The recent debate stemming from the Federal Government’s Consultation on Human Rights centred on the question of whether Australia should adopt a Federal Human Rights Act, aka, Charter of Rights / Bill of Rights. The terminology is used interchangeably by some, yet in Australia the phrase “Bill of Rights” can be misleading. This is because most Australians are aware that the United States has a ‘Bill of Rights’ and may assume that a proposal for an Australian ‘Bill of Rights’ is similar. In fact the two are very different kinds of legal instruments.
The US ‘Bill of Rights’ (and some other international “Bills”) is part of the nation’s Constitution. The kind discussed and recommended in the Brennan Report is non-Constitutional, or “statutory”. In other words, it is a piece of legislation which is alterable by a Parliamentary vote. Constitutions are normally only amended by referendum. (so when you hear an American movie or TV refer to the “5th amendment”, they’re referring to a Constitutional amendment instituted through direct public (not Parliamentary) vote).
Constitutional powers can override statutory powers (or Parliamentary laws). A well known example from the US involves abortion. When the US Supreme Court ruled on abortion in Roe v Wade on the basis of Constitutional rights, the US Congress was not able to pass new law to ‘over-rule’ the Supreme Court. Unless the Constitution itself is amended, the Supreme Court’s ruling remains in force since it derives from the nation’s ultimate authority, its Constitution (which includes the Bill of Rights).
By contrast, the proposal for an Australian ‘Bill of Rights’, or more correctly, a “Human Rights Act” did not involve our Constitution at all. The rights would have been part of an ordinary act of the federal Parliament, subject to a Parliamentary vote and amendment by Parliament at any given time. No referendum was required (the public delegates the making of laws to Parliament and is only involved when a Constitutional change is proposed), and a Human Rights Act would have no formal power over other legislation, and certainly none with respect to the Constitution.
There are other very important differences between an Australian-style “Human Rights Act” and an American-style “Bill of Rights”. As noted in Roe v Wade, a senior court (US Supreme, our High Court) can decide that a law is un-constitutional. In the US system, the Supreme Court has a strong counter-balancing role to Congress. This is accepted because Americans often know their Constitutional rights and believe very strongly that a healthy democracy balances power between the judiciary (protecting rights under the Constitution) and the Congress (elected representatives passing laws). On the other hand, very few Australians know our Constitution. Our Constitution is notable for its absence of explicit protections of rights. Also our judicial tradition is unlike the US’s. Australian courts tend to defer to the wishes of the Parliament (called ‘Parliamentary sovereignty’).
What difference does all this make to the way a Human Rights Act would operate? (for shorthand, Human Rights Act is used interchangeably with “Charter”) The Victorian Charter of Rights is a state-based, statutory human rights model – the same kind as was proposed federally. The Charter has several features to give maximum power to the Victorian Parliament.
- First, as an Act of Parliament, the Parliament may amend the Charter at any time.
- Second, if a court finds that an existing law is inconsistent with Victoria’s Charter, the law is not overturned, suspended or otherwise jeopardised. It remains in normal force unless and until the Parliament decides to change the law. This is entirely different from a Constitutional Bill of Rights, which has power to override statutory legislation.
A conflict between existing laws and a Charter of Rights has arisen in Victoria. In a case, R v Momcilovic  VSCA 50 (17 March 2010), involving drug trafficking, the County Court found that one of Victoria’s laws (Drugs, Poisons and Controlled Substances Act) did not protect the right to the presumption of innocence (s 25 of the Charter). Presumption of innocence is obviously an important right, but the law will remain in force and unchanged unless and until Parliament amends it. The Parliament’s sole requirement is that the Attorney-General table in Parliament a written response to the court’s declaration within 6 months.
Some argue that such situations mean Parliament will be under ‘moral pressure’ to change the laws, and even though a Charter is statutory in name, it gives too much real power to the courts. The experience in Victoria suggests that Australia’s tradition of Parliamentary sovereignty will remain strong even with a Charter in place. In November, 2009 the Victorian Parliament introduced amendments to the Summary Offences and Control of Weapons Acts Amendment Bill. As required under the Charter (s 28), the Government tabled a Statement of Compatibility with the Victorian Charter. However, the statement admitted that some of the amendments were actually incompatible with the Charter (neither “reasonable” nor “demonstrably justifiable”). The bill was passed into law with bipartisan support. While it is still early days, this episode suggests that Australian Parliaments do not feel greatly coerced by (potential) judicial statements of compatibility.
In sum, Victoria’s Charter has quite severely limited the power of the judiciary:
- clauses can be introduced into an Australian Charter which override its powers or scope. The Catholic Church was concerned about the possible effect of a Charter on abortion and sought an amendment specifically on abortion, which was put in as s 48 “nothing in this Charter affects any law applicable to abortion”.
- there is an ‘override mechanism’, s 31, whereby the Parliament can say that a specific law is exempted from the Charter’s scope. Canadian Provincial (=our states) Parliaments have used their override mechanisms numerous times. The Quebec Parliament used their override (called a “notwithstanding clause”) in all legislation passed between 1982 to 1987. (the Quebec Parliament employed it again in 1989 in relation to equality and freedom of expression bills)
- the Charter empowers the judiciary to interpret laws using the Charter (s 32) and to issue a Declaration of Incompatibility (s 36), but neither have direct legislative effect. Direct legislative control remains with Parliament, regardless of the judiciary’s rulings. Recent rulings such as R v Momcilovic, show that Victoria’s judiciary regard their interpretive role as limited with respect to Charter rights, and defer heavily to Parliament.
Charter of Rights Update (2009), by Gareth Griffith (pdf) (On this topic read p. 1 -2)
General background on human rights and Charters of Rights in this interview from Triple J here.
Internet resources on Charters/Bills of Rights – Parliamentary Library, Parliament of Australia
A NSW Charter of Rights: The Continuing Debate (2006) by Gareth Griffith, NSW Parliamentary Library Research Service
A British Bill of Rights: informing the debate – a Report of the Justice constitution committee, UK (including a comprehensive comparative review of Bills of Rights from a number of different Western democracies)
- Bills of Rights in Australia: history, politics and law by Andrew Byrnes, Hilary Charlesworth & Gabrielle McKinnon, UNSW Press, 2009
Also see Case Studies of Human Rights in action: http://www.isaiahone.org/debates-over-human-rights/human-rights-case-studies/egs-of-charter-1/