The National Human Rights Consultation – Helen Irving

Issue 3 | 7 July 2009

Dr Helen Irving is a Professor at the Faculty of Law, University of Sydney and is the Director of the Julius Stone Institute of Jurisprudence. She has served as historical and constitutional advisor to a number of governmental bodies and Justices of the High Court of Australia. Her research interests include federal constitutional law, jurisprudence, comparative constitutionalism and the gendered dimension of constitutional interpretation. Helen Irving has produced six books which explore these areas. On Tuesday 7 July 2009, Helen Irving  joined Frank Brennan to address The Sydney Institute on the case against a Bill of Rights.

THE NATIONAL HUMAN RIGHTS CONSULTATION

HELEN IRVING

There is a sort of phoney war going on at present in the debate about rights in Australia. Under its terms of reference, the national Human Rights Consultation has been asked to consider whether Australians’ rights are adequately protected at present, and if not, how their protection might be improved. There is no requirement for it to propose a bill or charter of rights. The consultation, as I understand it, is not about what sort of bill of rights Australia should have. It is about the best means of protecting rights.

Yet, the proponents of a bill seem to assume not only that a bill or charter of rights is the single item on the agenda, and that its adoption is the inevitable outcome, but also that a particular model – the so-called “dialogue” model – is already on the table. They also assume that accounts of human rights abuses will themselves stand as the rationale for such a bill’s adoption. At the many public forums in which I have taken part, and in many of the submissions I have read, stories are told of the circumstances in which the vulnerable and oppressed find themselves. These stories are often very moving, sometimes truly tragic. But they are taken in themselves to be sufficient evidence of both the need for and the likely efficacy of such a bill. They are also tied – either expressly or by implication – to calls for socio-economic rights: rights to welfare, housing, health, education.

Leading proponents of a bill are, in fact, divided over whether socio-economic rights should be included. Those who favour their inclusion are gaining the greatest attention. Because their stories of deprivation or oppression are moving, they are hard to rebut or qualify without appearing heartless. However, an analysis is rarely given of how the dialogue model – or any model bill at all – will assist the vulnerable or oppressed, or why other forms of redress cannot be effective. All proponents repeatedly make the assertion that Australia alone of the democratic world – to its shame – lacks a bill or charter of rights. Yet, again, there is little analysis of why this might be a defect.

These assumptions make an open-ended discussion very difficult. What I am going to do here, rather than debate the merits of a model that has not yet been officially proposed, is, first, say something about the claim the Australia lacks the sort of bill or charter of rights that the rest of the democratic world has; and, second, identify some of the problems yet to be resolved by those who promote a bill of rights; and, finally, say something about my recent experience in the UK, where I observed political and public debates about the UK Human Rights Act.

Comparison with other countries

The claim that Australia, alone in the democratic world, lacks a national bill of rights, is easy to make, but is misleading. The comparison assumes commensurability. However, the comparison is with countries which, themselves, are not equal when compared with each other. The countries in question do not all have the same sort of bill or charter. Indeed, they have different versions.

New Zealand has a Bill of Rights Act based on the International Covenant on Civil and Political Rights; the United Kingdom’s Human Rights Act incorporates the European Convention on Human Rights; the United States has a bill of rights designed by its framers; Canada’s Charter mixes both international and domestic rights. These Bills vary in the type and number of rights they recognise, the language they use to recognise them, the form of rights limitations they allow, the degree of power given to the judiciary to enforce rights, the type of person to whom the rights extend (for example, some grant rights to corporations as well as human persons; some to groups, as well as individuals), and in many other ways.

In other words, there is no such thing as a single or uniform bill of rights that other countries have, but Australia lacks. So, just because Australia does not have one instrument with the heading ‘Bill’ or ‘Charter’, does not mean that it lacks the rights protection found elsewhere.

Australia in fact has a very wide range of human rights legislation – most of it drawn from international conventions. These laws prohibit, among other things, sex discrimination, race discrimination, age discrimination, sexuality discrimination, disability discrimination, and much more. They allow individuals to seek remedies for breach – and, importantly, they are linked to a range of non-judicial tribunals, where individuals have accessible, affordable, and informal opportunities to have their claims heard.

Importantly also, only one of the countries with which Australia is routinely compared incorporates socio-economic rights into its Bill. South Africa alone does that, and it does so for very particular historical reasons, of which you would all be aware. Yet, as I mentioned, many bill of rights advocates in Australia are especially committed to socio-economic rights. What they should say, in fact is this: “all, but one of those other countries with which we compare Australia are actually also lacking in the sort of bill of rights we favour.”

