Do we have the necessary legal grammar to talk human rights?

We’re all talking human rights—but do we have the necessary legal grammar for them?

Emeritus Professor Rosalind Croucher AM

Acknowledgement

Chief Justice, Justices, Masters and Registrars, good morning.

Thank you to Justice Paul Tottle for the invitation to speak with you today.

I’m sorry I can’t be with you in 3D, but WA once again has distanced itself from the rest of Australia in closing borders to people like me from the east coast.

May I begin by acknowledging the Gadigal people of the Eora nation—the traditional custodians of the land on which I am speaking in the city of Sydney.

Everyone’s talking about rights …

Have you noticed that this year there’s been a lot of talk, anger and resistance to the restrictions to our rights and freedoms as Australia deals with the COVID-19 pandemic? I think this has been a really good thing, speaking to a heightened ‘rights consciousness’ in the face of COVID-19 restrictions.  But not all of this talk has been well grounded.

Do you remember Karen? The Bunnings Karen—who defied the requirement to wear masks in Victoria, calling upon her human rights?^[1] The pregnant pyjama-clad Ballarat woman arrested and handcuffed for inciting a protest against restrictions?^[2] A man fined $1000 for eating a kebab on a park bench in Newcastle, NSW?^[3]

In some way or another, each and every one of us has encountered restrictions—on our freedom of movement, the right to peaceful protest, the ability to engage in public areas without wearing masks and the requirement to provide personal information for the purpose of contact tracing.

Australians for the most part have been willing to ‘do the right thing’, guided by public health advice informing the restrictions imposed by Federal, State and Territory governments. Some have not. Some have acted through a sense of invulnerability, ignorance or simple stupidity. Others have spoken about their rights. Some have even invoked the Universal Declaration of Human Rights, as did Bunnings Karen, or other international human rights instruments in their refusal to follow public health directives. 

Government measures in the interests of protecting the health of the entire community have provided a range of conversations about our rights. And for the most part, I welcome these discussions. But there are some in our community that could benefit from a deeper understanding of our rights in general and about human rights in particular—and especially about what rights are protected, or not, under Australian law.

In part this a conversation about public understanding of rights. In part it is also a conversation about the legal architecture, or grammar, for protecting rights and freedoms in Australia—hence the title I suggested for this talk.

The framing of rights in Australia

Thinking back to when I came into my present role just over three years ago, after my ten-year ‘apprenticeship’ at the Australian Law Reform Commission, what I knew about the legal grammar of rights and freedoms came through my background as a common lawyer and legal historian, and an acquaintance with the international treaties to which Australia was committed in framing law reform recommendations, as directed under our Act.

One of the last big projects I led at the ALRC over 2014–2015 concerned the encroachment on ‘traditional rights and freedoms’ in Commonwealth laws,^[4] which placed common law rights and freedoms in the spotlight.

A question in my mind throughout was about the difference between ‘common law rights’ and ‘human rights’? What I came to appreciate was that, in essence, they are the same—in their focus on the individual against actions of the State—and common law rights are deeply embedded in the fabric of our law.

Common law rights and freedoms embody key moments in constitutional history: including the sealing of the Magna Carta in 1215,^[5] the settlement of parliamentary supremacy against the King following the ‘Glorious Revolution’ of 1688, and the enactment of the Bill of Rights Act 1688,^[6] which still forms part of our constitutional history in Australia. In 2014 the Right Hon Lord Dyson, Master of the Rolls, observed that, for centuries, Magna Carta has influenced constitutional thinking worldwide.^[7]

Although the principal focus of the Magna Carta was on the relationship between the barons and the Crown, the essence was the assertion of the freedom and protection of the individual against the arbitrary exercise of power by the Crown.

The rights and freedoms were recognised and developed by the courts and through legislation, and statutory interpretation in turn—ie through common law.^[8]  

Of course, our Constitution also expressly speaks about some rights: the right to trial by jury on indictment for an offence against any law of the Commonwealth;^[9] freedom of trade, commerce and intercourse within the Commonwealth (s 92);^[10] a limited right to freedom of religion that ensures that no one religion can dominate over others;^[11] and the right not to be subject to discrimination on the basis of the state in which one lives.^[12] There is also the requirement that if the Commonwealth compulsorily acquires property, it must do so on ‘just terms’,^[13] which may also be conceived of as a right.^[14] The scope of s 92 is being tested now—Palmer v State of Western Australia is listed for hearing before the Court next week, in relation to the Western Australian border closure.

