Australia Without A Bill of Rights – Margaret Kelly

Dr Margaret Kelly is a lecturer in Law at Macquarie University and teaches Constitutional and Administrative Law. Before taking up an academic career, Margaret Kelly worked in the Cabinet Office in Canberra and was head of the Administrative Law section in the Department of Prime Minister and Cabinet from 1987-88. In a piece for The Australian on 19 March 2010, Margaret Kelly argued that the Brennan Report would “lead to the demise of some of the best features of Australian public administration”. At The Sydney Institute on Tuesday 4 May 2010, Margaret Kelly joined Susan Ryan to discuss the outcomes of the government’s response to the Brennan Report.

AUSTRALIA WITHOUT A BILL OF RIGHTS

MARGARET KELLY

The nation most famous for its Bill of Rights is the United States of America. Does this constitutionally entrenched Bill of Rights give Americans better human rights than Australians? That country still has the death penalty; there is still no universal medical protection for Americans and no safety net for the unemployed. Do you think that Americans have better rights than Australians? That their Bill of Rights has been effective in securing rights?

The nation most notorious for its Bill of Rights was the Soviet Union. Stalin’s “New Constitution” of 1936 included a Bill of Rights which purported to guarantee the people the right to work, the right to rest and leisure, maintenance in old age, right to education, economic equality, right to form unions, right to privacy, freedom of religion, freedom of speech, freedom of assembly, and freedom of the press. This constitution continued till 1977 when Leonid Brezhnev based his new “Brezhnev Constitution” on the 1936 document, also purportedly protecting a series of civic and political rights.[1] Among these were the rights to freedom of speech, freedom of press, and freedom of assembly and the right to religious belief and worship. In addition, the Constitution provided for freedom of artistic work, protection of the family, inviolability of the person and home, and the right to privacy.[2] As Professor Bowring has noted, ‘The USSR had always ratified UN human rights treaties, but with no intention that they should apply within the Soviet Union, much less that there should be the possibility of interference in internal affairs.’[3]

Many supporters of a Bill or Charter of Rights for Australia, either constitutionally entrenched or statutory, make the argument that Australia is alone in the democratic world in not having such an instrument. This is a childish argument, redolent of playground argument that “mine is better than yours”, or, worse, of “keeping up with the Joneses” – in other words, it is hostage to international fashion irrespective of the merits.

It seems clear that rights are not protected by some form of words. They are protected, or not protected, by political processes. Failure to protect rights of individuals can lead to war or revolution (such as the American revolution). But in order for individual rights to be protected they must first be acknowledged. In Australia, there is a long history of both acknowledgement and protection of rights, civil, political and economic. And this occurred without any entrenched constitutional Bill of Rights. It occurred without any overarching statutory Bill or Charter of Rights. It occurred by respect of people for one another, engagement in the political process, and the passage of one law after another progressively securing Australians’ rights. It is within this framework of democratic engagement by Australian citizens that the rights of Australians, and of others visiting this country, must be analyzed.

The problem with discussion of proposals for a Bill or Charter of Rights for Australia, either constitutionally entrenched or statutory, is that their proponents confuse form with substance. The substance of rights protection in Australia is both solid and enduring, and has come to this point without any need to involve the judiciary in deciding what a right is or when it is violated or whether it should be protected. These are political issues that have been satisfactorily dealt with by the democratic process.

Australia is a nation of 21 million people. It receives approximately 300,000 immigrants a year. It is a country of immigrants. Its greatest achievement has been to forge a democratic nation stretching from Groote Eylandt to Cradle Mountain, without any war or major civil unrest. How has it done this?

Primarily, through involvement of its people. People living in a continent isolated between the Indian and Pacific oceans and far from the ancien regimes of old Europe or the new world of the Americas developed a unique way of looking at themselves. Generally hostile to authority, but willing to give other people a “fair go”; a concept of “mateship”; and above all a commitment to the fact that each person is as good as another. This, together with a desire to battle oppression and to ensure that workers were not dudded by sectional vested interests, saw the development of the Labor Party in the 1890s, and the emergence of a democratic electoral system in 1902 that gave all adults male and female[4] the right to vote – Australia was the first nation to give women the vote.[5] Secret voting was established in Victoria and South Australia in 1856, in NSW and Tasmania in 1858, in Queensland in 1859, and in WA in 1893; Australia was the first country to use the secret ballot, which became known as the “Australian ballot”. Secret voting was perpetuated in the Commonwealth Electoral Act of 1902.[6] Compulsory voting was introduced in 1924[7] to ensure that every citizen met her obligation to participate in choosing the government of the country. While the votes of indigenous Australians who had been able to vote in colonial elections before 1901 were secured for Commonwealth elections by s. 41 of the Constitution (and there were many of them who met the requisite criteria in NSW, South Australia, Tasmania and Victoria, as well as South Australian indigenous women), administrative directions instituted by Robert Garran progressively (and unconstitutionally) deprived those Australians of their right to vote.[8] However, all indigenous Australians were entitled to enrol and vote at Commonwealth elections in 1962,[9] and voting became compulsory for them as for all other eligible Australians in 1984. So engagement in the political process was secured, surely one of the most fundamental of rights.

