HUMAN RIGHTS AND THE AUSTRALIAN CONSTITUTION LETASA CONFERENCE 27 August 2010 Associate Professor Wendy Lacey

Human Rights in Australia RIGHTS The Constitution Statutes The common law International Law? INSTITUTIONS The Parliament The Executive Government The Judiciary State and Territory Governments

CONSTITUTIONAL RIGHTS AND FREEDOMS The Right to Vote – Section 41 No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth. - an implied right to vote? (sections 7 and 24) Trial by Jury – Section 80 The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. Prohibition of discrimination on basis of State Residence – Section 117 A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

CONSTITUTIONAL RIGHTS AND FREEDOMS Freedom of Religion – Section 116 The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. Freedom of Interstate Trade, Commerce and Intercourse – Section 92 Ton the imposition of uniform duties of customs, trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. Acquisition of Property on Just Terms – Section 51(xxxi) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.

IMPLIED CONSTITUTIONAL RIGHTS AND FREEDOMS REPRESENTATIVE AND RESPONSIBLE GOVERNMENT Implied Freedom of Political Communication – Sections 7 and 24 The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate … The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth … Freedom of Movement and Association as a Corollary of the Above? - Gaudron J (Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 212; Kruger v Commonwealth (1997) 190 CLR 1 at ); - McHugh J, Kirby J (Mulholland v Australian Electoral Commission (2004) 220 CLR 181); CHAPTER III Due Process, Right to a Fair Trial etc (Chapter III) - contested but widely held view that various implied guarantees flow from Chapter III.

Rights, Reform and the Constitution THE CASE FOR REFORM: Al-Kateb v Godwin (2004) Kartinyeri v Commonwealth (1998) Northern Territory Emergency Intervention Plan Cornelia Rau, Vivian Alvarez, Mohamed Haneef Anti-Terrorism and bikie legislation CONSTITUTIONAL ISSUES The External Affairs Power (section 51(xxix)) Chapter III Constitution – Federal Judicial Power The States – section 109, implied immunities

The National Consultation on Human Rights “In this, the year of the 60th anniversary of the Universal Declaration on Human Rights, it is appropriate to reflect on the effectiveness of our current system of human rights protections, to see if gaps exist, and to explore a range of ways in which human rights protections could be enhanced. For many this means a discussion about whether or not Australia should adopt a national charter of rights … I would like to take this opportunity to encourage community consideration of a broad range of options for future human rights protection—not only a national charter of rights.” Hon Robert McClelland MP, Federal Attorney-General.

Voices within the Debate

Proposals for Reform – The Brennan Report Human rights education (Recommendations 1-2) Parliamentary scrutiny (Recommendations 4-7) Interim list of human rights and responsibilities (Recommendations 3) General measures for promoting government compliance (Recommendations 8- 12) Specific measures for augmenting the role of the AHRC (Recommendation 13) Development of a framework for promoting access to justice (Recommendations 14) Specific measure for protecting and promoting the rights of indigenous peoples (Recommendations 15-16) The adoption of a federal Human Rights Act (Recommendations 17-31)

A Different Way Forward 1.Develop an Australian Declaration of Human Rights –That is not embedded in a complex piece of legislation that only lawyers know how to make sense of. 2.Limit the role of the courts –but strengthen the obligation to consider human rights when interpreting statutes. 3.Improve parliamentary processes 4.Build upon Australia’s administrative law framework –Make human rights a factor legally relevant to every discretionary decision 5.Reinvigorate the Australian Human Rights Commission

Key Bodies Human Rights Commission –Oversight role in respect of a Human Rights Act; –Major functions: Education and Training; development of guidelines on the protection and promotion of specific rights; public enquiries Human Rights Ombudsman –Complaint handling (investigation and conciliation) –Own-motion investigations –Legal services (interventions etc) Human Rights Tribunal –Enforceable remedies for human rights breaches; available to all individuals within Australian territory –Decisions subject to judicial review by the Federal Court. Human Rights Commission Human Rights Ombudsman Human Rights Tribunal

Where to from here? Only issue attracting bipartisan support throughout: Human Rights (Parliamentary Scrutiny) Bill 2010 Potential derailment of the move towards a federal human rights charter Longer term – constitutional reform must be placed on the agenda