In addition, the High Court has found an implied right to freedom of political communication.^[15] This freedom is not absolute, but any law that restricts political communication must be ‘reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’.^[16] Two things to observe about this: first, this is a test of proportionality. Secondly, the freedom operates as ‘a constitutional restriction on legislative power’, rather than as a personal right, which is how all the ‘rights’ in the Constitution work.^[17]

In Gerner v State of Victoria, currently before the Court, the issue of freedom of movement within a State, is being tested both under s 92—somewhat of a long bow—and as an aspect of the implied freedom of political communication. In Tajjour v New South Wales (2014) 254 CLR 508, the High Court held by majority that there was no freestanding freedom of association implied into the Constitution, and that any freedom of association could only be implied as a corollary to the implied freedom of political communication. The High Court is holding a hearing next week, limited to the question of whether there is an implied freedom of movement in the Constitution.

The ‘rights’ questions in the Australian constitutional context are framed through the lens of limitations on legislative power—and largely through arguing about the implications of such limitations.

Our Constitution expresses rights differently from a ‘Bills of Rights’ approach as in the US. The Hon Robert French AC observed that this is, in part, ‘a function of our history’, driven by the concern of colonists about foreign affairs, immigration, defence, trade and commerce, and industrial relations—as well as about ‘colonising activities of France and Germany in the region’. Most importantly, the colonists saw themselves as ‘essentially British’ and the rights ‘most intensely debated’ were those ‘of the individual colonies as proposed states, vis a vis, the proposed federal parliament’.^[18]

This is an entirely different approach to rights from, say, the United States, with its codification of rights in its Constitution through a series of amendments.^[19] This approach has led to a politicisation of appointments to the US Supreme Court—one, if I might say, should not be emulated in our own constitutional context. I observe in contrast that the model of statutory rights protection in Commonwealth countries is a different one, which retains and emphasises parliamentary supremacy.

When it comes to a broader consideration of rights protections in the common law, we meet the principle of construction known as the ‘principle of legality’. While Parliaments are sovereign, laws they pass are not immune from judicial consideration. By reading down laws to minimise possible encroachments on rights and freedoms, the common law—through statutory interpretation—plays a role in protecting them.^[20] The primary rationale for this principle was provided by Lord Hoffmann, namely that ‘Parliament must squarely confront what it is doing and accept the political cost’.^[21]

The ‘political cost’ of the decision was also something referred to by French CJ: the interpretation of legislation takes place ‘against the backdrop of the supremacy of Parliament’, which can qualify or extinguish rights and freedoms by ‘clear words’—but words ‘for which it can be held politically accountable’.^[22] Political accountability means that you can get voted out.

The essence of this understanding about rights in the common law is that there are rights, and they are deeply entrenched. But Parliament can override them—as long as they are very clear about it.

The grammar of ‘human rights’ and international law

The distinct language of ‘human rights’ arose principally in the aftermath of the Second World War and the horrors of the holocaust, spearheaded by the Universal Declaration of Human Rights.^[23] This landmark document, adopted by the UN General Assembly on 10 December 1948, was one of the first decisions of the United Nations. Australia’s own ‘Doc’ Evatt was in the Chair as President of the General Assembly on that significant occasion.

It was a moment that was also embraced and marked across Australia. Michael Kirby remembers clearly the UDHR being given to every schoolchild in Australia, on that flimsy aerogramme paper that some of you may remember.

What was distinctive about the UDHR was its move away from an international law that was about the rights of states among themselves, to an international law of human rights, which confers rights on individual men and women, and in a context where the United Nations was recognised as a distinct actor.

The UDHR was followed two decades later by two other major components of what is known as the ‘International Bill of Rights’—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.  Australia was a founding signatory to each of these instruments—as well as to the Charter of the United Nations itself.

Although we are not often viewed as a major global player, Australia has played a significant role in establishing the current rules-based order. We may be small, but we have played, and can play, a major role. As a nation, we have played an influential role in the design and development of the international human rights system.

However, little has been done to enact the rights and freedoms protected by these instruments into Australian law—despite the aspirations perhaps encouraged in the schoolchildren of Michael Kirby’s young years. This means that the rights and freedoms enshrined in these international human rights instruments are not directly enforceable in Australia.  

