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~!! Queensland Law q, Society Inc T<!'lepnone t(7) 3842 58M8 .--_-:-::=-=-==::-:==-, Facsimile (07) 3842 5999

RECEIVED Your Ref:

Our Rd: SSC:SO:SP:1296

The Research Director

19 IIEG 1997 LEGAL. CONSTITUTIONAL AND

AOM!N1STRATIVE REVIEW COMMITIEE

Legal Constitutional and Administrative Review Committee Parliament House George Street BRISBANE QLD 4000

Dear rvfr Laurie

17 December 1997

ISSUES PAPER NO 3 • THE PRESERVATION AND ENHA.,.'!CEMENT OF INDIVIDUALS' RIGHTS AND FREEDOMS: SHOULD QUEENSLAND ADOPT A BILL OF RIGHTS?

In its submission to the Electoral and Administrative Review Commission review on the preservation and enhancement of ind ividuals' rights and freedoms, the Queensland Law Society strongly supported the enactment of a Queensland Bill of Rights, the ambit ofwruch was limited to fundamental civil rights as set out in that submission. The Council of the Queensland Law Society remains oftrus view and a copy of the EARC submission is enclosed fo r your information.

The Society's decision to support enactment of a Bill of Rights has been arrived at somewhat reluctantly over decades of considering and commenting on legislation produced by both sides of politics. The Society has come to the view that governments do not respect fundamental common law rights and freedoms when it is politically advantageous to do otherwise.

The Society's EARC submission refers to a number of items of legislation which had eroded common law rights as at the date of that submission.

This tendency has not abated and the Society has recently criticised government in relation to three criminal justice initiatives. specifically the legislation dealing with the new Crimes Commission, the C1C Amendments and the Police Powers and Responsib il ities legislation. In commenting on the Police Powers and Responsibilities, the Society criticised a range of proposals including a provision which effectively allowed for detention for questioning for indeterminate periods, the potential for abuse by the police of the "move·on" powers and the risk of institutionalising verhals inherent in the provision which made the electronic recording of interviews optional rather than mandatory or at least mandatory save for truly exceptional circumstances.

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In commenting on the safeguards contained in the legislation, the Society stated as follows ;-

"The safeguards recommended by this Society and by the Criminal Justice Commission RepoI1 on Police Powers have, in significant matters, been ignored or omitted. Safeguards and limits created in similar Commonwealth legislation seem not to have found a place in the Bill."

The tendency to downgrade the importance of appropriate safeguards against the increase of state powers as against the right of individuals is at the heart of the Society's support for a Bill of Rights.

In commenting on the Crimes Commission discussion paper, the Society referred to and strongly criticised the discussion paper's assertion that:-

"1: has been recognised for some time, not only in Queensland, but in jurisdictions around the world, that traditional policing methods are now simply not effective enough to deal with certain types of offences and offenders." (page 1.5, Crimes Commission Discussion Paper)

The Society's concern is that the rhetoric which requires a move away from "traditional policing methods" can be used as a justification for the erosion of common law rights and freedoms supposedly in the interests of law and order imperatives.

The sheer amount of new legislation created (4,562 pages of new legislation in 1996/97 in Queensland alone), the very great powers given to investigatory bodies such as the Queensland Criminal Justice Commission and the proposed Queensland Crime Commission, and the sometimes very restricted time allowed for public consultation on new legislation reinforces the need for some entrenchment of a minimum set of basic rights to ensure their protection.

The vulnerability of civil and political rights to the political pressures of the day is not restricted to Queensland. Lord Windlesham in an interesting series of books considering the interplay between the political process and criminal policy issues considers the problem from an English perspective. Lord Windlesham's latest volume is entitled "Responses to Crime": Volume 3, Legislating with the Tide (Oxford: Clarendon Press. 1996). In a review of this publication, the reviewer summarises some of the themes dealt with in the volume as follows :.

"In this volume, it is penal populism that takes centre stage, many of the measures discussed call for greater punitiveness, reduced procedural and substantive fairness safeguards - and were launched with explicit appeals to fear and resentment of crime and criminals. One theme that emerges from Windlesham' s analysis of such measures is their relative absence of' substantive policy objectives: the emphasis is on striking a strong anti-crime profile, not on solving this or that practical crime prevention problem. (See, for example, his discussion of former Home Secretary Howard's proposals on restricting the rights to silence, at page 55.) Another theme that emerges is the tendency of law and order measures not to invoke direct partisan challenges: the opposition had little stomach to question such measures, for fear of being labelled "soft" on crime. Few of the various measures Windlesham describes received serious challenge frcm the then Labor opposition in the House of Commons." (A. Von Hirsch (1997) IU LQR 687).

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These comments echo some of the concerns expressed in the Fitzgerald Report in relation to the tendency of governments "in haste to be seen to solve problems, to deal with them in ad hoc manner" (Report ofa Commission ofInquiry pursuant to Orders in Council, 1989, page 140).

