Government squibs a human rights charter

The Attorney-General was unsuccessful in persuading Federal Cabinet to support a bill of rights.

This is no bad thing.

We are in the camp that says that the terms of a charter cast in vague aspirational language confers too much discretion on an unelected judiciary and takes too much from elected legislatures, particularly when construing provisions such as Article 21 of the International Covenant on Civil and Political Rights (ICCPR):

The right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

There is nothing so special about the training of a lawyer or judicial method that would allow a judge to make a value judgement as to what is or isn’t ‘necessary in a democratic society’: in a parliamentary democracy, this is really something only for a Parliament.

There are two interesting elements to the fig leaf of a commitment to human rights agreed to by Cabinet.

The first is the proposed establishment of a new Parliamentary Joint Committee on Human Rights to provide greater scrutiny of legislation for compliance with international human rights obligations.

The second is the requirement that each new Bill introduced into Parliament be accompanied by a statement of compatibility with international human rights obligations.

It is no bad thing for a parliamentary committee to examine whether legislation satisfies the international human rights agreements such as the ICCPR.

Australia has signed these treaties. In much the same way as scrutiny of legislation committees such as the Senate Standing Committee for the Scrutiny of Bills ensure that laws meet particular standards, it is appropriate for Australian parliaments to have some analysis as to whether particular legislation meets these international commitments before it passes legislation, although for the reasons we have expressed it is for the Parliament to ultimately take responsibility for the legislation it passes.

It will be interesting to see how much time this proposed committee will have to construe relevant legislation and whether parliamentary rules of debate will be changed so any report can be properly considered before a particular piece of legislation is passed.

It will also be interesting to see if the Committee will be charged to consider treaties Australia has acceded to such as the International Covenant on Economic, Social and Cultural Rights, which includes provisions such as Article 9:

The States Parties to the present Covenant recognise the right of everyone to social security, including social insurance.

There is then the requirement for the Government to publish a statement of compatibility.

There are two models of statement available.

The first is the ACT model, where the statement is usually as brusque as this:

In accordance with section 37 of the Human Rights Act 2004 I have examined the Crimes (Sentence Administration) Amendment Bill 2010. In my opinion the Bill, as presented to the Legislative Assembly, is consistent with the Human Rights Act 2004.

Somewhat unhelpful.

In Victoria, the statements are relative works of art. For example, the powers of inspectors under prosaic legislation such as the Livestock Management Bill reads:

Section 13: privacy and reputation

Section 13 (of the Victorian Charter of Human Rights and Responsibilities) establishes the right for an individual not to have his or her privacy, family home or correspondence unlawfully or arbitrarily interfered with and the right not to have his or her reputation unlawfully attacked.

The right to privacy concerns a person's 'private sphere', which should be free from government intervention or excessive unsolicited intervention by other individuals.

An interference with privacy will not be unlawful provided it is permitted by law, is certain, and is appropriately circumscribed. An interference would not be arbitrary provided that the restrictions on privacy are reasonable in the particular circumstances and are in accordance with the provisions, aims and objectives of the charter.

Entry and search provisions

Divisions 1 to 4 of part 5 of the bill provide for search and entry powers and as such engage the right to privacy. However, these powers are neither arbitrary nor unlawful for the reasons set out below.

The search and seizure powers granted to inspectors to enter and inspect that are authorised under clause 31 can only be exercised for the clearly stated public purposes of either determining whether the act, regulations, standards or specifics in the letter of approval have been, or are being, complied with or where the inspector has a reasonable belief that there has been non-compliance with the standards, which has resulted in or is likely to result in an emergency that threatens animal welfare, human health or biosecurity.

The bill clearly prescribes the scope of the power to search and inspect. Places of
residence cannot be searched unless the occupier has consented or where a magistrate has issued a warrant or in the emergency situation referred to above.
The bill requires an inspector to inform an occupier of his or her rights in relation to consent before a search and entry power can be exercised. When a warrant has been issued, clause 34 of the bill specifies that an inspector must inform an occupier that he or she is authorised by a warrant to enter a place or vehicle and clause 35 specifies that an inspector must show his or her identity card before exercising any power as well as any time upon request. The bill also specifies the procedures that must be followed in the instance that a premises is entered without the occupier being present.

Under the bill, this will only be applicable under a warrant or in an emergency situation.

To the extent that these provisions relate to private information and permit access to residences, they arise in the controlled and prescribed circumstances set out in the bill and are lawful. Procedural safeguards have been included in the bill in relation to the exercise of these powers. Consequently, I (the Minister of Agriculture) do not consider that these requirements can be described as arbitrary.

Accordingly the provisions are compatible with the right to privacy in section 13 of the charter.

That said, given the presence of the proposed joint parliamentary committee a compatibility statement appears unnecessary.

It is for the Committee to form an opinion as to whether a Bill passes international muster.

One would presume that the Government will implement internal mechanisms such as a suitable amendment to the Legislation Handbook to ensure relevant international commitments are considered when drafting legislation and would be ready to make submissions to the joint committee where there is doubt about compliance.

Finally, the Government may have hoped that Bill of Rights adherents would be a least a little bit satisfied with the Government’s compromise.

However Professor George Williams started an op-ed immediately after the Government made its announcement as follows:

The battle for an Australian charter of rights is the debate that will not die.

Perhaps they won’t be happy, after all.