The grammar we got

While Australia has not ‘domesticated’ these international commitments, we did get anti-discrimination laws.

So, something like freedom of speech, contained in art 19 of the ICCPR for example, is found implied in the limited freedom of political communication (as a legislative limit, not a positive right), and in things like the limits on it expressed in defamation law and the constraints of the equitable doctrine of breach of confidence, and the grounds of unlawful discrimination, but if you wanted to pin it down more directly, other than in hyberbole, to explain to, let’s say, ‘the man on the Clapham omnibus’, you’d be struggling.

The unfinished architecture

When the Commission was put on a permanent foundation in 1986, as HREOC, after its predecessor had completed its five years under the leadership of Dame Roma Mitchell, it was designed in tandem with an accompanying Australian Bill of Rights Act. The Bill was passed in the House of Representatives, but did not survive the Senate. More recently, the idea was the principal recommendation of the National Human Rights Conversation led by Fr Frank Brennan SJ, over a decade ago.

While the entire Commonwealth of Nations has moved forward by introducing comprehensive human rights protections in legislation—commonly referred to as a Charter of Rights or a Human Rights Act—Australia stands alone in the Commonwealth for not having introduced such protection, at least at the Commonwealth level.

There is already considerable momentum in this direction. Queensland has now joined Victoria and the ACT in having state Human Rights Acts. (I should also add that the model is nothing like that in the US.)

But just because ‘everyone else’ has one, does that necessarily mean that we need one too?

From the perspective of the Commission’s jurisdiction, it is still unfinished legal architecture. To continue along the allegorical lines, we are like a doughnut—with a hole in the middle.

The functions under the ICCPR for Australia are there, but essentially invisible to people like Bunnings Karen. Even without a formal enactment of the covenant as a ‘Bill of Rights Act’, people can bring a complaint on the basis of the ICCPR rights to us at the Commission. Our functions, since 1981, when the Commission was first established under Dame Roma Mitchell at the helm, have included a complaints mechanism. And ever since 1981 the Commission has been handling human rights complaints based on the instruments that are scheduled to our Act. Most notably, however, these instruments do not include the ICESCR.

When I was involved in a panel that was looking at the protection of religious freedom in Australia over the summer of 2017–18—the panel chaired by the Hon Philip Ruddock AO, I was struck by the fact that both the broad sets of protagonists saw an answer in having a Human Rights Act as part of federal protections of rights and freedoms. This was even from those who had been ardent opponents in previous times. But it also struck me that having one was not an end, in and of itself, but the beginning or the unravelling of many more questions. Whether we introduce one; what it would look like; and what role the Australian Human Rights Commission would play, are all key questions, for example.

The beauty of a Human Rights Act, and other measures that frontload rights-mindedness, is that they are expressed in the positive: affirming rights and freedoms, not just implying them.

For my own part, I have had somewhat of a ‘Road to Damascus’ conversion to the idea of, and need for, an Australian Human Rights Act and embedding human rights thinking more directly in our laws and decision making.

My journey along the road to Damascus

I must confess that I was a little—a lot—resistant to the idea of a Bill of Rights in Australia before I came into this role. The American experience of a constitutional Bill of Rights, and litigation about rights in the courts, so publicly played out, were somewhat discouraging. Our own constitutional drafters took a different approach. Not having a revolution as a propelling force in our constitutional imagining, we were more reserved—essentially ‘British’, as Justice French remarked.

It is not that our constitutional tradition was ‘opposed to rights’, but rather ‘opposed to judges having power to protect them from interference by legislation’.^[24] Those who drafted our Constitution, ‘preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers’.^[25] Hence my own hesitation on the subject.

So what changed my thinking? It was not one specific Damascene moment, but a growing realisation, in three parts. I began to share my thoughts on this subject in Perth last year, when I was invited to open Law Week.

The three parts:—

First, while our sense of rights is embedded in the common law, the common law has its limits. Secondly, it was a realisation that the statutory expression of rights is played out in the negative, reliant on individual disputes; and what coverage there is, is patchy. Thirdly, was my experience in observing, and being responsible for, the complaints-handing processes of the Commission, where I have seen how it is not about courts and litigation so much, but about what happens with that only as a last resort possibility (at least for our discrimination law complaints).

Let’s take each idea in turn.