The United Kingdom Parliament is presently considering the enactment of a Bill of Rights which will incorporate the European Convention for the Protection of Human Rights and Fundamental Freedoms into the domestic law of the United Kingdom.

The need for a Bill of Rights in the United Kingdom is, perhaps, mere pressing than is the case for Australia having regard to the ever increasing tendency for litigants in that jurisdiction after having unsuccessfully exhausted all domestic avenues taking their case to the European Human Rights Commission. The UK has a particularly bad record for the Commission with fifty cases having found a violation of the Convention - more than other country except Italy.

Notwithstanding the different surrounding circumstances and pressures, the Parliamentary Debates are of assistance in considering whether it is appropriate for Queensland to have a Bill of Rights. The words of the Lord Chancellor in his Second Reading speech in the House of Lords are apposite:-

"The traditional freedom of the individual under an unwritten constitution to do himself that which is not prohibited by law give no protection from misuse of power by the state, nor any protection from acts or omissions of public bodies which harm individuals in a way which is incompatible with their human rights under the Convention."

Though neither Queensland nor the Commonwealth operates under an unwritten constitution, the constitutions of both jurisdictions are extremely limited in the protection they afford to the range of human rights contained in such documents as the European Convention and the ICCPR.

The EARC Bill

The Society does not propose to comment on the draft Bill of Rights prepared by EARe in any detail.

The Society supports the distinction made in the Bill between civil and political rights which are enforceable on the one hand and economic, social, community and cultural rights which are not enforceable on the other.

Whilst laudable in aspiration, the provision of economic, social, community and cultural rights can involve large expense and it is best left to parliament to assess what provision should be made in particular circumstances rather than creating expectations through the enshrining of high ideals which may be mocked by the means available in reality to ensure enjoyment of those rights.

The dangers inherent in enshrining such rights where there may be inadequate resources to ensure their practical enjoyment is graphically illustrated in the recent House of Lords decision R -v­Gloucestershiire County Council, ex p. Barry (1997) 2 WLR 459

Their Lordships considered legislation which obliged a local authority to assess the needs of the chronically sick and disabled and then provide services to meet those needs. The local authority reduced services to an elderly and disabled man on the basis not that his needs had reduced but that

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the local authority's allocation of funds from the central government had been cut and it could not longer offer to provide the services guaranteed to the applicant by the legislation.

By a bare majority the House held that notwithstanding the duty imposed by the legislation a local authority can have regard to the availability of resources when assessing service needs and meeting those needs. In short, the disabled applicant was left with a right enshrined in statute which led to certain expectations being raised but which was of no practical beneft.

The list of civil and political rights contained in the Bil! would appear to adequately cover the basic set of internationally accepted rights. The Society does have some concerns in relation to the right against arbitrary interference with privacy contained in Clause 15(1) of the EARC Bill.

The protections against specific incursions into a persons privacy such as arbitrary search, entry to land and seizure of property as set out in Clause 15(2) are supported, however, there are considerable definitional and workability problems with the creation of a general right of privacy. By virtue of Clause 4 of the Bill, the right would be enforceable against both government and a wide range of public bodies and authorities.

The amorphous nature of such a right may create considerable uncertainty particularly as to the provisions of existing legislation. Usually the prospect of conflict between later and earlier statutes is minimised because statutes are usually drafted with a large degree of precision. The more general and wide ranging the latter statutory provision, the greater the prospect of inconsistency with pre-existing statutes.

Some level of uncertainty as to the validity of pre-existing statute law is unavoidable and is one reason why the Society has stressed that the rights contained in the Bill be confined to the core civil and political rights. However, the very broad scope of a general right to privacy makes it particularly problematic.

The uncertainty which may arise from- including a general right of privacy can be illustrated by consideration of the Society's own legislation. The Council of the Society is afforded large investigatory powers under the Queensland Law Society Act 1952. These powers are to some extent arbitrary and authorise the Council to override certain common law rights. The justification supporting the grant of such powers is the protection to the public afforded by ensuring that the solicitors' branch of the profession maintains high standards of conduct.

For example, under Section 5G of the Queensland Law Society Act 1952 the Council of the Society may require a practitioner to give an explanation of the matter being investigated and also to produce documents in the practitioner's custody, possession or contro!' It could be argued that this provision is inconsistent with the general right to privacy which is created by Section 15( 1) of the draft EARC Bill.

It may be that the extensive investigatory powers given to the Society would be upheld under Clause 10 of the EARC Bill as being demonstrably justifiable in a free and democratic society. However, the position is not sufficiently clear for one to confidently assert that the Society's investigatory powers would remain unaffected. At the very least, there will be a heightened level of uncertainty

In summary, the Society does not consider it appropriate that the Bill create a new right, a general right to privacy which right may well be productive ofa significant level of uncertainty.

