Australia’s Human Rights Scrutiny Regime: Democratic Masterstroke or Mere Window Dressing?

Australia’s Human Rights Scrutiny Regime

Australia’s Human Rights Scrutiny Regime

Democratic Masterstroke or Mere Window Dressing?

Adam Fletcher

MELBOURNE UNIVERSITY PUBLISHING

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First published 2018

Text © Adam Fletcher 2018

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Contents

Acknowledgements

Abbreviations

Preface

Introduction

1Rights protection in Australia: overview and history

2Australia’s Human Rights Framework : a unique rights protection system

3Statements of Compatibility with human rights

4Joint Committee on Human Rights: the first four years

5The impact of the human rights scrutiny regime

Conclusion

Appendix 1: Commonwealth Statements of Compatibility with Human Rights 2012–2015

Appendix 2: Ministerial Reponses to Joint Committee on Human Rights Queries 2012–2015

Bibliography

Index

Acknowledgements

I would like to thank my supervisors Sarah Joseph and Julie Debeljak for the valuable time and feedback they contributed to the doctoral research which formed the basis for this book. They, along with many others in the Faculty of Law at Monash University, welcomed an apprehensive outsider to academia and provided the encouragement I needed to complete my work. My research was supported by an Australian Government Research Training Program Scholarship.

I would also like to thank former Senator Penny Wright and former MP The Hon Philip Ruddock, as well as members of the Australian Public Service, who set aside time for the interviews which were crucial to my understanding of the parliamentary human rights scrutiny regime.

I am very grateful to my wife Ella Jungerth and all of my family for their patience and support.

Finally, I would like to thank Rhonda de Kretser, Janina Boughey, Anita Mackay and Vanessa Johnston for the vital task of proofreading, as well as my editor Vesna Rapajic and those at Melbourne University Publishing responsible for helping me to communicate my research through the beautifully presented volume you are holding.

Adam Fletcher

23 April 2018

Abbreviations

Preface

In late 2012 I was a research fellow at the Castan Centre for Human Rights Law at Monash University. I had just finished working on a major project on justice reinvestment for the Commonwealth Government, and was about to embark on another relating to child employment laws. However, in the context of cutbacks in the lead-up to the 2013 Budget, funding for the project was withdrawn.

I had previously worked at the Attorney-General’s Department in Canberra—specifically in the International Human Rights Law section. I had also worked in Geneva, where I had the chance to observe Australia’s interactions with the United Nations human rights oversight mechanisms first hand. Australia’s implementation of its international human rights obligations is a theme to which I find myself drawn, and the newly-minted parliamentary human rights scrutiny regime presented me with an opportunity for another long-term research project.

The scrutiny regime, overseen by the parliamentary Joint Committee on Human Rights (JCHR), was Australia’s new flagship human rights implementation mechanism. It was established in place of a Human Rights Act, which had been controversially rejected by the Rudd Government in 2010, despite a recommendation from the 2008/2009 National Human Rights Consultation led by Father Frank Brennan.

This book tells the story of the scrutiny regime’s first four years of operation. It follows the JCHR’s shifting fortunes under its first three Chairs—Harry Jenkins, Dean Smith and Philip Ruddock. It also relates the experiences of public servants who worked on Bills and legislative instruments which were examined by the JCHR.

Since 2012 when this project was conceived, relatively little attention has been paid to the human rights scrutiny regime, despite the wealth of literature on other ways in which Australia implements its international obligations. The book aims to address that deficit by documenting and evaluating the regime’s operation, so that its contribution to Australia’s implementation of its human rights obligations can be assessed.

Introduction

What is the point of international human rights law? This is a question perhaps posed more frequently in Canberra than in other Western capitals.

Australian governments have historically maintained a supportive approach to the international human rights system. Indeed, the Australian Foreign Minister HV Evatt was a key participant in the adoption of the 1948 Universal Declaration of Human Rights,¹ and its ongoing involvement has recently been bolstered by an announcement of candidacy for the United Nations (UN) Human Rights Council in 2018–2020.²

However, the Commonwealth³ Government’s enthusiasm for international human rights law varies according to the extent to which its policies and laws are found to be compatible with its treaty obligations. This variable attitude is important context for the following analysis of Australia’s Human Rights Framework of 2010,⁴ including its unique parliamentary rights protection regime.

