[email protected]
www.alhr.asn.au

8 February 2004

Bill of Rights Consultative Committee
Locked Bag 2002
CANBERRA 2608

Dear Committee

Australian Lawyers for Human Rights Inc (ALHR) is a network of Australian lawyers active in furthering awareness and advocacy of human rights in Australia. Through training, publications and advocacy, ALHR promotes the practice of human rights law in Australia, and works with Australian and international human rights organisations to achieve this aim.

ALHR thank the Committee for the opportunity to make a contribution to the inquiry into an ACT Bill of Rights.

Overview
The political and philosophical arguments for and against the introduction of a Bill of Rights have been rehearsed in exhaustive detail elsewhere, and ALHR does not propose to enter into this debate in the present submission. ALHR believes that the ACT has an important role to play in promoting and protecting the rights of people in the Territory.

In March 2000 ALHR provided a submission to the Legislative Council Standing Committee on Law and Justice Inquiry into a Bill of Rights for NSW. This submission addressed most of the terms of reference the ACT Committee is currently addressing, and ALHR has already provided a copy of this submission to the Committee. The focus of ALHR’s submission to the Committee is two fold: what rights should be protected, and what is the impact of a Bill of Rights on litigation?

Consequently, ALHR’s submission does not address all of the terms of reference, focusing instead on those terms of reference which have been the source of media attention during the debates on an ACT Bill of Rights and on the issue of litigation which was not fully addressed in our submission to the NSW inquiry, but was addressed during ALHR attendance at the public hearing for the NSW inquiry.

Support in principle
ALHR believes that an appropriately drafted and implemented Bill of Rights ?will be an important tool by which individuals in the ACT will be able to seek redress and vindication when their rights have been violated. As well, such a document gives traditionally disadvantaged groups access to the political process.

At a broader level, a Bill of Rights ?will have important educational and symbolic effects, contributing to a more rights-based culture in the ACT. A Bill of Rights will promote community and governmental awareness and understanding of peoples’ human rights, ensuring that care is taken to guarantee their protection.

Finally, enacting a Bill of Rights will bring the ACT into line with most modern western liberal democracies, most of which have such a citizens’ guarantee as part of their political and legal arrangements.

What rights should be protected by the Bill?
ALHR submits that the conventional division between economic social and cultural rights on the one hand, and civil and political rights on the other, is misconceived and stems form historical factors of little current relevance. They are in fact inseparable rights within the frameworks of fundamental human rights.

In its submission to the NSW Inquiry at 3.3 and at 6 ALHR said:

3.3 The limits of legislative protection
The legislation described above, while effective in some cases, is inadequate as a system of human rights protection, when measured against the rights found in the numerous international human rights instruments to which Australia is a party. The legislation protects only a very limited range of individual rights, leaving fundamental rights such as freedom of speech, peaceful assembly, the right to vote, and all economic, social and cultural rights, unprotected.

Neither the Federal nor the NSW anti-discrimination legislation is adequate in dealing with problems of systematic discrimination, and in promoting substantive equality, as opposed to merely formal equality. Firstly, the remedies offered under the Commonwealth discrimination laws offer limited protection, because any findings of discrimination and orders made are not unenforceable. The position will change on 13 April 2000, when the Federal Court of Australia assumes the jurisdiction for determining complaints of discrimination, although this mechanism raises some concerns about accessibility.

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6 ALHR SUBMISSION ON THE NATURE OF RIGHTS TO BE PROTECTED

Effective protection of human rights in NSW requires a Bill of Rights which is a comprehensive, but not necessarily exhaustive, statement of human rights. A starting point for an examination of human rights is the relevant international instruments. In this respect, the ICCPR sets out the core human rights in the area of civil and political rights, but with the Universal Declaration of Human Rights (UDHR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the First Optional Protocol to the ICCPR, it is only one component of the “International Bill of Human Rights”, and only one of a number of important international instruments.

A Bill of Rights should not be limited to the rights enumerated in the ICCPR. Similarly, a Bill of Rights does not have to adhere the strict terms of the ICCPR or other international instruments. A “cut and paste” of international instruments will not provide effective rights protections. At the very least, the ICCPR provisions must be restated to suit the particular social, cultural and political context of NSW, and to take account of developments in rights jurisprudence and theory which have occurred in the time since the ICCPR was first introduced.

