Gillian Triggs – The Decline of Parliamentary Democracy in a Post Truth Era: a Charter of Rights for Australia.
We are now said to live in a ‘post-truth’ era, where opinion is likely to drive political outcomes more than evidence, that expertise is a subject for attack, that populism, tribalism and ‘retail politics’ shape public discourse and there are serious concerns that, as in the 1930s, democracy itself may be under threat. With her commitment to openness and accountability, Gillian Triggs is able to make a major contribution to this necessary debate.
Jim Carlton Memorial Lecture, 23 March 2018, 6:00pm, Melbourne Law School 185 Pelham Street, Carlton
The Integrity / Jim Carlton Lecture was jointly hosted by the Centre for Comparative Constitutional Studies (CCCS) at Melbourne Law School and the Accountability Round Table (ART).
Speaker’s notes.
I was especially pleased to be invited to give the annual memorial oration for Jim Carlton as I knew him to be a true liberal and a socially progressive, warm hearted man of great integrity. Elected as the member for Mackellor in Sydney’s northern beaches, Jim became Secretary General of the Liberal Party, commanding respect, as Mr Turnbull recognised, as an astute and influential member of the party. I came to know him a little after his retirement from politics when he was appointed the Secretary General of the Australian Red Cross, for which role he was awarded the highest international honour, the Henry Dunant medal.
I have admired Jim’s commitment to social justice and the partnership with his wife Diana. Some years ago, I directed an ADB aid project in Mongolia over a three year period and learnt of the orphanage established in Ulaanbaatar, established and supported by two remarkable Australians. I was delighted to learn that Diana had spent time working with the children at that orphanage. She and Jim were quiet and modest people with compassion and belief in public service. I imagine he would have been proud to know that this lecture series on ‘Accountability and Integrity’ is in his name.
My topic tonight deals with a decline in Australia’s system of parliamentary democracy in this ‘post truth’ era; an era, where political ideology is drives policy not evidence, where expertise attracts personal attack, and where populism and so called ‘retail politics’ constrain informed public debate. In this era of alterative facts and false news, I am reminded of the words attributed to George Orwell:
“In a Time of Universal Deceit — Telling the Truth Is a Revolutionary Act”.
I have observed what I believe to be the truth: parliamentary democracy in Australia is in decline, failing to meet its role as a check on the inevitable encroachments by the executive. The failure of Parliament and its many parliamentary committees poses a serious threat to our democracy; our ranking by The Economist recently, for example, continues to slide down the democratic country list –in short, we should be both alert and alarmed.
In Australia, we do not view our liberties through the lens of human rights. Human rights law does not adequately inform the legal or political discourse and is often ignored and expressly overridden by Parliament. Australia’s relative isolation from the evolving jurisprudence of comparable countries in Europe, North America, or New Zealand has led to an exceptional approach to human rights. Each of these nations views legal and policy questions through the prism of human rights and they have developed a human rights environment that far outstrips legal thinking in Australia.
Over the past 20 years or so Australia has become isolated from international and comparative judicial thinking—especially from the ‘like-minded’ nations with which we like to compare ourselves. It bears repeating: Australia is the only common law country and only democracy in the world without at least a legislated, if not constitutionally entrenched, Charter or Bill of Rights. Canada, a world leader in human rights protection, enacted a Charter of Rights and Freedoms in 1982, followed by New Zealand in 1990 and the United Kingdom in 1998. The United States has long had a guaranteed Bill of Rights through various amendments to its Constitution. The consequences of Australia’s failure to enact a Bill of Rights are reflected in the seeming powerlessness of the judiciary as a check against unfair laws. The Coalition Government’s suspension of the Racial Discrimination Act 1975 to facilitate the Northern Territory Intervention in 2007 is just one illustration of how executive power can be abused or overreached.
