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Law Week Breakfast

Law Society of Western Australia

Perth, 13 May 2019

Emeritus Professor Rosalind Croucher AM, President, �����鱨վ

Acknowledgements

Thanks to Greg McIntyre SC, President of the Law Society of Western Australia, for the wonderful invitation to speak at the opening of Law Week in Perth.  

I would like to begin my contribution by acknowledging the traditional custodians of this land, and to pay my respects to the elders, past, present and emerging, of the Noongar people of the Whadjuk nation and I also acknowledge any Indigenous guests in the audience today.  

I also acknowledge the presence of the many eminent people pointed out by Greg McIntyre, but recognise particularly the Hon John Quigley MLA, Attorney-General of Western Australia, the Solicitor-General of Western Australia, Joshua Thomson SC, Judges, colleagues past and present, and everyone else here this morning.

Introduction

In thinking about what to use as my theme this morning, I took my cue from the Law Society’s campaign theme this week #LawyersMakeaDifference. I want to talk about the framing of human rights in Australia and the role of law and lawyers in this process. Hence my title for today: ‘Law, Lawyers and Human Rights’.

I came into my present role after a long period in the academic world, with a keen focus on legal history, and then a ten-year ‘apprenticeship’ in the world of statutory office-holding at the Australian Law Reform Commission. By December last year, when I had been in my role as President of the �����鱨վ for about a year and a quarter, a number of threads coalesced in my mind.

As I see it, we are very much at the crossroads of facing so many issues in the human rights firmament.

The human rights debates over the last decade or so in Australia have been somewhat confrontational. They have often focused on ‘bits’. Sections of Acts—even sub-sections of Acts. Battlelines were drawn. Sides were taken. Politics was drawn in on these sides. Social media exacerbated everything. It was not very helpful. ‘A house divided against itself’. It was very ‘reactive’.

While we have had debates on these very specific sections, we have not paused and thought about the bigger picture. The result is that what was an innovative system for protecting people’s human rights in the 1980s is now out of date, not comprehensive and falling behind practices across most other democratic nations in the world.

So I put my law reform hat on and asked: as a law reformer, how do we solve the current situation—the ‘divided house’? Or at least map a way forward?

We have to open up the conversation. Acknowledge the history of the Commission as Australia’s National Human Rights Institution. Wrap in previous attempts at reform, take things as ‘given’, and generate forward momentum.

I also wanted to get above and ahead of politics.

I threw out a ‘sky anchor’, as it were, framed as a ‘national conversation on human rights’, asking, ‘what kind of Australia do we want to live in?’. I referenced the last stanza of a poem by Indigenous poet, Oodgeroo Noonuccal, (Kath Walker as I knew her in my schooldays), ‘A Song of Hope’.

To our fathers' fathers 
The pain, the sorrow; 
To our children's children 
The glad tomorrow^[1]

So, combining these two thoughts, the question I am putting is, ‘what kind of Australia do we want for our children’s children?’ and using this to frame the national conversation.

We wrote Terms of Reference, in law reform style, aiming high, setting objectives to be met by the end of this year:

• to recommend an agenda for federal law reform to protect human rights and freedoms fully
• to recommend priorities for reforming federal discrimination law to make it more effective and less complex
• to articulate key actions that all governments must take to adequately protect the human rights and freedoms of all Australians, and
• to identify how we can build community understanding and partnerships to realise human rights and freedoms.

There are many places for law in this conversation—and lawyers. I will work through a range of issues to illustrate

Australian Bill of Rights

I thought I’d start with one of the hot topics: the idea of an Australian Bill of Rights—a big piece of law. We have been reflecting on this idea on-and-off, in postwar times, since 1973, when the first Bill of this kind was put to the Australian Parliament by then Attorney-General Sen the Hon Lionel Murphy. More recently, the idea was the principal recommendation of the National Human Rights Conversation led by Fr Frank Brennan SJ, 10 years ago.

Engaging with this issue again is one part of our national conversation—why don’t we have an Australian Bill of Rights?

While the entire Commonwealth of Nations has moved forward by introducing comprehensive human rights protections in legislation—commonly referred to as a Charter of Rights or a Human Rights Act—Australia stands alone in the Commonwealth for not having introduced such protection, at least at the Commonwealth level.

There is already considerable momentum in this direction. In the last week of February, Queensland joined Victoria and the ACT in having state Human Rights Acts.

But just because ‘everyone else’ has one, does that necessarily mean that we need one too?

The question of whether we should have such a Bill or Charter is one I have pondered on before coming into my current role, both in my legal history work and in leading the Freedoms Inquiry at the ALRC. But, having come into this role, I have come to look at the question differently. This is the story of my particular ‘road to Damascus’ journey.

