The Principle of Legality and Human

Rights in Australia:

An Overview

Sara Aurorae

The narrow definition of the principle of legality is an applied value that presumes that in the

instance where the clarity of language within a specific law is unclear, the courts have the

authority to interpret legislation under the general presumption that the law itself had been

established to protect individual rights. Whilst common law is a normative process intended to

overcome any venality between the judicial, parliamentary and executive branches of

governance - thus as courts protect the rights of individuals inadvertently improve the political

process - there remains a plethora of issues that continue to cause concerns with safeguarding

human rights.

In January 2012, the Human Rights (Parliamentary Scrutiny) Act 2011 was established

to effectively uphold human rights norms in Australia by ensuring that any Bill introduced in

Parliament is complemented with a Statement of Compatibility. This compatibility statement

CCC 0362-6784/84/020151-13

requires parliamentarians to make certain the Bill is compatible with Human Rights as

explained in section three of the Act. The Act also sanctions that a Human Rights Committee

is established to monitor all Bills and ensure consistency with the core human rights values set

out by the United Nations treaties.

Australia is currently taking small steps to uphold and preserve human rights and that

legislation is compliant with our international human rights obligations. However, discussions

have been raised to the fore regarding whether Australia requires any human rights legislation

or whether the current system of common law and the principle of legality are sufficient to

protect the rights of individuals. These arguments also include whether the codification of

particular rights may involuntarily distress its correct application. Other key issues also include

the common law principle of legality vis-à-vis the definition of what ‘fundamental rights’ means

in common law. What is the definition of human rights and who makes that decision?

Common Law and the Principle of Legality

The phrase “Common Law” was first established in the 12th

century England during the reign

of Henry II and refers to a “body of principles or rules of law worked out on a case-by-case

basis by courts in England and latterly in this country [Australia].”1

The High Court of

Australia has stated that Common Law is the: “ultimate constitutional foundation in

Australia"2. Common or case law is an example of where the courts are authorised interpreters

of the constitution and statutes and subsequently provide a legal precedent to be utilised for

future interpretations of that specific statute or law. Common law in Australia has provided an

effective repository of rights including freedom of movement and of speech3, the right of access

to courts and immunity of interference with equality of religion.4

It is considered to have

evolved as a process to protect fundamental rights by guarding any legal intrusions made by

the state and other institutions.

In contrast to the common law system applicable in Australia, many European countries

employ Civil Law. Comparatively, civil law predominately employs the use of codified statutes

without specific reference to judicial case law opinions by the courts. Codified civil law can be

traced as far back as the Roman Empire, whereby legal codes are rooted in the judicial system

and more often than not, judges in a civil law country do not have the same professional

training and are instead employed and positioned based on connections that are often political.

1 Chief Justice RS French, “The Common Law and the Protection of Human Rights,” 4 September 2009, Sydney 2 Wik Peoples v Queensland (1996) 187 CLR 1 at 182. 3 Cunliffe v The Commonwealth (1994) 182 CLR 272. 4 Corrin J, "Australia: Country Report on Human rights", (2009) Victoria University of Wellington Law Review, 37 at 41-42.

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Accordingly, courts assume that the legal codes regulate all aspects of the law and under

very specific circumstances, uphold particular principles where there exists a gap in the law.

“Italian Civil Code art 12 para 2 provides that "if a controversy cannot be decided by a precise

provision, consideration is given to provisions that regulate similar cases or analogous matters;

if the case still remains in doubt, it is decided according to the general principles of the legal

order of the State." Similar provision is contained in article 4 of the French Code Civil.”5

Common law plays a significant role over both constitutional and statutory

interpretation. It has been noted that over the last twenty-five years, statutory interpretation

has shifted in Australia and has become the “most important single aspect of legal practice.”6