First, the common law. Protection of serious invasions of privacy, for example, has got stuck. The common law needs a great leap forward, as it achieved in Donoghue v Stevenson in relation to negligence, but we have not got there yet. Perhaps the ‘age of drones’, is the contemporary equivalent of the ‘age of railroads’ to provide the necessary catalyst for the common law.

Secondly, there is the negative expression of rights.

The problem of much of our human rights protections in Australia is that they are framed in the negative—in terms of what you can’t do. This is the way that our set of four federal discrimination laws work; and, like the common law, they rely on a dispute before offering a solution. (This has also framed some of the contemporary discourse and criticism about human rights being driven by ‘identity politics’. But you can only bring a complaint if you can come within a ‘protected attribute’—on the basis of race, sex, age and disability.)

This is not to say that our discrimination laws are not important. They directly reflect international commitments, being domestic implementations of them, and can achieve many positive systemic outcomes through the conciliation process that is the heart and soul of the complaints-handling processes, and the principal vehicle of operation of discrimination laws.^[26]

Our discrimination laws are also a mishmash, reflective of the context and times of their introduction, over four and half decades. Amendments have been somewhat haphazard; and the effect of some not properly understood. The political compromises which drove them have been forgotten, and what was envisaged as a temporary expedient to secure passage of legislation becomes part of the permanent structure of the law, without thinking of why: why was it there, what is its purpose now, is that purpose still relevant or necessary today?

What protection there is, is also limited. There is also inconsistency between the meaning of discrimination in the four federal laws and extremely complex differences in legal standards, which again reflect the different points in time at which each piece of legislation was introduced, and in some measure the language of the conventions from which they are drawn.

The third part of my journey was the realisation of the effectiveness of the complaint-handling jurisdiction of the Commission, which it has had since the very first days under the Racial Discrimination Act of 1975.

Complaints usually start with just a phone call or email—some form of contact—by, on average, 15,000 people a year, individuals who consider that they have been badly done by in one way or another, and businesses just trying to understand their obligations. They are assisted or referred. About 2,000 people pursue the Commission’s formal complaints process—one that is based on conciliation. Only a tiny number of these ever end up in court—on average 2–4%; and most participants, both those who complain and those who are complained against, are very satisfied with the professionalism of the process and its outcomes.

For example, if we look at the number of complaints the Commission has received and conciliated over the past 20 years to 2018, the numbers represent successful alternative dispute resolution through conciliation for more than 30,000 people and organisations.^[27]

Compare the situation now in relation to the implied freedom of political communication in the Constitution—this is entirely played out in High Court litigation for the most part. Only a tiny percentage of complaints matters handled by the Commission get anywhere near a Court.

The kinds of objections that lawyers may have to the imprecision of rights language, when framed as laws, need to be set in a context in which most arguments about rights happen not in a judicial environment at all. It is also about seeing the experience of those common law jurisdictions that have made the leap into the legislative model, and that the world has not fallen in as a result.

The essential idea that a Human Rights Act captures is a positive framing of rights. It is one of the actions that the Commission has supported for many years to ensure an effective system to promote and protect human rights in Australia.

Even without a Human Rights Act, the positive framing of rights can have other expressions in building a human rights approach more clearly into decision making itself.

For policy makers, a Human Rights Act could include a positive duty to consider human rights impacts through the lens of proportionality, but you could also get some way there through the Code of Conduct for the Australian Public Service and an amendment to the Public Service Act. 

With respect to lawmakers and explicitly considering the impact of laws on human rights, we went partly down that road with the introduction of the Parliamentary Joint Committee on Human Rights in 2011, and the requirement to produce ‘compatibility statements’ with human rights.^[28] There are several other committees, some very longstanding, that scrutinise bills and other instruments for compatibility with rights too (in a generic sense). The processes of scrutiny of legislation in Australia are strong, as the Freedoms Report of the ALRC discussed, but there is also room for improvement.^[29]

The beauty of a Human Rights Act, and other measures that frontload rights-mindedness, is that they are expressed in the positive—and they are ahead of any dispute.

A statute names them; it provides an obligation to consider them and a process by which to do it—together supporting a cultural shift towards rights-mindedness, becoming part of the national psyche, not just an afterthought.

Now on theme of ‘rights-mindedness’, what about lawyers? How fluent are lawyers on human rights?