ALHR restates this submission in the context of the ACT inquiry. ALHR also draw the Committee’s attention to recent research completed by CASE, a South African research NGO, focusing on socio-economic and policy research. CASE explored the role of the South African Human Rights Commission (SAHRC) which performs a number of tasks in order to promote human rights. Section 184 of the Constitution maintains that the SAHRC must:

• promote respect for human rights and a culture of human rights;
• promote the protection, development and attainment of human rights;
• monitor and assess the observance of human rights in South Africa.

• investigate and report on the observance of human rights;
• take steps to secure appropriate redress where human rights have been violated;
• carry out research, and
• educate.

CASE research revealed that
Although the Bill of Rights contains a clause on the conditions under which rights can be limited, this is a general proposition that does not apply only to socio-economic rights. Socio-economic rights present a specific case, however. It is difficult to distinguish between the realisation of rights in these areas and the delivery of social services . . . Overall, there is little doubt that many government departments in charge of social services have shown commitment to transformation and improved delivery. This commitment has been expressed in the production of new policy frameworks, consultation with stakeholders, formulation of new programmes and efforts to overcome the legacy of apartheid.1”

This research demonstrates the necessary interdependency of rights: actual implementation of civil and political rights is achieved through economic social and cultural rights. However CASE found that community education is still required within the public service and the population in making this link. CASE states:

…knowledge of the socio-economic clauses in the Bill of Rights as rights, rather than demands to be advanced and met in a political process, is poorly spread…There is thus an urgent need for a thorough information dissemination campaign to educate the public (and especially the most disadvantaged sections) about their rights, and crucially about mechanisms to access them. Abstract rights without concrete mechanisms of access are meaningless. A series of campaigns focused around crucial issues in all the seven socio-economic areas discussed in this report could be an effective course of action to popularise notions of rights, apply pressure on government to realise them, and educate people how to claim them.

ALHR submits that it is impossible to provide full access to civil and political rights without protections for economic social and cultural rights.

ALHR submits that the ACT Bill of Rights should include protects for civil and political rights as well as economic social and cultural rights.

ALHR submit that an effective education campaign will be essential to the realisation of full economic social and cultural rights thorough the exercise of civil and political rights. The following quote from Eleanor Roosevelt (The Great Question, NY, United Nations, 1958) is apt:

Where, after all, do universal rights begin? In places, close to home— so close and so small that cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these right have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the large world.

What is the impact of a Bill of Rights on litigation?
Recent commentary in the media suggests that a Bill of Rights would create a ‘culture of litigation’ similar to that of the United States.2 ALHR submits that such allegations are unfounded, particularly when referring to ‘new rights’ being created by the judiciary. Similarly ALHR submits that there is no evidence that the costs and numbers of cases litigated would drastically increase after the implementation of a Bill of Rights.

An initial settling period could result in a small increase in the numbers of matters litigated, during which time the legislation is tested. That has been the experience of all States and Territories on the introduction of anti-discrimination legislation. This is the essence of the common law system. Experience shows that this initial increase will naturally be followed by decrease in litigation as the boundaries of the legislation become precedent.

On this point, ALHR gave the following evidence to the NSW Inquiry on Tuesday 18 July 2000:

CHAIR: The final criticism of the Bill of Rights made by Mr McLelland that I would like to put to you this morning is that, in his view, a Bill of Rights fundamentally changes the role of a judge which, as he understands it, is primarily to resolve a dispute between two parties. He argued that, essentially, a Bill of Rights obliges a judge to balance up values, to make public policy virtually and that, in his view, that is quite inappropriate for a member of the unelected judiciary. Could you comment on that?

Mr RICE: To the extent that a Bill of Rights has to be spoken about in the context of litigation, as we said at the outset, we think it is mistaken to see a Bill of Rights as necessarily being a litigious document, or issues about a Bill of Rights being discussed in the context of litigation. The Bill of Rights is, at the very least, a symbolic document that assists people in the way in which they go about their ordinary daily business. At worst, it will be a document that articulates rights for which people can seek remedies, but not necessarily in the courts. So I think we are concerned to make it clear that getting dragged into discussions about the workability of a Bill of Rights by using the court context can be misleading.

