Objections of the Law Council

Michael Gill

Michael Gill is President of the Law Council of Australia.

This article covers some of the major reservations of the Law Council of Australia to the Bill of Rights in its present form.  They include the implication of discrepancies between the Bill and the UN Covenant on which the Bill is based, the vagueness of statements qualifying articles in the Bill, the impact of the Bill on State laws and the powers of the proposed Human Rights and Equal Opportunity Commission.  This article is reprinted with permission from Australian Law News, March 1986.

When a committee of the Law Council of Australia sat down to consider the question "Does Australia need a Bill of Rights?", the lawyers around the table -- like the community as a whole -- were unable to come up with a clear-cut answer.

The Law Council of Australia is the national body representing more than 20,000 Australian lawyers.  It has not expressed a view one way or the other on the basic question of whether Australia needs a Bill of Rights.  What it does say, however, is that there is cause for serious concern with the present proposals for a Bill of Rights and the powerful Human Rights and Equal Opportunity Commission.

If Australia is going to have a Bill of Rights, then it should be the best Bill of Rights that can be put together and the present proposal is not that.

The Law Council was concerned that the Bill of Rights legislation and the legislation to set up the new Human Rights and Equal Opportunity Commission were proceeding through the Federal Parliament without the community having sufficient opportunity to fully consider the implications of the proposals.  The Council believed that there should also be an opportunity for widespread public debate on these issues of fundamental importance.

The Council therefore in October and November strongly urged the Government and the Parliament to defer further debate on the legislation in 1985.  The Council's objective was to ensure that more time was allowed for thorough Parliamentary and public discussion of the proposals.

The Council welcomed the Government's decision on November 26 to take the legislation off the Senate Notice Paper.  I hope, through this article, to contribute to the continuing public debate.

What is it about the Government's current proposals that worries the Law Council?  There are many matters on which the Council has put its views to the Government.  I can mention only some of them here.

FOSSILISING RIGHTS

The Law Council is concerned that instead of preserving existing rights that will not be enshrined in the Bill of Rights, the present legislation, if passed, could have the effect of inhibiting the grant to individuals of further rights which might otherwise have been recognised by courts in the future.  In other words, there is a danger that the Bill of Rights might fossilise rights at their existing level.

Rights might be fossilised in another way.  Rights are appropriate in today's society may not be either appropriate or relevant in a later society.  What is relevant today may be an anachronism tomorrow.  An example is provided by the right to bear arms which is guaranteed by the Constitution of the United States.  We should not encumber future generations with today's notions of what should be guaranteed as fundamental freedoms or rights.

DIFFERENCES FROM INTERNATIONAL COVENANT

The Bill of Rights is set out in the Australian Bill of Rights Bill 1985.  The Bill of Rights is modelled on, but is not identical with, the International Covenant on Civil and Political Rights.  The fact that the Bill and the Covenant are not identical raises questions in lawyers' minds as to the constitutional validity of the Bill of Rights.

The Law Council has not expressed a view on the constitutional validity of the legislation, but it has drawn the attention of the Parliament to the limitations on the use of the external affairs power of the Constitution.  One of those limitations appears to mean that the Bill should adhere to the terms of the Covenant and give effect to the Covenant.  If the Parliament were to pass an Act which went beyond what the Covenant authorised, the Act may be invalid.

Of course there is room for debate, and there has been debate in the Courts, on the extent to which legislation must adhere to the terms of a treaty.  In the case of the Bill of Rights legislation, the extent to which the Bill departs from the Covenant raises serious questions as to the constitutional validity of the legislation.

Two articles in the Australian Bill of Rights which provide examples of significant departures from the International Covenant are Articles 3.1 and 4.2

Article 3.1 provides:

"The rights and freedoms set out in this Bill of Rights are subject only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society."

Article 4.2 provides:

"Nothing in this Bill of Rights affects the operation of any earlier or later law by reason only of the fact that the law discriminates in favour of a class of persons for the purpose of redressing any disabilities particularly suffered by that class or arising from discrimination against that class."

Neither of these articles has any counterpart in the International Covenant.  As will be demonstrated a little later, both articles are of fundamental importance in giving effect to the Bill of Rights.  The inclusion of these articles, despite their being absent from the International Covenant, might lead to constitutional difficulties.

The Parliament seems to have some concerns that parts of the Act may exceed its legislative powers.  Clause 47 of the Bill is designed to deal with this possibility.  The effect of Clause 47 is that if any part of the Bill exceeds the legislative power of the Commonwealth Parliament, the Bill shall operate as if the offending provision were omitted from the Bill of Rights.  Article 4.2 of the Bill of Rights may cause difficulties for this intended operation of Clause 47 of the Bill.

