Sinking the Boat to Save it
Benjamin Jellis
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The Charter of Rights is a threat to Victoria’s political and legal culture, argues Benjamin Jellis
Oliver Wendell Holmes once described law as the ‘calling of thinkers’. An unfortunate corollary of this is that lawyers have a tendency to think that they know better. This is a dangerous thing when lawyers are given greater opportunity than others to attain their public policy preferences. One thing that provides such an opportunity is a bill of rights. Perhaps for this reason the prospect of an Australian bill of rights never fails to excite the passions of the Australian legal profession.
Despite the enthusiasm of lawyers, a bill of rights is off the federal political agenda, at least for now. It is at state and territory level that we are seeing change. Following the ACT’s lead, Victoria will on 1 January 2007 fall under the Charter of Human Rights and Responsibilities. This legislation has been introduced with the stated intention of increasing the protection of Victorian citizens’ ‘rights’. To this end, it contains a number of provisions giving new powers to the state courts and placing new obligations on public authorities. It might also be seen as an early stage of a legislative domino effect, under which bill of rights advocates foresee similar legislation being adopted across the other states, perhaps ultimately leading to constitutional change at a federal level. The effect of the Charter will therefore be the subject of keen interest, not just in Victoria, but throughout the country.
Although the protection of rights is a worthy aim, and indeed a fundamental responsibility of government, the Charter is not likely to be an effective or efficient means of doing so. In routine cases, a judge will be required to balance rights and other considerations in a manner undesirable in a democracy. In extreme cases, the role given to judges under the Charter is likely to undermine the proper separation of powers. As the old saying goes: you cannot get something for nothing. The Charter trades away too much, for what is ultimately, a meagre increase in the ‘protection’ of citizens’ rights.
The operation of the Charter
The Charter contains a list of rights which are largely drawn from the United Nations International Covenant on Civil and Political Rights. Most are instantly familiar and of inarguable significance. They include those which can be broadly described as ‘freedom of speech’, ‘freedom of movement’ and ‘privacy’. There are few surprises, though eyebrows may be raised at the inclusion of some broad and ambiguous rights such as those which are headed ‘cultural rights’. The urge to include contentious economic and social rights such as ‘the right to housing’ has thus far been resisted, though curiously such rights are referred to in what may be described as the ‘shopping list’ provisions of the Charter. These require that the Attorney-General consider at a later date the inclusion of a number of further rights such as economic and social rights as well as the right to ‘self determination’.
Having identified these rights the Charter then sets out a number of mechanisms by which these rights are to be protected.
The first is that every public authority must ensure that its actions are compatible with the rights specified in the Charter. The extent to which this may complicate or bias public decision making is beyond the scope of this article but is certain to be a significant aspect of the Charter’s operation.
Second, the Charter requires that when interpreting legislation all courts must adopt an interpretation which is ‘compatible with human rights’. To this end the Charter specifies that regard may be had to ‘international law’ when the court searches for a meaning which is ‘compatible’ in this way. The only limitation placed upon the compatibility requirement is that the courts should ensure that their interpretation remains consistent with the purpose behind the legislation. Interestingly, the legislation contains no requirement that the interpretation adopted should be consistent with the literal meaning of the words used in the legislation, nor is there any requirement that the interpretation adopted be reasonable in the circumstances.
Third, the Charter requires that if the Supreme Court determines that a particular law cannot be interpreted in conformity with ‘human rights’ the law remains valid but the Court must issue what is called a ‘declaration of inconsistent interpretation’. Upon receiving such a declaration the relevant Minister is required to table his or her response in Parliament. The intention is that that this will encourage Parliament to consider repealing or amending the legislation. The Parliament is not obliged to follow the Court’s declaration but will of course come under immense political pressure to do so.
Other more minor procedures are also introduced into the parliamentary legal process. Particularly notable is the new requirement that all future legislation must be accompanied by a statement that the legislation complies with human rights. Lawyers might also note with interest those provisions which allow the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission to be joined as a party to any case where a question of law arises which relates to the Charter.