But it did not stop there. Social and economic rights of individuals were also guaranteed through the political process. Who can forget the referendum of 1946 that enabled the Commonwealth government to makes laws providing maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, and medical and dental services?[10] Well, unfortunately, a lot of people have forgotten it. Without the political will of the Chifley Labor government of the time, and the engagement of the Australian people through referendum, this would not have happened. As a result, a multitude of social  and economic measures protecting Australians’ economic and social rights became law. There are unemployment benefits, safety nets, Medicare, and the list goes on.

Indigenous Australians were the beneficiaries of the 1967 referendum, which removed the racially discriminatory s. 127 from the Constitution, and gave the Commonwealth power to make laws in relation to Aboriginal people in the States[11] (it already had this power in relation to indigenous Australians in the territories).[12] It was as a result of these changes that the Commonwealth was able to override State legislation discriminating against Aboriginals.[13] While many indigenous Australians still live in circumstances totally undesirable, successive governments have continued to takes special measures to try ensure that as much as practicable can be done to improve those circumstances.[14] The overwhelming response of the Australian people in voting “Yes”[15] to the 1967 referendum[16] stands in stark contrast to the situation in the United States, which was only then after some 200 years moving towards acknowledging African American rights.

Perhaps one of the most puzzling things about the Report of the National Human Rights Consultation Committee (the Brennan Committee Report) is the disjunction between its own polling as to public opinion, and the composition of the submissions to it.

The Committee commissioned the market research company, Colmar Brunton, to conduct focus group research and a quantitative telephone survey, which found no crisis or no groundswell for substantial change: “Most participants in the groups reported that they had had no experience of having their rights violated or had ever even felt that they were under any particular threat,” the company said. “In the survey only 10 per cent of people reported that they had ever had their rights infringed in any way with another 10 per cent who reported that someone close to them had had their rights infringed.” Even more disconcerting, 64 per cent of people felt human rights in Australia were “adequately protected”, with only 7 per cent disagreeing.[17] This is an exceptionally narrow platform from which to mount a change to Australia’s institutions and culture. Colmar Brunton found “while it was universally agreed that human rights and their protection were important, views on how to achieve this were more varied”. Nearly two-thirds (64 per cent) felt that with human rights the “spirit of the law” was more important than “the letter of the law”.[18] When asked about five specific actions to improve human rights, the “most preferred approaches were those which provided the least additional definition of rights”.[19]

The reactions of the respondents to five specific questions put to them were as follows: 90 per cent responded positively to the question that they preferred that parliament pay attention to human rights when making laws; 85 per cent responded positively to the question that governments should pay more attention to human rights when developing policies; 81 per cent responded positively to the question that more human rights education for children and adults would be a good thing; 61 per cent responded positively to the question that there be a non-binding declaration from the Commonwealth Parliament of human rights principles be available to all Australians; and 57 per cent responded positively to the question that there be a specific Human Rights Law defining the rights to which all people in Australia would be entitled.[20]

This would indicate that the public’s preference is to improve rights is by modest, not radical, action; it also suggests that incremental change through the democratic process is the preferred course of action.

The measures outlined in the Brennan Committee’s Report, either those for a Human Rights Act or its fallback suggestions for changes to administrative law and the Acts Interpretation Act, have one outstanding characteristic. They involve judges making policy decisions. Decisions that either say, this legislation does not conform to rights in the statute, or this decision does not adequately protect this individual’s human rights, or this person’s rights are not properly protected by the law (i.e. the legislation). In fact, rights are taken into account at all levels of the political and public service decision-making, not to mention by the parliament itself.