As the former president of the Australian Human Rights Commission, I have watched with growing concern as, piece by piece, legislation has been passed by compliant Federal Parliaments over the past 15 years or so, facilitating a creeping expansion of executive powers and non-compellable and non-reviewable discretions of Ministers. Examples include the executive power to detain unauthorised asylum seekers for years without charge or trial on the pretext of administration, to hold terror suspects for extended periods for questioning, to strip a dual national of citizenship, to use meta data retention laws to diminish privacy and freedom of speech and to pass mandatory sentencing laws that diminish the independence of the courts. At the state level, we have also seen numerous new laws diminishing our freedoms: the NT’s paperless arrest laws, Queensland’s “bikie” laws and mandatory sentences, NSW’s laws against ‘annoying behaviour’ during the Pope’s visit (later declared invalid by the High Court) and attempts by both Victoria and WA to hold juveniles in adult prisons. These laws breach common law rights to freedom of speech, movement and association, the right not to incriminate oneself, the principle of innocence until proven guilty and frequent reversals of the burden of proof, even in criminal trials. Only very occasionally have our courts been able to intervene to constrain the overreach of parliaments.
If each law is considered alone, the rationale for it might be reasonable and proportionate, especially if the aim is to protect national security. Perhaps, it might be reasoned, the prosecutors and government officials can be relied upon to moderate any possible abuse of the laws. One might consider that the risk to liberty posed by a particular law is relatively slight and is not worth defending at the barricades. But when we look back over the past two decades a pattern emerges. The whole has become much larger than the sum of its parts, threatening the freedoms that lie at the heart of our parliamentary democracy.
As Chief Justice of NSW Tom Bathurst has put it:
“Many small encroachments, taken individually, arguably have little effect. Taken cumulatively over time and across state, territory and commonwealth jurisdiction, they can be a death by a thousand cuts of significant aspects of our rights and laws that maintain our democracy”.
A Charter of Rights for Australia will better protect the rights of citizens, minorities and non-citizens and ensure a culture of respect for the rights that underpin our democracy – freedom of speech, the right to vote and equality. The tragic personal stories—Marlon Noble detained for 10 years without charge or trial on basis that he was not fit to plead to a criminal charge, Ms Dhu arrested for parking fines, dies in police custody from injuries suffered in domestic violence, Al Kateb a stateless person whom the High Court concluded could be held indefinitely in immigration detention and Dillion Voller the Aboriginal youth restrained in a steel chair hooded and isolated – These cases along with generalised breaches of the rights of Indigenous people, juvenile detainees, asylum seekers, and the homeless, could be prevented if we enacted a federal Charter of Rights.
‘What are the proper limits on the power of Parliament?’
Over the past twenty years or so, the major political parties have agreed with each other to pass laws that threaten some of the most fundamental rights and freedoms we have inherited from our common law tradition. Governments have been remarkably successful in persuading Parliaments to pass laws that are contrary, even explicitly contrary, to common law rights and to the international human rights regime to which Australia is a party.
But this is all rather abstract. Let us look at a recent example.
Operation Fortitude
Photographs from 28 August 2015 show a bright winter sky above the grand dome of Melbourne’s Flinders Street Station. The main clock face over the arched entrance says the time is just after two. The street beneath—normally one of the city’s busiest intersections—is blocked by demonstrators brandishing placards with hastily handwritten slogans: ‘No One is Illegal’; ‘Stop Racism Now’; ‘Border Force Off Our Streets’. It was a Friday afternoon, a time when city workers and students are typically winding down, minds already turning to weekend plans. That day was different. That morning the federal government’s Border Force had issued a media release announcing a two-day blitz targeting ‘crime in the Melbourne Central Business District’.
The sternly worded media release for Operation Fortitude promised that Australian Border Force (ABF) officers would be positioned around the city, ‘speaking with any individual we cross paths with’. It warned people to be aware of their visa conditions and that it would be ‘only a matter of time before you’re caught out’. ABF’s inaugural Commissioner, Roman Quaedvlieg, declared that he would defend Australia’s ‘utopia’ at sea, at border entry points and on home soil -echoes of Churchill’s ‘defend them on the beaches speech’? The agencies involved included everything from police to the sheriff’s office and train and tram authorities. The release concluded by announcing a two o’clock media conference on the steps of Flinders Street Station. By then, social media around Australia was alight with angry references to racial profiling. Politicians, city councillors, unionists and lawyers expressed everything from reservations to outright alarm. Victoria Police issued a statement saying the operation would not go ahead because of ‘community interest and concern’. Border Force leaders rapidly backed away, blaming lower-level minions for the fiasco.
