Rule of Law vs the ‘Law’ of Rules

The conventional wisdom in the Australia human rights firmament is that 1966 was an Annus mirabilis. It was the year when human rights “began” in the form of the International Covenant on Civil and Political Rights  (ICCPR). The Australian Parliament attached its imprimatur to the 1966 creationist thesis in the Human Rights Commission Act 1981, defining “human rights” (as does its successor Australian Human Rights Commission Act 1986) as “the rights and freedoms recognised in the [ICCPR], declared by the Declarations or recognised or declared by any relevant international instrument.” The word “declarations” refers to specific UN General Assembly declarations made in 1959 (Rights of Children), 1971 (Rights of Mentally Retarded Persons) and 1975 (Rights of Disabled Persons).

In a singular demonstration of the triumph of Aesopian legal form over fundamental substantive law, section 4(1) of the AHRC Act provides:

This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with the Act.

In plain English, this means that long-standing and very detailed existing rights and freedoms of Australians — and the ongoing domestic evolution of those rights and freedoms — were not being excluded or limited by the AHRC Act where those existing protections are capable of operating concurrently with the AHRC Act. Given the specificity of those existing rights, and the absence of a brief preamble in the AHRC Act reciting the Australian history, s 4(1) is a very mean-spirited way of deflecting attention from the foundational realities of Australian political and constitutional history.

Long before the AHRC Act burst on the scene, the legal rights of individual Australians were comprehensively protected by the Commonwealth and state constitutions, by legislation and by the common law. That was the result of their ancestors’ centuries-long struggle for the replacement of divinely ordained rule and the ensuing, no less heroic, struggles to establish popularly elected legislatures. It was buttressed by the decisions of judges who laid the foundations of an independent judiciary in, for example, issuing the Great writ of Habeas Corpus and in cases like Entick v Carrington (1765) rejecting the power of State officials to issue general search warrants.

In the case of freedom of expression, it was not until the late 1960s that censorship laws banning “offensive” (and numerous related abstractions) speech and conduct had been greatly narrowed by legislative reform and steady strict judicial interpretation requiring, in effect, some incitement to demonstrable real harm, not merely outraged or hurt feelings. Thus, when the Commonwealth Parliament gave effect to the International Convention on the Elimination of All Forms of Racial Discrimination (1965) by passing the Racial Discrimination Act 1975 (RDA), it did not contain what is now Part 2A “Prohibition of offensive behaviour based on racial hatred”. That is the home of the notorious section 18C which is aimed at suppressing conduct “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” – whatever that arcane formulation can, after the offending event, be alleged to mean.

By the time of the passage of the Racial Hatred Act 1995, which inserted Part 2A in the Racial Discrimination Act, the rise of the rigid ideological version of multiculturalism had given birth to the very convenient, over-arching, subject matter-specific enemy: “hate speech” – in reality, the speech hated by today’s latter-day censors of “offensive” speech. The enactment of section 18C (and numerous state’s copy-cat provisions) was a step backwards. On their face, they did not purport to deal with actual invidious discrimination.

There is more than a touch of postmodern irony in the fact that the successful s 18C claim in Eatock v Bolt (2011) ensured the permanent publication of the offending articles within the text of the Federal Court’s judgment. Moreover, it has, more than any other episode, ensured that the individual freedom of expression has become a permanent central element of public debate in Australia.

Michael Connor: The White Aborigines Trial

There are, literally, thousands of reported Australian cases which amply demonstrate the long historical record of domestic legal protection of fundamental rights and liberties. Here are four recent prominent examples commencing with the unprecedented High Court decision in AB v CD:EF v CD (2018) AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58 (5 November 2018) (austlii.edu.au) which speaks for itself.

In Roach v Electoral Commissioner (2007), the High Court’s then Chief Justice Gleeson recalled that most of the framers of the Australian Constitution “regarded themselves as British. They admired and respected British institutions, including parliamentary sovereignty”. Nowhere was this more plainly illustrated than “in the extent to which that Constitution left it to the Commonwealth Parliament to prescribe the form of our system of representative democracy.”