Problems created by the Charter
The powers described above are a novel addition to the Victorian legal system. In particular, the ability to make a declaration of inconsistent interpretation, a formal power to encourage legislative change, is a radical change to the Supreme Court’s role. The further requirement that legislation be interpreted in ‘conformity’ with rights is a similarly significant shift as although consideration of ‘rights’ sometimes informs judicial interpretation, the Charter is likely to expand this principle to more contestable cases.
Usurping democratic compromise
It is invariably the case that introducing a bill of rights, no matter how widely or narrowly the document is cast, effects a major change in the prevailing political and legal culture. Bills of rights work a kind of legal alchemy: changing political questions into legal matters and replacing debate in the parliament with argument before the courts.
This point may be illustrated by reference to a frequently used example. Consider a law which seeks to regulate obscenity. Reasonable people within society can have different views as to the appropriate limits of state censorship of obscene material. Some may be highly libertarian, believing that legislators should be reluctant to engage in any form of censorship. Others, for religious or other reasons, may ask that some kind of comprehensive ban be enacted which prohibits any form of obscene publication.
In our society disputes between these different views are resolved within the parliamentary process. Debate takes place among the elected representatives of the community and new legislation must be agreed to by the necessary majorities within the parliament. More often than not, this means the legislation will be something of a compromise between a range of different views on the topic to be regulated. So, continuing the above example of obscenity laws, the parliament may decide to not wholly prohibit the sale of pornography, but it may decide to attach restrictions to its sale: such as denying access to those under the age of eighteen.
Typically, under a bill of rights, this legislation will be subject to review by the courts. The courts will have the power to evaluate the legislation to see if it is incompatible with specified rights. In the United States, the Supreme Court has the power to strike out legislation if it is deemed incompatible with any right listed in the Bill of Rights. So, for example, if a pornographer were to challenge the legislation described above on the basis that the sale restrictions unfairly interfered with his right to freedom of speech, the law would be declared invalid if a majority of judges of the Supreme Court agreed. It is in this way that judges in the United States have long exercised the final say on most fundamental social questions. It does not matter that legislation has been properly enacted by the democratic process; if the Court finds that it interferes with a specified right then it will not be allowed to stand.
Unlike the United States system, the Charter will not give the Victorian Supreme Court the power to strike out legislation. Instead the Court is merely given the power to issue a ‘declaration of inconsistent interpretation’ if it holds that the law unreasonably interferes with a right set out in Charter. On this basis it has been argued that the anti-democratic aspect of the United States process is avoided. If the democratic Parliament chooses to ignore a declaration made by the Court it is entitled to do so.
This is, however, merely a lesser form of the same evil. While the Victorian Supreme Court will not be given the power to strike out legislation it will have the power to issue a declaration which will have a serious impact upon legislative decision making. Upon receiving notice of a ‘declaration of inconsistent interpretation’ the Victorian Parliament will come under enormous political pressure to amend the offending legislation. After all, the making of a declaration is premised on the basis that the Supreme Court has made a finding that the current law is not consistent with ‘human rights’. With the authority and integrity of the Court behind such a declaration, it would be a very brave parliament that refuses to amend the legislation.
This compels one to ask why it is appropriate that the Supreme Court be given the power to publicly and powerfully question the compromises and conclusions agreed to by the parliament? Why should the Supreme Court be given such a loud voice in the elected chambers of the people?
There is an important principle at the heart of this issue: that every person has an equal voice. No voter, however strong or intelligent their views may be, has a vote worth more than any other. Allowing the Supreme Court the power to issue declarations as to the ‘consistency’ of legislation, is to give enormous weight to the opinions of judges, and, also importantly, to those with the means to conduct successful litigation before them. A declaration of inconsistent interpretation will be a new ace in the democratic process. And only those with the means to succeed in the Court will be entitled to play it.
Politicising the Supreme Court
There is a further and perhaps more insidious consequence of giving the Court the power to issue such a declaration. It is that this power will inevitably, and perhaps irretrievably, politicise the Court. There should be no mistake, a declaration of inconsistent interpretation is an exercise of political power. It is intended to be so. It is intended to influence the decision making processes of the parliament; to use the integrity of the Court to encourage legislative change. The Court is not a law reform committee and its decisions should not be treated as advisory recommendations.
