THE CASE FOR A CHARTER OF RIGHTS
Professor Geoff Gallop*
There is little doubt that one of the most powerful ideas in the
modern era is human rights. It has been a clarion call to revolution
as well as an impetus to reform. Its universality has seen it applied in
many circumstances and on behalf of all those who are oppressed or
discriminated against on the basis of their race, colour, sex, language,
religion, disability or background.
For those of a religious disposition the call to protect and promote
rights is part of God’s ‘gift of freedom’ (as Jonathan Sacks has put it in his
theological and political tract, To Heal a Fractured World: The Ethics of
Responsibility).1 For humanists rights are a ‘form of protection of what
it is to be human — of our capacity to act consciously and deliberately in
the formulation of our life’s journey’.2
In this morning’s talk I wish to address the question — should Australia
back up its stated commitment to a politics and culture of human rights
by legislating for a charter of rights as other nations have done and, indeed,
as the Australian Capital Territory3 and Victoria4 have done? In order to
do this, I propose to undertake the following tasks: firstly to discuss
the concept of human rights itself and how it relates to responsibility,
secondly to provide a brief overview of the Australian experience, and
thirdly to examine what has been said about the charter proposed for
Australia with a view to reaching my own conclusion.
I Rights and Responsibilities
Let me begin by talking a little more about the concept of human rights.
*
1
2
3
4
Director of Graduate School of Government, University of Sydney. This publication
is the written version of the speech delivered by the author at the Human Rights Arts
and Film Festival in Perth, Western Australia, on 18 March 2010.
Jonathan Sacks, To Heal a Fractured World: The Ethics of Responsibility (2005) 3.
Spencer Zifcak and Alison King, Wrongs, Rights & Remedies: An Australian Charter?
(2009) 15.
See, Human Rights Act 2004 (ACT).
See, Charter of Human Rights and Responsibilities Act 2006 (Vic).
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Human rights are inalienable and possessed by all, no matter what their
race, religion, gender or background. The very idea of a human right is
closely linked to two other powerful ideas developed in the modern era
— liberty and equality.
Linking rights to liberty and equality created a political and social
program for both radicals and reformers in the eighteenth century. It
was the Enlightenment at work in the world of politics, with America and
France choosing the revolutionary path and Britain the reformist path.
The earliest proponents of a rights-based philosophy spoke of the rights
to ‘life, liberty and property’. As time progressed and the idea was clarified
in practice, a distinction was drawn between civil rights, political rights
and social and economic rights. In a sense, the first were our liberal
freedoms, the second our democratic freedoms and the third a mixture
of property rights and entitlements to education, health and welfare in
the case of misfortune. It was about opportunity as well as freedom.
Think of it this way — when we put together these rights we are presented
with the powerful idea of ‘community’. Indeed to talk of ‘community’
without reference to each of ‘liberty’, ‘citizenship’ and ‘solidarity’ leaves
us with a feeling of incompleteness. We might have freedom but do
we have equal opportunity? We might have democracy but do we have
freedom? Each requires the other and each supports the other.
However, the unfortunate reality is that the incorporation of rights into
law and the application of these laws to specific situations do not happen
without complication. Rights have to be defined and their boundaries
marked. What are the limits of free speech? How do we institutionalise
the right to vote? What are the range and types of entitlements that
should be made available to a citizen?
At the same time, we know that rights can come into conflict, for
example, between freedom and entitlement. In theory there ought to
be no hierarchy of rights, but in practice decisions have to be made that
require the setting of priorities and the acceptance of compromises.
Such compromises, like those which are associated with war time,
can take us to the very edge of the boundary between a free and an
authoritarian society.
This leads me to say something about the relationship between rights
and responsibilities. Rights without responsibilities are pure abstractions.
Responsibilities without rights are empty. Not only is my right the
responsibility of others (and the government) to protect, it is also my
responsibility to care for and exercise it. As the political philosophers
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THE CASE FOR A CHARTER OF RIGHTS
might put it — it is a case of ‘freedom to’ as well as ‘freedom from’! If
this was not the case, what would be the point of saying we have rights?