Curiosity and the natural habits of the legal historian took me back into the history of the Commission, as I wanted to become fluent on this subject. I also firmly believe that to make recommendations for the future, we have to understand the past, to inform the present, and to be properly informed about why and how we should recommend change.

Into the history, then—  

When the Commission was put on a permanent foundation in 1986, as ‘HREOC’—some of you may remember this acronym—after its predecessor Commission, established in 1981 with Dame Roma Mitchell at the helm, had completed its designated five years, it was designed in tandem with an accompanying Australian Bill of Rights Act.

The 1981 Commission had been established after Australia had ratified the International Covenant on Civil and Political Rights (ICCPR) the previous year. It had been vested with jurisdiction to hear complaints in relation to the ICCPR and other international instruments. But the 1986 Commission was designed with this jurisdiction sitting directly under domestic law, in the proposed Australian Bill of Rights Act, with the complaint-handling functions to be exercised under that Act rather than the Covenant. The Bill was passed in the House of Representatives, but did not survive the Senate.

The functions of complaint-handling under the ICCPR for Australia continue to sit with the �����鱨վ—but not directly as domestic legislation. But this is rather invisible—at least in the eyes of the public.

So we are, in visual terms, a doughnut, with a hole in the middle. Historically, then, it is a missing piece in our 1986 architecture.

But do we need one today?

When I was involved in a panel that was looking at the protection of religious freedom in Australia over the summer of 2017–18, chaired by the Hon Philip Ruddock, I was struck by the fact that both of the broad sets of protagonists (pro-protection of religion; pro-LBGBT rights) saw an answer, even ‘the’ answer in having an Australian Bill of Rights. This was even from those who had been ardent opponents of such a charter in previous times.

But it also struck me that having one was not an end, in and of itself, but the beginning or the unravelling of many more questions. There are certainly gaps in our coverage of the protection of rights, and religious freedom is a good example, but whether we introduce an Australian Bill of Rights; what it would look like; the relationship between a federal statute and the existing and any future state and territory charters; and what role the �����鱨վ will play, are all key questions.

I must confess that I was a little—a lot—resistant to the idea of a Bill of Rights in Australia before I came into this role. The American experience of a constitutional Bill of Rights, and litigation about rights in the courts, so publicly played out, were somewhat discouraging. Our own constitutional drafters took a different approach. Not having a revolution as a propelling force in our constitutional imagining, we were more reserved.

It is not that our constitutional tradition was ‘opposed to rights’ but rather ‘opposed to judges having power to protect them from interference by legislation’.^[2] Those who drafted our Constitution, ‘preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers’.^[3] Hence my own hesitation on the subject.

And we do have the common law.

Common law rights clearly overlap with rights now collectively called ‘human rights’, arising principally from the wave of international conventions in the aftermath of the Second World War, like the ICCPR. Some would also argue rights that were quite well-protected before such conventions. English legal historian, AW Brian Simpson wrote, for example, that,

In the modern period, and subject to certain limitations which, for most persons, were of not the least importance, individuals could worship as they pleased, hold whatever meetings they pleased, participate in political activities as they wished, enjoy a very extensive freedom of expression and communication, and be wholly unthreatened by the grosser forms of interference with personal liberty, such as officially sanctioned torture, or prolonged detention without trial.^[4]

Hence, why do we need one?

Why do we need one?

While our Constitution protects some rights, expressly or impliedly, and the rule of statutory construction, known as the ‘principle of legality’, acts as a handbrake on encroachment of rights, does this go far enough? I have come to the conclusion that it does not.

So what changed my thinking? It was not one specific Damascene moment, but a growing realisation, with three parts.

First, that while our sense of rights is embodied in a long and glorious history in the common law,^[5] the common law has its limits. Secondly, it was a realisation that the statutory expression of rights is played out in the negative, reliant on individual disputes; and what coverage there is, is patchy. Thirdly, was my experience in observing, and being responsible for, the complaints-handing processes of the Commission, where I have seen how it is not about courts and litigation so much, but about what happens with that only as a last resort possibility (at least for most of our complaints).

Let’s take each idea in turn.

First, the common law. Protection of serious invasions of privacy, for example, has got stuck. The common law needs a great leap forward, as it achieved in Donoghue v Stevenson in relation to negligence, but we have not got there yet. Perhaps the ‘age of drones’, is the contemporary equivalent of the ‘age of railroads’ to provide the necessary catalyst for the common law.^[6]

Second, there is the negative expression of rights.

