There is a sleeping vicious circle in the question of whether a charter of rights should be entrenched in the Constitution or merely legislated.
This week the Federal Government set in train a national consultation as to whether Australia should have a human-rights charter. It was marking the 60th anniversary of the Universal Declaration of Human Rights.
Australia has a big conundrum on whether rights should be in the Constitution or be merely legislative, as in Victoria, the ACT, Canada and Britain.
In the legislative option as it applies in these four jurisdictions, a charter of rights Act would be passed. Courts interpreting new legislation would be required to resolve doubts in favour of consistency with the rights Act. They would also be required to advise whether the later legislation was in fact inconsistent with the rights Act and then Parliament would be required to revisit the later legislation and either change it or justify it.
This approach has the advantage of allowing elected representatives to enact laws as circumstances demand without unelected judges drawing long bows at the meaning of rights entrenched in a Constitution which could not be undone except by a new referendum.
It also has the advantage of making governments and parliaments more aware of the need to make sure new legislation is consistent with rights or face the possibility of having to explain later.
It has the advantage, many believe – but perhaps wrongly – that it does not require a referendum. We know that Australians almost always vote No. As it happens I think the No record is so high because politicians ask the wrong questions – often putting political cheerio calls in serious constitutional matters. If the right question were asked and enough time to explain it were allowed we would get more Yes votes.
Anyway, many think a referendum would be probably best avoided. But it may not be that simple because of the way our Constitution is framed.
This next bit is a bit difficult, but those interested in a charter of rights should note it.
The judicial power of the Commonwealth is vested in and exercised by the High Court, other federal courts created by the Commonwealth, and state courts, to the extent the Commonwealth legislates for state courts to exercise federal jurisdiction.
The judicial power is the power to resolve “matters” according to law and to hear appeals from lower courts.
When the Constitution talks about “matters” it means disputes. There has to be a point of contention between parties before the judicial power can be invoked.
It means federal courts cannot engage in advisory opinions – say – about whether a law is inconsistent with a rights Act.
Further, federal courts must decide “according to law”. When Parliament enacts a law the new law takes precedent over the old law. To the extent there is an inconsistency between a newer law and an older law, the newer law is taken to have repealed the older law to the extent of the inconsistency.
This means you cannot have a Charter of Rights Act 2008 purporting to bind future Parliaments in a way that might prevent them from enacting the Arbitrary Detention for People We Don’t Like Act 2009.
Sure, there is some general common law which suggests that given ambiguity a court should interpret a law in favour of human rights. But where there is no ambiguity, that is not an option.
Justice Michael McHugh put it succinctly in August 2004 when he said, “The justice or wisdom of the course taken by the Parliament is not examinable in this or any other domestic court. It is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights. The function of the courts in this context is simply to determine whether the law of the Parliament is within the powers conferred on it by the Constitution.”
He was part of a 6-1 majority in the High Court that in effect held that refugees could be held in indefinite detention.
Only Justice Michael Kirby disagreed, and he is retiring in February. Moreover, the new Chief Justice, Robert French, was on the Full Federal Court bench in that case at the time and he (with obvious reluctance) had a similar view to the High Court majority.
So do not expect the High Court to do anything than its job – to interpret the Constitution according to law.
If a legislative charter of rights is passed by the Commonwealth Parliament, it may all amount to nothing. It will almost inevitably be challenged.
The Commonwealth Parliament has no power under the present Constitution to make laws prospectively and no power to make laws with respect to altering the exercise of the judicial power of the Commonwealth by federal courts.
For the Commonwealth to get the power to pass a charter of rights Act similar to that in the ACT and Victoria it would require a referendum to change the Constitution to give it that power.
That being the case we should either abandon the whole thing – who cares less about human rights, anyway? – or do the long hard work of aiming for an enforceable constitutional Bill of Rights. After all, we are going to have to have a referendum to get a valid second-rate legislative-advisory charter of rights anyway.
Sure, limit it to the fundamental rights and do not muddy the waters with economic and resource rights like education, standards of living and the like. But let’s have something enforceable.
Arguments that we do not need a Bill of Rights do not stand the test of the 2004 case which permitted indefinite detention and a host of other infringements on freedom of speech, assembly, due process (Haneef, Rau), and so on. Besides, we are not protecting ourselves from the present position, but ugly future developments.
A Bill of Rights is no guarantee – as the Soviet system proved – but it can be bulwark against those who try to abuse rights in a free society. It has taken a long time, but the Guantanamo abuses are being addressed.
As for judicial power, yes, there are some odd cases in places that have charters of rights, but none anywhere near as odd as the case of Al-Kateb v Godwin, that 2004 case in a place which has no Bill of Rights – Australia – in which the judges, their hands tied by the power of the government-controlled legislature, held that indefinite detention without charge or trial is lawful. Who would have thought it a decade or so ago when we thought our rights were secure in the hands of our unrestrained elected representatives?
From Roman times, when Jesus’s plaintive cry for freedom of religion (“render unto Caesar’) was met with arbitrary arrest, trial by the mob, cruel and unusual punishment, and execution for his political and religious beliefs, there has always been a propensity for those holding power to abuse it. Best to separate it and diffuse it.