Responsibilities, then, are well and truly part of the rights equation.
Without responsibility, freedom is either inactive or in danger of
becoming licence. Without rights, responsibility is emptied of the ballast
it needs to promote human welfare and it is unleashed on a journey
that has seen it take up residence in the provinces of nationalism,
authoritarianism and fundamentalism.
I believe there is a clear understanding of the importance of civil, political
and social rights to the well-being of our society. The question becomes
— just how far are we willing to take that understanding when we know
there is no single or simple formula available for their application to
the real world and when we fear (if only secretly) that support for such
rights will challenge some of the assumptions we have about the way
society should be ordered?
Let me now turn to the Australian experience. What does this story tell
us about the way we have handled these dilemmas?
II Historical Overview
Australia is now the last of the great democratic nations to have a
bill or charter of rights built into its legal system. The drafters of the
Constitution only included a small number of limited civil and political
rights: trial by jury (s 80), freedom of religion (s 116) and interstate
residence (s 117). To do otherwise would have been surprising given
the blatantly racist and discriminatory attitudes and laws prevailing at
that time. There was, of course, some reference to economic rights, with
one of the key drivers of federation being the desire to create a unified
national market. Thus followed s 92 of the Constitution, which provides
for ‘trade, commerce and intercourse’ between the States to be absolutely
free. Property rights also found a place in the Constitution by way of
a requirement on the Commonwealth to provide fair compensation for
the compulsory acquisition of property (s 51(xxxi)). We were left then,
as George Williams has observed, with ‘some checks and balances but
few express rights, set within a framework of responsible government’.5
Attempts to change this state of affairs have met with little success.
Proposals to include human rights in the Constitution failed in 1944
5
George Williams, Human Rights under the Australian Constitution (2002) 45.
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and 1988. In 1944, two States voted ‘yes’ (South Australia and Western
Australia). In 1988, no States recorded a ‘yes’ majority in relation to the
questions on fair elections and rights and freedoms. In both cases,‘States’
rights’ won out over ‘human rights’.
This has also been a major issue with respect to failures by the
Commonwealth Government to institutionalise human rights through
legislation in 1973, 1983 and 1988. The one Bill that did pass into law,
Malcolm Fraser’s Human Rights Commission Act 1981 (Cth), was much
more limited in scope and did not impact on the States. This is precisely
the limitation that had been placed on the trial by jury and freedom of
religion clauses in the Constitution itself.
It is true that anti-discrimination legislation has been passed by
Commonwealth and State Parliaments. They cover sex, race, disability
and age. However, as Zifcak and King have observed, they are not
a comprehensive guarantee of equal treatment in Australia. They are at best
legislative compromises that have attempted to balance the interests of different
groups and have been deliberately confined to particular fields and particular
activities within those fields.6
What this means is that the anti-discrimination Acts, as good as they
are, do not fully meet Australia’s international obligations under the
International Covenant on Civil and Political Rights (1966)7 or the
International Covenant on Economic, Social and Cultural Rights
(1966).8
Some progress was made in the 1990s when the High Court determined
that sections 7 and 24 of the Constitution guaranteed a system of
representative democracy through their requirement that the House
of Representatives and the Senate ‘be directly chosen by the people’.9
What follows from this, the court concluded, was the freedom of political
communication. Such a freedom needed to be distinguished from the
freedom of speech generally and could not be seen as absolute as a
legitimate public purpose could justify its restriction.
6
7
8
9
36
Zifcak and King, above n 2, 25.
International Covenant on Civil and Political Rights, opened for signature 16
December 1966, 999 UNTS 171 (entered into force 23 March 1976).
International Covenant on Economic, Social and Cultural Rights, opened for
signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
See for eg, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR
106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Theophanous v Herald &
Weekly Times Ltd (1994) 182 CLR 104.
