Module Six

Human rights protected by:The courts – through the operation of the

common law, and their role in statutory interpretation;

The parliament – at least the parliaments of the ACT and Victoria which have enacted a form of human rights legislation; and

The executive – through the Commonwealth and State human rights and anti-discrimination bodies such as the Federal Australian Human Rights Commission (AHRC).

For....Australian law does not protect fundamental freedoms.A Bill of Rights would give recognition to certain universal

rights.A Bill of Rights would give power of action to Australians who

are otherwise powerless.A Bill of Rights would bring Australia into line with the rest of

the world.A Bill of Rights would meet Australia’s international obligations.A Bill of Rights would enhance Australian democracy by

protecting the rights of minorities.A Bill of Rights would put rights above politics and arbitrary

governmental action.A Bill of Rights would improve government policy-making and

administrative decision-making.A Bill of Rights would serve an important educative function.A Bill of Rights would promote tolerance and understanding in

the community.(After Professor George Williams, UNSW)

Against...Rights are already well protected in Australia.The High Court is already protecting rights through its

interpretation of the Constitution and the common law.Rights listed in the Constitution or Acts actually make little or

no difference in protecting rights.The political system itself is the best protection of rights in

Australia.A Bill of Rights would actually restrict rights, that is, to define

a right is to limit it.A Bill of Rights would be undemocratic to give unelected

judges the power to override the judgment of parliament.A Bill of Rights would politicise the Australian judiciary.A Bill of Rights would be very expensive given the amount of

litigation it would generate.A Bill of Rights would be alien to our tradition of

parliamentary sovereignty.A Bill of Rights would protect some rights (for example, the

right to bear arms) that might not be so important to future generations.

Australian statutory initiatives:Commonwealth: no express constitutional

protection

ACT: Human Rights Act 2004Victoria: Charter of Human Rights and

Responsibilities Act 2006

Interpret as far as possible in a way which is compatible with human rights

Compatibility statements

HUMAN RIGHTS ACT 2004 - SECT 30

Interpretation of laws and human rights So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

Human Rights (Parliamentary Scrutiny) Bill 2010Different approach – no direct involvement of courtsSecond Reading Speech:

A statement of compatibility and a report of the Joint Committee on Human Rights, while not binding on a court or tribunal, could be used by the court or tribunal to assist in ascertaining the meaning of provisions in a statute where the meaning in unclear or ambiguous. By these measures, the parliament will be empowered through its response to a minister’s statement and any committee report, to give more precise guidance to the courts as to the legislature’s intention in enacting legislation in the context of Australia’s human rights obligations.

UK: Human Rights Act 19683(1) So far as it is possible to do so, primary

legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights

Attorney Generals Reference No 4 2002 per Lord Bingham:The interpretative obligation under s3 is a very

strong and far reaching one and may require the court to depart from the legislative intention of Parliament

A Convention compliant interpretation under s3 is a primary remedial measure and a declaration of incompatibility under s4 an exceptional course.

Common law: assumptions re human rights

Long standing assumptions of statutory intepretation

“[the Court] is ...mediator between the state in the exercise of its legislative power and the private citizen ....“

Lord Diplock in Fothergill v. Monarch Airlines [1981] A.C. 251, 279 quoted by Lord Browne- Wilkinson in Pepper v Hart

Al-Kateb v Godwin (2004) 219 CLR 562.

Migration Act 1958Mandatory detention – until removal or lawful

entry into AustraliaGleeson CJ: What happens then? Is the

consequence indefinite, perhaps permanent, detention? The Act does not, in express terms, address that problem. And so determination of this question falls to the court.

Note: Parliament silent – how does court interpret this silence?

Migration Act s 196:"(1) An unlawful non-citizen detained under section 189

must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa.

(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa."

Gleeson CJ:10The word "detention" in sub-s (3) means

"lawful detention". If it were otherwise, the provision would constitute an unconstitutional interference with judicial power. Parliament cannot deprive the courts of the power to order the release of a person from unlawful detention. Consequently, it is the meaning of sub-s (1), understood in its constitutional and statutory context, that is in question.

Principle of ‘legality’[19] In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that "[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness".

[20]A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.

‘Legality’ as unifying principle:The presumption is not merely a common

sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.

Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 209 ALR 116,

Lord Steyn:Parliament does not legislate in a vacuum.

Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption. But this assumption only has prima facie force. It can be displaced by a clear and specific provision to the contrary.

Lord Hoffman:The principle of legality means that Parliament must

squarely confront what it is doing and accept the political costs. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

R v Secretary of State for Home Department; Ex parte Simms (2002) 2 AC 115 at 131

Spigelman CJ:Courts presume that Parliament does not intend to:Invade fundamental rights, freedoms and immunities;Restrict access to the courts;Abrogate the protection of legal professional privilege;Exclude the right to claims of self-incrimination;Permit a court to extend the scope of a penal statute;Deny procedural fairness to persons affected by the

exercise of public powerGive immunities for governmental agencies a wide

application;Interfere with vested property rights;Alienate property without compensation;Interfere with equality of religion

Displacement of assumptionsCoco v R (1994) 179 CLR 427 Per Mason CJ, Brennan, Gaudron and McHugh

JJ:Indeed, it has been said that the presumption

is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct ... But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended.