It is true some people in the community do not have a valid visa or have overstayed their tourist, student and migrant worker visas. It is also true that Australia has a sovereign right to arrest and deport those who are in the country illegally. The Australian Federal Police and other law enforcement officers regularly do so, if quietly, under a section of the Migration Act that requires ‘probable cause’. But we have never had Border Force officers stopping people in shopping malls, demanding identification. The subsequent investigation by the National Audit Office (NAO) found that the Border Force Act 2015 had extended the ‘coercive’ powers to question, search, detain or arrest from a small number of officers to 15,000 Immigration and ABF employees. The NAO also found that there had been a catalogue of ‘potentially unlawful searches’ conducted by ABF officers throughout Australia.
In March 2018, the appointment of the ABF Commissioner was withdrawn by the Governor General for apparently unrelated abuses of office.
Was Operation Fortitude a triumph for democracy and people power through social media? A sinister ‘Big Brother’ conspiracy for social control? Or just an example of foolishness and incompetency? How is it that public officials did not caution that questioning without probable cause would be inconsistent with our liberties? Are our government officials so ill-informed about civil rights that no one challenged so obvious a violation of the freedom to walk the streets without fear of being stopped and questioned by border protection officers?
Although I take comfort in the speed with which so many in the community reacted to protect their liberties—a healthy sign for the future—Operation Fortitude is but one illustration of the scores of laws and policies adopted by federal and state governments in recent years that infringe common law freedoms and expand executive powers. We – and most relevantly-the courts, have no national Charter of Rights with which to stop them.
The aborted operation exposed a wholesale expansion of powers of staff across the Department of Immigration in apparent preparation for the creation of the ABF. Operation Fortitude justifies the growing unease about disproportionate restrictions on our liberties and the potential abuse of executive power by Australia’s new ‘Super Ministry’ of Home Affairs, created in 2017. The Super Ministry, modelled on the United Kingdom’s Home Office, and headed by Peter Dutton, the Minister for Immigration and Border Protection, creates a federation of border and security agencies including ASIO, the Australian Federal Police, Border Force, the Australian Criminal Intelligence Commission, the Australian Transaction Reports and Analysis Centre, and the Office of Transport Authority.
The wisdom of centralising these agencies may be doubted. In the past, they have been independent of each other so that their respective ministers could provide a check upon any abuse of power. It is also troubling that the Attorney-General will no longer have the same level of supervision over the actions of the agencies that have been moved from his portfolio to that of the Super Minister. Legislation to give effect to the creation of a Super Ministry has yet to be subject to parliamentary debate or passed by parliament.
Executive discretion: is this something to worry about?
The idea of executive discretion, or of an overreach of that government power, does not excite much passion. I suspect most people do not understand that their elected representatives have extensive powers that are not subject to judicial supervision. The limits to executive discretion and the doctrine of the separation of powers among government, parliament and judiciary seem abstract, even arcane, principles of Constitutional law. But they are important to our democracy. Australians are poorly educated about the Commonwealth Constitution (perhaps explaining, but not excusing, the failure of our elected representatives to understand the section prohibiting dual citizenship).
It is true that human rights are adequately protected for most people in Australia most of the time. Do we really need a Charter of Rights? More than we might think—especially when we look at criminal laws relating to terrorism and national security.
The Australian Law Reform Commission has identified 121 laws that infringe our democratic rights, including laws that risk freedom of speech, such as secrecy offences, mandatory data retention laws; offences for advocating terrorism, prohibiting terrorist organisations and imposing preventative detention and control orders. Any disclosure of information about ‘special intelligence operations’ will attract a mandatory five- or ten-year penalty, while ASIO officers retain total immunity from civil and criminal prosecution when engaged in these operations.