There are at least three prominent perspectives on human rights among Australian authorities and commentators, which form a crucial backdrop to this country’s unusual implementation approach.

The first is that human rights law, as embodied in the core UN human rights treaties, represents the concerted efforts of world leaders to lay the ground rules for a safer, more respectful and more humane world in the wake of the atrocities of World War Two.

The second, contrasting perspective is that human rights law is the conceit of a few high-minded representatives of mainly Western nations, shrouded in idealism and setting out standards so minimal as to be applicable mainly to dictatorships and other nations incomparable to Australia.

The third view is that human rights law is law in name only, and the fact that, in many cases, it is unable to be enforced effectively makes it a set of self-regulatory guidelines.

Supporters of rights protection in Australia have made significant gains in the implementation of Australia’s international human rights obligations. The opening chapter of this book outlines developments, particularly in the last half-century, in domestic implementation. These include anti-discrimination legislation in every Australian jurisdiction and human rights instruments in two (Victoria and the Australian Capital Territory (ACT)), as well as a range of administrative oversight mechanisms inspired by human rights principles.

However, at the federal level, those with more negative attitudes towards human rights law predominate. As a result, Australia is the only Western industrialised nation not to have a national Bill or Charter of Rights. Parliament, so the argument goes, should have control over the policy agenda, and judges should confine themselves strictly to interpretation and application of Parliament’s laws. Additionally, if reviewing government action affecting the rights of individuals, judges should consider only legality and procedural propriety; the merits of decisions are off-limits. Naturally, the role of the Australian courts is more nuanced in practice, but this is the theory on which many Australian politicians appear to be operating.⁵

As a result of these attitudes, the Commonwealth approach to human rights protection focuses squarely on Parliament’s role in enacting rights-compliant legislation. Arguably, this narrow focus is more democratically legitimate than a system in which the Judiciary can take a strong rights-compatible interpretive approach, or even strike down non-compliant legislation. However, this view will be challenged in the following pages.

Regardless of its adequacy as a measure of international law implementation, parliamentary rights scrutiny is a burgeoning phenomenon. Murray Hunt, adviser to the United Kingdom’s Joint Committee on Human Rights (UK JCHR), has been leading a project at Oxford University entitled Parliament, the Rule of Law and Human Rights since 2010.⁶ A 2015 conference hosted by the project found:

There is a growing international consensus about the importance of the role of parliaments in the protection and realisation of the rule of law and human rights, which has emerged over the last five years.⁷

Hunt identified drivers of this emerging consensus as ‘growing concerns about the effectiveness of the international human rights machinery’ and desire to ‘increase the democratic legitimacy of these [human rights] standards’.⁸ Hunt also stated, in relation to implementation of parliamentary human rights scrutiny processes:

Such democratisation of the rule of law and human rights would address the need for elected politicians to take more ownership of these obligations, and properly consider applicable international human rights and rule of law standards in their work. Nevertheless, it is important to emphasise that this is not to replace the courts’ role, but is very much intended to be complementary to the courts’ role in protecting the rule of law and human rights …⁹

The Commonwealth Parliament, as part of the 2010 Human Rights Framework, established its own Joint Committee on Human Rights (JCHR) to scrutinise legislation for compatibility with international human rights obligations. It also imposed a requirement that all proposed legislation be accompanied by a Statement of Compatibility with human rights (SoC).¹⁰ The objectives of this scrutiny regime, as stated by then Attorney-General Robert McClelland, were to:

… improve parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development …¹¹

However, despite a recommendation from a committee established to conduct a major national consultation on human rights protection in Australia,¹² the Commonwealth Government chose not to introduce a comprehensive statutory human rights instrument. McClelland explained that such an instrument faced significant political opposition, and that the Government preferred to enhance human rights ‘in a way that as far as possible unites, rather than divides, our community’.¹³ As such, education and legislative transparency were the primary means adopted to improve the Commonwealth’s human rights performance.¹⁴

The eschewal of a role for the Judiciary meant that the Commonwealth effectively established the Western world’s only bipartite ‘dialogue system’ for human rights protection. Comparable jurisdictions (including the Australian Capital Territory, Canada, New Zealand, the UK and Victoria) all have rights instruments which give the courts a role in a tripartite dialogue on human rights between the three branches of government. The Commonwealth’s uniqueness in this regard makes interjurisdictional comparison difficult.