In the Victorian Lockdown case, the High Court noted in passing that “The interpretation of the Constitution is not to be approached with a jaundiced view of the integrity or wisdom or practical competence of the representatives chosen by the people.”

In Minister for Home Affairs v Benbrika, the High Court reminded the nation of the ancient common law source of the rule of law that “every citizen is ruled by the law, and by the law alone” and “may with us be punished for a breach of law, but he can be punished for nothing else.” Moreover, courts falling within Chapter III of the Australian Constitution “serve as the bulwark of liberty by virtue of the qualities of independence and impartiality that are secured by the separation of the judicial function from the other functions of government.”

In its online publication Ten Common Questions About a Human Rights Act for Australia, the AHRC asserts:

Most people in Australia would be surprised to learn that in our country there are very few legal protections of human rights. Australia is now the only Western democracy without some kind of national Human Rights Act or bill of rights.

Not to put too fine a point on it, the first sentence is, in its ordinary English meaning, false. One response to the second sentence, read in the modern ideological suggestive usage/tone of the term “national Human Rights Act or bill of rights”, might be, “So what?”

The Australian Attorney-General’s Department (AGD) website contains a list of 33 “Public sector guidance sheets” designed to assist Commonwealth public officials involved in developing legislation, policy or programmes. The twenty-first in that list asserts that “unlike other rights in the ICCPR, the right to take part in public affairs and elections applies only to Australian citizens”. In its ordinary English meaning, the “public affairs and elections” part is false. Again, one response to the specific assertion that it “applies only to Australian citizens” might be, “So what?” Likewise, the generic claim in those instructions that the rights “come from the ICCPR” depends on what meaning is attributed to the slippery expression “come from”. That claim is also expressly contradicted by other claims in the guidance statements, not least by the occasional attribution of some rights to the Australian Constitution.

In the guidance sheet concerning the Right to Freedom from Slavery and Forced Labour, the “Where does the right come from?” question is answered with the statement that the right is “contained” in article 8 of the ICCPR. Opinions will differ, but this statement has a strong claim to being the most mean-spirited demonstration of the determination of the fans of the ICCPR to ­­­re-write history­­. Mention is made of the 1926 International Convention to Suppress the Slave Trade and Slavery and the Supplementary Convention (1956), but there is nothing about the uniquely historic contribution of the British Anti-Slavery movement or the unique Anti-Slavery Act passed by the Parliament at Westminster in 1833. Why should these taxpayer-financed omissions not be called “disinformation”?

In the same twenty-first item on the list of guidance sheets, there is a passing mention of the (consolidated) Commonwealth Electoral Act 1918. However, what is now section 263 (in “Part XVIII – The Scrutiny”) of the consolidated Act is ignored. That provision expresses the legislative intent of the then new Commonwealth Parliament with unsurpassed clarity and brevity:

The result of the polling shall be ascertained by scrutiny.

And that sentence (“The Scrutiny”) encapsulates Australian representative democracy – the individual citizen’s right –

♦ to vote, to stand for election, to participate in electioneering and, by direct observation, to participate in the counting of each ballot-paper, and to see how each ballot-paper is cast in an election,

♦ to insist that the election be conducted according to law by a non-partisan designated agency of the executive branch of government, and, if necessary,

♦ to seek redress from the judicial branch of government for any well-founded grievance about the conduct of an election.

It is the exercise of those integral rights which accounts for the economic, political, social, scientific, technological and other changes which have facilitated the steady (and peaceful) advance of our Commonwealth over the past century.

The individuals and groups (including the contributions of dissenters) in the process ­­of popular agitation culminating in the Constitutional Conventions in the Australian (and, in part, New Zealand) colonies in 1891 and 1897/1898 deserve to be celebrated. Instead, the AHRC airily dismisses the Australian Constitution as “frozen in time”. That opinion is not all that surprising because, in substance, one of the AHRC’s statutory functions is to engage in propaganda in support of the ICCPR’s “internationalist/group” conception of human rights which, in essence, puts rule by the elites above democracy.