Other significant differences between Australia and these countries emerge when we look at the opportunities available for scrutiny of legislation in the light of human rights standards. Australia’s parliament is different. Australia has always had a directly elected upper house. The United States Senate was not elected until 1913, long after its Bill of Rights was adopted. Canada still has an unelected Senate. Until very recently, the British House of Lords was entirely unelected, and still is only partially subject to indirect election.  New Zealand doesn’t have an upper house at all.

In Australia, as we know, the Senate plays a significant role in reviewing and amending government bills. Its committee system strengthens that role. It has played an important part in recent times in moderating legislation – such as anti-terrorist laws – where human rights have been at issue. The 1948 Universal Declaration of Human Rights (upon whose 60^th anniversary the National Human Rights Consultation was announced) does not require countries to adopt a bill of rights. It commits countries simply to “strive by teaching and education to promote respect for … rights and freedoms and by progressive measures … to secure their universal and effective recognition and observance…” It recognises that countries will promote rights and freedoms in different ways. Australia has taken “progressive measures”. Comparisons with other countries are meaningless without considering the full picture.

Unresolved problems with the Yes case

Proponents often illustrate their claim for a bill or charter by reference to the mistreatment of vulnerable individuals, the appalling conditions under which many aboriginal Australians live, and the detention of unlawful immigrants waiting for asylum claims to be heard.

These examples confuse the need to improve rights protection with the absence of rights protection. They identify problems without considering the existing forms of rights protection already in place. These existing forms may be inadequate. If so, we need to know why they could not be improved or supplemented.

Proponents often overlook that what sceptics are concerned about is not legislation, but judicial review – the power of courts to restrict the making of law as opposed to performing their traditional role of applying and enforcing the (already-made) law in particular cases. Judicial review allows the courts to take on a quasi legislative role. This is highly problematic for a country with a system – and a Constitution – that promotes the separation of powers. The distinction between the power to apply legislation and the power of judicial review is poorly understood by the public, and is obscured in the debate.

Advocates also confuse Commonwealth and State powers: most of the socio-economic rights they promote – health, education, housing – are matters for State law. If the Commonwealth were to be held responsible for such rights, this would result in a virtual takeover of state laws. Similarly powers regarding arrest, prosecution, and detention, are mostly a matter for the States. There are very few Commonwealth crimes.

The detention of asylum seekers, on the other hand, is a Commonwealth matter, as are conditions in the Territories, and indigenous affairs.  If proponents of a bill of rights were realistic about Australia’s federal system and the constitutional limits on the Commonwealth, this is the area in which their campaign would make sense. However, a solution to the breaches of rights found in detention centres or indigenous communities is quite a different thing from a full bill of rights.

Proponents also confuse the need for human rights training with the need for a bill of rights. One of the examples frequently given to illustrate the positive effect of the Human Rights Act in the UK concerns an elderly woman, left strapped in a wheelchair against her wishes, in a hospital ward in London. Finding her in this condition, her advocate, we are told, informed the hospital authorities that the woman’s human rights were being breached (the right in question was the prohibition on degrading treatment, Article 3 of the UK Human Rights Act). This, it is said, led to improvement in her treatment. As told the story assumes the proponent’s conclusion. But it need not. The woman’s situation was certainly regrettable, but it is unclear why a bill of rights, bringing with it the spectre – or threat – of court action was needed to achieve such an outcome. Human rights training for public authorities could have achieved the same result.

Proponents also confuse the current benevolence of some judges with the predisposition of the judiciary. They do not consider the record of judicial review in countries with long histories of operating bills of rights. This history shows that courts are just as likely to overturn progressive legislation or throw out cases brought by the vulnerable or oppressed as they are to support them. Indeed, in the United States, the Supreme Court has been conservative, sometimes deeply conservative, for most of its history. The activist or progressive periods have been brief and rare.

In summary, what proponents seek is a fundamental change to Australia’s constitutional arrangements – to the federal system, Commonwealth -State relations, and the separation of powers- when what they want is either constitutionally prohibited (and therefore they are putting a lot of effort into something that can’t work) or is achievable by other means (and, I would say better, less costly, and more effective, means).

The United Kingdom

Britain has now had the better part of a decade of experience with its Human Rights Act. Certainly there are people in Britain who feel confident that the Act has had a positive effect, with little or no negatives. However, almost all political parties appear to be unsatisfied, and many in the public are not happy. Expert opinion is divided. Many people seem to feel that the Human Rights Act has become a fetter on ordinary professional activity and ordinary social or community relations. Claims are heard from those who work in the public sector that their work is subject to rules and restraints making it difficult for them to exercise their professional judgment, and making them, potentially, legally liable for ordinary mistakes. Some members of the public say that they feel unable to express their opinion freely, for fear of appearing to breach the rights of minorities or religious groups. They believe their own freedoms are being sacrificed to protect the rights of others.

