v Smith [1982] 2 NSWLR 950, 962F. See now the much fuller list set out by Bell J in Tomasevic (2007) 17 VR 100, 114 [73] and fn 49.
[46] (2007) 17 VR
100.
[47] Gradidge v Grace
Bros Pty Ltd (1988) 93 FLR 414, 422 per Kirby P, 426 per Samuels JA and 427
per Clarke JA (agreeing with Kirby
P).
[48] (1991) 30 FCR 70
(‘Schoenmakers’).
[49] Schoenmakers at 74.
[50] Schoenmakers at 74.
[51] Schoenmakers at 74.
[52] Schoenmakers at 75.
[53] Tomasevic at 115.
[54] Human Rights Act 2004 (ACT) s 30; Charter of Human Rights and
Responsibilities 2006 (Vic) s 32(1). For example, s 32(1) of the Victorian
Charter states: ‘So far as is possible to do so consistently with their
purpose, all statutory provisions must be interpreted in a way that is
compatible with human
rights’.
[55] The Hon
Justice J Spigelman AC, Statutory Interpretation and Human Rights, 2008
McPherson Lectures, University of Queensland, 11 March
2008.
[56] French CJ,
‘Adding Value to Law Making’, Australia and New Zealand Scrutiny of
Legislation Conference, Canberra, 6 July
2009.
[57] This is consistent
with s 15AA of the Acts Interpretation Act 1901 (Cth) which provides
that: ‘[i]n the interpretation of a provision of an Act, a construction
that would promote the purpose or object underlying the Act (whether that
purpose of object is expressly stated in the Act or not) shall be preferred to a
construction that would not promote that purpose or
object’.
[58] Justice
Maxwell, ‘The Victorian Charter of Human Rights and Responsibilities So
Far: A Judge’s Perspective’, Annual Castan Centre Conference,
Melbourne, 17 July 2009, p
1.
[59] Victorian Human Rights
and Equal Opportunity Commission, Emerging Change: The 2008 Report on the
operation of the Charter of Human Rights and Responsibilities, 2008; ACT
Human Rights Commission, Submission to the National Human Rights Consultation,
2009.
[60] Kracke v Mental
Health Review Board & Ors (General) [2009] VCAT 646, [255]-[333].