Broadly speaking, discussions continue relating to the various methods of interpretation, such

as objects clauses at the beginning of a piece of legislation that explains the purpose to

potentially resolve any ambiguity in the language, the mischief rule where the courts

themselves resolve ambiguity in a piece of legislation by focusing on the intention of the

legislators, the purposive versus the literal approach – the former being the mischief rule whilst

the latter resorting to the use of specific canons or rules of interpretation.7

Relevant legislation such as the Acts Interpretation Act 1901 [Cth] provides the

limitations and methods required for interpreting the law, and it can also be utilised by legal

practitioners where courts have yet to interpret a section of legislation. Section 15AA explains

the general approach to statutory interpretation: “In the interpretation of a provision of an Act,

a construction that would promote the purpose or object underlying the Act (whether that

purpose or object is expressly stated in the Act or not) shall be preferred to a construction that

would not promote that purpose or object.”8

This is further elucidated in Mills v Meeking (1990) whereby the court considers the purpose of an Act in order ascertain or consider various possibilities that may construct a result according to that purpose rather than to the literal

interpretation of the Act.9

This is commonly known as The Golden Rule, whereby Judges

assume prima facie the meaning of words in a statute unless such interpretation results in an absurd outcome, at which point the court can depart from the traditional meaning by

determining the purpose of the law to ensure integrity in a decision or outcome.10

It is clear that there is a strong relationship between common law and statutory

interpretation vis-à-vis fundamental rights and liberties. Should there be any ambiguity of

language in a statute, the court can assume that the legislators intention was not to nullify the

fundamental rights and liberties of individuals thus in effect safeguarding human rights.11

5 Pejovic, Caslav, “Civil law and common law: two different paths leading to the same goal.” Victoria University of Wellington Law Review, v.32, no.3, August 2001, p.817-841 6 JJ Spigelman, “The Poet’s Rich Resource: Issues in Statutory Interpretation” (2001) 21 Australian Bar Review 224 7 RS Geddes, “Purpose and Context in Statutory Interpretation,” (2005) 2 UNELJ 5 8 §15AA Acts Interpretation Act 1901 [Cth] 9 Mills v Meeking (1990) 169 CLR 214, Dawson J, 235 10 Grey v. Pearson (1857) 6 HL Cas 61, 106; 10ER 1216, 1234. 11 James Spigelman, “The Principle of Legality and the Clear Statement Principle,” Australian Law Journal, Vol. 79, p. 769, 2005

“[T]he duty of a court is to give the words of a statutory provision the meaning that the

legislature is taken to have intended them to have.”12

The principle of legality involves both

statutory interpretation and linguistic clarity, known as the clear statement principle. The

intention of the clear statement principle is to ensure that basic fundamental rights are

safeguarded as is the purpose of the law and to generally assume what legislators originally

envisioned. “The claims were ‘positive’ in the sense that they sought to describe authentic

legislative intentions — that is, what the legislature actually meant or intended.”13

While it has been argued that there remains no clear process that determines the correct

application of interpreting the intentions of legislators, it has been recognised that the

customary process involves an impartial and factual procedure. “When a court ‘takes’ a

legislature to have intended words to have particular meaning, it engages in an objective

exercise, and not a subjective exercise, of discerning and attributing intention.”14

This objective process includes a study of the meaning and context behind the words, the potential ramifications of a literal interpretation of the words, and the overall purpose of the statute

itself.15

The fundamental aspect to statutory and constitutional law is the clarity of language and

the specificity of intention. Only when the words are ambiguous do the courts have the

authority to apply an interpretation of the law with the underlying appreciation that the law

itself has been established to protect the rights of individuals.

"The courts should not impute to the legislature an intention to

interfere with fundamental rights. Such an intention must be clearly

manifested by unmistakable and unambiguous language. General words

will rarely be sufficient for that purpose if they do not specifically deal

with the question because, in the context in which they appear, they

will often be ambiguous on the aspect of interference with fundamental

rights."16

It has often been noted that the origin of the principle of legality in Australia began

through the high court decision of Potter v Minahan, whereby James Minihan was rejected

from coming into the country based on his failure to pass dictation test, although he was born

in Victoria.17

This, however, raised the question as to the definition of the word immigration as

was applied in the Immigration Restriction Act 1901 (Cth). Accordingly, O’Connor J stated:

12 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (‘Project Blue Sky’). 13 Op.cit, The Normativity of the Principle of Legality, 3 14 Ibid., 4 15 Project Blue Sky (1998) 194 CLR 355, 384 [78] 16 [1994] HCA 15; (1994) 179 CLR 427 at 437 17 Potter v Minahan (1908) 7 CLR 277