What is different about the Brennan proposals is that it increases the power of the judiciary, it involves them in weighing competing interests (a political matter), and then reinterpreting legislation according to their own definitions and notions of propriety and ‘rights’, and thus effectively re-legislating. This is not the function of the judiciary. It also suggests that the idea of everyone being subject to the law does not apply to judges: that they, unlike legislatures or Ministers, are of a higher competence to say whether a law or a decision is “right” when it comes to the application of ‘rights.’ This makes a mockery of the rule of law.

It is not proper for the judiciary to engage in these practices at the behest of one individual when the government and the parliament have already considered individual interests within the whole spectrum that constitutes the national interest. For the judiciary to do so amounts to a transfer of power from the democratically elected legislature to the unelected, and largely unaccountable, judiciary. Moreover, it would seem to be a breach of the separation and sanctity of the judicial power doctrine as previously understood by the High Court.[21] For example, Justice Kirby recognised that, in the absence of an entrenched or statutory Bill of Rights, it was  “the judicial power of the Commonwealth, under the Constitution, [that provides] a bulwark against both federal and State attempts to confer incompatible functions on the judiciary or to deploy any part of the judicial power of the Commonwealth otherwise than in accordance with Ch III”.[22] But for the High Court (or any other Chapter III court) to overstep the mark, and begin weighing competing interests in the light of broad rights statements which leave practically everything to judicial interpretation, is to breach the separation of the judicial power, as Justice Brennan foreshadowed.[23] That is a political not a judicial judgement.

Again, the effect of the proposed measures is to attempt to obtain a policy outcome for selective interests which the democratic process has denied. That is, the judicial process is being used as a policy-making mechanism to advance certain selective interests. This is both unwise, and dangerous, as it can lead to unforseen results, and because it can lead to the supremacy of vested interest groups outside the democratic process, something that Sir Gerard Brennan has warned against. He said in Quin in 1990:

The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.[24]

Or, he might have added, the dissatisfied, the disaffected, or the politically mobilized. This is clearly what has happened recently in the United States, as Ronald Dworkin has shown (see below).

In the Brennan Committee Report, there are three main examples cited as demonstrating a need for a Bill of Rights. They are the intervention in the Northern Territory, the position of asylum seekers, and the national security laws. Minds often differ on these matters. It is for this reason we have a democratic process so that the voters can throw out a government with whose policies they disagree. And it is fatuous to think that in making laws on these three issues, neither the government nor the legislature has taken into account the effect of them on individuals’ rights. But the fact that these three are the major rationales for a Bill of Rights demonstrates the intersection of public policy-making with the consideration and protection of rights. But this is not a matter for judges. It is a matter for government and parliament. It is there that political objectives are to be secured, and not in the courtroom. And certainly not to be subject to determination by unelected judges.

Finally, as to unintended consequences.

Ronald Dworkin, not noted for his conservative views, wrote a damning article about the US Supreme Court’s interpretation of the First Amendment right to free speech in the case of Citizens United v Federal Electoral Commission (FEC.)[25] Writing in the New York Review of Books this month, under the headline “Decision That Threatens Democracy”, he referred to that decision in which a 5:4 majority made an extremely controversial decision on the application of the constitutional right. He said:

The five conservative justices, on their own initiative, at the request of no party to the suit, declared that corporations and unions have a constitutional right to spend as much as they wish on television election commercials specifically supporting or targeting particular candidates. President Obama immediately denounced the decision as a catastrophe for American democracy and then, in a highly unusual act, repeated his denunciation in his State of the Union address with six of the justices sitting before him.

“With all due deference to separation of powers,” he said, “last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” As he spoke one of the conservative justices, Samuel Alito, in an obvious breach of decorum, mouthed a denial, and a short time later Chief Justice John Roberts publicly chastised the President for expressing that opinion on that occasion. The White House press secretary, Robert Gibbs, then explained Obama’s remarks: “The President has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision and is working with Congress on a legislative response.”[26]

Thus in the United States the freedom of speech by virtue of the proactive adventurism of judges, has changed the face of political campaigning, in that any body with sufficient funds and sufficient mojo may under the Court’s protection may mount media campaigns against individual candidates. This essentially is the outcome that Justice Brennan feared in Quin.

Importantly also, however, the Brennan Committee Report overlooks, or treats with some considerable disdain, the protections available to rights through the common law itself, the internal government checking processes, the Parliamentary processes, the administrative law regime, and statute.