The problem of much of our human rights protections in Australia is that they are framed in the negative—in terms of what you can’t do. This is the way that our set of four federal Discrimination laws work (Race, Sex, Age and Disability); and, like the common law, they rely on a dispute before offering a solution. (This has also framed some of the contemporary discourse and criticism about human rights being driven by ‘identity politics’.)

This is not to say that our discrimination laws are not important. They directly reflect international commitments, being domestic implementations of them, and can achieve many positive systemic outcomes through the conciliation that is the heart and soul of the complaints-handling processes, that are the principal vehicles of operation of discrimination laws.^[7]

Our discrimination laws are also a mishmash, reflective of the context and times of their introduction, over four decades. Amendments have been somewhat haphazard; and the effect of some not properly understood. The political compromises which drove them have been forgotten, and what was envisaged as a temporary expedient to secure passage of legislation becomes part of the permanent structure of the law, without thinking of why: why was it there, what is its purpose now, is that purpose still relevant or necessary?

What protection there is, is also limited.

The panel inquiry I was part of also focused on the distinct lack of, or limited, protection of freedom of religion in Commonwealth law. There is some protection in relation to discrimination on the ground of religion in the context of employment, but it is limited, based on the International Labour Organisation Convention of 1958, ILO 111, which has been part of the Commission’s complaint-handling structure since 1986.^[8] There is also some Fair Work Act jurisdiction and some under State laws.

There is also inconsistency between the meaning of discrimination in the four federal laws and extremely complex differences in legal standards, which again reflect the different points in time at which each piece of legislation was introduced.

The third part of my journey was the realisation of the effectiveness of the complaint-handling jurisdiction of the Commission, which it has had since the very first days under the Racial Discrimination Act. Complaints usually start with just a phone call or email—some form of contact—by, on average, 15,000 people a year, individuals who consider that they have been badly done by in one way or another, and businesses just trying to understand their obligations. They are assisted or referred. �����鱨վ 2,000 people pursue the Commission’s formal complaints process—one that is based on conciliation; and most participants, both those who complain and those who are complained against, are very satisfied with the professionalism of the process and its outcomes.

For example, if we look at the number of complaints the Commission has received and conciliated over the past 20 years, the numbers represent successful alternative dispute resolution through conciliation for more than 30,000 people and organisations.^[9]

Compare the situation now in relation to the implied freedom of political communication in the Constitution—this is entirely played out in the High Court. (We are intervening in a matter right now). Only a tiny percentage of complaints matters handled by the Commission get anywhere near a Court.

The kinds of objections that lawyers may have to the imprecision of rights language framed as laws, needs to be set in a context in which most arguments about rights happen not in a judicial environment at all. It is also about seeing the experience of those common law jurisdictions that have made the leap into the legislative model, and that the world has not fallen in as a result.

The framing of rights

If I asked you, here and now, about your ‘rights’, and you thought about it a bit, you would most likely speak of the common law and, yes, the magna carta.

This is not a bad place to start. The delightful educational videos produced by UK group, ‘RightsInfo’, trace human rights in the UK sense to magna carta. But magna carta is not what you might describe as a highly accessible document, in the medieval Latin of 1215 when it was sealed. It is iconic, perhaps ‘the vibe’ of our understanding of rights,^[10] but is this what you would like to pin up on your fridge to instruct your children and grandchildren about rights?

On access to justice, how about this:

Nulli vendemus, nulli negabimus, aut differemus rectum aut justiciam 
(To no one will we sell, to no one will we refuse or delay, right or justice)

(I can see this as a really inspiring conversation with my grandchildren over their cornflakes. It has a kind of Star Wars resonance, but as to filling their imagination on access to justice, I doubt it.)

The part for politics

The essential idea that a Bill or Charter of Rights captures is a positive framing of rights. It is one of the actions that the Commission has supported for many years to ensure an effective system to promote and protect human rights in Australia.

But in throwing out my sky anchor, and with a law reform perspective, I am locating the issue of an Australian Bill of Rights within the context of the outcomes sought, and, in that context, recognising that the decision whether, or not, to introduce a federal Bill of Rights is ultimately a political one. Understanding that reality is essential to our process too: the art is to look at a whole menu of law reform options, including a Bill or Charter as a principal one—and not making it ‘a Charter or nothing’ proposition.

Even without a Bill of Rights, the positive framing of rights can have other expressions.

One of our goals is that law and policy makers explicitly consider the impact on human rights of their decisions and are accountable for this impact.  

For policy makers, a Charter could include a positive duty, but you could also get some way there through the Code of Conduct for the Australian Public Service.  