Article 4.2 is designed to ensure that laws which permit benign discrimination or affirmative action are not invalidated by other parts of the Bill of Rights.  Its operation therefore will colour the manner in which courts interpret and apply certain of the rights and freedoms set out in the Bill of Rights.  Because of its pervasive effect it seems unlikely that it could be dropped from the Bill without altering the manner in which the courts have previously interpreted the effect to be given to those rights and freedoms.

Even as the Bill now stands, Article 4.2 directs the manner in which the Bill of Rights is to be interpreted.  If Article 4.2 is omitted, another interpretation in some circumstances might be adopted.  The omission or inclusion of Article 4.2 may well affect the validity of laws which provide for affirmative action or benign discrimination.

It might be added that Article 4.2 has the capacity to detract from Article 4.1 which says:

"Every person has the right without any discrimination to the equal protection of the law."

In other words, the rights guaranteed by Article 4.1 are subject to the group rights favoured by the government of any particular day which are permitted by Article 4.2.  Article 4.2 acknowledges that at different times there may be different forms of group rights.  This is hardly consistent with the notion that the Bill of Rights provides a charter of fundamental freedoms.

This approach is quite different from that provided in the International Covenant.  Unlike the Australian Bill of Rights, the International Covenant prohibits any form of discrimination.  The Law Council believes that Article 4.2 should be deleted from the Bill or at least amended to conform with the Covenant.

It can be seen therefore that Article 3.1 and 4.2 represent substantial departures from the terms of the Covenant which call into question the constitutional validity of the Bill.

PERMISSIBLE LIMITATIONS

This brings us to the question of limitations or qualifications on certain rights or freedoms.  Some of the fundamental guarantees are expressed very widely.  The International Covenant recognises that some of the rights are not absolute and must be qualified in respect of such important matters as the protection of national security, public safety, public order and public health.  Many of the rights in the International Covenant are qualified by limitations which appear in the same paragraph as provides for the fundamental freedom or right.

The difficulty with the Bill of Rights is that it provides for these qualifications in a way that is quite different from the way they are dealt with in the Covenant.  While the Covenant is quite specific as to how each fundamental right or freedom is qualified, the Bill of Rights refers to limitations and qualifications in a very general way, but more importantly it does not specify which articles in the Bill should be qualified or how they should be qualified.

The Bill of Rights provides in Article 3 two broad grounds of permissible limitation.  It does not repeat the limitations in the International Covenant.  Instead, it provides two hurdles which a person seeking to uphold an existing law must clear if the law is not to be struck down by the Bill of Rights.  The first is Article 3.1 which has already been noted.  The second is Article 3.2, which says:

"A right or freedom set out in this Bill of Rights shall not be limited by any law to any greater extent than is permitted by the International Covenant on Civil and Political Rights."

This is an indirect way of incorporating the qualifications contained in the International Covenant.  The problem is that it does not in any way indicate which of the qualifications are to apply to which of the rights and freedoms guaranteed in the Bill of Rights.

In addition to having to demonstrate that the law under challenge does not limit the rights or freedoms in the Bill to any greater extent than is permitted by the International Covenant, Article 3.1 creates a second test of permissible limitation which is extraordinarily difficult to justify.

A limitation will be permitted only if it "can be demonstrably justified in a free and democratic society."  What does this mean?  What is a free and democratic society?  How do you judge whether a society is free and democratic?  There are no satisfactory benchmarks by which to judge the law.

The burden of proving that a particular law is "demonstrably justified" suggests that it must be patently clear.  Is it required to be so certain as to admit of no qualification?

This second test is not to be found in the International Covenant.  Its inclusion will create great uncertainty and provide a difficult task for anyone seeking to uphold a law.

UNCERTAINTY ON LIBEL

An example of the uncertainties is provided in the laws of libel.  The International Covenant recognises that freedom of opinion and speech should be qualified.  The limitations are set out in the same paragraph as guarantees the freedom.  However, if the laws of libel are challenged as being contrary to the Bill of Rights, a person seeking to rely on them will have to be able to discharge the onus of proof which, as pointed out above, is going to be extraordinarily difficult.

The difficulty can be illustrated by pointing to the fact that the Standing Committee of Attorneys-General is still unable to agree and adopt the Australian Law Reform Commission's 1979 report concerning reforms to the laws of defamation.

