14th Greek Australian Legal and Medical Conference
Cape Sounion, Greece 2013

“Are Bills of Rights Necessary to Protect the Unprotected?”

J D Heydon

I want to offer some dogmatic thoughts on whether and how bills of rights can protect the unprotected.  It is possible to offer detailed arguments for the correctness of those thoughts, but there is no time for that today.

The question whether and how law can protect the unprotected is ambiguous.  It suggests a contrast at a given point of time between those who are protected and those who are not, and in turn further contrasts between those who are protected by reason of wealth, intelligence, contacts and other advantages and those who are not.  But the protection which the law can afford sometimes applies equally to all persons whatever their wealth, intelligence, contacts or other advantages.  If there is a lack of protection, all are unprotected. 

An example is a case which from one point of view is the most important ever decided by the High Court – the Australian Communist Party case in 1951.  It held that the federal government cannot have the validity of its legislation upheld by merely assuming that the circumstances necessary for validity exist, or saying that they exist in recitals at the start of the legislation.  Instead, those circumstances must be established as a matter of fact.

The legislation in that case banned the Communist Party.  The legislation was said to be based on the defence power.  The High Court struck the legislation down on the ground that it had not been shown to be factually connected with the defence of Australia against its enemies in war.  That case is universally thought to be correct in law.  There is, however, a group of people – perhaps its only members are Justice Callinan and myself – who think that the decision would have gone the other way had the facts which have since come to be known about Soviet espionage in Australia in that pre-Petrov era had been known then.

The present point is simply that the interests of each member of the population are protected by the Australian Communist Party case.  If the law had been differently stated, it would be much harder to hold the Commonwealth within the constitutional limits of its power.  That enterprise is as important for the wealthiest corporation in the country as it is to a tramp.

In the Australian Communist Party case, Latham CJ drew attention to an aphorism of that grim statesman, Oliver Cromwell.  I have never read of it anywhere else, but it is safe to take Latham CJ’s word for the fact that Cromwell said it.  The aphorism, perhaps a mysterious one, is:  “Being comes before well-being”.[1]  The legal conditions necessary to ensure being may be different from those necessary to ensure well-being.

For humans, a state of being depends in the very short run at least on facilities by which to satisfy thirst, to provide food, and to obtain shelter.  And it depends on the protection of humans who possess those facilities from many types of interference with them. 

Humans can be protected in these respects by tyrants ruling without laws.  But for many centuries this has not been seen as enough.  Laws are required. 

Historically the protection which our legal system affords has operated negatively, against abuses of private or state power.  That system aimed to prevent interference with the conditions which helped individuals to help themselves.  But it did not seek to operate, of itself, in a positively creative way.  Instead it rested on a “negative theory of rights”.  The legal system conferred the right to do whatever one wished as long as it was not prohibited by specific laws.  Those specific laws prevented particular people from harming others.  Human freedom operated through gaps in those express laws. 

But the legal system also saw the best form of protection as resting on more than laws.  It spoke of freedom under the rule of law. 

What is “the rule of law”?

The enforcement of laws in courts is not by itself the rule of law.  In the early 21st century, at least in the main common law countries, the “rule of law” is seen as having at least five characteristics.  They are expressed or implicit in a statement made by the Austrian economist Friedrich Hayek in his celebrated work The Road to Serfdom seven decades ago.  He said that legal rules must be “fixed and announced beforehand” and must “make it possible to foresee with fair certainty how the state would use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.[2]

The first characteristic is that the rules must be prospective, not retrospective.  They must be capable of being complied with.

Secondly, the rules must be published – if not to all, at least to significant classes such as officials and members of the legal profession. 

Thirdly, the rules must be clear.  They must not be so general as to create only vague discretions, with no criteria to guide and control their exercise.

Fourthly, the rules must be coherent, not radically flawed by anomaly, not internally contradictory, and not unstable by reason of constant sudden change.  If the rules lack these qualities, planning becomes impossible.

Fifthly, significant elements of the rules must be enforced by courts or tribunals having the better qualities of courts. 

Even if those five characteristics exist at a particular moment in the history of the legal system, they will not last unless three other features of the polity exist – a strong legal profession, an informed public opinion, and a spirit sympathetic to legality and obedience to the law.  These are either corollaries of or complements to Hayek’s five characteristics. 

Advantages of the rule of law

The five Hayekian characteristics vindicate the autonomy of the human personality.  They rest in part on the idea that the function of society is not to force individuals to behave in particular ways, but to permit individuals to choose how they are to behave, and to mark out clearly the limits of that choice.  A famous American judge, Mr Justice Holmes, developed this idea through his “bad man” theory of law.  He pointed out that since the judges had the power to trigger the employment of the whole force of the state against defendants, it was important that the public, and in particular the “bad man”, be aware of when state power was likely to be employed.  The bad man, he said, “does want to know what the Massachusetts or English courts are likely to do in fact …  The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”.[3]  Mr Justice Holmes said that both in mercantile transactions and other fields, “people care more to know that the rules of the game will be stuck to, than to have the best possible rules”.[4]  Much conduct which is lawful is engaged in on the faith of the assumption that it will not suddenly and retrospectively be held criminal,[5] or invalid as a matter of civil law.