THE CASE FOR A CHARTER OF RIGHTS
A similar logic has been applied in Roach v Electoral Commissioner.10
In this 2007 judgment, the High Court upheld an implied right to vote,
although it too is not absolute. To quote the Court: ‘Voting in elections
for the Parliament lies at the very heart of the system of government for
which the Constitution provides.’11
It is true then, that our rights receive some recognition at the national
level through the Constitution, legislation and judicial interpretation
by the High Court. It is, however, a very limited recognition that does
not provide the basis for building a political culture that respects and
promotes human rights. Fortunately, however, we have been presented
with a ready-made model to achieve this objective through the Australian
Capital Territory’s Human Rights Act 2004 (ACT) and Victoria’s Charter
of Human Rights and Responsibilities Act 2006 (Vic). It has been this
model which has largely formed the basis for the recommendations of
the National Human Rights Consultation Committee chaired by Father
Frank Brennan (‘the Brennan Committee’).
The major features of this so-called ‘dialogue model’ that are relevant to
my speech today are as follows:
Firstly, the rights protected are civil and political rights which, in
the Victorian case, include the cultural rights of indigenous peoples.
Secondly, there is a general limitation clause allowing all the listed
rights to be limited in particular circumstances.
Thirdly, any Bills introduced to Parliament must explain how the
Bill is compatible with human rights.
Fourthly, Committees of the Parliament have been established to
examine Bills for their compatibility with human rights.
Fifthly, and so far as it is possible, laws must be interpreted in a way
that is compatible with human rights and the Supreme Court can
issue a ‘Declaration of Incompatibility’ if that is not possible.
Sixthly, the public sector is required to act in ways that are
compatible with human rights. The legislation seeks to ensure
that human rights are observed in policy development and
administrative practice.
10 (2007) 233 CLR 162.
11 Roach v Electoral Commissioner (2007) 233 CLR 162, 198 (Gummow, Kirby and
Crennan JJ).
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Seventhly, in the case of the Australian Capital Territory, an
individual who feels he or she has had his or her rights violated
by a public authority can bring a claim and, with the exception
of damages, the Supreme Court may grant the relief it considers
appropriate.
The aim of such charters is to facilitate a dialogue between the legislature,
the executive and the judiciary. It does this without undermining the preeminence of Parliament and with full recognition of the need to balance
rights against each other and against other competing public interests.
The Brennan Committee went further in arguing that some civil and
political rights should be without limitation — the right to life, protection
from torture and cruel, inhuman or degrading treatment, freedom from
slavery or servitude, avoidance of retrospectivity in criminal trials,
freedom from imprisonment for inability to fulfil a contractual obligation,
freedom from coercion or restraint in relation to religion and belief, and
the right to a fair trial.
What this overview tells us is that those seeking constitutional or
statutory protection of human rights in Australia have encountered
significant opposition. Australia is the only democratic nation without
a national bill or charter of rights. In the first instance, opposition
was based on the majority view that discrimination based on race was
necessary and acceptable, that the legislative freedom of the States
could be undermined at the expense of the federal balance, and that the
English mixture of parliamentary government and the common law was
sufficient to protect our rights. In more recent times, the argument about
race has left the scene only to be replaced by a view that the need for
the executive government and legislature to act ‘in the public interest’
would be unduly thwarted by a charter or bill. Balancing our rights and
interests is said to be a ‘policy’ decision that should be left to the political
process and kept out of the courts. Some go further and argue that the
Westminster system itself would be undermined as power shifts from the
Parliament (and the governments it produces) to the judiciary.
Underneath all of the argument, however, is a continuation of the
view that we do not need to go beyond our current constitutional and
legislative arrangements to protect rights. As Bob Carr put it so clearly:
A bill of rights is an admission of the failure of parliaments, governments and the
people to behave in a reasonable, responsible and respectful manner. I do not
believe we have failed.12
12 Bob Carr, ‘The Rights Trap: How a Bill of Rights Could Undermine Freedom’ (2001)
17(2) Policy 19, 21.