The same sort of problem arises in relation to other parts of the Bill of Rights.  Article 20 says that no person shall be held in slavery or servitude or be required to perform forced or compulsory labour.  The same article in the International Covenant recognises that laws enabling courts to order penalties of imprisonment with hard labour and community work orders are recognised as appropriate limitations on the right not to be held in slavery or servitude.  But if a challenge to Australian laws is to imprisonment or community work orders is made, the person seeking to answer the challenge will have to satisfy Article 3.1 in addition to relying on any qualifications contained in the International Covenant.  It may be quite difficult to do so -- many would contend it is unnecessary to do so.

The Government says that the qualifications in the International Covenant were not reproduced in each relevant article of the Bill of Rights because of the Government's view that there was a need to produce "an inspirational charter of rights in a simple declaratory style".  Whilst there is much to be said for a simple proclamation of rights, the Law Council does not support the use of a simple declaratory style if it is going to lead to uncertainty and to expensive litigation to clarify its meaning.

The declaratory style of the International Covenant does not suffer from the inclusion of these qualifications and limitations.  A document of such fundamental importance as the Bill of Rights should aim at certainty and clarity, with a view to avoiding unnecessary litigation.

In fact there are a number of areas in the legislation which have considerable potential to lead to protracted and expensive litigation, which plainly would be contrary to the public interest as well as having the potential to lead to uncertainty as to the operation of a number of laws.

Some of these potentially litigious areas occur in the context of:

• constitutional questions
• possible conflict between Articles within the Bill of Rights itself
• justifying limitations on the rights and freedoms guaranteed in the Bill of Rights
• the uncertainty of the meaning of the operation of the terms of the Bill of Rights and
• the delay and added expense of the "removal of causes" from State Courts to the Federal Court as provided for in the Bill of Rights.

LIMITATIONS OF RIGHTS TO "PERSONS"

The limitation of rights and freedoms set out in the Bill of Rights to "natural persons" raises the question as to who, legally speaking, is a person.  Does the expression "natural persons" include unborn children?

A separate issue is whether the rights and protections in the Bill of Rights should be extended to companies and corporations.  While a number of the rights in both the Covenant and the Bill of Rights are appropriate only to natural persons, there is no reason why other rights and freedoms contained in these documents should not be available also to corporations.

For example, the right to freedom of expression should be available to a corporation just as it is to an individual.  Indeed, the limitation of these freedoms to natural persons could create difficulties for corporations which are engaged in the media.  As the Bill is at present drawn, the media would not be entitled to the freedom of opinion and speech guaranteed by the Bill.

EFFECT ON STATE LAWS

An area of major importance is the potential effect of the Bill of Rights upon State laws.  This matter needs to be clarified.  As at present drawn, the Bill does not directly affect State laws but has a capacity to affect them indirectly and significantly.

The Attorney-General, in a speech in Melbourne in August 1985, said:

"The fact that the Bill of Rights will not override of its own force inconsistent State laws does not mean that the Commonwealth will fail to act where the Commission recommends legislative change by the States and they fail to do so."

The Attorney-General was referring to the proposed new Human Rights and Equal Opportunity Commission, which will be discussed later.  What is clear at this stage is that the Bill of Rights does have a capacity to have a significant effect on State laws if a report of the Commission tabled in Federal Parliament recommends changes in State laws, and those changes are not made.  The Law Council believes that, at the least, if there is to be any effect upon State laws, that effect should be universal so that there is not potential for any one State to be singled out.

The Council believes the proposed Human Rights and Equal Opportunity Commission has the potential to be used as a lever to put pressure on State Governments to change their laws.  Of particular concern to the Council is the fact that before the Commission can investigate State laws, the consent of the responsible Federal Minister must be obtained.  This provision clearly has the potential for abuse for political motives.  The Council believes that any capacity for arbitrary or discretionary power for governments to act in this way should be removed.

THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

When it looks at the powers and functions of the proposed Human Rights and Equal Opportunity Commission, again the Law Council has serious concerns.

The Council shares the concern of the Senate Standing Committee on Constitutional and Legal Affairs about the possible incompatibility of the range of functions which the Commission will be required to perform -- a question which has already arisen in relation to the existing Human Rights Commission.

The Senate Committee has expressed concern about the decision-making function of the present Commission under the Sex Discrimination Act conflicting, or at least being seen to conflict, with its conciliation and educational activities.

The Law Council's concerns go further than those expressed by the Senate Standing Committee.  In investigating complaints made to it, and in performing related tasks, the Commission would have power to do anything necessary or convenient to be done in the exercise of its powers.  It can command persons to appear before it and to produce documents.  In conducting inquiries it may order compulsory conferences.  The Commission may act in any manner it sees fit and is not bound by the rules of evidence.  Inquiries and conferences can be held in private and persons called before the Commission for such inquiries or conferences would have no right to be legally represented.  It is in effect both prosecutor and judge.