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I stress that the Society is nO( necessarily opposed to the development of a right of privacy at common law nor is it necessarily opposed to legislation specifically directed to extending legislative protection of privacy - whether by way of extending the Federal privacy legislation, co-regulation, or State legislation. However, the Society considers that the inclusion of such a right would create considerable uncertainty and is sufficiently controversial as to support its exclusion from the Bill.

Implementation

There are various models available as to the best method of provid ing for the inter-relationship of the Bill of Rights and other statute law.

The Society has examined with interest the provisions in the proposed UK Human Rights Bill. The UK Bill follows the New Zealand example in providing that the Bill of Rights does not prevail over inconsistent legislation. The UK Bill, however, allows a court to make a declaration that a statute is incompatible with the Bill of Rights and then provides a fast track procedure which allows the inconsistent legislation to be amended by way of starutory instrument with the statutory instrument to cease to have effect unless approved by Parliament within forty days.

It is undel";)tood that the rationale behind making such a provision was to safeguard Parliamentary sovereignty.

The Society is of the view that the UK and New Zealand models do not afford an adequate level of protection. The mechanism in Clause 6 of the EARC Bill whereby in the event of an inconsistency between legiSlation and a right stated in the Bill, the right precedes and the statutory provision is invalid to the extent of the consistency provides a higher level of protection and is preferable.

I trust the above comments are of assistance.

/ Scott Carter Solicitor to the Society

You: :tei:

Our ~ei:

Queensland Law Society Ine -

Tae Chairman Ele~oral & Adm.i.nisrrative Review Commission PO Box 349 NORm QUA'! QLD 4002

Dear Sir,

f)ffic~ oi :ile ?,eslde!l{

11 Augus' 1992

RE: rssm:s PAPER NO. 20 . REYJEW OF THE PRESERVATION A.NTI E):!EeNCEMENT OF lJ'IDMDUAIS RIGHTS AND fR" ,;POMS

h is ilOt the i!lte:ltion of dIe Quee~land uw Soc:ery iO re5pond ;:0 ~2.cb. of the many ismes raised in Issues Pape:- No_ 20. Rar..he::, it is {he Socie!;ls desir:: la outline in. ge:1e:al terms itS supper;: fo r some w.eciJanism., wneme: it: be desc:ibed by <:.he re:rp. ~Bill of Fights" or by some other appellation., mat 'Will provide for and e:!.crencb. cer::aio. fundamemal protections of citize:l.S wbicJ have long been pare of the common law.

Tue Society has c.e3Iiy 4000 ::J.e.:nbe:s throughoUt Queensland and their views would be as dive:-se as that af the CCII1.!1lu:ni:cy at Large on many of the issues :ai.sed in Issues Paper No. 20. L"l the ~...rcu..ms"!ances the Society does not orooose to ellte: in:a debate or to offer co.u:u:nem in r~spect of any aspectS of'tbe paper ';be;e argumentS far the creation of a Bill of RigbLS in reiation la economic, social and cu1rural rigbts are canvassed. T.a.e Society does however cave an imponam ro le to play in any debate on the fundamental civil rightS.

I Tue ambit oi ite term fundamental civil rie.hJ for the ourooses of ibis submission would best be desc;foed as those rights which PurPon to be gUara,D.teed by Pan ID ArJdes 6-26 inc:usive of the International Covenant on Civil and Political d£.b ts, To the e;cre~t that issues are raise :: by the Paper within the ambit referred to abo;e, me Socie =y is able [0

speak for all its members in this debare.

Uppermost among: these issues is the slow erosion by successive governments of fund.amental rightS of citize:tS, particularly in the area of the ciminallaw.

The common law is a corner-stone of our system of law and has se::ved us well over many years. Concrary to the belief of same it has protected and enhanced the rights of citizeI!.S, particularly by its development and protection of r.be rig.b.ts of cirize:tS hefore chI! Couns and tbe protedon of citizens from arbitrary and unlawful abu·se of State powers .

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Toe right ;:0 5ile:::J.c~, the rigbt to prmec:ian against se.lf4inc:i..minarian and the tight Ia be free from arbiu"J.ry se:uc.J. and seiT..rre by che State are bur a few examo1es of the powerful pratec:ian.s it has provided.

Uniorrunacely, no maner haw powerful the common law protections might be, they are entirely vulne:able to the ac::ions of legislarors who would choose to limit or redefine them to the deT..m.e:n: of ciriz~IlS.

Of COlli-se, it is entirely proper that the laws as dete:rnrined by Parliamem should be paramoITilt over Judge-made law - this is the very stuff of our democacy.