Coco v R:10. The insistence on express authorization of an

abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference withfundamental rights).

Re Bolton; Ex parte Beane [1987] HCA 12

Per Brennan J:

"Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation."

Potter v Minahan [1908] HCA 63

'in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used’

Using the assumptionsSpigelman CJ:

It is at this point that judicial reasoning often becomes distinctly fuzzy...the relevant test is, more often than not, expressed in the conclusion rather than in the reasoning....It is often said that a statute which impinges upon the principle of legality, or any of its constituent interpretative principles, must be construed strictly. However the concept of strict construction does not involve a simple standard. There are degrees of strictness.

The principle of legalityParliament does not interfere with

fundamental rightsAl-Kateb v GodwinEvans v State of New South Wales [2008] FCAFC

130We have interpreted the WYD Act on the

presumption that it was not the intention of Parliament that regulations would be made under the Act preventing or interfering with the exercise of the fundamental freedom of speech. We have applied a principle of interpretation in favour of that freedom which has been accepted by the Courts of this country since Federation...

Parliament does not deprive people of access to the courts

Privative clausePlaintiff S157/2002 v Commonwealth (2003) 211

CLR 476

Specific assumptionsThe law is constitutionalThere is always an initial presumption that

Parliament did not intend to pass beyond constitutional bounds. If the language of a statute is not so intractable as to be incapable of being consistent with this presumption, the presumption should prevail.

Isaacs J in FCT v Munro; British Imperial Oil Company Ltd v FCT (1926) 38 CLR 153 at 180

s15A Acts Interpretation Act

Legislation is presumed not to have extraterritorial effect

In the interpretation of general words in a Statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most Statutes, if their general words were taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits.

O’Connor J in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363

S21 Acts Interpretation Act

Statutes do not operate retrospectivelyRodway v R (1990) 169 CLR 515

Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ [at 518-19] said: The rule at common law is that a statute ought not to be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and they should be given a retrospective operation. It would we think be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure....But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural...may operate in such a way as to affect existing rights or obligations. When they operate in that way ...they fall within the presumption against retrospective operation.”

Crown presumed not to be bound by statutesProvince of Bombay v Bombay Municipal Corp

[1947] AC 58Bropho v State of Western Australia (1990) 171

CLR 1State Government Insurance Corp v Government

Insurance Office of NSW (1991) 28 FCR 511 at 557:The common law presumption that statutes are

intended not to bind the Crown remains in force, but as a more flexible guide to construction which may be displaced without the stringent requirements that previously existed

Legislation presumed not to limit prerogative powers or property rights of the Crown

Barton v Commonwealth [1974] HCA 20Ruddock v Vadarlis [2001] FCA 1329

Legislation is presumed not to interfere with equality of religionCanterbury Municipal Council v Moslem Alawy

Society Ltd [1985] 1 NSWLR 525

Legislation is presumed not to violate the rules of international lawJumbunna Coal Mine NL v Victorian Coal

Miners Association (1908) 6 CLR 309

Legislation is presumed not to alienate vested proprietary interests without adequate compensationClissold v Perry (1904) 1 CLR 363

Presumption can be rebutted by clear wordsDurham Holdings Pty Ltd v NSW (2001) 205

CLR 399

Legislation is presumed not to interfere with vested proprietary interests

Clunies-Ross v Commonwealth (1984) 155 CLR 193If the power to acquire for a public purpose which

the Act confers is construed as extending to purposes quite unconnected with any need for or future use of the land, the ministerial power thereby created would be surprisingly wide in that, subject only to monetary compensation, it would encompass the subjection of the citizen to the compulsory deprivation of his land, including his home,by executive fiat to achieve or advance any ulterior purpose which was a purpose in respect of which the Parliament has power to make laws...It is in our view, unlikely that the Parliament would have intended to confer such a power other than by the use of clear words to that effect and subject to stringent and specially framed controls or safeguards against its abuse. Neither is to be found in the Act.

Penal provisions are strictly construedBeckwith v R (1976) 135 CLR Gibbs J

commented:The rule formerly accepted, that statutes

creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences...The rule is perhaps one of last resort.

Legislation is presumed not to alter common law doctrines/Legislation is presumed not to invade common law rights

FCT v Citibank Ltd (1989) 20 FCR 404 at 433, where he noted:The nature of this society, and its tradition of

respect for individual freedom, will support an approach to construction which requires close scrutiny and a strict reading of statutes which would otherwise remove or encroach upon those freedoms. But where the natural meaning of the words is clear, the will of Parliament must be respected.

Examples:Parliament does not abrogate the

privilege against self incriminationCrafter v Kelly [1941] SASR 237Privilege may be removed by express wordsPyneboard Pty Ltd v Trade Practices

Commission (1983) 152 CLR 328 Parliament does not abrogate legal

professional privilegeThe Daniels Corporation International Pty Ltd

v Australian Competition and Consumer Commission (2002) 213 CLR 543

Further reading:http://www.aph.gov.au/library/intguide/law/bi

llofrights.htmhttp://www.gtcentre.unsw.edu.au/content/cha

rter-human-rights-0http://www.aph.gov.au/library/pubs/rp/1998-

99/99rp20.htm