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THE CASE FOR A CHARTER OF RIGHTS
In essence, these are now the arguments against a bill or charter of rights
— it places an unnecessary constraint on government, it undermines
parliamentary democracy and is not needed anyway if rights are to be
promoted and protected. Certainly the federalist argument is still lurking in
the shadows but is more difficult to sustain given the Brennan Committee’s
conclusion that a national human rights Act should only apply to the
Commonwealth and its institutions and agencies. ‘It would be counterproductive and unwise’ they say ‘to have the Federal Parliament impose
on the States and Territories, a catalogue of human rights and a process
for determining the regular limitation of those rights.’13 What happens in
the States and Territories is best left to the political processes there. This
is an important recommendation by Brennan and his colleagues because
it recognises the role local innovation can play to progress reform in a
federal nation. This is exactly what the Australian Capital Territory and
Victoria have contributed to the national debate about human rights.
One other more general point needs to be made and that relates to the
common law. I find it somewhat strange that the common law is often
invoked in defence of the status quo. The former Chief Justice Murray
Gleeson put it this way:
There is an inconsistency between an assertion that the common law makes
legislative protection of human rights unnecessary and a complaint that legislative
protection of human rights will empower judges who apply the legislation to
make decisions about matters that are inappropriate for judicial decision making.14
Such an inconsistency exists, of course, because it is the judiciary, not the
elected parliamentarians, that establish and develop the common law.
The fact is the judiciary does play a significant role in our political system
— the common law, the Constitution and interpretation of Parliament’s
laws and regulations. Our founding fathers built judicial review into the
fabric of the Constitution and our Parliaments regularly incorporate
judicial review mechanisms into their legislation. As Zifcak and King
have pointed out,
the courts are everyday required to give meaning and effect to legislative criteria
such as whether the executive actions are ‘unreasonable’, or ‘improper’, or
‘procedurally unfair’ or ‘contrary to the public interest’. It is hardly possible to get
legislative criteria that are broader.15
13 National Human Rights Consultation Committee, National Human Rights
Consultation Report (2009) 364.
14 National Human Rights Consultation Committee, above n 13, 350, quoting Murray
Gleeson, ‘Legal Interpretation — the Bounds of Legitimacy’ (Speech delivered at
Sydney University, Sydney, 16 September 2009).
15 Zifcak and King, above n 2, 55.
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Years and years of judicial interpretation have seen definitions developed
and refined as new circumstances emerge. It is part of our valued system
of ‘checks and balances’, why we might ask, could they not be trusted to
play a similar role in relation to a charter of rights?
One would hope that all of us agree that the answer to this question is
in the affirmative. However, in fairness to the opponents of a charter, I
think what most are really saying is that the courts should not be given
this role in the first place, not that they cannot be trusted. They present
an image of the courts being clogged up with silly or trivial cases, most of
which require a balancing of rights with each other or with the broader
public interest. It is the whole enterprise of institutionalising our rights
in this way that offends them.
Why, then, do I support such legislation?
III The Case for a Charter
There are a lot of good things about Australia but one of them is not
the re-emergence of a form of political and cultural nationalism, backed
up at times by a particularly crude and nasty form of populism. The
temptations faced by politicians as a result of this ‘tyranny of collective
opinion’ (as John Stuart Mill put it) are many and varied. Sometimes
our governments go close to crossing the line between right and wrong;
sometimes they cross that line. I am talking here not just about the laws
and regulations they pass but also about the messages and instructions
they send to the bureaucracy about how they are to relate to the
individual and communities they are required to serve.
We describe ourselves as an egalitarian and tolerant nation but significant
and unjustified inequalities remain. Just to give one example reported on by
the National Health and Hospitals Reform Commission — in Australia less
than 30 per cent of those with disability due to mental illness participate
in the workforce. This is less than half the rate that exists in comparable
OECD (Organisation for Economic Co-operation and Development)
countries. This is part of a more general story in which Australia’s public
institutions have not been able to produce the same equalising efforts in
education and health as other similarly democratic nations.