Predictability will not be complete.  That is because many rules of law depend on the application of criteria calling for judgment, on which minds may differ.  However, Hayek thought that the attainment of some predictability was the factor which had made the greatest contribution to the prosperity of the West.[6]  Because the rule of law entails a reasonable measure of predictability, and vindicates human autonomy, it is a system which is superior to reliance on discretionary decisions of despots or bureaucrats, however benevolent.  For those who acquire uncontrolled power often begin with benevolent intentions, but gradually cease to behave benevolently.

Practical failures to comply with rule of law criteria

In Australia today, some legislation is retroactive.  Some of the law is unstable:  it changes frequently, and is therefore obscure.  Judge-made law can display those vices, particularly if it is affected by what a universally and rightly acclaimed English judge, the lamented Lord Bingham of Cornhill, called “excessive innovation and adventurism”.[7]  He said:  “It is one thing to alter the law’s direction of travel by a few degrees, quite another to set it off in a different direction.  The one is probably foreseeable and predictable, something a prudent person would allow for, the other not.”[8]  Leaving aside judge-made law, the contemporary scene is marked by what Lord Bingham called “legislative hyperactivity”[9]  The volume of parliamentary legislation and delegated legislation grows each year, often without any apparent point.  Much legislation has become so complex that only specialists even claim to understand it, and then only through a glass darkly.  This raises the question whether modern systems are examples of Tacitus’s saying about the trends in post-Sullan Rome:  “the more corrupt the government, the more numerous the laws”.[10]  Some rules are not coherent.  Some judges are weak or incompetent.  So are some legal practitioners.  Access to courts is difficult for many.  Sometimes proceedings are not heard or decided with reasonable expedition – a very grave malady in the law.  Occasionally courts decide cases on points not raised by the parties without notice to them that this may happen – an even graver malady.  Sometimes they fail to deal with arguments of a losing party which, had they been considered and accepted, might have brought victory instead of defeat.

But even if a legal system has some of the Hayekian characteristics in weaker form than others, it may still be said to be governed by the rule of law.

A V Dicey

In addition to the five Hayekian characteristics, there are some mentioned by A V Dicey, a once-celebrated constitutional lawyer, which should be noted.  He contended that the rule of law also rested on the idea that the government, not just the citizens, were subject to the law:  that governmental power depended on the law, and only on the law.  Dicey also thought that the rule of law included “equality before the law”[11] – the capacity of subjects to hold their rulers to account in the courts. 

The ideas so far discussed are in a sense formal conceptions, not substantive.  What Holmes J said supports that.  They say nothing about the content of laws which comply with them – what rights they vindicate.  But there is another element of the rule of law, now commonly recognised, which is coloured by a rights conception.  It is an extension of Dicey’s contention that the rule of law requires all persons within the polity to be subject to the obligations of the laws.  The extension is that, save for good reason, all persons should be entitled to the benefits of the laws.  Good reasons to the contrary may be found in relation to, for example, the very young, the mentally ill, those in jail, or those in quarantine by reason of contagious disease.

In modern conditions removal of discrimination in relation to benefits provided by the state is not controversial – for example, the right to vote.  What is more controversial is whether a state which fails to intervene against conditions of discrimination imposed not by itself but by private persons or organisations is complaint with the rule of law.

The limits of the “rule of law”

There is a great theoretical dispute among lawyers about how far the rule of law extends beyond Hayekian requirements, perhaps as extended by Diceyan considerations.

At one extreme lies Joseph Raz, distinguished Oxford legal philosopher.  He contended that there can be conformity with the rule of law even in a “non-democratic system, based on the denial of human rights, or extensive poverty, or racial segregation, sexual inequalities and racial persecution”.[12]  Right or wrong, the proposition does trigger reflections on what is meant by “the rule of law”.  For example, extensive poverty has existed ever since the human race began, and in every major society.  It may exist however earnestly governments desire otherwise, however hard they try to end it, and however impeccably their legal systems have been constructed and operated.  It would be extreme to hold that no state with extensive poverty could be described as subject to the rule of law.  Further, Raz’s thinking is a reminder that there is one thing worse than a morally reprehensible law.  That is a morally reprehensible law which is retroactive, obscure, difficult to identify and applied arbitrarily and unpredictably.[13]  Even in its narrowest sense the rule of law offers that measure of protection to the unprotected.  It is a protection which is even more important in totalitarian societies than others. 

At the opposite extreme, ambitious claims are sometimes made for the rule of law.  Let us start with Jawaharlal Nehru, the distinguished Indian Prime Minister – a proud product of Harrow, Trinity College Cambridge, and the Inner Temple.  He is generally but not universally admired.  He did think that the way forward for the Indian economy was Stalinism without the gulags.  His Muslim rival, the first President of Pakistan, M A Jinnah, said he was nothing but a wily and cunning Hindu, covered with a thin veneer of Western civilisation.  However that may be, Nehru said that the rule of law was “synonymous with the maintenance of civilised existence”.[14]  In similar fashion, in 1959 the International Congress of Jurists at Delhi resolved that the rule of law included the goal of establishing “the social, economic, educational and cultural conditions which are essential to the full development of [the human] personality”.[15] 

Raz criticised those who held that view of the rule of law because they saw it as having the role of propounding “a complete social philosophy”.[16]  They meant by it only “that good should triumph”.[17]  This concept of the rule of law gives it different characteristics in the mind of every analyst.  It deprives the expression of any useful content.  Those who adhere to this concept tend not to match their very broad and personal vision of the rule of law with any coherent detailed account of its contents.  They are reminiscent of Bismarck’s view of the 19th century Italians:  “they have a big appetite, but very poor teeth”.