- There are at least 52 examples of legislative reversals of the presumption of innocence.
- Mental intention or negligence have traditionally been a critical element of criminal responsibility. Yet recent federal laws impose strict and absolute liability, for example, upon corporations and for prudential and environmental regulation, for commercial scale copyright infringement, for associating with a terrorist organisation or entering a ‘declared area’, and for disclosure of information concerning an ASIO operation.
- We also now have laws that do away with the privilege against self-incrimination, particularly laws that provide no immunity from prosecution.
- Procedural fairness and the right to due process are threatened by the mandatory cancellation of visas on character grounds and misnamed ‘fast-track’ review processes for denying refugee status. The right to have a judge review a decision is especially at risk in these cases.
When a law diminishing a freedom or right is challenged, our courts will usually respect the clear words and intent of parliament, and override the common law freedom. This is why we need a national legislated Charter of Rights to provide a check and balance on otherwise almost unrestricted and non-transparent executive powers and discretions.
How has to come to this?
Compounding Australia’s isolation from the language of international human rights is the fact that the Constitution protects very few rights: right to judicial review and freedom of religion; but other rights common to modern constitutions are not mentioned: freedom of speech is not mentioned though the High Court implies a right of political communication; not quite the same thing as freedom of speech.
International human rights treaties to which Australia is a party- ICCPR, ICESC, CRC, Refugee Convention- are not part of domestic law, except those with respect to race, sex and disability. They do form part of the Jurisdiction of the AHRC creating a confusing situation where the Government is not bound by the treaties while the Commission has a statutory obligation to monitor the Government’s laws and policies by reference to these very treaty obligations. The Government and Commission are like shops passing in the night.
Most concerning of all is the fact that the common law, that traditional bulwark against executive abuse, is invariably ousted by the clear and unambiguous words of Parliament.
Joint Parliamentary Scrutiny Committee
If human rights are not adequately protected by the Constitution, by legislation or by the common law, what are the other options?
Australia has evolved an essentially parliamentary approach to the protection of liberty. As parliaments enact the laws, they should also be guardians of common law freedoms and rights.
It became clear to me in my time at the Commission that Australians are most comfortable with an essentially parliamentary approach to human rights and indeed to all aspects of government. This makes sense. Parliamentary representatives have been elected by their constituents to give effect to the will of the people. The words of Parliament in the form of legislation are the voice of the communities it serves. It seems perfectly logical to say that it is for the sovereign Parliament, not the courts, to make the laws that govern our lives.
Shortly after the Parliamentary Scrutiny Act was passed, and with renewed optimism, I wrote an article titled ‘Australia’s Human Rights: Coming in from the Cold’. I am a fan of le Carre spy novels. I was seriously premature. The Scrutiny Act has been a disappointing failure. After a promising start, with the Scrutiny Committee producing some consensus reports, voting broke down along party lines when, in 2015, the Coalition appointed Philip Ruddock as the chair. Since that time, the Scrutiny Committee has produced both majority and minority reports that reflect essentially political responses to the proposed law. The Statements of Compatibility often make a blanket statement, without analysis, that the bill in question complies with human rights—these statements would fail any law-school test of accuracy.
Moreover, as research by Williams and Reynolds shows, politicians only infrequently mention the scrutiny committee reports when debating a bill. Even where a report draws attention to a possible human rights impact, it is invariably ignored on the floor of Parliament. When, in the glare of media and political attention, the Committee had the opportunity to make recommendations in respect to freedom of speech and the government’s proposed reforms to section 18C of the Racial Discrimination Act, the Scrutiny committee could find a majority only to list possible options, little more than a statement of the obvious.
The fact is that federal and state Parliaments have repeatedly failed to protect human rights and have legislated to restrict even the most widely recognised freedoms. Parliament continues to chip away at our rights, creating a new norm of tolerance for human rights violations.