The Australian common law incorporates, as Justice French (as he then was) with Branson and Stone JJ acknowledged, certain fundamental rights and freedoms; they said in 2008, “It is an important principle that Acts be construed, where constructional choices are open, so as not to encroach upon common law rights and freedoms.”[27] This is a basic principle of statutory interpretation, dating in Australia as far back as 1908.[28] As Chief Justice Murray Gleeson stated in 2003, the High Court has established principles of interpreting statutes which include:[29]

First, where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia’s obligations^[30].

Secondly, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment^[31].  …

Thirdly, the Australian Constitution is framed upon the assumption of the rule of law^[32].  Brennan J said^[33]:

Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.

Fourthly, and as a specific application of the second and third principles, privative clauses are construed “by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied”^[34]. …

That is, the existing over-sighting role of the Commonwealth judiciary in reviewing decisions, and the provisions of legislation, already incorporates protection of rights and freedoms, and the legislature must be very, very clear if it wants to enact validly a law that abrogates any of those rights and freedoms. But at least the judicial approach to statutory interpretation does acknowledge that the people’s elected representatives may in certain circumstances either wish, or need, to confine some of those rights and freedoms. This is a matter for the legislature and not for the courts.

The Commonwealth parliament itself has many means of overseeing and either approving, amending, or rejecting, legislation that adversely affects rights. While many commentators concentrate (often disparagingly) upon the roles of the Senate Committees (e.g. the Scrutiny of Bills Committee, the Regulations and Ordinances Committee, the Constitutional and Legislation Committee, the Estimates Committees), many forget that no Bill can become law unless it passes through both Houses of parliament. So whatever effect a legislature measure may have upon rights, it is not merely representative of the views of the government of the day, but of the majority of the elected representatives in both Houses. It must be remembered that since 1949, governments have had a majority in the Senate on only two occasions. During debates in both Houses, amendments are frequently made; when referred to Committee, again, amendments are often made. And then of course there is the scrutiny of the measure in the press, on the TV, on the internet, on Twitter and all the new media. There is no lack of scrutiny involved.

This is democratic governance.

Successive Commonwealth governments have enacted statutes to protect rights. They have moved progressively to secure individuals against discrimination on the basis of age, sex, marital status, sexual preference, disability, religion or culture.[35] Just as significant as these measures are the progressive reforms in the law from the 1970s onward. The establishment of legal aid and of Aboriginal Legal Services provided access to the courts which could not have otherwise been afforded.

The changes in the Commonwealth legal system saw government move to make its decision-making more transparent through the enactment of Freedom of Information legislation, while continuing to protect individual privacy.[36]

The Commonwealth made far-reaching additional changes to its system of administrative law. Faced with the growth in government decision-making affecting Australians, the Commonwealth systematically established independent administrative bodies to review government decisions adversely affecting citizens, and in some cases, non-citizens. These bodies are now well known: e.g. the Social Security Appeals Tribunal (SSAT), the Administrative Appeals Tribunal (AAT)[37]—it is sufficient when going to the AAT merely to claim that the ‘decision was wrong.’ The great merit of these review bodies is that, unlike courts, they can replace a decision. For non-citizens in the country unlawfully, or facing deportation because of failure to meet character requirements, the Refugees Review Tribunal (RRT) and the Migration Review Tribunal (MRT) exist to review, confirm, change, or replace a decision.[38]

In addition, the Commonwealth attempted to streamline judicial review of applications to courts to review decisions fro errors of law through the enactment of the Administrative Decisions (Judicial Review) Act 1977.

And the Commonwealth Ombudsman was established to investigate maladministration in government and to pursue complaints about government decisions.[39] Applications to the Ombudsman are free. These initiatives by the Commonwealth were replicated in the states and territories.

It has become almost axiomatic within much of the legal profession and proponents for an Australian Bill or Charter of Rights to claim that initiatives such as the enactment in the ACT of its Human Rights Act in 2004[40] saw “the first Australian jurisdiction to formally incorporate rights into its legislation”.[41] As the Commonwealth Ombudsman (and now Information Commissioner) Professor John McMillan has noted, this is surely to overstate the case for the ACT statute, while simultaneously understating  (or indeed, ignoring or dismissing)  the case for the manifest and manifold changes that have been wrought over the decades by Commonwealth legislation and the common law. He said:[42]

My own view is that the limited empirical evidence that is available suggests that institutions such as the Ombudsman, together with other innovations in administrative law and government, have had a marked impact over three decades in developing a new culture in public administration that is more attuned to the rights of members of the public.[43]

Part of the problem is the seeming ignorance of many proponents of a Charter/Bill of Rights of the wide swathe of rights-protection mechanisms currently available, and a manifestation of an apparent distrust of democratically elected legislatures accompanied by a belief that courts and judges should have more say in rights-protection.

