Towards the end of his recent Australia Day address to the National Press Club, the Prime Minister expressed his strong opposition to the enactment of a Human Rights Act of the kind currently being advocated by New Matilda. His criticism is instructive because it is comprised of many commonly articulated assertions about the effect of human rights legislation, almost none of which are applicable to the actual New Matilda proposal.
To conduct the debate about the desirability or otherwise of human rights legislation on the basis of some imaginary document, having imaginary effects and defects, can only produce persistent misrepresentation and mistakes. In the interests of extending that debate, let me examine the Prime Minister’s primary assertions in the light of New Matilda’s detailed draft legislation.
Unelected Judiciary
John Howard’s primary reservation about a Human Rights Act (HRA) is that, in the interpretation of human rights, it would transfer too much power from the elected representatives of the people, to an unelected and unaccountable judiciary. As he put it:
In our democracy, politicians are elected to make decisions on behalf of the community … To draw these decisions away from the Legislature and the Executive and to invest them in the hands of the Judiciary would irrevocably change our democracy.
Speaking abstractly, there is merit in this argument. But it has only the most passing relevance to the draft Act proposed by New Matilda. As now, the Act leaves the final decision on what to do about Commonwealth legislation that infringes upon fundamental human rights to the Federal Parliament. The difference is that the New Matilda proposal establishes a new, additional system of review which requires that the Executive, the Parliament and the Judiciary each take a ‘hard look’ at laws that may transgress human rights, with a view to recommending their modification by the Legislature when necessary.
The Cabinet must examine the human rights implications of all legislation in the light of fundamental human rights prior to its introduction to Parliament. Once introduced, the law must be considered and evaluated by an all-Party human rights committee. The report of that committee will inform the subsequent parliamentary debate.
The Judiciary only has a role if the compatibility of a law with the HRA is challenged in subsequent legal proceedings. Where that happens, a Federal Court may make a ruling about whether the provisions of the law and the HRA can be read consistently. In the unlikely event that this is not possible, the court can issue a ‘declaration of incompatibility’ but that declaration is not binding on either the Government or the Parliament. Its effect is to require the Attorney-General to review the law and to report to the Parliament on what, if any, action should be taken to remove the incompatibility. The final decision on what that action should be resides, as at present, with the Legislature.
If one accepts that the protection of the fundamental human rights of Australians is important, there should be little or no objection to the institution of such a new and rigorous process of legislative and judicial review. Naturally, it will create considerable political pressure on the Government to forego laws that are not human rights compatible. But that, in the end, is the point of the process.
The Prime Minister also argues that a mooted transfer of power from the Executive to the Judiciary, in protecting human rights, would irrevocably alter Australia’s democracy. It wouldn’t.
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Thanks to Alan Moir |
The High Court has always had the constitutional power to make decisions that have enormous political consequences. The Court altered the entire taxation system at a stroke in 1942. It struck down the nationalisation of the banks in 1948. It may, shortly, interpret the corporations power of the Constitution in a way that will accord new and sweeping authority to the Federal Government and Parliament to make laws with respect to industrial relations. The fabric of Australian democracy has not been (and will not be) rent asunder as a result of the unelected Judiciary taking these decisions. But these decisions are of far greater magnitude and consequence than any judicial review of legislation for compatibility with human rights would be.
Unforeseen Outcomes
Next, the Prime Minister says that in interpretating a Human Rights Act there is a risk that errors will be made, and that such legislation may have unforeseen and detrimental outcomes:
No matter how skillfully crafted, a Bill of Rights always embodies the potential for misinterpretation, unintended consequences or accidental exclusion. History is replete with examples of where grand charters and lyric phrases have failed to protect the basic rights and freedoms of a nation’s citizens.
It is hard to see how the first part of this proposition advances the argument at all. The same is true of all legislation. If one were to substitute the words ‘a Taxation Act’ for ‘a Bill of Rights,’ the same possibility that there may be misconstructions and unforeseen consequences is no greater or less with one than with the other.
The second part encapsulates another frequently made but equally flawed argument: that the former Soviet Union had one of the finest charters of rights ever, and it did nothing to prevent the Gulags.
This is true, but three factors distinguish that case from the present. First, autocratic regimes were never serious about respecting the rights and freedoms contained in their flowery preambles. Such charters were, instead, a dreadful and cynical attempt to court public legitimacy while pursuing totalitarian ends.
Secondly, no enforcement machinery was ever set in place in such constitutions. There was never a hope that an individual could obtain redress from the government because the law did not provide for one.
Thirdly, the principal difference between that situation and the proposed introduction of a Human Rights Act here, as the High Court’s Justice Michael McHugh pointed out in a recent address, is that the Act here will take its place within the framework of a democratic system of government, governed by an adherence to the rule of law and applied by an independent Judiciary. It is quite wrong to think, given this, that the Act will consist of lyrical phrases and nothing more.
No More, Please!
Howard’s third argument is that our present constitutional system already contains more than enough checks and balances to ensure that human rights are respected and observed:
The strength and vitality of Australian democracy rests on three great institutional pillars: our Parliament, with its tradition of robust debate; the rule of law upheld by an independent … Judiciary; and a free and skeptical press. Together, responsive democratic institutions and an active civil society provide more effective protection for the rights of Australian citizens than any charter of rights could hope to achieve.
It is a truism that Australian democracy has been founded upon and underpinned by the trilogy referred to. These constitutional foundations, however, are now cracking and straining. To take but one example, it might be thought that parliamentary scrutiny and review should ensure that repressive measures will not become law. Regrettably the last parliamentary session put paid to that idea.
With a majority in both Houses of Parliament, the Government made a mockery of legislative deliberation. Three hundred and thirty seven amendments to the Industrial Relations legislation were presented to the Senate only 39 minutes before the committee stage of consideration. The Senate inquiry on IR was given just five days to question 105 witnesses and consider more than 5000 submissions.
Debate on the counter-terror laws and welfare-to-work was also guillotined and gagged. The gag has been used more times since 1 July than in the entire preceding nine years of the Government’s tenure. At the same time, the Government filibustered debate on minor non-contentious Bills to give itself sufficient time to conclude a backroom deal with the Family First Party to pass the Voluntary Student Unionism legislation at the death knock. This is deliberation devalued and democracy debased.
Howard asserts that we do not need a charter of human rights in Australia because the Parliament and the political process are best placed to protect them. Recent events have shattered that complacent illusion.
Don’t Mess With Security
What then is the Prime Minister’s agenda here? One clue, I think, is provided in the paragraph of his speech that precedes the Human Rights Act discussion, which refers to the international and domestic campaign against terrorism:
The Government will do what is necessary to protect the Australian community … This means finding the right balance between the legitimate interests of the community on the one hand and individual civil rights on the other.
Note the false antagonism presented between the ‘legitimate’ interests of the community on one side, and the presumably ‘illegitimate’ individual civil rights on the other.
It would seem that Howard regards a Human Rights Act as a major political obstacle to his security agenda, among others.
In difficult times, it is not unreasonable to suggest that some limitations upon individual freedom may be necessary. No one doubts that effective laws are required as part of a larger strategy to prevent a possible terrorist attack. But that requirement needs to be seen in its broader context. For, in the end, there can be no fair and just community unless the human rights of all its members are equally and effectively protected and respected.