The Commission has very wide powers of investigation, decision-making, conciliation and settlement.  These are supplemented by its power to report its findings to Parliament when no settlement can be effected.  The Law Council thinks this is an unacceptable mix of functions.

The Law Council believes the proposed Commission's decision-making function should be vested in a separate tribunal.  The Council is strongly of the view that the decision-making tribunal ought to be either the courts or, at the least, the Administrative Appeals Tribunal (or some new division of it).

The Commission's proposed powers are so wide-ranging and the Commission, in the exercise of them, may so seriously affect the position of individual citizens that the Law Council believes the legislation in its present form cannot be supported.

The Law Council cannot support legislation which, as this legislation does, permits one body to act as both prosecutor and judge in the same cause.

ASSURANCES NOT ENOUGH

We believe that fundamental questions such as these cannot be solved merely by assurances that the persons who will be appointed to the Commission will be of such high standing that there is no likelihood that they would abuse their powers.  It is not the likelihood of abuse which concerns us -- it is the potential for abuse which the granting of such powers to an unrepresentative and non-judicial body creates.

We are also concerned that the Commission is given power to preserve the anonymity of a person who makes a complaint or who assists the Commission.  We see this as a serious impairment of the right -- long recognised in our judicial system -- to be able to confront one's accuser and to test the evidence given by him and by those who have given evidence on his behalf.

The ability to know one's accuser may occur if the Commission calls a compulsory conference.  However, the Commission has power to conduct inquiries without necessarily calling compulsory conferences, and a wide discretion is vested in the person presiding at the conference as to the way the conference is conducted.  Thus the accuser may not be present.  The Law Council believes that the ability of a person to know and to properly answer any complaint against him is very severely circumscribed by the legislation in its present form.

The Commission would have power to compel the attendance of any person before it to answer any question relevant to an inquiry.  The Commission could require the evidence to be given on oath or affirmation, and impose penalties for failure to comply with the requirement to attend and give evidence.  The privilege against self-incrimination would be removed -- a step which would appear to be at odds with the whole notion of a Bill of Rights.

This defect, in the Law Council's opinion, is not remedied by the provision which says that the information given is not admissible in evidence against that person in other proceedings.  Anyone familiar with the operation of clauses of this kind knows how easily they are circumvented in practice.  The privilege against self-incrimination should not be removed by the Bill of Rights.

Persons required to attend compulsory conferences should be entitled to the legal representation of their choice or to representation by some other agent if that is their wish.

DANGER IN SECRECY

The requirement as to secrecy should be removed.  There is too great a potential for abuse if conferences are held behind closed doors and if those affected are not entitled to legal representation.

There is no means of any kind in the Bill of Rights by which decisions of the Commission would be subject to review and, given the penalties which might be imposed and the possible consequences of an infringement of the Bill of Rights, the Law Council believes that such review is desirable.

It is true that the Bill of Rights provides that the Commission shall not furnish a report to the Minister in relation to what the Commission believes to be an infringement of a right or freedom set out in the Bill of Rights until it has given a reasonable opportunity to the persons concerned and to the responsible Minister to make submissions to the Commission.  This is not good enough.

Careers may be ruined by reports of the Commission.  The Commission would have power to recommend payment of compensation to people whose rights and freedoms have been violated by governmental action, and the legislation therefore creates legitimate expectation in that regard.

In the light of these things, people affected by reports of the Commission ought to have the right to state their case before the Commission has, in effect, made up its mind.

The comments which the Law Council has made on the powers and functions of the Commission have focussed mainly on the powers and functions conferred on the Commission by the Australian Bill of Rights Bill.  The Commission would have parallel powers in respect of other areas of its responsibilities, and the Law Council voices parallel concerns about that.

There are other concerns of the Law Council with the Bill.  I have not dealt with them all.  Nor have I referred to all of the Council's concerns as to the manner in which some of the rights and freedoms in the Bill are expressed.  They have been referred by the Law Council to the Parliament.  One concern is that the rights and freedoms are expressed in terms which are so general and vague that they will require a considerable volume of litigation to resolve their meaning.  The Law Council is concerned that, where possible, doubt should be removed before the Bill becomes law.

In its written submissions to the Government and parliamentarians, the Law Council has drawn attention to some areas of difficulty and concern with the legislation.  A large number of other questions also exists.

In short, the Law Council believes that a great deal more thought should be given to the whole question of a Bill of Rights and its contents and to the powers and operation of any organisation to be set up to enforce it.