The movie mogul, Samuel Goldwyn is reputed to have said: “A verbal contract is not worth the paper it’s written on”. Many of the fundamental precepts that we take for granted as our legal rights in Australia’s democratic system derive from the common law. They are not enshrined in the Commonwealth Constitution or in any statute. They have the same fragility as Goldwyn’s verbal contract.
Every society must have laws or rules that regulate its citizens’ rights, responsibilities and obligations. Laws also define powers of the society’s institutions of government. However, laws do not exist in any community in a vacuum, divorced from the critical context of established the norms. Our nation, and its concept of the rule of law, has evolved from our early European settlers’ British foundations and most of the attributes of their legal system.
The original convict ancestry of many of our non-indigenous early settlers may explain the lackadaisical attitude Australians have towards their rights and the institutions of government. It is significant that there is little national celebration or recognition of our federal Constitution or the basic elements of the separation of powers that it enshrines. More importantly, the Australian public has no real appreciation of the lack of any constitutional protection of their rights. Remarkably, Australia is the only western common law democracy without a Bill of Rights.
In our common law there is a general prophylactic presumption applied by the Courts when interpreting legislation. The Courts presume that legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication in respect of “important common law rights”, such as:
- the right to personal liberty;
- trial by jury;
- taking property without compensation;
- procedural fairness;
Of course, the enforceability, nature and extent of common law rights are all vulnerable to the reality and degree of independence of the judiciary, the statutory construction it places on the Constitution and legislation, and to Parliamentary modification.
The principal means by which liberty can be eroded today in Australia is by a law enacted by the Parliament or by its delegated legislative power or by a State or Territory law. The Constitution confers specific legislative powers on the Parliament, generally divided into subject matters. Many of those powers are found in section 51. The Parliament has a plenary power to make a law operating upon or effecting one of those subject matters or fulfilling one of those descriptions.
In Australia very few rights are enshrined expressly in the Constitution, unlike the position in the United States. We have the religion clause in section 116 and the prohibition against laws in one State discriminating against citizens resident in another State in section 117. The High Court has also identified implications and assumptions in the Constitution that are sources of legal rights, such as the implied constitutional freedom of political communication.
I do not consider that the Victorian or Australian Capital Territory approach to statutory recognition of human rights in a charter with provisions for a declaration of incompatibility between charter rights and an overriding statute is the most desirable solution for our country to follow. They are legislative attempts to give some definition to the principle of legality. But, they suffer from the same weaknesses as the common law presumptions do: statutes can displace them and they do not withdraw legislative or executive power. Only a constitutional provision has that effect.
Two criticisms of the Victorian Charter may be made at once. First, the Court cannot find the impugned law invalid. To the contrary, where incompatibility exists, that law remains valid and overrides the Charter rights. Secondly¸ the Court can only make a declaration that has no legal effect except to draw the incompatibility to the attention of the Attorney-General.
One reaction to the suggestion that Australia should have a Constitutional Bill of Rights is that it would give too much power to the judiciary. But, as in any constitutional democracy, the boundaries for any separations of powers among the three arms of government are drawn themselves by a democratic process. At the moment, the only checks or balances on the relatively plenary legislative power of the Parliament under chapter I of the Constitution comprise limited constitutional implications, the important political need for legislatures to justify their actions to their electorates and common law principles of statutory interpretation.
Creating an entrenched Bill of Rights gives no substantive new power to the judiciary. Rather, the decision to reflect important societal values in a Constitutional instrument involves the electorate removing or withdrawing power from not just the legislative and executive branches, but also from the judicial one as well. The right, for example, to due process limits judicial power too.
Of course, Courts must determine the legal validity of any legislative or executive conduct in light of any relevant provision in a Bill of Rights. Our legal system currently allows every court in this country, from a local court magistrate to the High Court, when exercising federal jurisdiction, to declare a law made by any parliament or under delegated legislation or any executive conduct to be constitutionally invalid. When, particularly, the High Court makes a decision of that character, the Court can become involved in political controversy. But, that is simply a proper and necessary outcome of the third arm of government performing its role of determining the boundaries in which the other two arms of government may or may not operate, or the limits of judicial power. That use of judicial power is itself an essential governmental function in a society operating under the rule of law. And, when the Courts exercise their powers under Ch III of the Constitution, they must justify that exercise in proceedings that occur transparently in open court and in reasons for the judgment in which the Court decides and pronounces the law.
If citizens are to have rights worth having, they can only be guaranteed either by constitutional entrenchment through a democratic referendum, or by the Parliament scrutinising legislation and the Courts continuing to apply the principle of legality.
Steven Rares is judge of the Federal Court of Australia and an additional judge of the Supreme Court of the Australian Capital Territory.
This is an edited extract from a paper presented at the 2013 AGS Administrative Law Conference, Canberra, 20-21 June 2013. The full paper can be accessed at: http://www.fedcourt.gov.au/publications/judges-speeches/justice-rares/rares-j-20130620. The author acknowledges the assistance of his associate, Venetia Brown, in the preparation of this paper. The errors are the author’s alone.