The Charter of Rights debate: a battle of the models.

• Author: Kolodizner, Irina

Abstract

Since the Hon Robert McClelland launched the National Human Rights Consultation on 10 December 2008, policy and legislative circles have been abuzz with talk of shoring up Australia's commitment to the protection of human rights and the potential enactment of a Charter of Rights. This article seeks to contribute to the debate by comparing the two dominant models of statutory Charter mechanism that have been on the policy table: the dialogue model, which parallels statutory models adopted in the UK as well as domestically in Victoria and the ACT; and the model based on the Canadian Bill of Rights, proffered by the Hon Michael McHugh AC QC. Ultimately, utilising the issue of asylum seekers as a case in point, it is concluded that while the dialogue model carries greater conceptual weight, the model proffered by the Hon Michael McHugh is a more practical model of redress for individual human rights grievances.

Introduction

Since the enactment of the Human Rights Act 1998 (UK) ('HRA') in the UK, Australia remains the only common law jurisdiction without a comprehensive system of legislative or constitutional human rights protection. (1) In an effort to redress this state of affairs, on 10 December 2008, Federal Attorney-General Robert McClelland launched the National Human Rights Consultation, signalling the Federal Government's commitment to exploring and addressing the gaps in Australia's human rights protection through a range of measures, including the potential enactment of a federal statutory charter of rights ('Charter'). On 21 April 2009, the Hon Robert McClelland announced the end product of this exploration--the establishment of a National Human Rights Framework, which reiterated the Federal Government's commitment to promoting and protecting human rights, while rejecting the enactment of a legislative Charter. Given the significance of a Charter for Australia and the controversy surrounding its recent rejection from the Australian human rights policy fore, the time is ripe for an evaluation of the two dominant statutory Charter models on the policy table. This analysis seeks to rise to the challenge.

After tracing the development of the Charter movement in Australia, this article will compare and contrast the two dominant models of statutory Charter mechanism under consideration--the dialogue model, mirroring the approach adopted in the United Kingdom ('UK'), New Zealand, as well as Victoria and the Australian Capital Territory ('ACT'); and model proffered by the Hon Michael McHugh AC QC (the McHugh model) based on the Canadian Bill of Rights. Focusing pragmatically on the outcomes and remedies effectuated by each model, this article will evaluate the efficacy of the models both conceptually and in practice, by reference to the issue of the mandatory detention of asylum seekers generally and the case of Al-Kateb v Godwin ('Al-Kateb') (2) specifically. Ultimately, while the dialogue model carries greater conceptual weight, a re-evaluation of Al-Kateb in the light of both models demonstrates that the McHugh model is a more practical mode of redress for individual human rights grievances.

1. The Charter of Rights Movement: State of play

Human rights and the rights protection movement have gained currency since World War II amidst growing concern to curb discrimination against minorities and protect the rights and freedoms of individuals from abuse by State power. (3)

The picture of rights protection in Australia, however, is hard to pin down. (4) While the Constitution provides some express rights, these are relatively scarce and obscure. (5) The High Court has recognised an implied constitutional right to free political communication, which pales in comparison to the broader right of free speech recognised in jurisdictions such as the United States ('US'). Australia is also a party to the two primary international human rights instruments--the International Covenant on Civil and Political Rights ('ICCPR') (6) and the International Covenant on Economic, Social and Cultural Rights ('ICESCR'), (7) as well as the several thematic human rights conventions elaborating on certain rights within these international covenants. (8) However, the High Court has confirmed many times that entry into an international treaty is an executive act that does not give rise to domestic rights and obligations until given domestic legislative effect. (9) Some rights have been recognised directly through legislation, such as the federal anti-discrimination statutes (race, sex, disability and age discrimination acts). (10) Other rights, such as the right to a fair trial or privacy, are protected under a hybrid system of legislation and common law. Thus, some rights enjoy strong protection, with an accompanying right to commence an action in the courts and seek a remedy, while others are not recognised at all. As a result, the primary means for individuals to obtain redress for alleged violations of the majority of their rights under the international covenants is by complaint to United Nations committees whose competence Australia has accepted. (11) This brief overview reflects that Australian federal rights protection is ad hoc and piecemeal, or as Hely puts it, 'uneven'. (12)

This state of affairs has spurred both criticism of Australia's human rights protections as inadequate and a burgeoning charter of rights movement, the voice of which could be heard as far back as Federation. Since the 1898 Constitutional Convention rejected a proposal for a constitutional Bill of Rights, a number of attempts to implement a legislative Bill have been made: in 1973, 1985, 1988, 2000, and twice in 2001. (13) None of these have proven successful. In part, the failure of these attempts is attributable to dissenters, who argue that existing constitutional and statutory protections are sufficient and that codification of human rights may freeze their development. (14) Recent developments have, however, muted critics to some extent. Since the enactment of the UK's HRA in 1998, Australia is the only western democracy without a national Charter or Bill of Rights. (15) In light of Canada's, New Zealand's and the UK's enactment of Charters (the first constitutional, the others statutory) in 1960, 1990 and 1998 respectively, as well as the continued operation of the US Bill of Rights, Australia's common law rights protection tradition has been threatened with intellectual isolation. (16)

In recognition of this threat and the possibility for Australia to 'do better' (17), Federal Attorney-General Robert McClelland announced, on 10 December 2008, the establishment of a National Human Rights Consultation ('NHRC') headed by Jesuit priest Father Frank Brennan, which was intended to set the agenda for the development of a federal statutory Charter--a Human Rights Act--in Australia. The NHRC's terms of reference were prefaced by the statement:

The Australian Government is committed to the protection and promotion of human rights ... the protection and promotion of human rights is a question of national importance for all Australians. (18) The move followed the enactment of the Human Rights Act 2004 (ACT), and the Charter of Human Rights and Responsibilities Act 2006 (Vic), which were likely to be pertinent legislative models for the Charter.

According to the Law Council of Australia, a Charter would fill the gaps in rights protection currently pervading the system; clearly enunciate a list of protected rights; promote a culture of respect for human rights; hold law and decision-makers accountable for the human rights implications of their determinations; provide a framework for courts to use in the determination of human rights violations; and become a crucial facet of Australia's national and international identity. (19)

The key issue before the NHRC was what operational form or model of federal legislation the Charter should reflect. The crux of the controversy the NHRC was required to address was the relationship between the Charter and the courts--specifically, the power of the courts to issue declarations of incompatibility under the 'dialogue model' operating in the ACT and Victoria, and the availability of remedies once claims are brought before federal courts.

On 30 September 2009, the NHRC Committee handed its final report to Federal Attorney-General Robert McClelland. In that report, the NHRC Committee explicitly recommended the adoption of a federal Human Rights Act based on the dialogue model. Of the 31 recommendations made in that report, 13 focused on the content and operation of the Human Rights Act and five addressed elements of the practical application of the dialogue model.

On 21 April 2010, the Attorney-General announced the culmination and outcome of the process of review undertaken by the NHRC--the launch of a National Human Rights Framework, which primarily contemplated the investment of over A$12 million in a suite of human rights education initiatives; establishment of a Parliamentary Joint Committee on Human Rights to scrutinise legislative compliance with international human rights obligations and requiring all new Bills to be accompanied by statements of compatibility with international human rights obligations; consolidation of federal anti-discrimination laws into a single Act; and creation of an annual NGO Human Rights Forum.

Despite reaffirming the Federal Government's...