Rights-protective legal instruments have been divided by leading theorist Mark Tushnet into those which entail ‘strong-’ and ‘weak-form’ judicial review.¹⁵ The former enables courts to strike down legislation on the basis of incompatibility with constitutionally-protected rights. Despite important differences, Canada and the United States (US) both fall into this category. Weak-form review is the name given to the model adopted in the ACT, New Zealand, the UK and Victoria. Those jurisdictions have enacted statutory rights instruments, which are not entrenched and which specifically preserve the sovereignty of Parliament.¹⁶ They confer on the courts only powers of rights-compatible interpretation and unenforceable declaration, rather than invalidation.

Under the 2010 Human Rights Framework, the Commonwealth has a regime for rights protection which is even weaker than Tushnet’s weak-form review. Judicial review remains available on constitutional and administrative law grounds, but not on the basis of human rights. This regime leaves those in power who shape and administer the law with little incentive to make concessions to rights.¹⁷

This book assesses the quality and effectiveness of Australia’s parliamentary human rights scrutiny system on its own merits, and against the (limited) goals which were set for it by the Government in 2010. Given the difficulty and limited utility of comparing dissimilar systems, comparative analysis is restricted to an assessment of the contention that Australia’s approach is more democratically legitimate than those of jurisdictions with a role for the courts.

The impact and effectiveness of the Commonwealth’s human rights scrutiny regime is examined in five chapters. The key purpose is to assess the scrutiny regime against the Government’s stated aim of ‘ensuring that key principles of freedom, respect, equality, dignity and a fair go for all Australians are considered in everything the Commonwealth Parliament does’.¹⁸

To frame the discussion, Chapter 1 gives an overview of the history of rights protection in Australia, from 19th century to the most recent developments (such as the statutory rights instruments in the ACT and Victoria). It examines the reasons behind the relative lack of rights protections in the Commonwealth Constitution, and the legislation which attempts to redress this deficiency (such as anti-discrimination laws). It also covers other rights-protective laws and government agencies with rights-protective roles, then turns to the role of the Australian courts in protecting rights and the influence of the UN human rights oversight bodies.

Chapter 2 discusses the Commonwealth Government’s Human Rights Framework of 2010 (which incorporated the scrutiny regime), placing it in context as a response to the National Human Rights Consultation, which delivered its report in 2009.¹⁹ The arguments for and against judicial involvement under a statutory rights instrument, as was recommended in the Consultation Report but rejected by the Government, are canvassed in detail. These include contentions in relation to democratic legitimacy, constitutional validity and restrictions on Parliaments’ ability to protect rights. Chapter 2 also explains how aspects of the Framework other than the scrutiny regime, for example in relation to human rights education, have largely fallen away since 2010.

Chapter 3 evaluates the Statements of Compatibility (SoCs) which now accompany each new piece of proposed legislation introduced into the Australian Parliament. It assesses SoCs produced from 2012–2015 which accompany Bills raising substantive human rights issues and gives them a relative rating in a qualitative analysis designed to determine whether the SoCs are living up to the expectations set by the Government in introducing the Framework. This analysis is supported by Appendix 1, which contains notes on each relevant SoC. Finally, this chapter incorporates feedback from public servants involved in drafting SoCs, who were interviewed in 2014.

Chapter 4 gives an overview of the JCHR’s work from 2012–2015, with updates to 2018 on key issues such as public inquiries and Bills with major human rights implications. As with SoCs, this chapter assesses the JCHR’s performance against the goals set for the scrutiny aspect of the Framework by the Government in 2010. It discusses the JCHR’s approach and working methods, including its special status as one of only three scrutiny committees of the Australian Parliament. It also examines how the JCHR’s reporting practices have evolved over time, and places this evolution in the context of changes to the JCHR’s membership, leadership and secretariat.