These gaps are filled, to some extent, by what are known as “bills of rights”.  Whether they operate as part of a definition of the rule of law, or outside it, they do have some content.  They reflect a reaction against the great liberal dream of the 18th and 19th centuries.  In that dream the primary protection against executive tyranny is a democratically elected legislature to which the executive is responsible.  But that system creates a danger.  James Madison, principal author of the United States Constitution, foresaw it over two centuries ago.[18]  Alexis de Tocqueville predicted it nearly two centuries ago in Democracy in America.  The danger is that a majority of legislators, and a majority of the electorate which elected those legislators, can behave tyrannically.  The great French thinker was a liberal aristocrat.  But man who were not liberal aristocrats have since lamented the influence of the “vile multitude” or the “masses” on government.  For that reason they opposed or lamented extensions to the franchise.  In England one was Robert Lowe, Chancellor of the Exchequer, fresh from a few years’ experience of the unruly democracy of New South Wales in the 1840s and 1850s.  Another was James Fitzjames Stephen.  In France, after Napoleon III’s clever exploitation of plebiscites, there was Thiers.  And the fiercest critic of all, the young Robert Cecil, opposed any extension of the franchise.  He ended up, paradoxically, as the Third Marques of Salisbury, the most electorally successful Conservative Prime Minister of all time on a franchise imcomparably wider than that which was in place for the first half of his life.  These were prophets of despair.  But their prophecies were not without reason.  The wars of the peoples proved to be more terrible than the wars of the kings.  So did the revenge of the peoples after their wars ended.  And so did their treatment of minorities.  For example, the Hapsburg Empire, and perhaps the Ottoman Empire in its better phases, treated their polyglot citizens much more fairly than the successor states to those Empires treated their minorities after 1918. 

The categories of bills of rights

The modern instruments which answer to the description “bill of rights” have to be approached with respect.  So do their supporters.  A J P Taylor said that the settlement at Munich “was a triumph for all that was best and most enlightened in British life”.[19]  So, too, bills of rights reflect the best and most enlightened instincts of highly civilised and intelligent people. 

The question is, however, whether, despite these admirable motivations, bills of rights are, in the words of Jackson J, anything more than “a teasing illusion, like a munificent bequest in a pauper’s will”.[20]  Bills of rights may be divided into four categories.

The first is purely aspirational.  The best example is the Universal Declaration of Human Rights of 1948.  It has no binding effect on states or individuals.

The second comprises treaties which bind the states which are parties to them in international law, but have no effect in local law until enacted by legislation, at least in countries which follow the dualist United Kingdom model, like Australia.  A leading example is the European Convention for the Protection of Human Rights and Freedoms (1950). 

The third category comprises statutes binding in domestic law which give the courts power to decide what human rights exist and whether other legislation is compatible with those rights.  An example is the Human Rights Act 1998 (UK).  It was copied in the Australian Capital Territory in 2004 and Victoria in 2006.  It will be examined below.

The fourth category comprises constitutional bills of rights giving the courts power to strike down legislation inconsistent with them.  The oldest example of this fourth category exists in the United States.  More modern examples are India (1950), Canada (1982) and South Africa (1994).  Australia is not in this category.  The capable and hard-headed politicians who framed the Australian Constitution made a close examination of the United States Bill of Rights – the first 10 amendments to the United States Constitution.  But they consciously shunned that model.  They preferred to leave the protection of human rights to the operations of parliamentary democracy, which had in the Australasian colonies taken a more vigorous and advanced form than it had anywhere else in the world.

A preliminary point

There is, however, one preliminary point.  It is that there has been a widespread adoption of bills of rights since 1945.  This movement was a response to the atrocious behaviour of totalitarian states before and during the Second World War.  Many countries have bills of rights which are, as a matter of mere words, impeccable.  But the reality does not match the words.  The number of countries which have observed even the most basic of human rights in practice in the last 68 years is low to miniscule.  The USSR Constitution of 1936 had a bill of rights.  It contained a guarantee that no-one was to work more than eight hours per day.  That must have been comforting reading for the inmates of the labour camps inside the Arctic Circle during the long winter evenings. 

Negative and positive bills of rights

One category of bills of rights guarantees traditional liberal freedoms against state interference.  Thus they tend to deal with rights to life; freedom from torture, slavery, arbitrary detention or arrest, and mistreatment while deprived of liberty; and rights to freedom of movement, fair trials, non-retrospective criminal legislation, freedom of thought, conscience and religion, and freedom of peaceful assembly and association.  Like our general law, they are essentially negative; they are opposed to positive acts of government mistreatment.  Indeed, each of them corresponds, substantially or precisely, with particular rules of the general law in Australia.  At least that is so on the face of the language of such instruments as the European Convention, the International Covenant on Civil and Political Rights (1966) and the Australian Charters – leaving aside what courts have done to that language since it was adopted. 

Another category of bills of rights creates positive guarantees.  Thus the International Covenant on Economic, Social and Cultural Rights (1966) recognises a “right of everyone to the opportunity to gain his living by work which he freely chooses or accepts”.  Coupled with that right is a duty on States positively to provide appropriate educational facilities.  There is a right to fair wages giving a decent living with paid holiday leave.  There is a right to social security.  There is a right to an adequate standard of living, coupled with a duty on States to improve methods of food production and share world food supplies equitably.  There is a right to health.  There is a right to education – primary, secondary and tertiary.  There is a right to take part in cultural life and enjoy the benefits of scientific progress.  Now may not be the time to examine closely these positive rights.  But there is a question over treaties which apply equally to the most wealthy signatories as to the poorest.  So far as the language is not vague to the point of meaninglessness, the duties it imposes on states can, except in the wealthiest states, only be complied with by a massive increase in the size and power of the state, whatever the consequences for national productivity and individual freedom. 