An unfo:rmnate consequenc= of t.bis relationship is that in the absence of entrencb:ed legislative protection at citizens' rights it is open to Parliament to erode common law rights and protections in cirC"..uns-..ances which many might find objectionable and for reasons associated more with the political. expedience of the time. T..ais problem is exacerbated where Exec..lrive Gover.nment dominates the Parliament and where the latter largely ~rubber s-r.amps~ the legislation pur before iL

T..o.e combination of, strong Exec"..lrive Government and a compliant Parliament can result in legislative excesses which erode fundamental common law rignIS.

It is djmc..llt to isolate and ideniiff tbe fac:ors wmc::r may condom:: to the identi.:fiable tendenC'j for legislation !O ove!7ide common law pr...nciples, spec..fically. those principles which would rc:r:n the basic elements of any entrenched Bill of RighIS. A number of fac::ors may be .elevam ..

Premier Goss in a recent public speech. (Brisbane 15/7/92) deplored the forced resignation of New South Wales Preme: Greiner as a result of a 5.nding of corraption againSt 'aim. Premier Goss referred spec..ucally to the recognition in that finding of the interestS of a political par.:y being ide:m:i:B.ed as a fac:or in the decisions of Gove::nmenr. Tl!e Premier suggested that the un.i1appy result of t.he incident may be a need to retb.in..ic the underlying role of the pa.r.y system in political and Government procedures. Alternatively there may be a need for d.imim!tion of the sigmncance of occasions where parry interests can be demonstrated to be a fa~or in govenm:lem decisions aifeC""'....ng the community as a whole. T..o.ose observations do not relate lO or involve my spedfic legislarior.. or the erosioD. of any cowman law right or privilege. They do howey~; indicate a willingrress to introduce as a valid elemem in the decisions of government factors which eMend beyond good governmem of the state.

It is a small and possibly indiscernible s!ep from that hypothesis to recognising as valid the advancement of the private interests of the supporters of the government of the day in shaping the policy of government, ie. factors which are not necessarily consistent with decisions made solely for the good order and government of the community.

There are other fe:150m to suspect an increase in the imluence of party interests upon governments of the day and particularly upon e:cec.uive government. Tne Fitzgerald repon: identified an incre3S..ng and unhealthy degree of politi~..sariqn of senior members of lhe bure.J.UCIacv, Tbi.s has occurred CO the detrimeru of the t:raditional role of the di:massionate apolitical civil servant. Tne trend is exacerbated by increased reliance upo~ polind appomrees to the role of ministerial advisers, many of whom have clearly ide:::rnfiable l.ink:s

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to 'lQc.ie!"ous s..ng!e issue pressure groups widrin pa.r.y politic:ll mac:unes. l.Qe reauctlon Ln

imiue:lce oi se.:1ior C3.!'ee:' public se:-ra.nrs or alternatively their politic..sation together Mm inc=e3.Smg reliance upon reiatively unsophistic:lt.;:d politically appointed m..inisr:e:ial advisers appears to be a factor in the deve!opme:n of legislative proposals wiJicb. ;:;ansgress ac::=ptable stallaards in the COI!l!ilunity. Tne fuldings of the Fitzgerald enquiry substantiate t.bis view,

T~e Fitzgerald Report (at page 123 and following) also e:mmerated the ways in wmen Paru3I!:.enr's intended role as me forum for debate of the nec::ssity and wonh of proposed laws is rende:ed nugatory by the Executive. E.~C addressed many of the Fit%gerald co:a.c:ro:s in itS report and draft Bill relari.ng to legi.slanve sundards. That Bill, although 'Nidely su-pponed in the CQ~ry consultztive process established by EARC was e!ll2Sc.I1.a.ted by the Exe~.l.rive by omitting me ma6:inery provisions nec:ssary to ac:hleve its purpose (eg the Parliamentary Scrutiny of Logislation Committee) and by omitting reference to the principal purpose of the proposed legislation as stated in Gause (3) of the EARC draft __

l.:Je purposes of this Ac: i.tLc!ude eDSuri!1g tbat ... there is adequate parliamentary sc=uriny of Que~:lSland legislation".

Oppornmiric:s :or dispassio!!.2.te exte:::!.a! c:itiCsm a:e ilia reduc~d in a ~lllI!.ber of ways. In addition to the matters i.dc!lci£iea in the Fitzgeraid Re'Oor.: there have be':!l rece::J.t :e3.<iily ide::l!:iiiable OC.:::asiOllS wiJere co~tarion d~es rake 'place but only with ban.d picked suppone:s of the legislative issues conce:::.ed.

Tae 1989 FilZge!ald Re?on also ide!ltifed (at page It.l and following) shortcomings of the media in relation to official cOITUUtiOo. Tile :e::on reier;ed to the iI!.ter~de'Oe:l.de!lce of these in power with media interests and the beue·D.tS accruing to both from such a syste:::r... Tae re?oTI idenriiied spec:ii!.cally ceciniques of secrecy and news management which permined government to exercise disproporrioD:ate i.m.1ue:lc: on what may be published in

,the media. Commissione:o Fittge:ald expressed ·particJ.!ar conc~ms regarding the unjustified application of public monies to media unitS and press se::=etaries .in disse!Ilinating politically motivated propaganda wbile com:oUing, by threat or induceme!lt, sel~C!ed joumalis"tS.

