Australian legal thinkers may need to become activists to introduce a rights-based perspective in judicial decision-making. It’s a collegiate cause – and one well worth it.
If you cast a glance at the Federal Attorney-General’s web pages on human rights, you could be forgiven for thinking that Australia has a thriving human rights culture.
First, this thought flows naturally from Australia’s proud common law history. Justice James Spigelman has spoken fondly of our “common law bill of rights” that preserves fundamental freedoms. In his first McPherson Lecture in 2008, he argued that such protection is “to a very substantial degree, secreted within the law of statutory interpretation”.
Its cornerstone is the principle of legality, the notion crystallised in Coco v The Queen (1994) that “the courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language.”
While venerable in principle, the real problem with this reasoning today is that it, in effect, rests on a prayer. It shows excessive deference to Federal Parliament’s goodwill and too little awareness of its growing dexterity in abrogating rights in language that is unmistakable and unambiguous. The principle of legality is a canon of interpretation, not a source of rights. Its corollary is that the judiciary must not find ambiguity where none exists.
Having witnessed the post-9/11 ascendancy of national security discourse, we seem no closer to a cohesive body of Australian human rights jurisprudence.
member Law Society Human Rights Committee
Twenty-five years ago, human rights advocates may have been buoyed by Justice Gerard Brennan’s optimistic pronouncement in Mabo v Queensland (No. 2) that Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) would bring to bear the powerful influence of international human rights standards on the common law. Having witnessed the post-9/11 ascendancy of national security discourse, we seem no closer to a cohesive body of Australian human rights jurisprudence.
Even as the government glides towards a seat on the UN Human Rights Council, it is a bold spirit who would raise international human rights law in a municipal court in Australia. So in 2017, is there any room at the bar table for human rights?
Reputational risks notwithstanding, as the President of the Court of Appeal, Justice Chris Maxwell observed in the Victorian Court of Appeal, to make progress “will necessarily involve judges and practitioners working together to develop a common expertise”.
In doing so, we might aspire to build human rights jurisprudence from the carpet up.
In this bill of rights vacuum, it is worth briefly recapping some of the ways in which international human rights law might influence domestic practice.
Lawyers should always be alive to ambiguities in statutes or subordinate legislation, and contemplate whether treaties, treaty body commentary or case law might illuminate the meaning of a text. Such materials may be relevant when they give a legal controversy a conceptual context, articulate the values or considerations that should be taken into account, or express a preference on how to resolve conflicting principles.
However, if international standards don’t resolve statutory ambiguity, and do no more than reveal the conflict, courts must find a solution in municipal law.
Second, lawyers should look for compatibilities between municipal and international law.
While it is not possible to canvas here all the areas of law that might lend themselves to human rights arguments, asking the right questions is a useful starting point.
Does the act or instrument explicitly or implicitly refer to international principles? Was it implemented to achieve conformity with international law? If so, does an issue arise that may benefit from foreign jurisprudential guidance? (For example, all the major federal anti-discrimination laws either schedule relevant international instruments or refer to them in their objects and definitions.)
Criminal lawyers would be aware that s. 138(3) of the Evidence Act 1995 (NSW) refers to the ICCPR in relation to excluding improperly or illegally obtained evidence. Similarly, the objects of the Privacy Act 1988 (Cth) include “to implement Australia’s international obligation in relation to privacy”, an inclusion that could be relevant when ventilating a privacy complaint. These are just a handful of well-known examples, but new areas are also emerging.
The aged care and disability sector is transforming. Disability advocates have recently expressed concern that the privatisation of group homes under the National Disability Insurance Scheme could leave people with disability vulnerable to 30-day to 90-day eviction notices, undermining their freedom to choose where they live and the services they receive.
This issue alone belies the commitment made in the objects of the scheme’s enabling legislation, to give effect to Australia’s obligations under no less than six international human rights instruments, including the UN Convention on the Rights of Persons with Disabilities. It may be too early to know what use, if any, can be made of those aspirational references. But it falls to the legal profession to devise novel ways to draw on such instruments to inform domestic standards.
Thirdly, uncertainties in the common law may benefit from reliance on international jurisprudence.
To illustrate the point, in a breach of confidence case brought by supermodel Naomi Campbell in the UK (which has the Human Rights Act), the House of Lords acknowledged that articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms “call for a more explicit analysis of competing considerations than the three traditional requirements” in common law.
In the past, the Australian judiciary has shown a similar propensity. Sir Anthony Mason once argued that unincorporated instruments like the UN Convention on the Rights of the Child legitimately could help courts to develop the meaning of ‘best interests of the child’. That concept, and its elaboration, is now at the heart of many pieces of child welfare legislation.