The Victorian Charter of Human Rights and Responsibilities

Let me turn to the British/New Zealand/Australian style of bills of rights, which follows the negative prohibition model.  In particular let me deal with the Victorian Charter of Human Rights and Responsibilities. 

It is a non-constitutional bill of rights in the third of the four categories mentioned above.  Unlike the bill of rights clauses of the United States Constitution, the Charter gives the courts now power to strike down legislation.  The Charter is simply an Act of Parliament.  The Charter does not affect the legislative power of the Victorian Parliament to amend or repeal it like any other Act of Parliament, though the aura of virtue which surrounds it might make this extremely difficult to do from the political point of view. 

The Charter has four main functions.

First central function:  statutory “construction”

The first of those functions relates to the courts’ powers of statutory construction.  The Victorian courts have proved capable of carrying out their central functions very well.  They have identified quite precise bodies of law.  They have found the facts relating to the dispute be4tween the parties which are relevant to those bodies of law, fairly and accurately.  And they have applied the law to those facts.  Outside their achievements in the gradual development of the common law, the courts have not made new law.  They have no power to amend legislation.  They have concentrated on construing legislation, independently of their personal opinions about what the legislation should have said.  They have generally not felt compelled to give statutes a meaning which they do not have on their face.  Now s 3(1) of the United Kingdom Act, on which s 32 of the Victorian Charter is based, requires that “if possible” legislation should be read compatibly with certain of the rights stated in the European Convention.  It has been held by the House of Lords, in decisions dominated by Lord Bingham, that this gives the courts power to amend legislation by giving it a meaning different from its actual or intended meanings.  The courts can only exercise this power to amend legislation by reference to their personal opinions on the practical, social and moral topics relevant to the Convention rights.  In Momcilovic v R[21] some members of the High Court thought that that was not the meaning of s 32(1) of the Victorian Charter, though its wording was very similar to s 3(1).[22]  With respect, I disagree with that conclusion.  I think s 32(1) gives the Victorian courts the same interpretative function which the United Kingdom courts have.

This interpretative function has considerable significance.  In part that significance is antidemocratic.  The power to substitute a rights-compatible meaning for the statutory meaning constrains legislative power. 

function:  declarations of incompatibility

Section 36 of the Charter confers a second central function on the courts.  It provides that the court may declare that a provision of primary legislation is incompatible with a Charter right.  This does not affect the validity, continuing operation or enforcement of the provision.  But the government may procure an amendment of the legislation which complies with the Charter right if it chooses to.  The United Kingdom Government has always done tis.  The same is likely to be true in Victoria.  In practice this gives the courts considerable power in relation to the legislature. 

Third central function:  statements of compatibility

A third central function springs from s 28.  A member of Parliament who proposes to introduce a Bill into a House of Parliament must make a written statement that in the member’s opinion the Bill is compatible, or incompatible, with human rights.  Section 28 plays an important role in ensuring that close attention is paid to human rights considerations by the legislature.

Fourth central function:  relief against pubic authorities

A fourth central function is that the court may grant relief against a public authority which acts in a way incompatible with a Charter right (ss 38-39).  That could have great practical importance.

A key characteristic:  interest/necessity analysis

A key characteristic of the Charter arises from s 7(2).  In relation to the rights conferred a two-stage process is necessary.  The first stage involves defining the rights in a preliminary or prima facie way.  They are the civil and political rights referred to above.  The second involves imposing limits on them which are necessary in a democratic society in the light of particular interests.  Below that will be called “interest/necessity analysis” for short.  Section 32 requires that legislation be examined for its compatibility with the rights ascertained after interest/necessity analysis. 

The justification for the Charter

What are the justifications for the Charter?

There are three which have significant force.

First, there is merit in setting out some human rights goals as explicit objectives for the legislature and the executive to bear in mind.

Secondly, it was valuable to create the duty to make a statement of compatibility.

Thirdly, the Charter compels the court to focus closely on a particular application of legislation to an individual case.  The legislature may not have foreseen that the legislation would apply to that case.  It may not have foreseen that in that application the legislation might have adverse human rights consequences.[23]  One strength of the common law system of trial is that it permits a detailed and measured consideration of the parties' circumstances which may affect the application or development of particular rules.  The Charter takes that facility and uses it to permit judicial suggestions for improvements in legislation by issuing declarations of incompatibility or making criticisms.

It is now necessary to turn to six potential problems in or questions about the Charter.

Problem one:  the direct and indirect expense of the Charter

The first problem is the direct and indirect expense of the Charter.  There are numerous direct costs to government.  There are also indirect costs to society in relation to human rights litigation and preparation for it.  Government energy is drained away from direct human rights protection.  An unproductive club of human rights lawyers has grown up.  Expense is not necessarily a critical problem if what is gained by the expense is worthwhile.  But it is questionable whether the gains made by the Charter are worthwhile.

Problem two:  the creation of legislative tasks in defining human rights which are beyond judicial competence

Vagueness.  Some of the Charter rights in their preliminary or prima facie form, even before express exceptions are considered or interest/necessity analysis is undertaken, are expressed in "vague, amorphous and emotively attractive terms".[24]  It is therefore necessary for courts to decide what the prima facie rights actually are.  The power to make those supposedly judicial decisions is in truth legislative in character, and ought never to have been granted to the courts.

