This essay was submitted to the PLN’s policy essay competition and placed in the Top 5. It responds to the question ‘What is the most important public interest law issue of this new decade?’
Written by Kelly Phan.
The most important public interest law issue of this decade is Australia’s search for federal human rights protection. Australia should adopt a federal Human Rights Bill that is, at the very least, a ‘dialogue model’ recommended by the National Consultation Report. The restrictions on civil and political rights during the COVID-19 pandemic has highlighted a gap in Australia’s human rights protection. In times of crisis, draconian measures that limit our human rights are necessary, yet also demonstrate that no matter how extreme our circumstances may be, there are lines that must not be crossed.
I. HUMAN RIGHTS IN AUSTRALIA
Australia has a ‘patchwork’ system for human rights protection. Federally, Australia’s lack of formal human rights protection creates an executive and legislative monopoly on human rights protection with little scope for judicial participation. There are several express rights that are constitutionally protected, such as the right to trial by jury (section 80) and freedom of religion (section 116). There are limited implied constitutional rights that the judiciary has deemed necessary for the proper functioning of representative government and separation of powers. For example, the implied freedom of political communication was established to ensure that Parliament could not legislate to restrict any form of communication that has the potential to affect government or political matters. However, it is limited to protecting democratic interests, excluding any form of a blanket freedom of speech granted for individuals.
This was confirmed in the recent case of Banerij, where the High Court of Australia unanimously stated that Australians are not entitled to a personal right to freedom of speech. In this case, the High Court did not consider Australia’s international obligations under the International Covenant on Civil and Political Rights. This is because international human rights law is non-binding unless the Commonwealth passes domestic legislation that implements ratified treaties. The federal government has not implemented any international human rights treaties in full. Existing human rights protections, such as the Racial Discrimination Act 1975 (Cth), are contained in ordinary statutes which means that they can be repealed in later legislation, leaving Australia’s human rights subject to the whim of Parliament. Additionally, the judiciary does not easily allow international human rights law to influence the common law, preferring to apply rules of statutory interpretation such as the principle of legality. This presumes that Parliament legislates consistently with their international obligations and common law rights but may be overridden through evidence of express intention by Parliament.
The justification for this system rests on parliamentary sovereignty and responsible government. These principles hold great confidence in Parliament’s ability to uphold the rights of individuals. This Diceyan doctrine that emerged in the United Kingdom of the ‘supreme legislature’ rejected the idea of human rights as incompatible with parliamentary sovereignty. This is because it restricts democratic power by increasing ‘the responsibility of the Judiciary to protect human rights, giving it a role that should primarily be the responsibility of Parliament’.
Parliamentary sovereignty assumes that Parliament is the greatest repository of citizens’ interests. Responsible government assumes that the executive is responsible to the legislature and the legislature is responsible to the people through the accountability of elections. However, these principles fail minority groups who are highly marginalised, such as Indigenous Australians, who often have issues the majority are ignorant to. It also presumes that the source of laws will ensure the quality of laws, which at best, only protects the privileges of the majority. Now, we are in an era where even the United Kingdom has adopted Human Rights Act 1988 (UK) to incorporate their international obligations. Therefore, we must ask ourselves whether the sanctity of traditional Diceyan parliamentary sovereignty is worth protecting.
Australia’s patchwork model was criticised in the National Consultation Report, leading to the recommendation of a statutory human rights instrument based on a ‘dialogue model’. This model is implemented at the state level in Victoria, the Australian Capital Territory and Queensland and internationally in Canada and New Zealand. However, this model was rejected by the federal government of the day.
Would a federal statutory human rights instrument give Banerij the outcome she wanted? This is unlikely. Firstly, courts may not invalidate the problematic law, they are restricted to issuing an unenforceable declaration of an inconsistent application. Even if there was a power to invalidate laws, it was also noted by Justice Gageler that in jurisdictions such as the United States and Canada, which have constitutional (US) and statutory (Canada) human rights bills, such freedom of speech considerations must be balanced against the maintenance of an efficient public service. The majority considered a similar balancing test under the implied freedom of politician communication as per Wotton. It is paramount that the exercise of section 3(a) of the Public Service Act against Banerij sought to establish an apolitical public service. This was an unquestionably legitimate and a justifiable limit on political communication. If the judiciary can successfully produce a just outcome under an implied freedom of political communication, we should question the executive’s and legislature’s distrust of the judiciary’s ability to apply a Human Rights Bill that contains a power to invalidate laws in an objective and fair manner.
The COVID-19 pandemic is a real-time simulation of governmental decision-making processes when balancing human rights, namely the right to life or health against freedom of movement, privacy and protest. One observation from the pandemic is that emergencies highlight the urgent need for uniform tests for limiting human rights in a manner that produce proportionate outcomes. Currently, these tests differ according to the instrument. Under the Victorian Charter, the limit must be ‘demonstrably justified in a free and democratic society based on human dignity, equality and freedom’. Under the ICCPR, the need for restrictions on the freedom of movement are permissible if necessary to protect public health. Such limitations are judged according to the principle of proportionality and the Siracusa Principles which require, for example, that restrictions must be directed towards a legitimate objective.