We need always to remember that the public interest involves minorities,
the marginalised and the vulnerable, as well as majorities. Ensuring that
this is the case is never easy, but would be greatly assisted if a charter of
rights could be given a role in the legislative process, the administration
of policy and the interpretation of our law.
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THE CASE FOR A CHARTER OF RIGHTS
Requiring Ministers to table statements of compatibility when introducing
legislation to Parliament and involving Members of Parliament in the
process via a Joint Committee has been shown to increase attention to
the human rights implications of new laws. Parliamentary debate will
improve and the issue of human rights is given the status it deserves in
our free and democratic society.
Requiring public sector agencies to incorporate human rights compliance
in its codes of conduct, to report on its human rights compliance and
to act in a manner compatible with the charter will send a powerful
message to our public servants about their responsibilities. In saying
this, I note the comments of the British Institute of Human Rights when
reviewing the day-to-day functioning of the United Kingdom’s Human
Rights Act 1998 (UK):
Too often the Human Rights Act is associated with technical legal arguments or
perceived to be limited to high profile — and sometimes spurious — claims by
celebrities and criminals. These case studies reveal a very different picture. They
show how groups and people themselves are using not only human rights law,
but also the language and ideas of human rights to challenge poor treatment and
negotiate improvements to services provided by public bodies.16
We are reminded by the UK experience that the Human Rights Act
1998 (UK) benefits ordinary people and, in particular, the all-too-often
marginalised and vulnerable in our society such as the elderly, the disabled,
the mentally ill, the victims of domestic violence and asylum seekers.
Indeed, the Institute reminds us that the Act has helped plug gaps in the
anti-discrimination framework and is increasingly being used to assist
public sector agencies consider the needs of individual service users.
It is true that many of our public sector agencies understand and act on
their obligations to citizens and clients, but it is a different matter when
they are legally obliged to and individuals granted the right to institute an
independent course of action for any breach of human rights by a federal
authority. With the court being able to provide the usual suite of remedies
— including damages, as is the case in the UK — a strong onus is placed on
the public sector to think and act responsibly and respectfully.
In making this point, I note that the Brennan Committee did not believe
that social and economic rights ought to be amongst those for which
public agencies had a requirement to uphold and for which they would
be accountable through the courts. It was concluded that primary
economic and social rights, such as the rights to education, housing
16 British Institute of Human Rights, The Human Rights Act — Changing Lives (2nd ed,
2008) 5.
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and the highest standard of healthcare, were not matters for the courts
because they usually involved decisions about resource allocation ‘which
courts do not have the expertise or information to make.’17 Rather,
complaints in this arena could be heard by the Australian Human Rights
Commission. At the same time, the proposed Joint Committee on Human
Rights could examine whether proposed legislation is ‘reasonably
tailored to progressive realisation of these rights.’18
Requiring the High Court to interpret legislation in a way that is compatible
with the human rights expressed in the Act and to issue declarations of
incompatibility is equally important. This obliges the executive arm of
the government to respond, review and explain. Importantly, however, it
remains the privilege of Parliament to conclude that legislation breaching
rights is in the public interest and should be left in place.
In defending this role for the High Court (and for the courts in the
Australian Capital Territory and Victoria), we should note the case for a
‘limitation clause’ in respect of the derogable civil and political rights
listed. This is commonsense and recognition that we are not dealing
with absolutes.
Such a model has been well described as a ‘dialogue model’ with
Parliament at the centre of, and in ultimate control of proceedings.
Parliament not only has the role of debating and passing the human
rights Act, it remains in charge of its width and breadth no matter what
the courts say. Through such legislation, constraints are placed upon
the exercise of executive power in a way that is consistent with the
many reforms that have supported the equality and dignity of people, no
matter what their background, race, gender, religion or sexuality. Indeed
it gives extra bite to these longer standing commitments.