Secondly, the application of interest/necessity analysis to the Charter rights stated in their prima facie form to work out the actual, not merely prima facie, content of each right is even more nakedly legislative in character.  The factors stated in the Charter as going to interest/necessity analysis are insufficiently specific to control or assist the courts.  The results of that analysis are unpredictable.  There is thus a sharp contrast between the reasoning of the courts in applying conventional rules of law and the reasoning of the courts in applying the Charter.[25]  The Charter is so vague that it invites judges to pour their views on controversial practical, social and moral questions into the empty vessels of the words.  The meaning will thus vary from judge to judge. 

Impermissible delegation.  The Charter has impermissibly delegated to the courts legislative decisions which the legislature itself has failed to make.[26]  This offends the separation of powers in a fundamental respect. 

Superior capacity of legislature.  The ability of the legislature to define rights is superior to that of the courts.  The Charter rights turn on matters of practical expediency, social interests and morality.  A court may know nothing of the particular factors which are relevant to these matters.  Legislators have access to this knowledge through public and private debate, pressure groups, commissions of inquiry, civil servants and staffers.  Courts do not.  Legislators characteristically work towards acceptable social compromises under the influence of different sectors of public opinion and practical pressures.  Courts cannot work in that way. 

         Cost implications.  Decisions under the Charter may have cost implications.  Legislators are accustomed to choose between courses of action after taking into account their cost and working out how that cost is to be funded.  Courts are not.  If a court makes a declaration of incompatibility and a legislative response conforming to it would require heavy expenditure, what is the government to do?  Does it defend its budget position by ignoring the declaration?  Or does it respond, and seek to raise money from disgruntled taxpayers to support a policy which both the government and the taxpayers oppose? 

The superior legitimacy of the legislature's role.  Thus, in defining human rights, the legislature has greater ability than the judiciary.  But it also has greater legitimacy. 

Each individual elector has at least one human right – the right to be treated as an autonomous moral being whose opinion on all issues must be taken into account.[27]  The politicians who are democratically elected legislators are accountable to each individual elector with that right.  Judges are not.  Politicians keep a close eye on the electors and their opinions.  Judges do not.  Politicians are accountable to the legislature.  Judges are not.  It is inherent in judicial independence that these things should be so.  It is more legitimate for legislators to decide human rights issues because of the types of accountability they have than it is for courts, which do not have those types of accountability. 

Problem three:  granting power to the courts to substitute for an impugned enactment a different enactment

The third problem concerns the power, which I think s 32(1) has granted to the courts, to legislate by moulding out of an enactment said to contravene human rights a better and purer enactment which does not.  The trouble is that the better and purer enactment is not the enactment which the legislature enacted and does not reflect the legislative will.  Indeed the new rights-compliant meaning which the courts select may be some distance from the legislative will. 

         In this respect the Victorian courts have been given greater power than a court administering constitutional bills of rights, like the Supreme Court of the United States.  Except when they are dealing with the Australian Constitution, the Victorian courts cannot strike down legislation.  The United States Supreme Court can strike down legislation.  But it cannot avoid striking it down by remoulding legislation in the way s 32(1) allows.  The United States Supreme Court cannot seek to avoid reaching the conclusion that a statute is constitutionally invalid by ignoring its actual meaning and substituting a meaning compatible with the bill of rights merely because it falls within the generous expanse of what is "possible".  This suggests that the Charter should not be placed in the third of the four categories listed earlier, but in a new and more extreme fifth category.

Problem four:  disabling judges from carrying out their conventional functions

         There is a risk that the task of defining human rights conferred by s 7 and rewriting legislation to accord with them conferred by s 32 will excite some judges unduly.  The diet provided by human rights work under the Charter is unusual and rich.  Its succulence can stimulate an appetite which grows on what it feeds on.  But it is a diet which may jade the judicial appetite for conventional work.  It may cause that work to be seen as having only a dreary banality.[28]  Worse, it may encourage judges to transfer the practical-social-moral analysis commanded by the Charter out of human rights fields into conventional fields, and even outside them, to fields into which traditionally the courts have abstained from moving and which they have left to the executive or the legislature.  These are fields like foreign affairs, national security, issues with budgetary implications, moral questions, policy questions generally.[29]  As with the American soldiers after the First World War, it may prove hard to get the judges back on the farm once they have seen Gay Paree.

Problem five:  increasing uncertainty and retrospectivity

         A decision about a rights-compatible meaning based on practical, social or moral criteria is inherently less predictable than a decision about the meaning of words independently of those criteria.  The Charter has made it much harder for a lawyer, and much harder for the intelligent citizen who is not a lawyer, to find out the law.  If there are authorities on the words – whether they be from Victoria or the United Kingdom – they must be read, with all their cross-references to arcane European Court cases, to discover whether or not a rights-compliant meaning exists which differs from the ordinary meaning.  Even if authorities on the words do not exist, the citizen cannot safely act on the ordinary meaning, because a court may later make a surprising departure from that meaning in order to ensure rights-compliance.  In the case of a statute enacted before 2008, the courts may have held before 2008 that it has its ordinary meaning.  A citizen may embark on a course of conduct, before or after 2008, in reliance on that meaning.  The courts may then overrule the earlier authorities and ascribe to the statute a rights-compliant meaning.  The later decision may operate adversely to the citizen.  In substance, the legislation involved operates retrospectively.  These problems of uncertainty and retroactivity are compounded when one remembers the innumerable public officers, senior and junior, who are liable to judicial remedy for actions incompatible with a Charter right under ss 38-39.  All this undercuts the rule of law values to which the Charter refers in its preamble.