When I think about my own legal education, in studying Arts/Law at Sydney University, the most ‘radical’ subject then was, perhaps, Jurisprudence, still reflecting the influence of Julius Stone, taught by Professor Alice Erh-Soon Tay, with a focus on ‘law in action’ rather than ‘law in the books’. But apart from that, it was a ‘straight down the line’ professional degree. No options. Just a set of compulsory subjects. For lawyers of my generation, the language of human rights was essentially foreign, and for many it still is.

And for those older-generation lawyers, it is interesting to reflect on that parallel generation of English judges, old school, who were thrown into the world of the Human Rights Act 2000 (UK), a domestic implementation of the European Convention on Human Rights. One of those is Lord Neuberger. Speaking at a conference in Melbourne in 2014, on the role of judges and their human rights experience, he remarked:

Initially at least, the attitude of many lawyers and Judges in the UK to the Convention was not unlike that of a child to a new toy. As we became fascinated with the new toy, the old toy, the common law, was left in the cupboard.^[30]

In other words, lawyers get used to it. Like new toys. Ld Neuberger also spoke of the influence of convention/human rights thinking on the common law and of the effectiveness of the dialogue model (not the override model of the US) in leading change.

But for the generation of lawyers who are emerging now, the story is rather different. They have fluency in this language. These are not ‘new toys’. They also have expectations, of themselves—and their nation. As Michael Kirby did, wide-eyed and fascinated, in receiving his copy of the Universal Declaration of Human Rights.

Concluding comments

Our current system for protecting human rights is simply not good enough.

We don’t have a sufficient level of proficiency, or fluency, to converse in human rights terms when discussing issues of major concern to the community.

This year has brought this into sharp relief. People are talking about rights. People are demanding their rights. Governments are defending their incursions on people’s freedoms.

Human rights approaches provide the parsing for the solution. A human rights based approach gives us the grammar we need.

We know about proportionality through the High Court’s approach to the implied freedom of political communication. If that is extrapolated to a wider principle you see the approach to dealing with issues of intersecting rights.

A human rights based approach requires us to answer distinct questions when legislators seek to limit rights and freedoms: is it ‘necessary’—and public health and the right to life are good reasons for legislating restrictions of the kinds we have all experienced this year; is it proportionate to achieve its goal, being the least restrictive to achieve it—eg, were curfews in Victoria really needed at night, for example; were the lockdowns required for as long as they were?

The restrictions on rights also needs to be provided by law—which also means to be open to proper legislative scrutiny. In the current context one of the issues that we have drawn attention to is the use of much delegated legislation in response to the emergency situation we find ourselves in.

The use of legislative instruments means there is not the same level of independent scrutiny as regular legislation. Much of the scrutiny comes after the fact. There has also been the use of extraordinary measures, known generically as ‘Henry VIII’ clauses, whereby delegated instruments can change the meaning of legislation agreed by the Parliament.

I spoke of my concerns about this in my opening statement at the Senate Estimates hearings last week—about the lack of transparency in explaining the continued justification for some emergency measures, and even for identifying precisely which level of government is responsible for some of them.

The checks and balances that ordinarily exist are integral to our democracy. Australians have been, and continue to be, exposed to potentially unnecessary restrictions of their rights and freedoms, because of the lack of transparency and accountability.

The decisions may be justified, but how can we know without appropriate democratic scrutiny and accountability?

And what about Bunnings Karen? She invoked human rights, but with a poor understanding, and only a general appeal to what she claimed should be her rights.

When I think of Karen, I think of my grandchildren.

At home I have a copy of the Magna Carta. It was produced in 2015 to mark the 800th anniversary of the sealing of the document. My grandson spotted it and said, ‘Grandma, you have the magna carta on your wall!’. He was seven.  How did he know about it? Through ‘Horrible Histories’ on television. It was a story of King John being nasty. But how does this lead to a conversation about rights, in Australia today, with my grandkids over their cornflakes? It is hardly the UDHR that young Kirby took home.

The Magna Carta is not what you might describe as a highly accessible document, in the medieval Latin of the early thirteenth century. It is iconic, perhaps ‘the vibe’ of our understanding of rights, but over breakfast with your grandchildren?

On access to justice, how about this:

Nulli vendemus, nulli negabimus, aut differemus rectum aut justiciam! 
(To no one will we sell, to no one will we refuse or delay, right or justice)

It has a kind of Star Wars resonance, but as to filling their imagination on access to justice, I doubt it!