// Tue un.i:lappy symbiosis wbicb. exists belVleen. gove:::nment and media as desC1.oed in the Fitzgerald Re?on seems, in the submission of the Society, LL~ely to be exacerbated by the contraction i.!J. ownership and number of prim-media outletS in Queen.sland. T.ae Society can see no sigIl of any sign:iiicant change in Government poii9 regarding dealings with media or in the i.nfIuence of media units and press s~cretaries since the publication of the Fitzgerald Report. The Society has been made aware of a number of rec~Ilt allegations of wodcing jouma.lists being warned of a danger of e.'(clusion from government informa.tion services because of previous published reports which may be constrUed as advers~ to government or current government initiatives. As a result of the extreme sensitiviry of Government public expression of considered critici:lm is frequently followed by undue media prominence of unfounded denigration of the critics concerned.

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A.ll of the above faaors canr....-:oute, w sooe degree, to rhe LJ.c:ea.smg ,errde.::rcy of legislation m Qve:7ide cornr:nCD. law princples which othe:-mse prmea ::be ngrns of individuals in. :.he communirv. If <be common law C2.IlIl.ot O1..larantee citizens ce:1:ain . . fundamental rig.b.ts and freedoms. then fn the Society's view other me:.m.s rous;: be soug.ri!_ It is the Socie:y's submissio~ made wiw considerable regret, that a review ot the legislative hismry of the enacn:ne:::ltS of the Queensland Parliame:::lt in the past seve:al decades provides a most per:suasive argumeru for the <=eatian of an enrrencned Bill of Rights direaed toward the protection of the minimum civil liberties that the citizens of this State ha"ve come to expeC'" ....

Given that the threat to sucb. rightS and freedoms come too frequently from those eleaed to serve the people, legislation alone is not enough. Legislative protection must therefore ta..lce the form of some SOrt of "enrrencl:Led" legislation, wnemer Dawn as a Bill ot Riwts or nOL

It m.ay be disappointing to have to admit that citizens need to be protected from the excesses, well intended or othe!Vri.se, of their elecred representatives, but the.:: is ample evidence in this State and others that such protection is needed_

Tne recent his;:ory in this State is that successive gove:nrentS have not shoVlll sufficient resuect for the con:..n::.on law rightS of citizens. Indeed, the Society recently made submissions reiating ~o a r:.:umoe~ of pieces of legislation which have come before the QueeIlSland Parliamem (and subsequently bee:!. p~sed into law), ,;acb. of wmcb. igIlored fI..l.ndamemal legislative pr..nciples and thereby eroded protec:ions previously e::J.joyed by citize:::J..S.

T.lle Societ'/s recent mbmissioIlS to tb.e Quee!J.Sland Gove:::m:nem included protests against provisions in four Ac:s - the Health RightS Commission ACT., A..nti-Dis&...r:u.ination Ac; Coma.minated Land Act and Classification of Publications Ac: - wbicb. in the Society's view otfended fundame:mal. civil rightS principles. T.aere are many other examples of Queensland iegislation., recent or othervrise, where proper' respect has nOt bee:::r sho'W'D. for common law rights and protections and which in some cases also offended international covenants g1.lar3.1lteeing basic rightS.

It is not appropriate to recite here cbapte.: andJ'i~rse the d.i£:5.cllties which [he Soc..ery saw with this legislation, bur it is interesting to consider in the context of the CQID.Iilon law protec:ioD.S and the Imernarionalc Bill of Rights, the effe", of Aru (eg. Health Rights Commission Ac: and A.nti-Discri...minariou Act) wbich erode the ri:::nt to silence: and the privilege against se if-incrimination. The international Bill of Ri£htS, more suec.ncilly Oauses 2 and 3(d) of Article 14 of the covenant on civil rightS provides that: -

''2 Everyone charged which a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

"3( d) In the determination of any criminal charge everyone shall be e!ltitled to .. _. defe!ld himself through legal assistance of his own choosing .. ."

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It WJ.S .he Socie ty'S suba:ri.5sion tb:at the effec: of Secrions 92 and U4 or (he Health Ricrors COJ'TIJTIlso::ion Ace: 1991 was suci as <0 require a person to provide e·lideTI.c~ of ;:hat pe:son's gUllt for any c.u:runal oITe!].c! other thm an indic:abie orre::J.c,:. Failure to respond with cbe relevant mate:ial was of tLSeif c:eared a c:iminal offence by Section 92. P:::ivilege Cram se!!· ln~..mi..narion was prese:ved only in respect of indic::able oifenc.:s. a tesT. mos~ di.fficuit to apply in prac:ica1 ter.:ns.