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“It is in the last degree improbable that the legislature would overthrow

fundamental principles, infringe rights, or depart from the general

system of law, without expressing its intention with irresistible

clearness; and to give any such effect to general words, simply because

they have that meaning in their widest, or usual, or natural sense,

would be to give them a meaning in which they were not really used.”18

While there was nothing considerably new about common law decisions basing its

judgment on such a principle, the case became the seminal ruling that designated it as the

current judicial authority of the principle of legality. Essentially, the positive claim the principle

of legality proposes is that legislatures do not intend to abrogate fundamental rights and under

circumstances where the language of the statute is ambiguous, the principle will need to be

assumed by the court when interpreting the legislation. “[T]he rationale of the presumption

against the modification or abolition of fundamental rights or principles is to be found in the

assumption that it is "in the last degree improbable that the legislature would overthrow

fundamental principles, infringe rights, or depart from the general system of law, without

expressing its intention with irresistible clearness.”19

The principle of legality was further explained in the industrial relations case of

Electrolux Home Products Pty Ltd v Australian Workers' Union. Confusions between

enterprise bargaining agreements and in effect the result had a positive impact on such rights

including the right of entry and training leave among other industrial relation rights. “The

presumption is not merely a common sense guide to what a Parliament in a liberal democracy

is likely to have intended; it is a working hypothesis, the existence of which is known both to

Parliament and the courts, upon which statutory language will be interpreted.”20

However, the landmark decision also raised questions about the effectiveness of common law verdicts such as this being superseded by new statutes, as it was made obvious with legislation like the amended

Workplace Relations Act introduced by the Howard Government.21

This struggle between

legislatures and the judicial system in effect exposes the opportunity to protect fundamental rights and it has been argued that codifying a Bill of Rights in Australia would be the solid

answer to this conflict.22

Lord Steyn in R v Home Secretary; Ex parte Pierson stated that the presumption –

namely the presumption that without the express authorisation of the curtailment of a

fundamental right, freedom or immunity that the courts have the capacity to presume the

purpose of the statute exists under the general view of individual rights – is a relevant part of

the principle of legality in order to ensure just governance between parliament, the executive

18 Ibid. 304 19 Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1; (1990) 93 ALR 207 20 (2004) 221 CLR 309. 21 Workplace Relations Amendment (Work Choices) Act 2005 22 Andrew Byrnes, Hilary Charlesworth, Gabrielle McKinnon, Bills of Rights in Australia: History, Politics and Law, UNSW Press, 2009 xv

and the courts.23

The intention of the principle of legality is merely a general and

commonsensical view that promotes the purpose of what parliament, liberal democracy and the

law itself had envisioned. Taking a normative perspective, the principle could also go so far as

to assume the role of the courts is to ensure accountability and promote liberal democratic

principles and human rights. “This justification advances a set of claims about the

constitutional relationship between courts and legislatures: courts should, it is claimed, prevent

legislatures from abrogating rights, otherwise than by clear words, in order to enhance electoral

accountability and the political process.”24

Thus the principle of legality can be an example of

the rule of law and the freedom of the individual, that “[e]verybody is free to do anything,

subject only to the provisions of the law.”25

What is Human Rights?

It is essential to understand the definition of human rights in order to proceed with an

exploration of its relationship with the principle of legality. Whilst there is a plethora of

controversies relating to the precise meaning of human rights, the theoretical framework is said

to be understood as: ‘S has a right to x against o in virtue of j.’26

The Human Rights (Parliamentary Scrutiny) Act 2011 aim at ensuring that any member of parliament wishing to

propose a Bill is required to ensure that it remains compatible with Human Rights.

