Human Rights

by Chanman in Law, September 28, 2008

Australia’s current legal system has limited scope for human rights. The Constitution provides several express gaurantees; the common law system has protected some fundamental human rights too. However, these “protections” are insufficient. The common law system is shackled to the chains of precedent and are subject to change at Parliament’s discretion. The Constitution has stood the test of time but its formulation prior to Federation has made it a product of its time – entrenching only the values deemed important at its formulation. In response to these limitations, both statutory and Constitutionally-entrenched bill of rights have been put forward. Should we follow the United States of America with a Constitutionally-entrenched Bill of Rights or should we follow Victoria and Canada with the (Victorian) Charter of Rights?

The influence of international law of human rights, especially on the common law system, has been inevitable but simultaneously, been limited for fear of judicial activism. Secreted within the common law system has been the influence of international norms, as stated in Mabo by Brennan J, “international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights”. The courts have tried to gradually develop and make new laws to protect human rights, but this has been seen as judicial activism subjected to criticisms from the public. In particular, in Teoh,the High Court “held that international conventions that are not incorporated into Australian law can give rise to a legitimate expectation that … the government will act … consistent with its international obligations”. This generated intense political anxiety with a subsequent statement released by Parliament that criticised the judgment. This politically influential criticism impinged on the public’s confidence of the impartiality and independence of the judiciary. In turn, as “the rule of law [is] depend[ant] upon an independent judiciary”, the rule of law was undermined. Moreover, the judicial activism was deemed to be an usurpation of the legislature’s function. The rule of law rests on the separation of powers by insisting that only democratically-elected representatives of Parliament should make laws. This confines the law-making powers of the judiciary as a check and balance of the legislature and executive. Therefore, the move to judicial activism in order to further protect human rights has undermined the rule of law both as a consequence of destroyed public confidence and the collusion between the judiciary and the other arms of the Government.

Ironically, the check and balancing powers of the judiciary in upholding common law rights and freedoms have been undermined, representing another weakness of the common law system. The rights upheld by the common law system are easily overridden by statutes legislated by the Commonwealth and State, as an exercise of Parliamentary sovereignty. The laws declared by the courts can be changed within limits of the Constitution. This has effectively caused the erosion of rights upheld by the common law and questions the common law’s system ability to continue to protect human rights. If this is so, then the role of the courts, even as a check and balance mechanism of Parliament, is somewhat bound. This has come at the expense of protecting human rights and has been aggravated by the courts’ inability to make new laws in fear that their activism would undermine the rule of law and the separation of powers. But, it seems paradoxical to prevent the courts from functioning in this activist manner in order to protect human rights, especially in light of the nature of Australia’s legal system where there is no clear guideline to direct the court. Accordingly, there have been proposals for a Bill of Rights entrenched in the Constitution, or at least one entrenched in legislation but these, too, have their own strengths and weaknesses.