For a Supreme Court decision to be accepted by the people it is essential that the courts are seen as doing justice according to the law and not the political views of the individual judges. No litigant will accept a court decision which does not appear to have been compelled by the law.
This point was famously made by Sir Owen Dixon in relation to the High Court:
Close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in conflicts than a strict and complete legalism.[1]
Current Chief Justice Murray Gleeson has similarly stated:
Judges cannot engage in the political process, and they do not (or at least should not) aspire to political legitimacy or seek popular acclaim.[2]
Allowing for a ‘declaration of inconsistent interpretation’ enshrines in law the controversial idea that the courts should be involved in a ‘dialogue’ with the parliament.[3] This is antithetical to the proper separation between the parliamentary process and the courts.
To this can be added the point that any party to a successful case under the Charter will feel a genuine sense of grievance if the law is not changed as a result of a decision. Try explaining to a client that they remain affected by a law which the Supreme Court tells them violates their human rights. This is a key point. Either we are talking about fundamental human rights or we are not. If the Supreme Court says that human rights are being violated, how do you tell the people affected that this does not change their legal rights or entitlements?
To return for a moment to the American jurisdiction, I have always been struck by the following anecdote. United States Supreme Court nominee Robert Bork, describing the politicisation of the United States Supreme Court due to contentious decisions under the Bill of Rights, recounts sitting in his chambers in Washington and watching a protest walk past the White House, then past the Congress, before finally arriving at its destination, the Supreme Court. Bork recalls that he knew something had become very unwell in the American political process when political protestors walked past their elected representatives to protest at a court.[4]
Comparing this anecdote to the Victorian Charter, it is worth making the point that at least the protestors in Bork’s anecdote felt that they could march to the court. At least they felt an arm of government had the final say over fundamental questions in their lives. In Victoria, to whom does a person turn, if they have succeeded in the Supreme Court, the Court has issued a declaration stating that the person’s human rights are being violated by legislation, but then the parliament ignores this declaration and refuses to change the law? How would such a person feel about the power of the Court, the integrity of the parliament, and the nature of justice in Victoria?
There are very good reasons why we keep the roles of the parliament and the courts strictly separate.
As former Chief Justice Sir Gerard Brennan observed:
Judicial independence does not exist to serve the judiciary; nor to serve the interests of the other two branches of government. It exists to serve and protect not the governors but the governed.[5]
Interpreting law
Interpretation of legislation is one of the most important tasks performed by courts in any legal system. Often the result of litigation will depend upon the meaning of the words used in legislation passed by the parliament. Traditionally the courts have taken a purposive approach to this task, meaning that ambiguous words in legislation are interpreted according to the purpose behind their enactment. This is consistent with the respective roles of the Parliament and the courts. Only the parliament has a democratic mandate to make law. The role of the courts is to apply the legislation which results from this process to the cases which come before it.
By asking courts to interpret legislation in a matter ‘compatible’ with ‘human rights’, the Charter goes close to subverting the traditional role of the courts in the interpretation of legislation. The rights specified in the Charter are very general and are capable of carrying a range of different meanings. This gives judges a wide discretion to alter the meaning of legislation so far is it can remain plausibly said that they are doing so to give effect to these individual rights.
In a worst case scenario, involving an egregious and uncontestable breach of human rights, courts should bend over backwards to avoid applying the law as enacted. But were such a scenario ever to arise, judges would not require a Charter of Rights to tell them to do so. Unfortunately, it is in less extreme cases that this provision will be applied. In these circumstances the provision gives judges an effective licence to re-write legislation so that it is compatible with their view of ‘human rights’.
As argued earlier in the article, the most difficult issues require the balancing of different rights, be it freedom of speech and privacy or freedom of movement and national security. It is not the role of the courts to interpret legislation in the manner which it considers to best give effect to ‘human rights’. The role of the courts is to accept the discretion that parliament exercises and to give effect to parliament’s intention as expressed in the words used in legislation. If a judge is of the view that legislation could better protect ‘human rights’ then his or her disagreement should carry no more weight than the disagreement of any other citizen. The role of the judge remains to apply the law as enacted until the appropriate parliamentary majority alters it.