Accordingly, “Human Rights” is defined as “the rights and freedoms recognised or declared by

the following international instruments: the International Convention on the Elimination of all

Forms of Racial Discrimination… International Covenant on Economic, Social and Cultural

Rights… International Covenant on Civil and Political Rights… Convention on the Elimination

of All Forms of Discrimination Against Women… Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment… Convention on the Rights of the

Child, the Convention on the Rights of Persons with Disabilities.”27

The enacted Victorian Charter of Human Rights and Responsibilities Act 2006 is a

charter founded on international human rights principles that all people are born free and

equal in dignity and rights. Unlike the Human Rights (Parliamentary Scrutiny) Act, human

23 [1997] UKHL 37; [1998] AC 539 at 587, 589 24 Op. Cit., The Normativity of the Principle of Legality 3 25 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 283 (Lord Gough); Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564. 26 David Boersema, Philosophy of Human Rights: Theory and Practice (Boulder CO: Westview Press, 2011). “Where S stands for the right- holder, a moral or legal agent, which can be either a human individual or a collective agent such as a corporation or government; X is the content and the scope of the right; O are the addressees or duty-bearers of the correlative obligations; and J stands for the moral or legal justification(s) of the claim that there is such a right.” 27 §3 Human Rights (Parliamentary Scrutiny) Act 2011

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rights is defined the charter as meaning civil and political rights.28

The charter’ endeavour is to

build a culture of human rights, working as a legal umbrella over government and other public

authorities to ensure that policies and laws are compatible with human rights obligations and

standards set out within the charter. It currently protects twenty fundamental human rights

visible in the International Convention of Civil and Political Rights [ICCPR], however §44

requires that the charter is reviewed four years following full effect [January 1, 2008] and must

consider other relevant human rights obligations that have not yet been incorporated into the

charter. These include rights set out in the International Covenant on Economic, Social and

Cultural Rights [ICESCR], the Convention on the Rights of the Child [UNCRC], the

Convention on the Elimination of All Forms of Discrimination against Women [CEDAW],

and the right to self-determination. The Government review found the charter to be beneficial

to Victorians and will introduce some amendments particularly regarding the parliamentary

scrutiny process.

It is also important to ascertain some complications between particular human rights

principles in order to understand the difficulties faced by judges and legal practitioners,

particularly with the problematic nature of imposing enforceable rights. Whilst both embody

similar principles, significant differences between civil and political rights [CPR] and economic,

social and cultural rights [ESCR] exist, particularly since the latter contains progressive

achievements and may require a very different approach to its application. With the application

of particular rights, rights such as property rights or rights visible in tort law that involve

interpersonal relations are binding, however rights such as freedom of religion cannot be

binding as it is circumstantial and the enforcement through statute law could potentially

become detrimental to the remedies human rights attempts to proscribe [for instance, freedom

of speech vs. hate speech].

So a common law "freedom" is not really like a human rights type

claim. A common law "freedom" is built up as a general principle

appears to be established by individual cases. The single instances

come first; the "freedom" follows as a kind of title. In human rights,

the "right" comes first and the remedy (if one can be achieved)

follows.29

Common law thus ensured that through a case-by-case basis, the fundamental rights and

freedoms remain solid within the judicial system. In the Derbyshire County Council Case, the

House of Lords ensured that freedom of Speech remained protected by maintaining that

governmental authorities cannot sue for libel at common law30

, which was later applied in

Australia.31

Clarity of language through the use of unambiguous words that refrain from any

28 §3 Victorian Charter of Human Rights and Responsibilities Act 2006 29 Bailey P, “The Human Rights Enterprise in Australia and Internationally” (LexisNexis, 2009) [1.5.3]. 30 Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 549. 31 Ballina Shire Council v Ringland (1994) 33 NSWLR 680.

presumptuous intention rather than the necessary demonstration of actual intention remain

necessary in statutory law; in its absence, the courts to assume that the basic underlying

principle of the law is to protect individual rights. Only when the clarity of words used is

completely specific that to rescind it would be impossible.