The failure of Parliament and our courts to protect human rights is clear, whether we look at the indefinite detention of asylum seekers, of people with cognitive disabilities, of Indigenous juveniles or of violent criminals. Aboriginal deaths in custody, domestic violence, racism in the delivery of health services, and gender inequality are witness to a dysfunctional parliament and disempowered courts. We need law reform to respond to emerging issues of our digital age, elder abuse, workplace discrimination against the elderly and disabled people, and high levels of sexual assault and harassment, even in our universities.
In summary, Australia has reached a position in which fundamental freedoms are diminished by a failure of the legal tools available to comparable countries. In the absence of a Charter of Rights, we have few constitutional protections for our freedoms, limited legislation implementing our treaty obligations and a dysfunctional parliamentary system that does not stand against the overreach of executive power.
What are the courts doing to protect common law rights?
We have seen surprisingly little successful litigation challenging the exercise of executive discretion. Most ministerial discretions are unambiguously granted by parliament and respected by the courts. There has also been little scholarly analysis of the limits to executive power.
A positive example is the decision yesterday by the Federal Court in AYX18 Federal Court. The Department of Home Affairs resisted attempts to move a 10 year old boy from Nauru to Australia to treat suicidal risk; Court ordered Government to allow child into Australia for treatment.
Rather more worrying is the M68 case of a Bangladeshi asylum seeker who challenged the attempt by the Government to return her to Nauru after she had been given medical treatment in Australia. She did so on the ground that her forced return amounted to a penalty and could be imposed only by a judicial body, arguing that the penalty breached the doctrine of the separation of powers. The majority of judges rejected her challenge, saying that the government could lawfully send her back to Nauru—thanks largely to the swift insertion by a compliant parliament of an amendment to the Migration Act that retrospectively authorised her return.
Justice Gordon was the sole dissentient among the seven judges and understood, in my respectful opinion, the correct legal position. She found the retrospective provision of the Migration Act to be invalid because it gives to the executive government a power to impose a penalty. Penalties lie exclusively within the purview of the judiciary.
By contrast, Justice Gageler, in a separate decision, accepted that the retrospective law ensured the detention was within the government’s authority. The two judgments were so different because the judges were divided on the question of whether the detention was penal. Justice Gordon said the law was penal and therefore invalid because it imposed a penalty that lies within the exclusive power of the courts. Justice Gageler, to the contrary, said the law was not penal if the executive detention was permitted by statute. In short, the court returned to the power of parliament to pass any law it likes.
I find the majority decision in M68 chilling in permitting parliament to enact laws giving such wide powers to executive governments. I find it hard to imagine how the years spent in detention on Nauru do not constitute a penalty. While we keep hearing the mantra that executive power is to be interpreted by reference to the common law, the common law is being peremptorily ousted by the clear words of parliament. The common law has become an insubstantial spectre with little capacity to restrain Parliamentary excesses.
A Charter of Rights, even a simply legislated one, could moderate the almost unrestricted executive powers that can be granted by Parliament.
Do we need a Charter of Rights for Australia?
I am now convinced we have a serious deficit in the legal protection of human rights in Australia. We need to reconsider introducing a legislated federal Charter of Rights. Although some Commonwealth, State and Territory laws protect some human rights, no single document articulates these rights in a coherent and accessible way.
I do not propose a constitutionally entrenched Bill of Rights on the US model. Even I, a supreme optimist, do not think the body politic in Australia is yet ready to agree to such a profound change, especially as our political leaders see constitutional recognition of Indigenous peoples as a bridge too far. Even the more modest idea of a Charter of Rights—legislated by Parliament and subject to amendment at any time—will not be a panacea. But it could give the courts, Parliament and the community human rights benchmarks against which to assess the compliance of our laws with common law freedoms and our international obligations. A Charter of Rights for Australia would provide the missing check against the growing abuse of executive power over recent years and restore the increasingly challenged independence of the judiciary.
Such abuses are real. Marlon Noble is an Aboriginal man who has a cognitive disability after contracting meningitis as a child. In 2001, he was accused, falsely as it turned out, of sexually assaulting two young girls. The alleged victims and their mother denied this ever happened. Noble was not fit to stand trial. Under Western Australia’s Mentally Impaired Defendants Act he was held in a maximum security prison in Geraldton for ten years without trial or conviction for any crime.