The government, for a range of reasons, including its recognition of public discontent, also believes that the Act needs to be reconsidered. A review of the Act has identified several deficiencies. The lack of socio-economic rights has received particular attention. In an interesting train of logic, this is tied to the need to carve out distinctive British rights and to make these rights express traditional British values. The prominent example frequently given is the National Health Service. The NHS, say proponents of socio-economic rights – has become part of the “political constitution of Britain”.

Conservatives deplore what they believe to be the Europeanisation of Britain via the Human Rights Act, and want to see British values protected. Rather than finding these in institutions like the NHS, however, they identify English liberty as both the key and the core. The historical legacy of liberty, the freedom of the Englishman, they say, has been eroded. The Human Rights Act, they argue, protects the voices of vocal minority groups, while police measures silence ordinary member of the public. For example, individuals harmlessly handing out political pamphlets, or speaking from soap boxes outside railway stations, have been subject to Anti-Social Behaviour Orders (the main police tool for controlling public behaviour) while – it is said – people with fringe values or extreme political views are permitted to express themselves, for fear that silencing them will amount to a breach of their rights. All the while, conservatives point out, Britain is becoming a “surveillance society”, with expanded police powers, a proliferation of CCTV cameras, and uncontrolled collection of personal data.

The response to the new wave of terrorism has become exaggerated, they say, in contrast to the relatively restrained way in which Britain handled the IRA. Powers to arrest, detain and hold without charge are excessive. For example, notwithstanding the Human Rights Act, detention without charge is possible for up to 42 days. (We may note here that in Australia, without a bill of rights, it is twelve.)

I had a meeting with a leading human rights advocate in London. He was sceptical about the Act. He admitted that some of his greatest fears at the time of the Act’s introduction had not been realised. This was, he said, because the judges had been admirably “timid” in enforcing the Act, and had not yet sought to aggrandise the role of the courts. Still, he expressed significant concern about the continuing impact of the Act. One of the principal negatives, in his view, was the curtailing of proposed social policy initiatives. Under the Act, the government is required to attach a statement to each proposed law to attest whether it is compatible with the Human Rights Act.  Before this statement is attached, lawyers advise the government on whether a bill is likely to breach a provision of the Act. For this reason, certain policies – those which have a collective benefit as their goal – may no longer be pursued, because the rights of individuals might subsequently be held by the courts to be infringed. Governments can no longer think in collectivist terms, he said. They must think now in individual terms.

The criticism, to summarise in my own words, is that a very heavy sledge hammer is being wielded across the whole of society in order to crack a few nuts; that the loss of liberty is too great a price; that progressive policies have been stifled because individual rights will triumph over the collective; that the relationship of the citizen to the state has been fundamentally changed, and that little or no discernible improvement has been the result. (I don’t want to give a one-sided picture. There are certainly supporters of the Act, who believe that its impact has been unquestionably beneficial. Examples can be found on the website of the British Institute of Human Rights.)

Can we learn anything from this experience to assist Australia’s current debate? At a conference on the UK Human Rights Act in Leeds, I asked a prominent advocate: ‘If you could go back ten years, before the Act was adopted, but knowing what you know now, what would you do differently?’  His response was this:  We [Britain] should have consulted more widely; we should have asked the public what they wanted, what they thought.

If this is the lesson, we are doing the right thing – consulting, asking questions, listening. I don’t envy Father Brennan or his fellow committee members, however, in having to make sense of the forty thousand responses!

Endnotes

This type of bill or charter, found in the UK, Victoria and the ACT, empowers the courts to make declarations of incompatibility or inconsistency between a law and the rights it protects. It does not permit the courts to strike down or invalidate a law. In the event of a declaration, the government is then required to give a response – either to say how it intends to amend or modify the law in question, or to declare that it intends nevertheless to go ahead with the law, regardless of the breach of rights. “Dialogue is said to be what takes place.

This could only be done indirectly either by the use of fiscal powers, with detailed conditions placed on Commonwealth grants to states, or by the passage of Commonwealth laws giving effect to international treaties. For the former, legal action for breach of these rights could still only proceed in the state courts. The Federal Courts are not constitutionally empowered to hear matters concerning state law.  For the latter, state laws that were on the same subject but inconsistent with commonwealth laws would then be invalid. But this would be the only constitutional ground on which the federal or high courts could rule, and its application would be confined to cases where there were two inconsistent laws. Policy or programs that clashed with a Commonwealth law, or the failure of policy on the part of a state, are unlikely to meet the test for a ‘law’ under the relevant section (s 96) of the Constitution.

See Dominic Raab, The Assault on Liberty: What Went Wrong with Rights, London 2009.