The International Bill of Rights includes the United Nations Declaration of Human

Rights (1948), the International Covenant of Economic, Social and Cultural Rights (1966) and

its optional protocol, and the International Covenant on Civil and Political Rights (1966) and

its optional protocol. The UNDHR is a non-binding declaration following the atrocities of

World Wars I & II that recognises equal and inalienable rights of human beings and that the

disregard of human rights is the cause for the outrageous acts of violence.32

Incorporating civil and political rights as well as economic, social and cultural rights, the non-binding status led to the adoption of the two conventions in 1966 in order to pressure states to embrace human

rights into domestic law.33

The preamble in ICESCR states that it recognises rights derive from

the inherent dignity of the human person and therefore the right to work in just and

favourable conditions,34

the right to an adequate standard of living,35

and the right to

education36

are the groundwork reinforcing individual happiness. The ICCPR on the other

hand, while containing the same preamble contained in ICESCR has detailed rights such as the

right to life,37

right to liberty and security of person,38

and right to be treated equally before the

court or tribunal.39

At stages during the very beginning of drafting the conventions, a schism of views as to

whether or not the ICESCR and the ICCPR are mutually exclusive or mutually dependent

occurred and whether the two conventions should be treated as separate or remain as one

treaty.40

For instance, the assumption that equality and freedom are both mutually dependent

contained a paradox that exposed a mutually exclusive phenomenon; providing freedom may

result in inequality whilst providing equality may require the sacrifice of freedom.

“A strict and mechanical equal distribution between all individuals

does not sufficiently take into account the differences among

individuals and their situations… With simple equality, personal

freedoms are unacceptably limited and distinctive individual qualities

32 Preamble, United Nations Declaration of Human Rights. 33 Articles 1-21 United Nations Declaration of Human Rights covers much of the International Covenant of Economic, Social and Cultural Rights and Article 22-29 of the United Nations Declaration of Human Rights covers much of the International Covenant of Civil and Political Rights. 34 Article 6& 7 ICESCR 35 Article 11 ISECR 36 Article 13 ICECR 37 Article 6 ICCPR 38 Article 9 ICCPR 39 Article 14 ICCPR 40 The drafting of the conventions had been ongoing from 1947 and took 19 years before it was ratified. See the Memorandum by the Secretary-General on the Draft International Covenant on Human Rights and Measures of Implementation, 6th Sess, UN Doc A/C.3/559 (November 5, 1955).

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insufficiently regarded; in this manner they are in fact unequally

regarded.”41

Human rights are essentially the adoption of the latter under the auspices that sacrificing

some proportional freedoms will nevertheless provide greater individual or moral freedom

through social peace and order. The chair of the Human Rights Council in 1947, Eleanor

Roosevelt, influenced the decision to divide the conventions into two and provided four reasons

for this division.42

1. Time, in particular the time required to develop the economic and social

conditions as they are progressive obligations; 2. Legal differences as civil and political rights

can easily be enacted in appropriate legislation; 3. Methods of implementation, for instance

civil and political rights has a complaint procedure, whereas economic, social and cultural

rights required a reporting procedure; 4. Drafting, whereby a broad language in economic,

social and cultural rights required ambiguity to assist with the broad objectives and differences

in states.43

Thus, civil and political rights can be understood as an individual exercising their

right against the state while economic, social and cultural rights can be understood as rights

being implemented by the state for the individual. The latter is largely dependent on the

economic and social conditions of the state, whereas the former is applied no matter the

conditions.

The economic conditions of some countries made the ideal of economic, social and cultural rights impossible to implement, however it was accepted that both ICESCR and

ICCPR are binding and equally important.44

ICESCR requires adequate economic and social

conditions that can assist in the realisation of the broad rights present within the convention.

The preamble of ICESCR states that: “[T]he ideal of free human beings enjoying civil and

political freedom and freedom from fear and want can only be achieved if conditions are

created whereby everyone may enjoy his civil and political rights, as well as his economic,

social and cultural rights.”45

International law as a whole is dependent on international cooperation and together with the process and vast expansion of globalisation and

transnational corporations together with the massive poverty visible in the Global South,

ICESCR is increasingly confronting parliamentarians and other state actors who are expected

to focus on the equal distribution of wealth.