A complaint on Noble’s behalf to the UN Committee on the Rights of Persons with Disabilities found that the:
‘indefinite character of (Noble’s) detention and the repeated acts of violence he was subjected to during his detention’
amounted to a violation of the Convention on the Rights of Persons with Disabilities. The UN committee found that the Western Australian Government should compensate Noble and that the state law’s provision for indefinite detention of people found unfit to plead should be removed. Noble has since been released from maximum security but remains subject to stringent restrictions 24/7 on his movements and lifestyle.
A Charter of Rights could have spared Noble this ordeal. Had such a Charter existed, an Australian court could have stepped in to order regular judicial supervision to ensure fair treatment for a person with cognitive disabilities being held indefinitely on the dubious basis that they are not fit to stand trial.
I accept that some people with cognitive disabilities are dangerous and cannot be released into the community. But even if they have to be detained, they are entitled to humane treatment and conditions and, above all, to monitoring by an independent judge or tribunal.
How would a charter protect rights? Britain’s Law Lords
In my time as Director of the British Institute of International and Comparative Law in London I was privileged to work with the Chair of the Institute’s Board, the late Tom Bingham. Grandly titled Baron Bingham of Cornhill, he was Britain’s senior Law Lord and—upon his death in 2010—widely described as one of the United Kingdom’s great judges of the twentieth century. One obituarist, in The Guardian, said hearing Bingham argue was ‘like watching an expert knife thrower’. London’s Daily Telegraph noted he was revered for ‘upholding human rights and the rule of law against the worst excesses of legislative and government action’.
Bingham had a strong commitment to common law freedoms and wrote a witty and erudite book, The Rule of Law, which I reread when in despair over Australian government directed human rights breaches. He describes how the Law Lords responded to the UK Government’s indefinite detention of foreign nationals suspected of involvement in terrorism. The European Court had prohibited the return of foreign nationals to their country if this would expose them to torture. The UK Government response was to ‘opt out’ of this prohibition on security grounds, enabling it to detain suspected terrorists without trial indefinitely.
When such detentions were challenged before the House of Lords in the Belmarsh case in 2004, Lord Bingham, joined by six other Law Lords, decided, seven votes to one, that detention without trial was illegal. Such detentions did not rationally address the perceived threat to security; was neither necessary or proportionate to the risk; and was unjustifiably discriminatory against foreign nationals on the ground of their nationality. Accordingly, the Court issued a Declaration of Incompatibility with the human rights protected by the UK Human Rights Act.
Another Law Lord, Lord Hoffman, took a different approach in finding that the United Kingdom could not opt out of its international obligations. Memorably, he said:
‘The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.’
The Belmarsh decision was a powerful reminder to the UK Government that it must act within the law and illustrates the so-called ‘dialogue’ model that gives the courts a power to declare inconsistent laws, but not to change them, leaving it to Parliament to adjust the legislation. The respective roles of the judiciary and parliament are thus preserved.
The years I spent at the British Institute showed me how the UK Human Rights Act promotes justice by informing the actions of government officials. Some injustices are litigated in the courts but most are dealt with by bureaucrats who are usually well versed in the human rights protected by UK legislation. British citizens speak the language of human rights and are quick to insist on the rights they are entitled to under the European Convention on Human Rights.
The path to a Charter: A long and winding road
Proposals for a federal Charter of Human Rights are not new. In 2008, to mark the anniversary of the Universal Declaration of Human Rights of 1948, the federal government appointed Jesuit priest and lawyer Father Frank Brennan to head a national consultation on a statutory bill of rights for Australia. Father Brennan’s panel consulted widely, held public hearings and received submissions; in 2009 it produced a report proposing the introduction of a federal Human Rights Act. The report favoured a ‘dialogue’ model, which sets out a list of human rights and assigns the executive, legislature and judiciary specific roles in protecting those rights, along the lines of the New Zealand’s Bill of Rights Act 1990, the UK’s Human Rights Act 1998, the ACT’s Human Rights Act 2004 and Victoria’s Charter of Human Rights and Responsibilities Act 2006.