Chapter 5 discusses the impact of the scrutiny regime on the development of Commonwealth legislation as well as the impact of the JCHR’s work in the wider community. The Government’s over-arching aim for the scrutiny regime was to improve consistency with Australia’s human rights obligations and to encourage further consideration of human rights issues in legislative and policy development. It was also intended to create a ‘dialogue’ between Parliament and the Executive, ultimately to inform MPs and Senators that legislation on which they are to vote may have human rights implications. Chapter 5 examines whether this aim is being achieved, taking into account feedback from JCHR members interviewed in 2015, as well as a detailed examination of formal Ministerial dialogue with the JCHR in Appendix 2. In addition, Chapter 5 makes brief comparisons with the impact of comparable regimes in other jurisdictions (particularly the UK).

The Conclusion discusses the earlier chapters’ key findings. It makes recommendations for reform where discrete weaknesses in the scrutiny regime have been identified. Finally, it draws conclusions about the legitimacy, value and effectiveness of the scrutiny regime overall.

Ultimately, this book aims to demonstrate how Commonwealth Government attitudes towards human rights have resulted in a uniquely weak rights protection mechanism at the national level. The principal goals claimed for the Human Rights Framework were to improve legal protection of, and education about, human rights in response to the need identified by the National Human Rights Consultation. However, as will become apparent on reading the following chapters, there are several institutional factors which militate against the achievement of these goals. It is left to the reader to decide whether the Framework, designed in full knowledge of these limiting factors, is really a democratic rights-protective masterstroke, or merely window dressing obscuring the Government’s deep-seated reluctance truly to be bound by its international human rights obligations.

Notes

1See Annemarie Devereux, Australia and the Birth of the International Bill of Human Rights 1946–1966 (Federation Press, 2005), 1.

2See Department of Foreign Affairs and Trade, Australia’s Candidacy for the UN Human Rights Council 2018–2020 < dfat.gov.au/international-relations/international-organisations/pages/australias-candidacy-for-the-unhrc-2018-2020.aspx >.

3Throughout the remainder of this book, ‘the Commonwealth’ refers to the Australian federal polity.

4The Human Rights Framework of 2010 is a policy document outlining a series of measures to improve human rights implementation and education—see further Chapter 2 . The Framework is archived at < pandora.nla.gov.au/pan/119944/20100531-1640/www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_TheAustralianHumanRightsFramework.html >.

5The role of, for example, judicial review is examined in more detail in Chapter 1 .

6See University of Oxford Faculty of Law, Parliaments, Rule of Law and Human Rights Research Project < www.law.ox.ac.uk/research-and-subject-groups/parliaments-rule-law-and-human-rights-project >.

7Brian Chang, Conference Report , ‘The Role of Parliaments in the Protection and Realisation of the Rule of Law and Human Rights’ (organised by University of Oxford Faculty of Law, 7 September 2015, Westminster), available at < www.law.ox.ac.uk/research-and-subject-groups/parliaments-rule-law-and-human-rights-project/2015-conference-role >, 1.

8Ibid, 10–1.

9Ibid, 11.

10 See further ‘Statements of Compatibility—legislative requirements’ in Chapter 3 .

11 See Parliamentary Debates , House of Representatives Hansard , 2 June 2010, 4902.

12 See further ‘Recent developments leading to limited rights protection via pre-legislative scrutiny’ in Chapter 1 .

13 See Australian (Commonwealth) Government, National Human Rights Framework , 2010 above n 4, ‘Foreword’. Please note the title ‘Commonwealth Government’ will be used throughout the remainder of this book to refer to the Australian federal government.

14 The Framework also included means such as anti-discrimination law reform and NGO forums—see further ‘Elements of the Framework ’ in Chapter 2 .

15 See Mark V Tushnet, ‘New Forms of Judicial Review and the Persistence of Rights – And Democracy-Based Worries’, (2003) 38 Wake Forest Law Review 813; also ‘Weak-Form Judicial Review: Its Implications for Legislatures’, (2004) 2(1) New Zealand Journal of Public and International Law 7.

16 It is acknowledged that the Canadian Charter of Rights and Freedoms contains an override clause which formally preserves parliamentary sovereignty, but in practice the clause has proven (politically) difficult to use and so Canada can be said to retain its ‘strong-form’ categorisation. See eg Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, 2013), 121–5.