International law has vastly changed since the gestational period of human rights; this is

particularly due to the process of globalisation. Whilst globalisation is itself a contentious topic,

41 Gosepath, Stefan, "Equality", The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), Edward N. Zalta (ed.), URL =

<http://plato.stanford.edu/archives/spr2011/entries/equality/>. 42 Statement on Draft Covenant on Human Rights, Eleanor Roosevelt, 1951. http://www.udhr.org/history/biographies/bioer.htm - please note that the United States delegation voted in 1946 in the General Assembly against the inclusion of economic, social and cultural rights in the same covenant with civil and political rights. The USA has signed but not ratified the convention of ICESCR till this day. 43 Ibid. 44 Op. Cit., Statement on Draft Covenant on Human Rights 45 Preamble ICCPR; please note that ISECR has the same preamble.

the role of financial institutions and the growing inequalities exposed the necessity of urgently

rather than progressively applying ICESCR into the broad framework of human rights.46

This

is particularly the case with the illegalities for the most part relating to foreign debt.47

The

rights of workers and migrant labourers, asylum seekers and refugees, and the cultural crises

and destruction of heritage exposes how international cooperation vis-à-vis the application of

ICESCR is necessary for the protection of the rights set forth in the convention. “The ICESCR

does not mention territory or jurisdiction as delimiting criteria for the scope and application

for the treaty. Instead, it refers to international and transnational dimensions of the realisation

of esc rights.”48

Part IV of ICESCR shows that reporting on the measure of adoption and progress relating to the rights set out in ICESCR must be made to the Secretary-General of the United

Nations.49

This implies that while it is generally accepted that economic and social conditions

are significant for the implementation of economic, social and cultural rights into domestic

legislation and thus may take time, the progress and reporting of the status of implementation

demonstrates that the implementation of ICESCR is still required. It must be understood that

with suitable economic and social conditions and therefore economic, social and cultural rights,

civil and political rights will capture its actual form; protesting political conditions becomes

null and void without an education or adequate housing. While ICESCR is broad and complex

and certainly contains elements that require a different attitude and method of implementation,

ESCR are nevertheless co-dependent on civil and political rights and vice-versa.

Economic, social and cultural rights are positive, resource intensive, progressive and

vague while civil and political rights are negative, cost-free, immediate and precise.50

Although states sign and ratify the conventions, it essentially relies on the good faith of legislative

representatives when applying or codifying international law into domestic legislation. Whilst

the problem relating to the enforcement of international human rights law has often focused

on the arguments using a top-down formula [should the UN impose states to implement

IHRL], it would be appropriate to instead focus on the problem of good-will relating to

Australian legislatures, as the former is an argument at this stage too circular and unnecessary.

It has been argued that since Australia is in an advantageous position both economically

and socially, unlike other nation-states that continue to experience civil, political and economic

discord and therefore require a codified Human Rights system to protect the rights of its

citizens, Australia does not need one as the political and judicial system already protects the

rights of its citizens. Contrary to this, reliance on common law traditions does not in effect

46 See the Report on the Commission IV – Globalisation, Social, Economic and Cultural Rights, IADL, XVII Congress, June 8, 2009. 47 Ibid 48 Fons Coomans, “Application of the International Covenant on Economic, Social and Cultural Rights in the framework of International Organisations.” Max Planck Yearbook of United Nations Law, Vol 11: 2007, 359 - 390 49 Article 16 ICESCR 50 Dr. Daniel Warner, “An Ethics of Human Rights: Two Interrelated Misunderstandings,” Denver Journal of International Law and Policy, Spring 1996.

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absolutely ensure the protection of fundamental rights and therefore without legislative

protection can fail to safeguard human rights. In Gifford v Strang Patrick Stevedoring Pty Ltd

McHugh J stated that modern legislatures often enact laws that invalidate or alter common law

rights.51

In addition, comparisons with other nation-states may show that to a degree our

human rights record is certainly good, but it does not necessarily imply that there remains no

room for improvement.52

Judicial independence is necessary in a democratic and free society to ensure that the law

is governed and administered impartially. “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.”53

The Nuremburg Trials, more notably The United States of America vs. Josef Altstötter, et al., exposed the prospective abuse of the judicial

process for ideological and political motivations and the importance of judicial independence. It

was at this time that safeguarding human rights became paramount to avoid any repetition of

Nazi Germany and the atrocities of World War Two. This led to the Universal Declaration of Human Rights, the beginning of a global endeavour to uphold and enforce human rights both

domestically and internationally.

Does Australia Need A Bill Of Rights?