A Charter of Rights: What difference would it make?
A case that brings me to tears with sorrow and frustration is that of a young man, legally known as KA, one of four Indigenous youths with serious mental conditions held in a maximum security prison in the Northern Territory. In a 2014 report to federal Parliament in KA’s case, I noted that steel restraints were being used against these young men. KA’s guardian stated Mr KA had been held in a steel restraint chair on sixteen occasions, often for two hours at a time and injected with a tranquiliser. KA’s legal advocate reported that KA spent an average of about sixteen hours a day in isolation in maximum security, and that he was frequently shackled when allowed outside his cell. Rereading the lengthy report since leaving the Commission, I find KA’s story is a contemporary tragedy, from his birth and disrupted, often brutal upbringing to his continued detention today, having ‘aged up’ to an adult facility.
The Commission’s report was ignored by both the federal and Northern Territory Governments. Two years later, Four Corners released CCTV footage of the treatment of juveniles at the Northern Territory’s Don Dale detention centre, sparking a Royal Commission. If Australia had a national Charter of Rights, a judicial ruling could have stopped that illegal treatment much earlier. Instead, justice continues to depend on the vagaries of media reports and the outrage generated by CCTV footage—if only at those rare times when it leaks into the public arena. The Attorney-General, Elfrink has since resigned.
In 2016, five Juris Doctor students at Melbourne’s RMIT University applied a hypothetical national Charter of Rights to former legal case studies dealing with anti-association, migration, national security, disability discrimination and paperless arrests. Among them was Queensland’s suite of so-called ‘anti-bikie laws’. Under Queensland’s Vicious Lawless Association Disestablishment Act 2013, ten or twenty-five years can be added to a defendant’s sentence merely for being an associate of a declared criminal organisation. There is no possibility of parole. The laws drastically limit the rights to liberty, to equality before the law, to freedom of association, to peaceful assembly and to a fair trial. The maximum penalty for affray is one year’s imprisonment but a ‘vicious lawless associate’ could receive seven years for the affray, plus twenty-five years for being an office-holding associate. This could result in a thirty-two year sentence. The laws are an unreasonable and disproportional restriction on common law rights. Under a Federal Charter of Rights, the law would fail the reasonable limits test and could not be overridden for exceptional circumstances. The Queensland law would be inconsistent with a Federal law and therefore invalid.
The 2017 Report on the research confirmed that a Charter would not tear power from parliament and place it in the hands of the courts. Rather, a Charter would open new lines of communication about human rights between parliament, the courts and the community and increase transparency and inform debate. This, they concluded, may reduce the frequency of legislation that infringes human rights.
Victoria’s Charter of Human Rights and Responsibilities offers more examples of cases where a charter has made a positive difference—101 of them documented by the Human Rights Law Centre. In one of these, human rights lawyers took the Victorian Government to court on behalf of fifteen boys, aged sixteen and seventeen, who were being held at the adult Grevillea Unit inside Barwon Prison. The teenagers had been transferred there after their accommodation at Melbourne’s Parkville Youth Justice Centre was destroyed during riots in 2016.
During the 2017 trial challenging the government’s treatment of the boys, the Victorian Supreme Court released the first publicly available footage from inside the Barwon unit. The images showed teenage boys being capsicum-sprayed during a prison disturbance. Justice John Dixon found that using capsicum spray within the youth area of the prison was unlawful, saying that the juvenile detainees risked developing mental health problems in the prison environment including depression, anxiety and paranoia. He concluded:
‘The limitation on the human rights imposed on the detainees was not demonstrably justified in a substantive sense as reasonable in a free and democratic society based on human dignity, equality and freedom.’
Justice Dixon’s decision was informed by Victoria’s Charter of Human Rights and Responsibilities Act 2006. His order to return the juveniles to the Parkville facility was, in contrast, denied in a similar case of detention of juveniles in an adult facility before the West Australian Supreme Court, where there is no legislated charter of rights.
A Federal Charter of Rights: What are the advantages?