That said, if we are concerned with the way judges deal with a Bill of Rights, judges are implementing matters of public policy, having regard to public policy, and having regard to implementing values constantly in their judicial work. Every time they give effect to legislative requirements they are giving effect to public policy as reflected in legislative requirements. I referred before to the creditors and to Corporations Law, the way in which a judge will have to balance the interests of various parties in a corporate lining up, and the way a judge will have to balance the interests of various parties in bankruptcy proceedings and in land and environment proceedings. Courts are constantly being called on to reflect values embodied in legislation and to weigh competing interests. It is not remarkable; it is exactly the business of the courts. It is as surprising to hear somebody characterise the courts as being neutral arbiters of private disputes between individuals as it would be to hear a judge still saying that he has absolutely no law-making role. It is no longer accepted that the courts do not take part in the daily development of life around values.

As we have said, again, proper management and implementation of a Bill of Rights would avoid litigation except as a last resort and have the opportunity for complaint investigation, conciliation, education and policy...We are a long way from invoking the American example of taking everything to court. That is vital to this Committee and the public at large accepting the workability of a Bill of Rights.

ALHR restates this submission in the context of the ACT inquiry.

This issue has also been addressed in the South African context, by Mark Kende, Professor of Law and Associate Dean at the University of Montana School of Law. Professor Kende’s research on the implementation of the South African Bill of Rights has found that judicial pragmatism has provided a workable framework for the implementation of economic cultural and social rights along with civil and political rights in a nation with limited financial resources.3

ALHR submits that valuable insight on this issue can also be gained from the experience in the United Kingdom. In an article published on the eve of the enactment of the UK Bill of Rights, UK Home Secretary Jack Straw stated:

Incorporating the ECHR into UK law is more about achieving equal access to rights we have had for 50 years than it is about creating new rights. But the HRA is not just about 'bringing rights home'. It is a question of making government and other public bodies accountable and giving individuals more control over their lives. And in the long run it should reduce litigation, by providing a discipline on this and all future governments to ensure that they do not overlook the rights of individuals when seeking to protect the public interest. …In time, people will know their rights and responsibilities under the Convention, and will quote them readily in their dealings with public authorities. We can now foresee a time when the Human Rights Act will be seen as a cornerstone of British democracy, as 'natural' as the vote.

There is, of course, bound to be a settling in period as the Act 'beds down'. I have already come across examples where lawyers have claimed that the ECHR stops public authorities from taking actions that are commonplace in other countries that have incorporated the Convention. These arguments do not impress me much. More importantly, they are unlikely to impress our courts.4

This statement is supported by empirical evidence conducted in the UL in 2001 by the Human Rights Unit of the Lord Chancellors Department. This research titled ‘HRA 1998: A Statistical Update’ is available at, www.humanrights.gov.uk/hrimpact3.htm. Here it states:

“The position remains the same as in the previous two quarters with the some impact in the higher courts but very little in the courts…Overall, the court system is continuing to match up very well to the demands of the Act.”

ALHR submits there is no research which establishes that a culture of litigation arises from the implementation of a Bill of Rights.

ALHR submits that proper management and implementation of a Bill of Rights would avoid litigation except as a last resort and would provide the opportunity for complaint investigation, conciliation, community education as well as policy reforms and initiatives.

We trust that these submissions are of assistance to the inquiry. We would be very pleased to be able to provides any further assistance during the course of the Inquiry.

Yours sincerely,
Simon Rice OAM
President ALHR

1 CASE (1998) Monitoring socio-economic rights in South Africa: public perceptions. This report is available at www.case.org.za/htm/soceco3.htm.

2 H Irving “Bill of Rights Could Accelerate Culture of Litigation” The Australian. 19 April 2002; B Carr “The Rights and Wrongs of Law” Daily Telegraph 21 August 2001; R Stone “Bob Carr’s Warnings Right on the Mark” Australian Financial Review 15 January 2001; P Akerman “Too Many Wrongs With a Bill of Rights” Daily Telegraph 16 November 2000; G Robson and J Cziesla “Bill of Rights a Treat to Democracy” Canberra Times 7 October 2002.

3 The Fifth Anniversary of the South African Constitutional Court: In Defense of Judicial Pragmatism," 26 Vermont Law Review 753 (2002) forthcoming.

4 J Straw “Human Rights and Political Wrongs” The Observer, 13 August 2000

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This page last updated 30th August 2004