It is claimed that Australia does not need a bill of human rights as both the constitutional and

common law systems protects the rights of individuals. During the Federal Convention when

the Australian constitution was being drafted, key member R. O’conner QC proposed that the

constitution should include a bill of rights as was documented in the British constitution.54

This never came to pass as a bill of rights would conflict with legislation at the time that

discriminated against particularly the indigenous populations.55

While there were many

attempts over the course of the last century to amend the constitution so that it can include

specific rights, there contains explicit individual rights including the right to vote56

, prohibition

51 Gifford v Strang Patrick Stevedoring Pty Ltd. (2003) 198 ALR 100 52 For instance, the treatment of Refugees and Asylum Seekers; M61/2010E v Commonwealth of Australia & Ors; M69 of 2010 v

Commonwealth of Australia & Ors held that off-shore processing failed to observe the requirements of procedural fairness as set out in

the provisions of the Migration Act 1958 (CTH). Also see the “Review of the Power to Proscribe Organisations as Terrorist Organisations”

Submission of the Office of the High Commissioner for Refugees, 16th April 2007 relating to anti-terror legislation and proscribing terrorist

organisations. 53 Judicial Independence, The Australian Judicial Conference, University House, Australian National University, The Hon Sir Gerard Brennan, AC KBE, Chief Justice of Australia, 2 November 1996 54 A Bill of Rights for Australia - But do we need it? Date: 14 December 1997 Organisation: Queensland Chapter - Young Presidents Association 55 For instance, the White Australia Policy and Immigration Restriction Act of 1901 56 § 41 Commonwealth of Australia Constitution Act

of discrimination on the bases of State residency57

, right to a trial by jury58

, protection against

acquisition of property on unjust terms,59

and importantly freedom of religion.60

Additionally,

the language as expressed in the constitution can also infer freedom of speech particularly to

discuss political issues.61

Another important argument is that Australia’ common law system protects the rights of

individuals; however there has been some debate over its effectiveness. Initially, the

constitution did not specifically guarantee the protection of the rights and freedoms established

through common law procedures against any legislative challenges. “Although Commonwealth

statutes in Australia are made under a written constitution, the Constitution does not in terms

guarantee common law rights and freedoms against legislative incursion.”62

This was clearly visible with the recognition of Native Title in 1992, which through the judgement in Mabo vs Queensland (No 2) agreed [Dawson J dissenting] that there is an entitlement at common law

that recognises Native Title of the indigenous inhabitants.63

The case itself also presented the

purpose of common law as effectively being a system to promote human rights.

“According to the cases, the common law itself took from indigenous

inhabitants any right to occupy their traditional land, exposed them to

deprivation of the religious, cultural and economic sustenance which the

land provides, vested the land effectively in the control of the Imperial

authorities without any right to compensation and made the indigenous

inhabitants intruders in their own homes and mendicants for a place to

live. Judged by any civilized standard, such a law is unjust and its claim

to be part of the common law to be applied in contemporary Australia

must be questioned.”64

The relationship between the judicial, legislative and executive branches of governance has

always been problematic and an important discussion on safeguarding human rights also

includes the relationship between democracy and the law. Good governance and the rule of law

are considered to be the foundation to a society that upholds human rights, but the primary

component is democracy and the election of parliamentarians by the people. Whilst it would be

unfeasible for me to discuss the relationship of democracy, the rule of law and human rights

with the limited word count that I have in this essay, I will briefly discuss the issue of

unelected judges. The success of Australia’s common law system has been based on the

57 Ibid., §117 58 Ibid., §80 59 Ibid., §51 60 Ibid., §116 61 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. 62 Op. Cit., The Common Law and the Protection of Human Rights 63 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 64. 64 Ibid., 28.

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independence of the judicial system from politics and social policy and should statutory

legislation such as a Human Rights Act be implemented in Australia, would that position

judges as functioning social policy agents that consequently may cause tensions with judicial

independence?65

And if that were so, as unelected judges how can we resolve the problem

between democracy and the rule of law? This argument exposes important tensions between

the rule of law and democracy and concludes that enforcing a Bill of Rights in Australia

requires time and research.