17 See George Williams and Daniel Reynolds, ‘The Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights’, (2016) 41(2) Monash University Law Review 469, 507.

18 See Australian Attorney-General’s Media Release, Human Rights Check for New Laws , 4 January 2012, archived at < pandora.nla.gov.au/pan/21248/20120227-0025/www.attorneygeneral.gov.au/Media-releases/Pages/2012/First%20Quarter/4-January-2012---Human-Rights-check-for-new-laws.html >

19 See Australian Government, National Human Rights Consultation Report , September 2009, (The Report appears to have been removed from all Government websites, but is archived at < webarchive.nla.gov.au/gov/20120316183642/http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReportDownloads >).

CHAPTER 1

Rights protection in Australia: overview and history

The present system of protection for human rights in Australia has been aptly described as an ‘intricate patchwork of international, Commonwealth and state laws and institutional arrangements’.¹ This chapter traces the development of this patchwork to explain why Australia does not have a more cohesive, comprehensive rights protection system.

Australia’s ‘reluctance about rights’, which has been identified by authors such as Hilary Charlesworth,² is deep-seated and has its origins in the legal philosophies of the lawyers of the colonies, many of whom later became the architects of Federation. Their belief in the superiority of Parliament, over and above other governmental institutions, helps to explain some of the major differences between Australia’s system for protecting rights and those of most like-minded countries.³ An understanding of the historical precedents will assist in the explication, in later chapters of this book, of the present system of rights protection.

Early history of institutional rights protection—the Constitution of the Commonwealth of Australia

Throughout the 1890s, the drafters of the Commonwealth Constitution held conventions to discuss the content of the document upon which Australian federation would be founded. With few exceptions, the drafters were reluctant to include civil rights protections.⁴ The High Court has since observed that this was no accident:

The adoption by the framers of the Constitution of the principle of responsible government was perhaps the major reason for their disinclination to incorporate in the Constitution comprehensive guarantees of individual rights … The framers of the Constitution accepted, in accordance with prevailing English thinking, that the citizen’s rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy.

So it was that Professor Harrison Moore, writing in 1901, was able to say of the Constitution:

The great underlying principle is that the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power.⁵

Nevertheless, thanks largely to the influence of the Tasmanian Attorney-General, Andrew Inglis Clark, limited protections of rights relating to jury trials, political participation and religion were included.⁶ Clark, a noted admirer of the United States Constitution and friend of prominent American jurist Oliver Wendell Holmes Jr, also pressed for guarantees of due process and equal protection under the law.⁷ However, these were voted down because of concerns about, for example, state laws concerning differential taxation and concessions to non-white labourers.⁸

It should be noted that the guarantees which were included were limits on Commonwealth Government powers, rather than those of the state governments which were represented at the Constitutional Conventions.⁹ In fact, preservation of the plenary legislative powers of the states was a primary concern for many of those attending the Conventions. It doubtless played a role in weakening, for example, s 117, which deals with discrimination between residents of different states, but was originally conceived as a guarantee of equal protection under the law akin to that in the Fourteenth Amendment to the US Constitution.¹⁰ The drafters, Charlesworth observes:

… noted the deep racial inequality in American society, which the fourteenth amendment had been designed to ameliorate, but they were unable to recognise as such any parallel features in their own. The grossly oppressed position of the Australian Aborigines, for example, was simply never adverted to in any of the constitutional debates.¹¹

Although Clark’s contributions to the drafting process were inspired by the US Constitution, he did not attempt to insert guarantees which now seem fundamental in the US, for example freedom of speech and of the press, protection for peaceful assembly and petition for grievances, or the fair trial guarantees of the Sixth and Eighth Amendments. Charlesworth suggests that ‘[t]he modesty of Clark’s proposals may have been due to the fact that many of the protections granted to civil rights and liberties in the American Constitution had not been invoked by the early 1890s … and did not appear as basic then as they do now’.¹²

Apart from faith in representative government and parliamentary sovereignty, it has been suggested that the modesty of the included rights protections reflect the fact that the drafters:

… had no recent memory of a bitter struggle against tyrannical devices to make them determined to erect permanent protections against their use again.