In addition to the protection of rights available through the multifarious channels already mentioned, there are requirements imposed upon public servants and ministers in preparing legislation.

The Legislation Handbook requires that any matters that might have the following effect must be legislated through primary legislation, nit regulation, so that it is subject to the whole range of debate within Parliament: where there is a significant impact on individual rights and liberties; where obligations are imposed on citizens or organisations to undertake certain activities (e.g. to provide information or documentation) or to desist from activities e.g. prohibiting an activity or imposing penalties for engaging in an activity); which confer enforceable rights on citizens or organisations; which create offences which impose significant criminal or administrative penalties; or which impose taxes, or significant fees and charges.[44] It also requires that any proposal for a retrospective date of effect, especially a proposal adversely affecting rights or imposing liabilities, must be justified to Cabinet,[45] and such provisions must be included only in exceptional circumstances and on explicit Cabinet authority.[46] Any proposed provisions that may be inconsistent with, or contrary to, an international instrument relating to human rights should be subject to consultation with the Attorney-General’s Department.[47]

Finally, the Senate Scrutiny of Bills Committee has had the obligation for decades to examine all Bills that come before the Senate, and to report to the Senate on all such that (1) trespass unduly on personal rights and liberties; (2) make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers; (3) make rights, liberties or obligations unduly dependent upon non-reviewable decisions; (4) inappropriately delegate legislative powers; or (5)insufficiently subject the exercise of legislative power to parliamentary scrutiny. It is assisted by legal advisers, and has built a formidable body of information and practice over the decades.

The Committee regularly publishes Alerts, documenting potential breaches of rights or best practice. The most recent 2010 alerts cover variously reversal of onus of proof, retrospective application, trespass on personal rights and liberties, wide delegation of legislative power, insufficiently defined or excessive powers, or insufficient parliamentary scrutiny. Ministers are required to respond to requests for advice from the Committee, and do so at great length. The potential problem and the Ministers’ explanations are then considered by the Committee, and published in its regular reports, together with the Committee’s recommendations to the Senate. This information is available to all members of the public as well as members of parliament. There is no shortage of rights protection in Australia.

Therefore, the question needs to be asked, why are certain small sections of the community so adamant about the need for one? Is it not better to trust the democratically elected representatives and the people who elect them, than a small bench of unelected judges? And for those who think that democracy is majoritarian in a pejorative sense, it is far less so than judicial decision-making.

ENDNOTES

[1] See Chapter 7, “Basic Rights, Freedoms and Obligations of the Citizens of the USSR”.

[2] The preamble to that Constitution stated that preamble stated that “the aims of the dictatorship of the proletariat having been fulfilled, the Soviet state has become the state of the whole people.” The new Constitution purported to express “the will and interests of the workers, peasants, and intelligentsia, the working people of all nations and nationalities in the country”.

[3] Professor Bill Bowring, “Russia and Human Rights: Incompatible Opposites?”, Göttingen Journal of International Law 1 (2009) 2, 257-278, 265.

[4] Including those indigenous Australians who had the right to vote in the old colonies – see Constitution s. 41.

[5] Franchise Act 1902 (Cth). South Australia had already given adult women the right to vote in 1895, and Western Australia in 1899.

[6] See now, Commonwealth Electoral Act 1918, s. 233.

[7] Commonwealth Electoral Act 1918 (Cth), s. 245.

[8] See Tony Blackshield and George Williams, Australian Constitutional Law and Theory, (Federation Press, 5^th edn, Sydney 2010), 153-4; and see Pat Stretton and Christine Finnimore, “Black Fellow Citizens: Aborigines and the Commonwealth Franchise”, (1993) 25 Australian Historical Studies, 521.

[9] Earlier in 1949, Australian Aboriginals were given the right to enrol and vote at federal elections provided they were entitled to enrol for State elections (NSW, SA, VIC, TAS) or had served in the Defence Forces.

[10] Constitution s. 51(xxiiiA), Constitution Alteration (Social Services)Act  1946 (Cth).

[11] Constitution s. 51(xxvi)

[12] Constitution s. 122.