Another observation is that the Australian judiciary has been remarkably uninvolved in the process of balancing human rights during the pandemic. Individuals cannot challenge any law or regulation made under the Biosecurity Act 2015 (Cth) on the basis of an impingement of their human rights. As noted above, a ‘dialogue model’ mirroring the Victorian Charter would probably be insufficient as courts are not empowered to invalidate problematic legislation. However, it would do more than the status quo as courts may issue an unenforceable declaration of an inconsistent application. Altenative avenues through judicial review will also not easily receive standing under the common law or the ADJR Act, as individuals will not be able to show a special interest beyond that of the public generally.
III. BEYOND THE DIALOGUE MODEL
Would a Human Rights Bill that is stronger than the dialogue model unacceptably restrict parliamentary sovereignty? Germany offers a comparative look at a legal system that offers its citizens avenues for challening human rights restrictions. Germany balances its international obligations under the Charter of Fundamental Rights of the European Union with its own constitutional Bill of Rights. The German Constitutional Court has provided interim relief for three human rights cases since the COVID-19 pandemic began. These cases argued limitations on the freedom of assembly and the freedom of religion due to a blanket ban on protests and religious gatherings. However, the Court also refused interim measures for several other cases that alleged similar limitations. Tailored outcomes were created because each case was reviewed on its merits and heavy consideration was placed on the laws’ purpose of preventing infections.
It is important to note Germany’s jurisprudence on the principle of supremacy, which dictates that the Charter is supreme to national law. This is a significant limitation on German parliamentary sovereignty, which offers Australia useful lessons for negotiating its relationship with international human rights law. In this respect, the Court created a doctrine of equivalent protection to ensure that international instruments did not serve to limit the rights endowed on citizens through the German Constitution. This demonstrates that parliamentary sovereignty and international human rights law are not necessarily dichotomous. However, balancing the existence of both has depended upon the German judiciary’s ability to balance sovereignty with human rights, as demonstrated in the cases above.
If a federal Human Rights Bill was adopted, Australian courts would undoubtedly, as the German Constitutional Court did, consider the legality of administrative decisions and laws made during the emergency period in a proportionate manner. The COVID-19 pandemic has raised an interesting question: why do the legislature and executive fail to see the judiciary as adequate protectors of the Australian public’s interests? The numerous crises of 2020 have illustrated that it is no longer adequate or sufficient to maintain Australia’s patchwork model if we are truly committed to comprehensively protecting the human rights of all Australians. It is time for the judiciary to play an equal part in demarcating those lines which must not be crossed.
 National Human Rights Consultation Report (Final Report, September 2009) (‘National Consultation Report’).
 Ibid 127.
 Julie Debeljak, ‘Does Australia Need a Bill of Rights?’ in Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights Law in Australia (Thomson Reuters, 2009) 37, 44.
 Australian Constitution.
 Lange v Australian Broadcasting Commission (1997) 189 CLR 520.
 Comcare v Michaela Banerij  372 ALR 42, 43 (‘Banerij’).
 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 19 (‘ICCPR’).
 Debeljak (n 3) 42.
 Ibid 48.
 Michael Kirby, ‘Protecting Human Rights without a charter’ (2011) 37(2) Commonwealth Law Bulletin 255, 256.
 Ibid 256.
 Ibid 267; New South Wales Parliament, Legislative Council, Standing Committee on Law and Justice, A NSW Bill of Rights (Report 17, October 2001) 110 [7.5].
 Debeljak (n 3) 42.
 Debeljak (n 3) 46.
 Human Rights Act 1998 (UK)
 National Consultation Report (n 1) recommendations 17 – 31.
 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36 (‘Victorian Charter’); Human Rights Act 2019 (Qld) ss 53-54.
 Banerij (n 6) 72 (Gageler J).
 Ibid 54-55 (Kiefel CJ, Bell, Keane and Nettle JJ), 72 (Gageler J); Wotton v Queensland (2012) 246 CLR 1, - (‘Wotton’).
 Banerij (n 6) 73 (Gageler J).
 Victorian Charter (n 17) s 7(2)
 ICCPR (n 7) art 12.
 American Association for the International Commission of Jurists, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (April 1985) (‘Siracusa Principles’).
 Victorian Charter (n 17) s 36; Human Rights Act (n 17) ss 53-54.
 Australian Conservation Foundation Inc v Commonwealth  146 CLR 493; Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3(4), 5(1) (‘ADJR Act’); Onus v Alcoa 149 CLR 27, 36.
 Charter of Fundamental Rights of the European Union OJ 2010 C83/02 (entered into force 1 December 2009) (‘Charter’).
 Bundesverfassungsgericht [German Constitutional Court], 1 BvR 828/20, 15 April 2020; Bundesverfassungsgericht [German Constitutional Court], 1 BvQ 44/20, 29 April 2020.
 Bundesverfassungsgericht [German Constitutional Court], 1 BvR 802/20, 9 April 2020.
 Costa v ENEL (C-6/64)  ECR 585, 594; Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Court of Justice of the European Union, C-11/70, ECLI:EU:C:1970:114, 17 December 1970).
 Solange II, Bundesverfassungsgericht [German Constitutional Court], 2 BvR 197/83, 22 October
1986 reported in (1986) 73 BverfGE 339.