TLle operation of those orovisicns is entirely inconsisre:l.t with the preSU!ilorion of innocence whic.b. is a corner-smue of the common law and is also c~ntained in the International Bill of RightS.

Similarly, the effec: of Sedan 8.! 7 of the Industrial Relations Ac:; 1990 is to oravide that no person prasec.lted berore the Industrial Court for an offence againsT. that· Act (where the pe::Jalty is imprisonment or exceeds 40 penalty UJJitS ) shall be enrirled, as of right, to

" legal representation. It is diffic..llt to reconcile that provision Mth Oause 3( d) oi the International Bill of Rights.

In the Societ;ls view an example of .ne pOtentially dange:ous ' and faulty reasoning: of Gover:n:m.ent5 is to be IaUlld in the ~"'Pianad.oD. provided m the Society for the prese:::1c: of sucb. a pra"V"i..sion .in the Industria! Re1anal"'.5 Ac:: it was expla.i.ned that it is pnFkdy that :he Inamilla! eau.Tt would deny Legal repr~se:::1tarian to an aCG"'..!sed .i:l a criminal trial.

It is disturbing that the:-: emu in Quee:lSia:J.G legislation provisiot:S erad.ir!.g r..md<!I!le:::1ta!. ri~:'ts a1!C ±e anly appare~i: justi.dC3.tion tba~ c::.n be give!l ror their prese!lce is mat !.hey are unlikely to be used.

T.J.e present Que:=siand gover:"1""'1em is by ao Cleans the sole offe:::1cer or indeed the worst oife!lder in :ee::lt histOry, there beL,g: u.umerous examples of ree:.!::!.! Quee~laIld governmenrs taking a "robust" approacll to the rights of its cirize'llS ~ for exampie, the F!ec:r"ic:rv (Continuity or Su-pplv~ ,""_et 1985 provided, inter ali~ for compulsory performance of labour by workers in tbe eio:cmcity indus ... f in certain defuled C"J'cJm5ta.nces, and amounted in effe~ to forced labour.

Indeed me Indusnial Relations Act 1990 (referred to above as evidencmg a clear breaQ of fundamemal tigbu ) ocerated to reoeal to oocressive and offensive acts im::roduc:d bv a former Gove::nment,' llamely me' Essenria..{ S~;vices ACt 1979 and the rndus~a! (COmmercial Practic;s~ Ac: 198.:!.,

Article 14 of the covenant also mirrors me common law in recognising the Ileed for independem judicial tribunals to determine disputes between the citizen and the S<ate. Tile Supreme Court Ac; of 1991 drew vehement criri6m froer: the Que:!!lSiand Bar Association and from [his Socie tv when it was introduc.:d intO Parliament- Of oarticu.l.ar concern to this Society was the diminution of the role and standing of the positio~ or' Crief Justice of the Court by removing from the bolder of that office my overall responsibiliry for the orderly operation of the Court or the right to exercise any control or to participate in the work oi :he appellate division (the Coun of Appeal).

i

. 6 .

LJe Socie:;:/s subu:.issioo.s we:e ~Ot effective in acb.ieving sig::lific3..Ct cb.ange :0 the Bill wmcb. has sine: bee!l vlole::lt!y aGac;<ed as a borne grown demons~ation or the vu..i.ne:J.oiliry of judicial indepe:lce:lc:. Tae weU respec:ed author and senior membe: or me judiciary, Mr Justice McG3.l"V'ie (of the Vk::orian Supre:ne Coun), said of this legislation at a recel:U judicia! conie:enc: • ~the Iudges or ,he trial division (otbe: than the Judge Administrator) appe:!!'e:i lO have bee::l be:eft by the Ac: of all common law ngi:lts to pa...-ticipate in deCsions made witbin their coun as co its administration a!ld oper~tion.. T.aey appe:u to be quite powe:£ess i.n that .egard. The SU'Preme COl.U"'t of Que:ml3.Ild now se::::n.s. eo lac.k: e<ren the pote::::l.'riality of developing effec:ively what I have called the came.:nporary foundations or j"J.diCal independence".

'1.1le Aa to a marked degree deprives a Chief Justice of sr.anding and powe::. Tllere has beea a de factO removal of the prese:lt Chie: Iustice from muc..l of the substance of his omce. He has oee:l give::l somewhat s:imilaI cre2.tmem to that given to Judges wne'!l most oi the jurisdiction of their court has been cransi'erred to another court to whie they were not appointed. Tae e:l'eo: on judicial indepe::J.cenc:, of Judges seeing what cm happen to them if they .displease gove::n.me:::lt. does not need to be· elaborated." [Canberra 21/ 1/ 92}

It is me Socie~Js central submission that gover:uner:.ts do not respec;: common. iaw tights and freedom.s and institutions whe:::t it is more advantageous to tie:n CO do othe:v.rise. T.o.e:-efore, en:r:re:lcb.I:o.e:l! or such rights in legislation would appea: to be the only s-ure orctection.

fu r..Jeorv, the LF'7'i<: !?rive Standards Ac: 199" in tJe for:n biriallv orocosed bv E.~C and . . ~ . . the establ.is.hment or a Parliame!lta...7 Scrutiny or Legislation Committee (to ::D.onitor the acihe:e'!lc: to s.ucl1 standards) IDigb.t have gone some way to e::sur..ng that c::m::J!.1.on law protections could noe e:!Sily be legislated away. Uniornmareiy, it does not appe~ that the political. will exists to go eve:J. that far, let alone to enrrenc:t Sl.lcit rigbts.