The AGD web site material makes clear the following characteristics of the ICCPR:

♦It simultaneously differentiates and intermingles civil and political rights and “economic, social and cultural rights”. The separation is not surprising since, categorically, they are different. The latter category is a miscellany of contested social-political-religious-economic and other questions about how the continuing betterment of mankind can best be achieved. In the contemporary internationalist ideology embraced by the AHRC regarding the ICCPR, the scope of such future rights is, in large measure, dictated by a hierarchy of ideas and opinions about supposedly “oppressed” or “vulnerable” groups of people rather than the rights of all individuals. This stands in contrast to the UN Universal Declaration of Human Rights (1948) ;

♦ One leading example of the contested nature of “economic, social and cultural rights” which, because opinions will differ, should be left to the legislature to have the final say is embodied in the following AHRC claims (emphasis added):

Sometimes it may be necessary to treat people differently to achieve equality. This is because differences between people may make it difficult for them to enjoy their rights without support. Different treatment may not amount to prohibited discrimination if the criteria for the differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the International Covenant on Civil and Political Rights.

You will also need to consider the rights of equality and non-discrimination whenever you are working on legislation, a policy or a program that draws distinctions between people or groups based on: race, sex, disability, age, colour, language, religion, political or other opinion, national or social origin, property, birth, nationality, marital status, place of residence within a country, or sexual orientation.

Elsewhere there is mention of “social origin, sexual preference, age, criminal record, trade union activity, and medical record”. But why end there? If vulnerability is a criterion, surely questions of economic inequality and non-discrimination arising from the scourge of unemployment, and homelessness/malnourishment qualify for consideration? Two prominent examples of contemporary controversy about human rights are border controls and the role of indigenous Australians in the polity. Not surprisingly, opinions differ about the best way forward for Australia on those subjects. Why is it not open to contend that it is preferable for Australia’s elected legislators to decide such issues rather than the substantive law-making decisions being dictated directly by international bureaucrats or indirectly by courts and tribunals via the vague terms of the ICCPR?

♦ The ICCPR obligations are expressed in broad aspirational terms. The specific content of each right is, in varying ways, a matter of debate. In the case of freedom of expression, the word “dissent” is conspicuously absent;

♦ The AHRC’s specific mention of the right to free speech as necessitating an Australian Charter of Rights is risible. This is the same AHRC which manifested its support for section 18C of the RDA in 2016 by sooling the citizenry to lodging complaints with the AHRC so that it could haul in the cartoonist Bill Leak (1956-2017) for some compulsory re-education arising from one of his cartoons published in The Australian. The offending cartoon did no more than express an opinion about social problems besetting Aboriginal communities, an opinion which is held within some of those communities. The AHRC has also stated that “Irish jokes” are OK, and has made excuses for not unconditionally condemning the use of children by their parents to hold aloft signs exhorting the public to “behead” all those who insult a particular prophet;

♦ In the case of freedom of religion, one glaring example of the inherently incurable defects of the ICCPR is the absence of an explicit statement in it that freedom of religion includes the individual’s right to have no religion, to say so publicly, and to dismiss the very idea of religion as nonsense. Some UN members are theocracies which punish blasphemy and apostasy. By definition, those States cannot and will not ever agree to any such explicit statement. The rule of theocratic supremacy regarding human rights is made explicit in the Constitutions of some of those nations and is given general expression in the Cairo Declaration (1990).

THE tumultuous Trump presidency and disputed conduct of the 2020 US election, are reminders both of the starkly contrasting paths of Australia and the US to nationhood and democracy, and the structural similarities and differences of the two federations. There is, for example, a striking contrast in the mechanisms by which federal and state judges are selected and how the judicial power is exercised in the US. At the forefront of the structural contrasts is the fact that the revolutionaries who authored the US Constitution, as amended by the Bill of Rights (1791), deliberately provided for an element of overt public participation in each of the three branches of government. This was, in part, a sign of the American colonists’ determination to ensure that a successful Royalist revival could never occur.