[13] Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth)

[14] Such specials measures do not constitute racial discrimination – Article 8, International Convention on the Elimination of All Forms of Racial Discrimination.

[15] 90.77% “yes” vote.

[16] Constitution Alteration (Aboriginals) 1967 (Cth).

[17] See Final Summary Report Prepared by Colmar Brunton Social Research for the National Human Rights Consultation, at http://www.humanrightsconsultation.gov.au/www/nhrcc/RWPAttach.nsf/VAP/(4CA02151F94FFB778ADAEC2E6EA8653D)~NHRC+Report+(Appendix+B).pdf/$file/NHRC+Report+(Appendix+B).pdfaccessed 4 May 2010, 2.1, p. 2.

[18] Brunton, ibid., 2.2, 6-7.

[19] Brunton, ibid., p. 7, p. 10.

[20] Brunton, ibid., p. 7 figure 6.

[21] See, e.g., New South Wales v Commonwealth (The Wheat case) (1915) 20 CLR 54; R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (The Boilermakers’ case); Re Wakim; Ex parte McNally, Re Wakim; Ex parte Darvall, Re Brown; Ex parte Amann, and Spinks v Prentice, (1999) 198 CLR 511, (1999) 163 ALR 270, [1999] HCA 27; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; International Finance Trust Company Limited v New South Wales Crime Commission, (2009) 261 ALR 220.

[22] See Re Colonel Aird and Ors; Ex parte Alpert, (2004) 220 CLR 308, 342-3, [2004] HCA 44, [108], Kirby J.

[23] See the reference to Quin, in the paragraph below.

[24] See Brennan J, Attorney-General (NSW) v Quin,  (1990) 170 CLR 1, ; [1990] HCA 21 .

[25] (2010) 558 U.S ; opinion delivered 21 January, 2010.

[26] This is taken from Ronald Dworkin, ‘The Decision That Threatens Democracy,’  The New York Review of Books, 13 May, 2010, available at http://www.nybooks.com/articles/archives/2010/apr/20/decision-threatens-democracy/accessed 4 May 2010..

[27] Evans v State of New South Wales [2008] FCAFC 130,

[28] Potter v Minahan (1908) 7 CLR 277, O’Connor J 304. quoting PB Maxwell, On the Interpretation of Statutes (Sweet & Maxwell, London, 1905): “It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness;…”

[29] Plaintiff S157 v Commonwealth,  (2003) 211 CLR 476, 492, [2003] HCA 2, [29]-[32].

[30] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; see also Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.

[31] Coco v The Queen (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ.

[32] Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 per Dixon J.

[33] Church of Scientology v Woodward (1982) 154 CLR 25 at 70.

[34] Public Service Association (SA) v Federated Clerks’ Union (1991) 173 CLR 132 at 160 per Dawson and Gaudron JJ.

[35] Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Age Discrimination Act 2004 (Cth); see also Human Rights and Equal Opportunity Commission Act 1986 (Cth).

[36] Freedom of Information Act 1982 (Cth); Privacy Act 1988 (Cth).

[37] Administrative Appeals Tribunal Act 1975 (Cth).

[38] Migration Reform Act 1992 (Cth).

[39] Ombudsman Act 1986 (Cth).

[40] Human Rights Act 2004 (ACT).

[41] C Evans, “Responsibility for Rights: The ACT Human Rights Act” (2004) 32 Fed L Rev 291, 309. This is referred to in John McMillan, “The Ombudsman and the Rule of Law”,

[42] John McMillan, “The Ombudsman and the Rule of Law”

[43] He referenced this thus: “That was the clear conclusion in two empirical studies I jointly undertook: see two articles by Creyke and McMillan, above n 24 and n 54. The annual reports of the Commonwealth Ombudsman also describe the steps taken by agencies to improve their systems in response to complaints from members of the public. Similarly, for an explanation of how the creation of an accountability and integrity framework within the executive branch of government transformed the Queensland Police Service (in the view of the Queensland Ombudsman) ‘from a corrupt institution at the highest levels to a professional and respected organisation’ see D Bevan, ‘Queensland’s Public Accountability Framework: Effective Regulation or Effectively Over-Regulated?” in M Barker (ed), Appraising the Performance of Regulatory Agencies (AIAL, 2004) 228.’

[44] Legislation Handbook, 1.12.

[45] Legislation Handbook, 4,7 (g).

[46] Legislation Handbook, 6.18.

[47] Legislation Handbook, 6.34.