In the way that only a former High Court judge can, Michael McHugh cracked the charter of rights debate wide open when he spoke at the Australian Human Rights Commission recently. McHugh’s contribution was significant not just because of his standing in the legal profession and broader community, but because he emphasised the existence of possibilities for the protection of rights in this country beyond those favoured by most local advocates of a charter.
In announcing the current National Human Rights Consultation, the Commonwealth attorney-general, Robert McClelland, made it clear that constitutional entrenchment of rights, empowering the courts to strike down legislation it found in breach of a protected right, was not on the table. Accordingly, advocates have focused on a statutory model - an ordinary act of parliament which expressly protects certain rights, subject to reasonable and proportionate limitations on those rights where necessary to pursue another legitimate end.
The most important feature of a charter is a provision requiring the courts to interpret legislation in a manner consistent with the charter’s recognition of rights wherever possible. There is some debate over the extent to which this may empower the judiciary to “rewrite” laws, but careful drafting of the interpretative provision would ensure that the traditional role of the courts as the interpreter, not author, of statutes is preserved.
The more controversial aspect of the statutory model which has dominated Australian debate and which is a feature of both the ACT’s Human Rights Act and Victoria’s Charter of Rights and Responsibilities is the power to issue a declaration of incompatibility when a court is unable to interpret a particular statute consistently with the protected rights. The declaration does not invalidate the law but it amounts to the courts’ very publicly alerting of the parliament that it has breached its own Charter. It is then up to the parliament to amend or repeal the law in response, or to keep it on the statute books regardless.
The declaration power is a prominent feature of the United Kingdom’s Human Rights Act, upon which the ACT and Victoria drew closely, but has been used only sparingly since the act commenced operation in 2000. Advocates for a statutory model emphasise that while a declaration of incompatibility enables courts to draw attention to a human rights abuse, it leaves the legislature with the final say. This is referred to as “dialogue” between the arms of government. But opponents have argued that the UK experience shows that as a matter of practice the courts inevitably end up calling the shots.
That aspect of the debate is not an easy one to settle, but in the Australian context there are additional complications with a declaration of incompatibility. There is a marked division of opinion amongst legal experts as to whether a national charter could confer upon the federal courts an ability to make declarations of incompatibility without breaching the Commonwealth Constitution. In his recent remarks, McHugh made it clear where he stands on this issue - and he is not optimistic.
What, in a nutshell, is the problem? The High Court has long insisted that the judicial power exercised federal courts, including itself, is limited to making a “binding and authoritative decision” on a legal controversy. There are strong reasons for scepticism as to whether a mere declaration of incompatibility - which has no effect on the rights of the parties to the litigation and may be ignored by the legislature - meets this description. In an extensive appendix to his paper, McHugh dissects the arguments at length before expressing his “grave doubt” as to the validity of empowering federal courts to make such declarations. The existence of counter-arguments is neither here nor there. Ultimately, uncertainty over the constitutional validity of the incompatibility power at the federal level is something at which any government can be expected to baulk.
Additionally, McHugh highlighted the need for a federal charter to be truly national - and afford protection to the residents of all states and territories. He pointed out the messiness of either federal courts engaging in “dialogue” with state parliaments about their human rights protection or, in the alternate, a patchwork of rights protection until such time, if ever, all Australian jurisdictions have in place corresponding human rights instruments. Instead of pursuing a national charter of dubious validity and limited impact, McHugh argues the Commonwealth should use its power to legislate on external affairs to domestically implement the International Covenant on Civil and Political Rights and possibly the International Covenant on Economic, Social and Cultural Rights. This would then apply not only at the federal level but also to the states and territories, due to the constitutional requirement that they not legislate inconsistently with the Commonwealth.
A power to strike down state and territory laws which breach Commonwealth human rights guarantees is not radical. It already exists and has been applied in cases involving those protections currently scattered throughout federal law, such as the Sex Discrimination Act. So far as Commonwealth laws themselves, McHugh sees the solution not in risky declarations of incompatibility but in a clause requiring all federal laws to be read subject to the charter. He favours a robust interpretative power being given to the courts - something sure to raise objections in some quarters. Lastly, parliament would still retain the final word in this approach, which draws directly on the Canadian Bill of Rights 1960.
The legislature would be able to pass a law “notwithstanding” the existence of any incompatible rights - either at the original instance or in response to a judicial interpretation it does not like. McHugh’s speech comes at a vital point in the charter debate. It strongly favours formal rights protection - but invites us to think more critically about the options for this in a federal country with a strict separation of judicial power from the other arms of government. It will feature heavily in future discussions as the Commonwealth consultation proceeds.