Like anyone else within the English tradition, they must have felt that the protections to individual rights provided by the traditions of acting as honourable men were quite sufficient for a civilised society.¹³

If there had been any wariness of potential tyranny in the British mindset, it was firmly focused on the Crown rather than the Parliament.¹⁴ In fact, the Legislature was seen as the bulwark protecting the rights of citizens against executive overreach, and reinforcing its representative nature was a higher priority than restricting its powers.¹⁵

At least two further explanations have been proposed for this reluctance about rights. Charlesworth posits:

A deeper reason for the resistance of the drafters of the Constitution to the inclusion of individual rights is that the Australian attachment to the ideology of utilitarianism made the idea of natural rights appear alien. If the aim of political society is simply to achieve the greatest happiness of the greatest number, the institutional means of securing it (for example through representation) become the focus of political discussion.¹⁶

The strong tradition of Diceyan legal philosophy in Australian law also contributed to the desire to limit the scope of judicial power which may be inferred from the omission of a Bill of Rights.¹⁷ AV Dicey preferred what he saw as concrete common law remedies to the grand pronouncements of rights found in many European constitutions. He saw little merit in judicial review of parliamentary action, which he warned could lead to weak, conservative government and a surfeit of legalism.¹⁸ Dicey’s strong emphasis on parliamentary sovereignty has been criticised by former High Court Justice Michael Kirby, who contends that it can diminish fundamental rights, and that Australian sovereignty properly belongs to the people as the ‘electors’¹⁹ of the Constitution.²⁰

Similarly, James Bryce’s The American Commonwealth was an important source of information on the US Constitution and federalism for the Australian drafters.²¹ Like his Oxford colleague Dicey, Bryce saw the Bill of Rights as an outmoded supplement to the US Constitution. Indeed, there had been very few cases which had found violations of the Bill of Rights at the time, and it was not nearly as important as it is today.²² Bryce preferred the relative flexibility of British constitutional arrangements.²³

The arrangements for constitutional protection for human rights in Australia have remained largely unchanged since 1901, apart from some innovations in judicial interpretation outlined later in this chapter.²⁴

Rights protection under the Commonwealth Constitution

Express constitutional rights

The express rights protections included in the Commonwealth Constitution are largely couched in terms of limitation of government power. Section 51(xxxi) provides that the Commonwealth must only acquire property on ‘just terms’; s 80 provides that trials on indictment for federal crimes are to be by jury and s 116 is a ‘non-establishment’ of religion clause. Section 117 is the only provision expressed in individual rights terms. It requires freedom from ‘disability or discrimination’ on the basis of one’s state of residence.

Australia’s apex court, the High Court of Australia (High Court), tends to take a narrow approach to the rights specifically protected under the Constitution. In this it is true to the attitudes of the drafters described earlier in this chapter, but relatively insensitive to the need for legal protection of certain minority groups in Australian society. In fact, the Court’s narrow interpretations of the explicit civil rights protections in the Constitution have been described as rendering them ‘completely ineffective’.²⁵ This is epitomised by the Court’s treatment of s 116, the clause on free exercise and establishment of religion. From Krygger v Williams²⁶ in 1912 to the School Chaplains Case²⁷ one hundred years later, the Court has held that s 116 should be interpreted far more narrowly than its equivalent in the First Amendment to the US Constitution. It cannot prevent the Commonwealth Government from conscripting men to fight in wars against their religious beliefs,²⁸ nor from prohibiting promotion of pacifism from a religious platform,²⁹ funding private religious schools,³⁰ funding a chaplaincy program to preach a single religion in secular public schools,³¹ nor even from separating Aboriginal children from their families and placing them in an altogether foreign spiritual context.³² No law has ever been struck down for breaching s 116.