Problem six:  the advisory character of declarations of incompatibility

When a court makes a declaration of incompatibility it reaches a curious result which neither party seeks.  On the one hand, a declaration that legislation is incompatible with Charter rights is not wanted by the government and is, indeed, the most adverse outcome possible for the government.  That is because as a practical matter it puts pressure on the government to do something about the legislation.  On the other hand, a declaration of incompatibility is not wanted by the plaintiff and creates no advantages for the plaintiff.  That is because it does not affect the validity of the legislation, which continues in its full adverse operation on the plaintiff.  What the plaintiff wants is not a declaration of incompatibility, but a construction of the legislation which is compliant with both the Charter rights and the plaintiff’s interests.  Thus Geoffrey Marshall called a declaration of incompatibility "not a legal remedy but a species of booby prize".[30]  Normally there is a direct relationship between one side's failure and another side's success.  Here there is not. 

The courts abhor giving advisory opinions.  The following conditions must be satisfied to prevent a judicial opinion being advisory.  The plaintiff must claim a remedy to enforce a right, duty or liability.  That remedy must be enforceable by the court.  And the plaintiff must have a sufficient interest in enforcing the right, duty or liability to make the controversy justiciable.[31]

A declaration of incompatibility does not meet those criteria.

Statute can authorise the giving of advisory opinions.  But it is very rare for this to happen.  That is because the courts and the legislature have seen the judicial development of the law as best taking place in the context of a particular dispute between the parties.  To criticise declarations of incompatibility for their advisory character does not simply proceed from a striving for some pure state of nice theoretical perfection.  It goes to the heart of the judicial function.  The task of a court in deciding a dispute is made easier where there is a concrete controversy between parties who have opposing material interests will be affected by the outcome.  The sharpness of the controversy assists the court to clarify its thinking.  That assistance is absent when the court decides to consider making a declaration of incompatibility – against the will of the parties, for the government opposes it and the plaintiff does not want it.  It is assistance which cannot be supplied by the arguments of interveners or amici curiae, with their lofty non-material goals. I say that as someone who has heard enough interveners and amici curiae to meet the needs of a lifetime.

The Victorian background

In short, bills of rights are often radically at odds with the rule of law and the conventional judicial process.  But the burden of the argument is not that the judiciary, or indeed the legislature, should abandon the enterprise of vindicating human rights, whether of the protected or the unprotected.  There are techniques which may be more effective than bills of rights, though admittedly some of them could be developed more intensively.

Before noting them, we should remember the form society takes in Victoria, for it is relevant to questions of protecting the unprotected.  In Victoria there is an old and mature common law tradition.  Victoria is ruled by a constitutional monarchy.  It is a democracy based on the principles of responsible and representative government.  It is ruled by Ministers responsible to democratically elected and representative parliaments.  Those parliaments have enacted a great many statutes.  They have authorised Ministers to promulgate a great deal of delegated legislation.  Victoria is part of a federation in which both the component units and the central government have, despite doomsayers, considerable vitality.  On most matters there is healthy rancour between political parties.  Although the parliamentary wings of those parties are subject to considerable, but far from complete, discipline through the role of party whips, the election of parliamentary representatives who are independent of the organised parties is common.  The likeliest source of oppression – the legislature – is not a monolithic unity.  It is fragmented between government and opposition, between front bench members and backbenchers on both sides, between big parties and small parties, between factions within parties whose views can overlap with the views of the factions of other parties, and between parties and independents.  Members of parliament are in close touch not only with debates about issues at a national and state level but with numerous competing bodies of opinion at the grass roots.  That is so because of their constituency work, their need to retain pre-selection, and their need to ensure re-election.  Delegated legislation made by the executive pursuant to parliamentary grants of power to do so is closely scrutinised by legislative committees.  The legislature and the executive are served by a professional civil service of ability and probity.  There are differences and tensions between civil servants, Ministers, and other members of the legislature, and also between particular members of those three classes.  An Upper House operates as a house of review.  

Public affairs are under the scrutiny of largely free and critical media outlets, even if they are rather over-aggressive, tasteless and oligopolistic.  There is a de facto, and in some degree de jure, separation of governmental powers.  Society is plural, in the sense that there are many political parties, trade unions, trade associations, universities, churches, clubs, pressure groups, social movements, lobbies, campaigns and other bodies or schools interested in public affairs but independent of government.  Society is also plural in the sense that its peoples come from an immense diversity of countries and ethnic backgrounds.  They are diverse in tradition, culture and creed as well.  And this diversity is a source of energy and innovation.  The extent of minority groups is so great as to deter oppression of minorities by those who may form an evanescent majority on one issue but not on others.  Victoria is an open society.  In particular, it offers careers open to talent.  And both the residents and the governmental units of the Australian federation are subject to the rule of law.  A necessary element in the rule of law is an independent judiciary.  The Victorian courts administer complex bodies of substantive law, which confers many rights, including "human rights", with great skill and fairness. 