Perhaps this takes us to the heart of the matter. Human rights have
proved to be a pest to tradition, to religious fundamentalism, to political
authoritarianism, to prejudice and bigotry and to administrative
intolerance. Belief in human rights has generated important movements
for reform and the universality of the idea guarantees it will continue
to play that role not only within politics, but also within civil society
where many institutions have traditions and rules that restrict rights and
liberties. The campaign for equality of the sexes within the Christian
churches comes to mind as an important example. Our laws have
tolerated such discrimination as part of the grand, historic compromise
17 National Human Rights Consultation Committee, above n 13, 366, quoting the
submission made by Tom Campbell and Nicholas Barry.
18 National Human Rights Consultation Committee, above n 13, 366.
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THE CASE FOR A CHARTER OF RIGHTS
between freedom and tradition. Traditionalists, however, often express
concern that under a charter their ‘rights’ are at risk of being trampled on
by the onward march of progress.
More to the point today, however, is the deep suspicion within elements
of the political elite that a human rights Act will make it too hard for
them to govern when faced with challenges such as terrorism and
crime generally. We have even seen immigration policy linked to
border protection in ways that would have been shunned thirty years
ago. The political elite has also expressed concern at the improbability
that reference to a range of rights can help solve the decision-making
dilemmas faced by politicians and public servants, when dealing with
complex matters involving individuals, the community and resource
allocation.
I believe these two sets of criticism miss the point. Firstly, it is clear that
a rights-based society in law as well as ideology does throw a light, if
not a legal sanction on remaining pockets of discrimination, intolerance
and barbarity. In some cases, such as female genital mutilation, this has
prompted State intervention to ban the practice. In others, the historical
compromise about which I spoke earlier is maintained and progress or
otherwise is left to the internal process of the voluntary association. This
tension, between what our legal system aspires to and what our social
system sanctions, is healthy and necessary. On the other hand, not having
a charter of rights legitimised by the Parliament sends a message to the
community that the government itself is fearful of subjecting itself to
serious human rights scrutiny. It all comes down to what sort of society
you wish to live in and how far you are prepared to go in tolerating
cultural relativism. The charter model is sensitive to difference but
supportive of progress. This is a good balance to have.
Secondly, it is clear that a charter of rights does not undermine decisionmaking in government and Parliament but it does make it a requirement
that human rights always form part of the discussion. It helps avoid the
tunnel vision that all too often operates within government. Indeed the
British case studies show that the existence of a human rights protection
has encouraged public authorities to search for solutions in situations
that had previously been viewed as unavoidable and unalterable.
However, without the back up of a legal sanction, one wonders how far
such creativity would be possible, let alone encouraged within public
sector decision-making.
What has been happening in our political system in recent years is that
the checks and balances on the executive and the scrutiny placed on
the practices associated with tradition have been caught up in the so43
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called ‘culture wars’. Opposing a charter of rights has become more
than a policy issue. Rather, it has become a battleground with ‘moral
truth and tradition’ on one side and ‘progress and human equality’ on
the other. What it demonstrates is that the progress which was assumed
for the world at the end of the Second World War when the Universal
Declaration of Human Rights19 was adopted by the United Nations in
1948 cannot be taken for granted. It has to be argued for and fought for
every inch of the way, whether the question relates to high-profile issues
like capital punishment and torture, or more mundane matters like the
rights of the elderly in nursing homes or transport access for the disabled.
What the Brennan Committee has proposed for Australia is measured
and consistent with our parliamentary system of government but at the
same time it places at the centre of our political equation the rights and
liberties of our people. It is a check and balance that will not guarantee
their full realisation but it will certainly help fill in the legislative and
procedural gaps that currently exist in Australia. Just as importantly, it
will help focus the energies and priorities of the nation around the rights
and liberties of the people. It gives us a philosophy of unity and hope
rather than a culture of division and despair.
19 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd
plen mtg, UN Doc A/810 (10 December 1948).
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