Human rights approaches give us a legal grammar for approaching complex balancing issues where rights are engaged. A greater embedding of our promises to the world in Australian law would provide the pathway to do so.

But even if there were direct laws about rights, it doesn’t mean that everything is a right, nor does it mean that rights are unqualified. And all human rights come with the corresponding responsibility to respect the rights of others.  

Having a greater embedding of human rights as Australian law would give us a way to help all the Karens of Australia—and my grandchildren—to understand and exercise their rights and freedoms better.

Endnotes

^[1] https://www.abc.net.au/news/2020-07-27/leaders-respond-to-bunnings-karen-mask-video/12494382.

^[2]   https://www.abc.net.au/news/2020-09-02/woman-charged-ballarat-covid-protest-live-stream/12623118.

^[3]  https://www.news.com.au/national/nsw-act/news/coronavirus-restrictions-man-fined-1000-for-eating-a-kebab-on-a-bench/news-story/c9e2ed2f9262caeb81f995aacc3ad276.

^[4] Traditional Rights and Freedoms—Encroachment by Commonwealth Laws (ALRC Report 129, December 2015). (Freedoms Report)

^[5]  The various iterations of the document are described in J Spigelman, ‘Magna Carta in its Medieval Context’ (2015) 89 Australian Law Journal 383.

^[6]  Bill of Rights 1688 1 Will & Mary Sess 2 c 2 (Eng). The Bill of Rights remains an important element in the rule of law in Australia, as illustrated by Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195; Port of Portland v Victoria (2010) 242 CLR 348. A version is available in the ACT via Austlii.

^[7]    The Right Hon Lord Dyson MR, speech at the ‘Magna Carta, Religion and the Rule of Law’ conference, Temple Church, London, 7 June 2014.

^[8]   See, eg, the discussion in the Freedoms Report, ch 2.

^[9]   Australian Constitution s 80.

^[10]  Australian Constitution s 92.

^[11]  Australian Constitution s 116.

^[12] Australian Constitution s 117.

^[13]  Australian Constitution s 51(xxxi). 

^[14]  Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1, 349 (Dixon J). Its operation may invalidate legislation that does not provide for just terms compensation: see Freedoms Report, [18.73].

^[15]       See Australian Capital Television v Commonwealth (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; Unions NSW v State of New South Wales (2013) 88 ALJR 227. The High Court has said that ‘freedom of association to some degree may be a corollary of the freedom of communication’: Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 181, [148] (Gummow and Hayne JJ).

^[16] This is part of the second limb of the Lange test, as set out by French CJ in Hogan v Hinch (2011) 243 CLR 506.

^[17]  McCloy v New South Wales [2015] HCA 34 [30]. See also Unions NSW v New South Wales (2013) 252 CLR 530 at 554 [36].

^[18]  R French, ‘Protecting Human Rights Without a Bill of Rights’, John Marshall Law School, Chicago, 26 January 2010, 7. The speech can be found at http://www.hcourt.gov.au/publications/speeches/current/speeches-by-chief-justice-french-ac.

^[19] See, eg, J L Hiebert, ‘Parliamentary Bills of Rights: An Alternative Model?’ (2006) 69 Modern Law Review 7; S Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49(4) American Journal of Comparative Law 707, 710.

^[20]  See, eg, R French, ‘The Common Law and the Protection of Human Rights’, Anglo Australasian Lawyers Society, 4 September 2009.

^[21]  R v Secretary of State for the Home Department; ex parte Simms [2002] 2 AC 115 131.

^[22] French, ‘The Common Law and the Protection of Human Rights’, 2. Emphasis added.

^[23] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).

^[24]   Jeffrey Goldsworthy, ‘Constitutional Implications Revisited’ (2011) 30(1) University of Queensland Law Journal 9, 25.

^[25]  Australian Capital Television v Commonwealth (1992) 177 CLR 106, [23], Dawson J.

^[26] See my article on this topic, ‘”Seeking equal dignity without discrimination”: The Australian Human Rights Commission and the handling of complaints’, (2019) 93 ALJ 571.

^[27]  Looking at Annual Reports from July 1998 to July 2018.

^[28]   Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

^[29]   Freedoms Report, [3.95].

^[30]  Lord Neuberger, ‘The role of judges in human rights experience: a comparison of the Australian and UK experience’ (Speech, Supreme Court of Victoria, Melbourne, 8 August 2014), [29].