Section 80, which provides for trial by jury, offers only weak protection. Its wording requires juries only for trials ‘on indictment’ for Commonwealth crimes.³³ Since the Parliament can decide which crimes are indictable and which are not, it effectively controls the right to a jury.³⁴ Furthermore, it has been observed in the High Court that:

[Section 80] is to be found in that chapter of the Constitution which erects the federal judicature and its language suggests that trial by jury for indictable offences was intended to be part of the structure of government rather than the grant of a privilege to individuals. That, as I have said, is consistent with the general framework of the Australian Constitution which, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by constitutional restrictions upon the exercise of governmental power.³⁵

As a consequence of this reasoning, when an accused person applied to the High Court to uphold his or her prerogative to waive the right to a jury in 1986, s 80 was held to prevent such a waiver.³⁶ In addition, s 80 has been held to require juries which are ‘adequately representative of the community, act as the exclusive arbiter of the facts, be randomly selected and return a unanimous verdict’.³⁷ On the other hand, abolition of juries, or reclassification of crimes to deny the right to a jury, has not been attempted in any Australian jurisdiction, so in this sense s 80 has not been tested.³⁸

It has been argued that the Court’s approach to other explicit protections, such as the right to compensation on ‘just terms’ in s 51(xxxi), has been disappointing from a human rights point of view.³⁹ This may in part be explained by discussion during the Convention debates. Once again, analysis of the background to this provision reveals that it was not intended principally to limit Commonwealth authority, but rather to ensure there was an express power to acquire property.⁴⁰ The inclusion of the ‘just terms’ requirement was intended foremost as a concession to the states, so that Commonwealth acquisition did not become an undue financial burden on them.⁴¹ Nevertheless, the protection has evolved over time to provide a relatively strong individual economic right encompassing a wide variety of property.⁴²

Section 117, which guarantees freedom from discrimination on the basis of one’s state of residence, is a further example of a provision which looks like a human rights protection, but which in practice has served mainly to promote national unity and harmonise regulation (including taxation) between the former colonies.⁴³ It should also be noted that it does not prohibit discrimination on any of the grounds recognised by international human rights law, such as race, gender or religion.⁴⁴ Jurisprudence on s 117 also specifically excludes the kind of justifiability or proportionality reasoning which accompanies international law tests for discrimination. This makes it a strong protection, but one exclusively available on the basis of residence.⁴⁵

Overall, it can be said that the High Court has faithfully given effect to the intention of the drafters in applying these express rights guarantees. This intention was to provide some modest brakes on Commonwealth power; not to provide strong protection for individuals’ rights—with the exception of property rights.

Implied constitutional rights

Even without strong explicit constitutional human rights guarantees, the High Court has developed some tests for constitutionality which have the effect of implying rights into the Constitution based on its text and structure.⁴⁶ It has found that certain implied rights must be upheld if the system of government set up by the Constitution is not to be undermined, such as the implied freedom of communication regarding political matters,⁴⁷ the right to vote in federal elections,⁴⁸ and the right to be judged or punished only by the judicature.⁴⁹

Implied freedom of political communication

Although the Commonwealth Constitution contains no explicit protection for freedom of speech, the High Court has found that freedom for citizens to communicate about political matters is integral to the Australian system of government.

Nationwide News v Wills⁵⁰ concerned an amendment to the Industrial Relations Act 1988 (Cth) to prohibit criticism aimed at bringing a member of the Industrial Relations Commission into disrepute. Nationwide News successfully contested this prohibition. Four out of seven justices held that a guarantee of freedom of communication in relation to political matters was implicit in the sections of the Constitution that provide for representative and responsible government⁵¹ and struck down the relevant provision.⁵² Australian Capital Television and New South Wales v Commonwealth, concerning paid political advertising in the state of New South Wales (NSW), was decided on the same day on similar grounds.⁵³ These two cases, and cases that followed,⁵⁴ continued to confirm that an implied freedom of political communication existed, but there remained disagreement on the precise source of the implication and the nature, scope and operation of the freedom.

Clarification came by way of the unanimous decision in Lange v ABC, where a differently constituted High Court recast the implied freedom of political communication.⁵⁵ The Court clarified that the freedom is a limitation on federal legislative power rather than a source of individual rights.⁵⁶ The joint judgment also indicated that the source of the implied freedom is representative and responsible government as reflected in the provisions of the Constitution, including ss 7, 24, 64, 128 and related provisions. The freedom was held not to be absolute, with the High Court setting out the scope of the implied freedom in the following two-stage test:

First, does the law burden freedom of communication about government or political matters in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the