The new Commonwealth Attorney-General, Nicola Roxon has said that in her new role she would not push for a bill of rights to be included in the constitution. But many would be surprised to learn she doesn’t need to, the Commonwealth Parliament already delivered one a week ago.
Much publicity was given to the government’s rejection of the Brennan Committee’s recommendations, which included a statutory bill of rights. However, on 7 December this year, royal assent was given to a more innocuous sounding act – the Human Rights (Parliamentary Scrutiny) Act 2011 – which fulfils a number of the Brennan Committee’s recommendations and in one significant way goes much further.
Under the radar
The new act establishes a joint parliamentary committee to scrutinise Commonwealth bills, as well as existing acts, to ensure that each law passed is compatible with human rights.
It also requires that every bill introduced into the Federal Parliament be accompanied by a compatibility statement which includes an assessment of whether the bill is compatible with human rights.
The Brennan Committee made similar recommendations but the crucial difference between the report and the act is in how they define “human rights”. Curiously, the act does not define rights using the Constitution, the common law or statute. Nor does it define rights by reference to those that can be applied by the Australian Human Rights Commission. These are all ignored.
Instead, the act defines human rights as those rights contained in seven treaties, many of which have never been implemented in Australian legislation. These include economic, social and cultural rights such as the right to work, the right to a decent living, the right to the highest attainable standard of physical and mental health, and the like.
These types of rights potentially have huge economic impacts. They require the balancing of different priorities – a task that can really only be undertaken by governments, not the courts.
They also give rise to many interpretative questions. How is one to know whether a law implementing the national competition policy will have a negative impact on the right to work?
Will legislation which limits the scope of the pharmaceutical benefits scheme or bans genetic cloning be incompatible with the “right to enjoy the benefits of scientific progress and its applications” and would Commonwealth laws concerning higher education fees breach the treaty requirement that “higher education shall be made equally accessible to all, on the basis of capacity”?
The financial and interpretative problems with economic, social and cultural rights led the Brennan Committee to be wary about including such rights in any statutory bill of rights. It recommended that if any economic, social and cultural rights were to be included, they should not be justiciable.
It also recommended that any requirement that the courts interpret Commonwealth laws in a manner compatible with human rights should not extend to economic, social and cultural rights.
But the 2011 act took a different turn and now every new Commonwealth Bill will have a statement asserting that the bill is compatible with all the rights in the seven listed treaties. This statement, while not binding on the courts, will form part of the explanatory memorandum to the bill and may be used by courts when interpreting the legislation in the future.
This may lead to the type of exercise of interpreting legislation in the light of economic, social and cultural rights that the Brennan Committee tried so hard to avoid.
A bill of rights in all but name
So the Attorney-General already has her own bill of rights. It does not go as far as many bills of rights. It doesn’t allow a person to sue a government for breaching a person’s rights. It doesn’t allow the courts to strike down the validity of a law that breaches human rights or to make a statement of incompatibility and send the law back to the Parliament for reconsideration.
But it does require the Parliament to justify all its new legislation by reference to a very broad range of human rights and it does permit the courts to interpret this legislation in a manner that complies with those rights, however they might be understood in the future.
As shown in the United Kingdom and in Victoria, the most significant and controversial human rights cases often arise in the guise of statutory interpretation.
Australia may not have a bill of rights in name, but we will soon start to feel some of the effects of one.