Public Interest Litigation in Australia

For any law student passionate about human rights, it is abundantly clear that Australia has not done a satisfactory job of incorporating our international law obligations legislatively. Australia’s constitution features an acknowledgement of a bare few rights, among them the right to freedom of religion [1] and right to trial by jury [2]. In addition, courts in Australia have, over time, come to recognise implied constitutional rights which are subject to quite strict limits and ultimately, being a product largely of common law, are unpredictable in their enforcement. Chief among these is freedom of political communication, found to be a necessary precursor to the constitutionally mandated requirement that the members of the Senate and House of Representatives are chosen directly by the people. [3]

The rights included, both express and implied, in the Australian Constitution, amount to a slim fraction of those included in international covenants. In 2020, Australia is the only democratic nation in the world without a national charter or bill of rights. [4] However, those at the forefront of the fight for a charter have not been deterred by the lack of proper consideration it has received by successive governments. George Williams, speaking at our COVID-19 x Human Rights Event, contends that a bill of rights is more crucial in Australia than ever before. In his words, various laws demonstrate ‘our parliaments are no longer exercising the sort of self-restraint they have in the past about democratic rights’. [5] Though the protection afforded by the rights legislation in ACT [6], Victoria [7] and, recently, Queensland [8] should not be underestimated, proponents of human rights in Australia are adamant that a national bill of rights is needed to domesticise our international obligations. 

After our Sexism and the Law Event, Casey and I had the chance to discuss the issue of human rights with our guest speaker Molina Asthana, from a foreign comparative perspective. Prior to her career in Australia, Molina practiced at the Supreme Court of India in Delhi, where she was involved in a number of public interest litigations. In India, human rights are constitutionally enshrined. [9] For this reason, public interest litigations are conducted in a way completely foreign to the Australian legal system. India’s? Public interest litigation commenced in the 1970s and has been considered and indeed mimicked by other countries, being seen by some as ‘the most progressive judicial activism in the world’. [10]

To commence a public interest litigation in India, any citizen, citizen group or non-governmental organisation can send a letter to any High Court or the Supreme Court of India, whether or not they are specifically affected by the issue at hand (in Australian legal terms, whether or not they have standing). [11] To be a valid public interest litigation, it must be about a matter of public concern. In the past, this has included prison conditions, child labour and environmental issues. The Court can then convert that letter into a petition and call upon relevant authorities to explain why this issue has not been taken care of, ask them what is being done about it, and even direct them to take actions. [12]

Australian law does not have its own version of public interest litigations. The doctrine of locus standi severely restricts the class of people that can stand up in court and point out the illegality of a given decision, action or law through administrative law channels. Although public interest standing is becoming broader, citizens and most groups are still prevented from bringing an action in regards to something that does not affect them privately and specifically. The other blatant hole in Australian law was  discussed earlier in this piece – our conspicuous, determined lack of a bill of rights. The conversation regarding the creation and implementation of a bill of rights has been debated fiercely for decades. Recent developments in Australian law, particularly legislation passed in response to COVID-19, has encouraged that conversation. In the meantime, however, human rights breaches in Australia are happening around us. Australian law needs a better way to respond to such breaches, and we want to be a part of finding it.

By Annie Ward-Ambler.

Footnotes

[1] Commonwealth of Australia Constitution Act 1901 (Cth) s 116. 

[2] Ibid s 80.

[3] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; George Williams, ‘‘Freedom of Political Discussion and Australian Electoral Laws’ (1998) 5 Canberra Law Review 151, 153.

[4] Paul Gregorie, ‘The Need for a Bill of Rights: an Interview with UNSW Professor George Williams’ Sydney Criminal Lawyers (Article, 4 November 2017) <https://www.sydneycriminallawyers.com.au/blog/the-need-for-a-bill-of-rights-an-interview-with-unsw-professor-george-williams/>.

[5] Ibid. 

[6] Human Rights Act 2004 (ACT).

[7] Charter of Human Rights and Responsibilities Act 2006 (Vic).

[8] Human Rights Act 2019 (Qld).

[9] Molina Asthana, ‘Can Australia Learn from India? The Evolution of Constitutional Law in India Differs Significantly from Australia – it Includes a Bill of Rights’ (2019) 93(10) Law Institute Journal 37, 37.

[10] Hajime Sato, ‘The Universality, Peculiarity, and Sustainability of Indian Public Interest Litigation Reconsidered’ (2017) 100 World Development 59, 59. 

[11] Conversation with Molina Asthana (Annie Ward-Ambler and Casey Duong, Zoom Meeting, 20 October 2020).

[12] Ibid.

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