‘Opening the floodgates’ to litigation is a widely spruiked consequence of passing a human rights act. To the surprise of opponents in many states and countries, it hasn’t happened. Nor have such acts wrested law-making power from parliaments, or led to a hyperactive judiciary. The ACT’s Human Rights Act 2004 has been mentioned in an average of 8.1 per cent of cases since its enactment and only 1.6 per cent of cases in Victoria have mentioned its Charter of Human Rights and Responsibilities since it became law in 2006. After 10 years of the Human Rights Act in the United Kingdom, only 2 per cent of cases concerned a human right. The real value of human rights acts lies in their symbolic, educative and informative roles, restraining parliaments from passing laws that infringe fundamental rights, and ensuring administrators do not impose policies that do so. When protections for human rights get legislative expression, they form the scaffolding for a social culture that respects rights for communities and individuals.
A legislated Charter of Rights cannot be disregarded and will encourage compliance without resorting to litigation, as the Victorian experience shows. As a list of rights and freedoms, a Charter can inform all discussions, especially on the floor of parliament, as a benchmark that should be taken into account at the early stages of policy development. In those few cases that proceed to court, a Charter will send a law that is incompatible with rights back to parliament for reconsideration.
It is not proposed that Australian courts should be the final arbiter of rights, as occurs in the United States eg in Obergefell, the seminal same-sex marriage case. The ‘dialogue’ model, in which a statement of incompatibility is made and the matter referred back to parliament, preserves the supremacy of parliament and representative democracy.
A Federal Charter of Rights: The arguments against
Many political leaders, scholars and some in the media argue against the wisdom of enacting a Charter of Rights for Australia. They rightly point out that nations that most egregiously breach fundamental freedoms also have entrenched bills of rights. The argument constructs a straw man. Charters of Rights will not guarantee compliance with fundamental freedoms in the absence of representative democracy, a culture of respect for human rights and an independent judiciary.
Those opposing a Charter of Rights also claim that political issues are for Parliament and judicial matters are for the courts. Never the twain shall meet. This not just a simplistic view. It is a false argument. Politics, parliament and the courts interact and overlap constantly. Legal and political questions are invariably intertwined. A political issue will typically be resolved by the passing of legislation that is then interpreted and applied by the courts. A policy is agreed at the political level, Parliament passed legislation to give effect to the policy and the new law is applied to the facts by a judge.
Sometimes, reform is achieved the other way around. The courts may provide the impetus for change by interpretation and revision of long established jurisprudence. Examples include the High Court’s decisions in Mabo (No 2), rejecting the idea of terra nullius, in Tasmanian Dams, interpreting the external affairs power to support legislation implementing a treaty, or Teoh, creating a ‘legitimate expectation’ that government officials will take treaty obligations into account when making decisions. Parliament then has the task of implementing the new legal approach or, possibly, passing laws to overturn the judicial interpretation to enforce a different political solution.
Activist Judges? Have we forgotten who first articulated our common law freedoms? It has been the judges. From the 13th century, English judges have recognized changes in community norms and crafted the law to reflect societal changes.
Conclusions
Timing is everything in politics. Australia has just been elected to the UN Human Rights Council from 2018. Engagement with the council may help persuade Australia’s politicians that it is important to meet our international human rights obligations. The recommendations of the Human Rights Council’s Universal Periodical Review in 2016 diminish Australia’s credibility in chastising other nations for their human rights abuses. Some indication that our government respects the international monitoring processes would be welcome. The recently elected Queensland government is currently drafting a Charter of Rights. The road ahead may not be straight or smooth but a human rights act for Queensland has the potential, along with the current Charters of Rights in Victoria and the ACT, to build national momentum to enact a charter for all Australians. I am also encouraged by suggestions that Labor’s Shadow Attorney-General, Mark Dreyfus, is considering a federal Charter of Rights if his party wins the next election in 2019.
A Charter will also allow Australia to meet its international obligations and resume its leadership position globally and regionally as a good international citizen. Above all, Australia could return to the rule of law and to the principles of legality upon which our democracy is based.