Professor Simpson, the leading historian of the modern European human rights movement, summarised the English position in 1945 as follows,[32] and his words apply to Victoria as well:

"subject to certain limitations which, for most persons, were not of the least importance, individuals could worship as they please[d], hold whatever meetings they pleased, participate in political activities as they wished, enjoy a very extensive freedom of expression and communication, and be wholly unthreatened by the grosser forms of interference with personal liberty, such as officially sanctioned torture, or prolonged detention without trial".

To that list could be added the benefits to the public flowing from the gradual development of the welfare state in the late 19th century and after, and its acceleration after 1945 – for that development conferred social and economic rights of the type dealt with by the 1966 Covenant of that name.  Examples include workers compensation, state-backed systems of health care, various types of pension, and unemployment relief.  By 1945 in Victoria, there was universal suffrage, there were no religious tests for public office (save for the offices held by the monarch and the monarch's spouse) and the status of slavery had been abolished, if it had ever existed there.  All these achievements were the result of legislation and common law development, not of any modern-style bill of rights.  Indeed, the imposition of religious tests on the monarchy was actually the result of a Bill of Rights – the famous Bill of Rights 1689.  This is a reminder that the expression “bill of rights” does not necessarily mean that everything in a particular bill of rights reflects ideal values.  The deeply held values of one generation may seem bigoted or wrong-headed to another.  The main flaw which Professor Simpson saw in the law was a practical one:  "there was harassment and ill treatment of dissenters and outsiders and petty abuse of power in prisons, police cells, schools, and mental institutions, often condoned low in the hierarchy."[33]  What happens low down in hierarchies can, of course, be very difficult to control however generous-seeming a bill of rights may be. 

I turn to various techniques other than bills of rights for protecting the unprotected.

First technique:  the separation of powers and federalism

One of the best-known Bills of Rights in history is to be found in the first 10 amendments to the United States Constitution.  Yet those amendments were not part of the original Constitution as approved in the Philadelphia Convention in 1787 and operative from 1789.  The bill of rights became operative only in 1791.  The framers of the original Constitution did not see it as necessary.  James Madison regarded the separation of powers and the existence of federalism, both of which exist in Australia to a significant degree, as "a double security" to protect "the rights of the people".[34]  They diffuse and weaken governmental power.  Human liberties are best protected by keeping the powers of government in check – the powers of the federal government so as not to trespass on the field reserved to the other components in the federation, and the powers of the component parts of each level of government by division of them among the three branches of government.  Federalism also promotes human rights by reducing uniformity:  it permits each component unit to experiment. 

Second technique:  the "principle of legality"

There are principles of statutory interpretation sometimes called "a common law 'Bill of Rights'".[35]  One of them is the "principle of legality".  In the absence of clear words or necessary implication the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms.  This principle has been well-established for some time.  Though it is more limited than s 32(1), it can achieve a similar purpose without entailing the drawback of imposing on the courts the undesirable task of creating new rules in the manner of the legislature. 

Third technique:  specific rules of the general law

The Charter stands in contrast with many rules of the general law.  The Charter is not detailed.  The Charter is not directly enforceable in relation to legislation, as distinct from actions under that legislation (ss 38-39).  The Charter is not specifically adapted to particular problems.  The Charter is not entirely coherent.  In contrast, common law and statutory rules tend to be detailed.  They are generally enforceable.  They are specifically adapted to the resolution of particular problems.  Their makers seek, with some success, to make them generally coherent with each other and with the wider legal system. 

Victorian law is replete with examples of the type of enactments and common law rules which vindicate human rights directly and specifically.  Those enactments and rules do so better than the Charter techniques.  They were worked out over a very long time by judges and legislators who thought deeply about the colliding interests and values involved in the light of practical experience of conditions in the society to which the rules were applied.  Abstract slogans and general aspirations about human rights played no useful role in their development.  The great detail of this type of regime renders it superior to bills of rights.  Among other things, it is likely to encourage a gradual change in culture and ethos, which may be stronger influences towards good conduct than the vague aspirations embodied in bills of rights. 

Other techniques

A fourth technique is the role of ombudsmen in investigating complaints about government maladministration relating to human rights.  That role may be particularly important in dealing with the problems Professor Simpson identified at the bottom of the governmental pyramid. 

A fifth technique is responsible government and its capacity for the elected representative of a citizen to seek redress of grievances by corresponding with Ministers and, if necessary, publicly questioning them in Parliament, or attacking them in parliamentary speeches. 

A sixth technique is invoking media publicity with the assistance of pressure groups. 

A seventh technique is the rigorous examination of legislation by legislative committees before legislation is enacted as well as by those responsible for drafting the legislation. 

An eighth technique is encouraging among employers, the suppliers of services and the community generally a greater sensitivity to human rights. 

Conclusion

Sometimes it is said that to rely on the legislature and the judiciary alone to protect human rights is to risk their steady debasement.  It is said that without the Charter, the importance of human rights will be forgotten, or human rights will be readily destroyed by the arrival of a dictator, or there will be "a creeping erosion of freedom by a legislature willing to countenance infringement of liberty or simply blind to the effect of an otherwise well intentioned piece of law."[36] 

Of course the Charter, being only an ordinary act of Parliament, is not immune from the attentions of a dictator whose "party" seizes control of the legislature.  Now it is a principle of statutory construction, and of constitutional construction, that it is wrong to adopt a construction of the language in its ordinary operation which is controlled by the extraordinary possibility of some extreme but highly unlikely state of affairs – what Justice Scalia calls a "horrible".  It is equally wrong to criticise the potential inefficiency of governmental institutions by postulating a failure in them which can only result from some cataclysmic social breakdown which it is almost impossible to prevent or control.  It is probable that if a dictator takes power, or a party hostile to human rights in their present manifestations is elected, something will have gone so wrong in society that a bill of rights would have been incapable of preventing the catastrophe. 