In this spirit, United States Supreme Court Justice Antonin Scalia commented: ‘all government represents a balance between individual freedom and social order, and it is not true that every alteration of that balance in the direction of greater individual freedom is necessarily good’.[6] This is most easily observed in contentious areas such as criminal law. On this, former New South Wales Premier Bob Carr has pointed out that the most likely beneficiaries of bills of rights include ‘criminals who manage to escape imprisonment on the grounds of a technicality’.[7] To say this is not to denigrate the rights of criminals or any other citizens. It is merely to draw attention to the fact that criminal law is but one area where society seeks to balance the rights of individuals with the broader interests of society. It is surely flawed to suggest that whatever legislation is passed by the parliament, the judges should re-interpret its balance to make it ‘compatible’ with their individual view of human rights.
Tyrants unobstructed
This article has sought to highlight the serious problems which may be caused by the ordinary operation of the Charter. It is necessary to conclude by noting that these problems are not outweighed by any protection it would bring to ‘rights’ in Victoria. No charter could restrain a parliament which was minded to commit an egregious breach of human rights. To believe otherwise is to put faith in an impossible fancy.
Announcing the legislation, the Attorney-General Rob Hulls stated that ‘by enshrining our human rights in legislation, we can ensure future governments continue to value the rights of all Victorians’.[8] This is, after all, the ultimate aim of any rights document: to cordon certain rights away from the grasping hands of a future government. Take for example the ‘freedom from forced work’ found in section 11 of the Charter. This is presumably an attempt to prevent the future emergence of slavery in the State of Victoria.
There is, of course, a clear problem with the reasoning behind protecting such rights with the Charter. No government that would pass legislation authorising slavery would take any notice of a non-binding declaration of incompatibility.[9]
This brings us to the fundamental objection to bills of rights in general: they are liable to be applied in contestable circumstances but will surely be ineffective if ever they are sorely needed. As Alan Anderson pointed out in this magazine:
The naïve belief that a Bill of Rights can eliminate abuses of human rights caused by administrative or legislative errors does not bear scrutiny. Even citizens of the former Soviet Union enjoyed the benefit of an extensive Bill of Rights, which must have been a comforting thought on cold Siberian nights in the Gulag.[10]
To say this, is to reach the fundamental point. The rights of individuals in a society are only as secure as the institutions which are charged with their protection. In our society, rights are protected by the representative nature of the parliament and the independence of the courts. It is a sorry shame, that in the name of rights, both will unnecessarily weakened.
Endnotes
[1] Owen Dixon, ‘Upon Taking the Oath of Office as Chief Justice’ in Jesting Pilate (Melbourne: The Lawbook Company, 1965), p 247.
[2] Murray Gleeson CJ, ‘Current Issues for the Australian Judiciary’ in The Rule of Law and the
Constitution (Sydney: ABC Books, 2000), p 120.
[3] Rob Hulls, Second Reading Speech, Charter of Human Rights and Responsibilities Bill 2006, Hansard (Melbourne: Parliament of Victoria, 4 May 2006), pp 1298 and 1290.
[4] Robert Bork, The Tempting of America (New York: Touchstone, 1990), p 3.
[5] Gerard Brennan, ‘Judicial Independence’, speech given at Australian National University Canberra, 2 November 1996 (http://www.jca.asn.au/pubs/brennan.html).
[6] Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997), p 42.
[7] Bob Carr, ‘The Rights Trap: How a Bill of Rights Could Undermine Freedom’, Policy 19:3 (Winter 2001), p 21.
[8] Robert Hulls, ‘Victoria Leads the Way on Human Rights’, Media Release, 20 December 2005.
[9] And in any event, a nefarious government with sufficient foresight could simply take advantage of the ‘override’ provision in the Charter which allows parliament to oust the Courts ability to review the relevant legislation for ‘compatibility’ .
[10] Alan Anderson, ‘The Rule of Lawyers’ Policy 21:4 (Summer 2005/2006), p 36.
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