At the national level, Article II, Section 2 of the US Constitution provides that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint judges of the Supreme Court of the United States” and the judges of the lower federal courts. President Trump’s nominations of, and the ensuing Senate Judiciary Committee confirmation hearings relating to, Justice Brett Kavanaugh (2018) and Justice Amy Coney Barrett (2020) were the latest manifestations of the intense politico-legal controversy inherent in the US Constitution’s “checks and balances” in the allocation of legislative, executive and judicial power.

The situation in the 50 States varies. Some replicate the national advice and consent mechanism, in others judges are appointed for a specified term, in some a would-be judge makes a formal job application (a practice which has emerged in Australia in recent years) and in others judges or some of them are elected. In President Biden’s home state Delaware, the Constitution contains an explicit political balance requirement for appointments to the state’s major courts part of which is as follows:

. . . at any time when the total number of Judges of [three of the Courts] shall be an even number, not more than one-half of the Judges shall be of the same political party; and at any time when the total number of Judges shall be an odd number, then not more than a majority of one Judge shall be of the same political party.

It is not surprising that in some states high-level officials within the executive branch include those who administer the state electoral laws which regulate presidential elections within the overarching framework prescribed by Article I, Section 4 of the US Constitution.

Outsiders accustomed to the Topsy-like admixture of constitutional law, legislation, case law and unwritten convention and practice which has the label “Westminster system” (or its vestigial remains) might be tempted to remark, with respect, that the partisan election of the election officials is a recipe for election jiggery-pokery.

President Trump has been denounced for using the word “fraud” in describing the conduct of the 2020 presidential election. If his claims are supported by evidence (not just that which is clearly admissible in court), they should be openly considered and debated especially as informed by any relevant litigation. In the case of the right to vote in free and fair elections, the reality is that for a variety of historical and political reasons and notwithstanding the Voting Rights Act passed by the US Congress in 1965, voter fraud has remained a feature of American political life, and that voter fraud prevention has been an ongoing concern of the judicial branch of the US and State governments.

One case, Democratic National Committee v Republican National Committee had, by 2010, been an on-again/off-again/on-again fixture before the same judge in one US District Court since 1981. And the US Congress had found it necessary to pass the National Voter Registration Act 1993, the Bipartisan Campaign Reform Act 2002, and the Help America Vote Act 2002. On 2 March, the US Supreme Court will hear arguments in the latest Voting Rights Act case to reach it, Arizona Republican Party v Democratic National Committee and a related case.

THAT the authors of the Australian Constitution paid close attention to the US Constitution was to be expected. However, nothing which had occurred in the Australian colonies made it necessary or desirable for the Constitution of the new nation to contain a Bill of Rights. The pragmatic outcome of the 1890s Conventions can be seen in s 116 of the Constitution which, as an isolated limitation on Commonwealth legislative power, reproduces words from the free exercise of religion clause of the First Amendment to the US Constitution.

Nor, in hindsight, should it excite the slightest degree of surprise or angst that the Constitution of the new federal Commonwealth was given full force and effect by an Act of the Imperial Parliament. How else could/should it have been lawfully done?

In Australia, the common law protection of fundamental civil and political rights had been steadily evolving, necessarily on a case-by-case basis. By what were then then the world standards of 1900, the Australian and New Zealand colonies had been well advanced in the long, arduous struggle to establish representative democracy which included the participation of scrutineers. Those colonies were world leaders in the evolution of the individual’s right to vote.

Does the AHRC not agree that we should remind ourselves that The Scrutiny deserves to be ranked at the forefront of our nation’s long history of striving for the civil rights of all, and thus worthy of regular celebration?

Laurence W. Maher is a Melbourne barrister