With respect to lawmakers explicitly considering the impact of laws on human rights, we went partly down that road with the introduction of the Parliamentary Joint Committee on Human Rights in 2011, and the requirement to produce ‘compatibility statements’ with human rights.^[11] There are several other committees, some very longstanding, that scrutinise bills and other instruments for compatibility with rights too. The processes of scrutiny of legislation in Australia are strong, as the Freedoms Report of the ALRC discussed, but there is also room for improvement.^[12]

The beauty of a Charter, and other measures that frontload rights-mindedness, is that they are expressed in the positive—and they are ahead of any dispute and embedded in decision-making.

A Charter names them; it provides an obligation to consider them and a process by which to do it—together supporting a cultural shift towards rights-mindedness, becoming part of the national psyche, not just an afterthought.

Now what about lawyers?

Lawyers

Lawyers are, after all, the lynchpin in protecting rights. But how fluent are lawyers on human rights?

When I think about my own legal education, in studying Arts/Law at Sydney University, the most ‘radical’ subject then was, perhaps, Jurisprudence, still reflecting the influence of Julius Stone, taught by Professor Alice Erh-Soon Tay, with a focus on ‘law in action’ rather than ‘law in the books’. But apart from that, it was a ‘straight down the line’ professional degree. No options. Just a set of compulsory subjects. For lawyers of my generation, the language of human rights was essentially foreign, and for many it still is.

And for those older-generation lawyers, it is interesting to reflect on that parallel generation of English judges, old school, who were thrown into the world of the Human Rights Act 2000 (UK), a domestic implementation of the European Convention on Human Rights. One of those is Lord Neuberger. Speaking at a conference in Melbourne in 2014, on the role of judges and their human rights experience, he remarked:

Initially at least, the attitude of many lawyers and Judges in the UK to the Convention was not unlike that of a child to a new toy. As we became fascinated with the new toy, the old toy, the common law, was left in the cupboard.^[13]

In other words, lawyers get used to it. Like new toys. Ld Neuberger also spoke of the influence of convention/human rights thinking on the common law and of the effectiveness of the dialogue model (not the override model of the US) in leading change.

But for the generation of lawyers who are emerging now, the story is rather different. They have fluency in this language. These are not ‘new toys’. They also have expectations, of themselves—and their nation.

Concluding comments

There is much for us all to do, and this is what led me into the world of pitching a sky anchor of aspirations to lead this year, to involve you, as lawyers, to reimagine our system of protections of human rights and freedoms, in today’s world, respectful of our federation, respectful of our commitments to the international community, and respectful of the part that each of us, with the separation of powers, can play.

Moreover in leading this Australian Conversation on Human Rights, the Commission, as Australia’s National Human Rights Institution is taking seriously—and aspirationally—the statutory mandate given to us by parliaments since 1981.

So the ‘sky anchor’ is there. The aspiration is that through our work we can truly contribute to the ‘glad tomorrow’ for our children and our children’s children.

Endnotes

^[1] I was reminded of this wonderful poem in the Commission’s first Human Rights Day Oration on 10th December last year, presented by the two Royal Commissioners of the NT Royal Commission, Mick Gooda and the Hon Margaret White AO, Mick, a former Social Justice Commissioner, concluded his speech with this last stanza.

^[2] Jeffrey Goldsworthy, ‘Constitutional Implications Revisited’ (2011) 30(1) University of Queensland Law Journal 9, 25.
^[3] Australian Capital Television v Commonwealth (1992) 177 CLR 106, [23], Dawson J.

^[4] AW Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford University Press, 2004). Common law rights may therefore be seen as largely ‘residual’: Hugh Tomlinson, Richard Clayton and Victoria Butler-Cole, The Law of Human Rights (University Press, 2009) 28.

^[5] See, eg, the discussion in Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (Report No 129, December 2015) ch 2 (Freedoms Report).

^[6] See, eg, Percy Winfield, ‘The History of Negligence in the Law of Torts’ (1926) 42 Law Quarterly Review 184, 195.

^[7] See my forthcoming article in the Australian Law Journal on this topic, ‘”Seeking equal dignity without discrimination”: The �����鱨վ and the handling of complaints’.

^[8] �����鱨վ Act 1986 (Cth) s 3, definition of ‘discrimination’. This form of discrimination is different from ‘unlawful discrimination’ under the federal Discrimination Acts, and is drawn from the Convention Concerning Discrimination in Respect of Employment and Occupation, Opened for Signature 25 June 1958, 362 UNTS 31 (Entered into Force 15 June 1960).

^[9] Looking at Annual Reports from July 1998 to July 2018.

^[10] Referencing the Australian movie, ‘The Castle’.

^[11] Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

^[12] Freedoms Report, [3.95].

^[13] Lord Neuberger, ‘The role of judges in human rights experience: a comparison of the Australian and UK experience’ (Speech, Supreme Court of Victoria, Melbourne, 8 August 2014), [29].