It is agains! thIs oacx2rOUIl.d wa! the Socie:v has come to the view that same san of enn-eached le:,<lacion ;eeds La be enac:ed whlch 'Ni.ll provide tile benc!:unark or -i!a.!!.c.arci aga.insi: whi6 ail.. Que~t!Sland legislation should be judged.

T.ae principies out..l.ined in Section 4(3) of [be u~<larive Standards Act provice a use:r.ll starting point in determining which rights anCl prillciples would D.e~d e::r::e'!lcimenc, although not ail ;:he matters out.l.i.!!ed in that SUb-5~:::tion neatly fit tbe desciptian of "rights".

T.lle Canadian Charter of RightS and Freedom.s enumerates a number oi rightS which it guarantees. Limiting itSelf to iss'J.es relating to funda..mental rightS under law, the Soce:y sees strong argumentS in favour of legislation wmcn would e::urenco in Quee!lSiand law suciJ "Char.e:" rightS as:

(a.) the right to life, liberty and security of the person. and the rigbr not co be deprived thereof other man in ac:::ordance with the priDciples or fundamencal jusric~;

(b) the right to be sec'.!re J.g:llrut unre.l.Sonabk sc:.u-C.3 or seZw"e;

(c) the right noe to be .ll"bitr:uily dl!t:llned or imprisonl!d;

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(d) due process and oilier rights of cri.!:c.i.nal defendams;

(e) the rig.b.t to protection against self-incrimination in ce:taia dIcumsranc:s;

(£) equality before tbe law.

A1ternativeiy, Articles 6-26 inclus.'ve oi the Inte:national Covenant on Civil and Political rights ;eferred to previousiy would serve as a useful mode! to inhlbit the repeated legislative exc:sses and abrogation of fundamental rights whicil have been of concern to this Socierf-

Entrenching legislation, whether forming pan of a broader "Bill of Rigb:rs lf or not, would necessarily reqtire governmen.t to ensure that all its subsequent legislation adhered to the enumerated pr.nc:iples, and there would be a strong argument that .all Quee!lSland legislation enacted prior to it slIould also fall to be judged by it and thereiore require amendme!lt where it did not comply.

Where legislation did not measure up to the required standard, any citizen should be able: to cb:ailenge it before the COllri.S.

Obviously the question oi e:!J:rren.cnment is a potentially di:f:.5:c.J.1.t oue. but the Society is of the view that a meQacism should ~st to provide far Parliame!lt, possibly by a bip2....rUs~ majority or 75% (or woatever other formula is considered reasonable and fair) to be able to over-doe ch\'! ope::arion of me e!lrre:lCted legislation or co amend. it.

Tnere is a danger \lI'i.tb absolute enrrenchmetn tbat we would. tOday be ma1cing inviolable rules that latc!r generations might not accept or which might not ta.ice full accoUllt oc matters wIDch fut".lIe gene:.-ations might consider imponant. Absolute e:n:crencbmem also sits Ulleasiiy Mm me concept of Parliamentary supremacy.

Enrrenchment subject to amendment by general referendum or pleoiscite is, judging by Ausrraiian experience at; both Federal and State {eve~ an Uilwlse approach aIld might well amount to de fa~o absolute emrenc!lmell1.

Consideration would also need to be given aJJ to l.mder what cixCUI!l5tances the Rigb.~ legislation could be overridden. For eX3.Illple, in a national emergency siruarion would it be appropr~te to suspend' the operation of the legislation automatically? If so, what ~..rC"JJDSunc:s would qualify as sufficiently serious to amount to a national emergency or a stale of emergency?

As noted at paragraph 821 of the Issues Paper, there have been recen' examples of the use oi emergenC'! powe!'s in this State. Some might argue their use was unjusrified. A partiC'.J.!ar diffirulty thac arises is that states of emergency are declared by the Exec'J.tive, not Parliament, and that in normal drCUIIlStances the RightS te~lation could only be amended by Parliament. Oea.rly, in a genuine case of emergency (eg. national disastcr,

l with subscquent outbreak of looting) it is unrealistic to suggest that the E;(cmtive should be constrained by the need to recill Parliament ~j gain itS ~pprovil..L

. s .

