A National Human Rights Act

12 March 2010

The proposed human rights act is super-statutory, not constitutional, writes Professor Helen Irving in an Opinion piece in today's edition of the Australian Financial Review.

Opinion: A National Human Rights Act

The debate over last year's recommendation by the National Human Rights Consultation Committee that Australia should adopt a human rights act, writes Edward Santow (Opinion, 26 February) 'is getting very dirty, very quickly.' Critics, he says, exaggerate the dangers and minimize support for its adoption. Well, pot meet kettle. Santow is a fine scholar and a sincere human rights advocate, but his claims are no less exaggerated or political. If there are critics who paint HRA advocates as 'dangerous radicals', just as many on the other side paint critics as heartless denialists. But no critic believes that Australia's human rights record is perfect, or opposes improvement. The debate is about means, not ends. Many critics speak from knowledge of the history of legislative reforms in Australia, where governments (mostly Labor) have adopted international rights or corrected conservative judicial rulings. They are not starry eyed about the judiciary's record in protecting the vulnerable or oppressed. Progress, they know, involves governments taking action, taking responsibility, and being accountable. Progressive initiatives have often been thwarted by courts in countries with bills of rights.

Of course, the proposed human rights act is super-statutory, not constitutional. It would permit the High Court only to make declarations of incompatibility between a law and a protected right. It would- so it is said - foster 'dialogue' between the court and the government. But in other countries, such super-statutes have quickly become entrenched, and the 'dialogue' is mostly one-sided. The judiciary speaks; the government gives a scripted response.

Victoria's Charter of Human Rights, writes Santow, shows the model to work well, without substantially increasing litigation. But the Charter is still young. Its full impact is yet to be felt. More importantly, it lacks a provision that the proposed federal HRA would include - a new, independent cause of action, with the full suite of remedies, against any federal public authority for breach of human rights. This is far more likely to generate litigation than the relatively restrained incompatibility declaration mechanism. In addition, also absent from Victoria, the NHRC Committee proposes an amendment to the Administrative Decisions Judicial Review Act, transforming all of Australia's international human rights obligations, even where unincorporated in domestic legislation, into relevant considerations for government decision-makers. This alone would dramatically shift the balance of power from the political arms to the judicial. Like the proposed new cause of action, it is anything but 'dialogic'.

The main opposition, Santow writes, comes from the religious community. But the churches, he also states, are 'split'. In fact, the church groups favouring the proposed HRA are in a minority. Concerns held by the majority that religious freedoms may be sacrificed to other rights are not unreasonable. The opposite result is also possible, and of equal concern, especially to feminists. For example, in Canada at present, a law prohibiting polygamy is being challenged for breach of religious rights. Gender equality, in my view, will be compromised if the religious argument wins. But more to the point, the courts should not be empowered to rule on such value clashes in the first place. Even a declaration of incompatibility would have the effect of declaring a 'winner'. Either respect for other people's values or simple fear of being on the losing side should caution against an HRA.

The level of public support is also contentious. Santow correctly cites an 83 per cent approval rate among the numerous unsolicited submissions received by the NHRC. Most, however, are brief, unelaborated assertions. The opinion poll results are more complex. They reveal, in fact, a high level of confidence in the current political arrangements: 90 per cent favoured parliamentary attention to human rights in law making, ranking this top of five alternatives for rights protection, with an HRA at the bottom, attracting 57 per cent support. Only 10 per cent of respondents reported any experience, direct or indirect, of rights deprivation. If the claim that the consultation showed an 'overwhelming' lack of support is exaggerated, so too is the counter-claim.

Many advocates downplay the likely impact of an HRA. Santow's acknowledgment that it would mean a major reform to Australian governance is commendable. Equally commendably, he invites debate on the matter. But his conclusion that opponents are clouding the issues with 'the fog of political warfare' is revealing. Political debate is the essence of democracy. It should be welcomed. Ironically, an HRA would foreclose debate, turning contestable matters into legal conclusions. It is scarcely 'dirty' tactics to want to point this out.

Helen Irving is Professor of Law at the University of Sydney.

Contact: Greg Sherington

Phone: +61 2 9351 0202

Email: 7e2526304b1c2630272c0a544725056f15352859564e1a131e19053147