In addition to the abovementioned, Australia also has other important safeguards to

human rights without a Bill of Rights, which include anti-discrimination laws66

together with the Human Rights Commission following the implementation of Australian Human Rights Commission Act 1986 that ensures the protection of individuals from discrimination in

Australia. Other issues relating to the problems implementing a bill of rights includes the

difficulties legislating civil and political rights. While I have already spoken of how a Bill of

Rights could actually limit rights earlier, I will express another issue not yet spoken of.

Universality is a philosophical doctrine that purports all significant ethical principles are

consistent between all individuals, no matter their geographical location, religion, sex or any

other arrangement that distinctly separates and/or collectively assembles communities or

beliefs. The ‘state of nature’ as discussed by philosophers such as Thomas Hobbes, John Locke,

and Jean-Jacques Rousseau among others suggests that innate human characteristics are the

same and that society or civilisation and religion or cultural systems are created structures that

promotes unity and therefore order. The application of both human rights and universality

thus encourages a paradox that includes both a positive and negative algorithm; a double-

standard of tolerance and rights as principles that must be categorically applied universally and

that appears to lack sensitivity to belief-systems. Cultural relativism exposes that the very

concept of universality fails to adhere to the model of tolerance and acceptance.

Nonetheless, the case for a Bill of Rights continues and the growing support of it over

the recent years is proving the case to implement human rights laws as strong. “There are still

areas in which the domestic legal system does not provide an effective remedy to persons

whose rights under the [International Covenant on Civil and Political Rights] have been

violated … [Australia] should take measures to give effect to all Covenant rights and

freedoms.”67

Whereas I spoke of earlier regarding the risk of judicial independence, another argument for a Bill of Rights state that it will overcome the limits of judicial power and ensure that the rights of individuals supersedes the power of the government and in effect

strengthening democracy.68

65 Op. Cit., The Common Law and the Protection of Human Rights 66 Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 1996 67 Concluding observations of the Human Rights Committee: Australia, UN Doc. CCPR/CO/69 AUS, 28 July 2000 68 Anthony Mason, “Human Rights: Interpretation, Declarations of Inconsistency and the Limits of Judicial Power” New Zealand Journal of Public and International Law Volume 9 Issue 1 (June 2011)

Conclusion

The principle of legality is multi-layered and faceted and involves an understanding of a

multitude of ambiguous issues, including human rights and the definition of fundamental

rights, philosophical problems such as how universality conflicts with fundamental freedoms

ingrained within the principle of legality, the position of unelected judges, the relationship

between the judicial, executive and parliament branches of governance, whether common law

procedures are not safeguarded from legislatures whom can simply create new laws that

distress any court made decisions among many more. However, it can be assumed that with

the human rights track record of Australia, judicial independence, economic and social

conditions that promote well-being together with our excellent common law system and the

principle of legality, codifying what is already a very complex subject may not be an absolute

requirement at this point in time.

It is well known that Australia is the only democratic State in the world that does not

have a Bill of Rights. The Human Rights and Responsibilities Charter 2006 is the first in

Australia’s history to be enacted and ensure that a culture of equality and rights are established

upon the principles of international human rights law. While many declare that human rights

in Australia already exists through parliamentary representatives and common law processes,

concerns relating to the reliability of good-will without codification of rights or other forms of

accountability may lead to an abuse of human rights.

The key word in the question for this essay is adequate; does the principle of legality

provide an adequate safeguard for human rights in Australia and essentially it does. But

whether adequate is enough raises the question of what more can be done to ensure that

Australia safeguards its human rights obligations. Issues such as off-shore processing and the

treatment of asylum seekers and refugees together with the treatment of the indigenous

population exposes that adequate may not enough. At the same time, the process for

safeguarding human rights requires time and progress – as is visible in the United Kingdom –

and it can be assumed that gradual progress is being made. Any bill of rights or human rights

act will need to be considered a “living document” whereby the courts will consistently

interpret on a case-by-case basis. The major issue was to ensure that legislators adapt bills that

are consistent with human rights norms as expected by international bodies, and with the

development of Human Rights (Parliamentary Scrutiny) Act 2011, the gradual process to

safeguarding human rights is certainly on its way.

15

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