. -\.5 aocec :n :larJ.2raon 3.~ of the Issues Pa~e:-, re'new bv Cour..s could led [0 conside:-able tension be~'e::J -~h~ Iudic:a..-y and i.;.1~ ExeC"Juve. .~ ~eU, such ;eview couid only (a...lce plac: well after the declaration of !.be e:nerge:lC"! and would nm pre'lem unjustified in.friJ:lge:nent or" rights at [be time. It might be argued cbar Judge~ are !lot well placed to pronounc: upon the necessity or otbe!'Wise for S",J,cb. a dedararion. but the Bill could e:l.umerate in detail the ~.rcum.s-.anc:s justiiying ove:ride a.c.d tl::ri.s could well be tested in the CourtS.

In the Society's view there is also a practical need for tlle:e to be provision for 5i.1Spension of !.be rigbts and freedoms provided in a Bill of RigbtS. TD..e suspen.s:ion could be upon declaration af a sure of emerge::::lc,,! by the E'Cecurive, but the Bill should then provide for Parliament to automatically be recalled to debate the declaration.. "Wnere more than, say is%, opposc:d the declaration of a state of e:nerge!lcy and su,speusion of rightS, the declaration could be overridden. Tne Socety has no fixed view as to tile form or

",- procedure wbicil may be appropriate for this purpose .

:

. A fur.ber issue wmci needs le be addressed concems the fe.a.n expressed by same pe:sons thac it is fundame:::u:illy undemocatic to pla.ce the paw.:: of fuIal acijudicano n. af ri~;,\S in the hands of the Cau....~ , whi6 would have to decide on tile va!idiry md g~~e:ai ap9iication of laws passed by parliame:tL Tllis, it is said. is concrary to the pr...nC:pie of tile 5upre:.:::u.ac:, of Parliame:::lt md has me potential to ?oiiriCs~ me Judicia..7.

T..1e Socie~ iews the 6ticiSTIl that Parliamentary supre::::lac:, will be usurped as based upon a fundamental misconception. Tne Bill of RightS, or wiJatever the e:::::crerrcb.ed FightS tegisiation was called. would itself be an AC'; of Parliame!lt and the Judges would be doing :10 more Ul3:il inte~reting that legislation. Tney would at all times be acti.ng lNiiliin the ambit of the powers pro-."ided to the!II. llilde: the law and by me Parliamem - no ::rJ.or: and !la less.

Tne Socie'tY nOtes the quotation ta.i::en E:-om Sornarajab. at paragraph 735 of the Issues Paper and agrees with the view expressed by <..bat aut:bor tbat ·'the i.m:predse narure of the common law relating to civil liberties is very apparent. Polic: !towers of arreSt depend upon the vague pilrase "reasonable suS"~icion" . ,Powers of searcb. 21ld seizure ~ as recent dec'.sioIlS show, be cons-mled either widely or i:d~owly a.!ld co~rie:aole confusion c~nsists in that area",

Oeuly. Judges bave not been protec:e:d from the political or controversial in applying the common law and it seems unduly alarmiSt to suggest that with the enactment of Righu legislatioD. the:, would suddenly be thrust into some po titic::!.l mae!srrom when they were called upon to interpret it.

Our Judges bave an outstanding record for competence and impartiality and they have always sbown tbe ability to adjudicate upon potentially divisive :md, on occasions, politically sensitive issues, withoU! any suggestion that they bave been politicsed or compromised in the eao".

-.

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Tile Si.lJ'est way to ;!!!SUIe ~e indepe:lde:lc: and qualiry of OUI Judiciary is to continue to se!ec: our Judges from the mast able pe=-sons available, without coc.side:arion of poii::ic:Jl colour or c::mc:pts ai a.ffi.rm.ative aeon.. but based only unon the mowledge, skills, experienc: and humanity which they would brirlg to cbe task.

Before casing the submission it is appropriate re recog:nise the valuable and p~..aking work that has been done in the coune of the preparation of a most helpful issues paper. Tl1c Commj<90n and itS officers must be congratulated far a moSt timely con~..bution to assist in a debate whicil may prove critical to t.b.e preservation of the freedcms wiJic.J our communi:ry takes for granted..

.4..s noted earlier, the Soce!)' does not red it is appropriate that it should speak: on many of the broader issues of the pros and COtlS of culmr-~ economic and other feamres of a Bill of Rights, given the divemry of its membership and the dive..'"Sity of views whicil those memberS would hold. Nonetheless. it copes that the observarioIlS whicil it has made on the above isrues assist the Commission in its deliberations. I would be happy re male.: aYailable to yo~ should you require. copies of any of the Society's submission to govemme:tt b::I. relation to the legislation refe!Ied to in t.bis correspondence togeme= with a CO?Y oc the pape: of the Honourable Mc Iustice R E McGcuvie. .

Yours faitbfully

~( G fox r President