Further, some think that bills of rights are neither necessary nor sufficient means by which to achieve many human rights goals.  Some contend that a tradition in the particular jurisdiction of adherence to the rule of law is much more important.  Some even think that the protection of rights depends more often on factors other than legal rules.  One is the social climate, the moral traditions, and the ethical sense of the people.  Another is the existence among them of a vibrant culture of tolerance and liberty.  Another is their desire to maintain civilised standards and manners.  A reflection of these factors in public opinion may be more effective than formal guarantees, of whatever kind, in the law.  It is customary to deride this point of view with the supposedly annihilating adjective "Diceyan".  But Dicey is not its only supporter.  Thinkers as different from Dicey as John Stuart Mill and Alexander Hamilton have agreed with it. 

It is easy to underrate public opinion.  It can be very important where there are people with the will and ability to mobilise it.  That has been done even in very adverse circumstances.  In 1941, at the height of Hitler's apparent success and popularity, a Nazi programme of compulsory euthanasia for the incurably ill was under way.  On 3 August 1941, the Catholic Cardinal Archbishop of Münster, who happened to be an aristocrat, Graf Clemens von Galen, delivered a sermon on the subject.  He attacked the programme as "plain murder".  He demanded that those responsible be prosecuted on murder charges.  He also pointed out that the programme would in due course involve all invalids, cripples and badly wounded soldiers – and there were at that time many badly wounded soldiers returning to Germany from the East.  Copies of that sermon were distributed throughout Germany, and circulated among the soldiers at the front.  The Cardinal Archbishop became an admired hero.  What was the government reaction?  Himmler wanted him to be arrested.  Bormann wanted him to be hanged.  Goebbels was an unlikely advocate of mercy.  But he was the Minister for Culture and Propaganda.  He did understand public opinion.  He advised Hitler not to proceed against the Cardinal Archbishop because it would alienate the whole of Westphalia for the rest of the war.  Goebbels's advice led Hitler, reluctantly, not to take vengeance on the Cardinal Archbishop until he was placed in a concentration camp after the bomb plot on 20 July 1944.  The euthanasia programme was terminated in 1941 and did not resume.[37]

Five questions now arise.  Is a bill of rights even a particularly useful component in the complex mixture of factors that contribute to a stable civil society?  Has the Charter significantly improved human rights protection?  Is there any fundamental right referred to in the Charter which was not given reasonable protection in Victorian law before 2008?  Before 20008, were there any significant instances in which that right was infringed in circumstances not permitting any recourse to the courts to remedy the infringement?  Is there any respect in which the Charter will lead to significantly greater protection for that right without raising the risk of limiting other rights?  It might take a lot of work to answer those five questions.  But if the answer to them is "Yes, and the prices to be paid are thought to be worth it", Victorians should be grateful for the Charter.  If the answer is "No" or "Yes, but the prices to be paid are too high", they should not be.  Those latter answers would reveal that it was not necessary either to enter the Charter.  They would also reveal that if the unprotected, or the partially protected, are to be better protected, the methods of doing so must be found in places other than the Charter, or at least not only in that place.  


[1] The passage reads: 

“The continued existence of the community under the Constitution is a condition of the exercise of all the other powers contained in the Constitution, whether executive, legislative or judicial.  The preservation of the existence of the Commonwealth and of the Constitution of the Commonwealth takes precedence over all other matters with which the Commonwealth is concerned.  As Cromwell said, ‘Being comes before well-being’”:  Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 141.

[2] The Road to Serfdom (1944) p 54.

[3] “The Path of the Law”, (1897) 10 Harv LR 457 at 461.

[4] Letter to Franklin Ford, 8 February 1908 in Richard A Posner (ed), The Essential Holmes, (1891) p 201.

[5] Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435. 

[6] F A Hayek, The Constitution of Liberty (1960) p 208.

[7] “The Rule of Law” (2007) 66 Camb LJ 67 at 71.

[8] “The Rule of Law” (2007) 66 Camb LJ 67 at 71.

[9] “The Rule of Law” (2007) 66 Camb LJ 67 at 70.

[10] Annals, III, 27:  “corruptissima re publica plurimae leges”.

[11] A V Dicey, Introduction to the Study of the Law of the Constitution, 12th ed (1948) pp 202-203.

[12] Joseph Raz, “The Rule of Law and its Virtue” (1977) 93 LQR 195 at 196.

[13] James Allan, “Reasonable Disagreement and the Diminution of Democracy:  Joseph’s Morally Laden Understanding of the Rule of Law” in (ed) Richard Ekins, Modern Challenges to the Rule of Law (2011) p 92.

[14] Quoted by G de Q Walker, The Rule of Law (1988) p 2.

[15] Quoted by G de Q Walker, The Rule of Law (1988) p 6.

[16] “The Rule of Law and its Virtue” (1977) 93 LQR 195.

[17] “The Rule of Law and its Virtue” (1977) 93 LQR 195 at 196.

[18] Letter to Thomas Jefferson, 17 October 1788 in William T Hutchinson et al (eds) The Papers of James Madison (1962-1977) vol 1, ch 14, doc 47 and speech in the House of Representatives, 8 June 1789 in op cit, vol 1, ch 14, doc 50.

[19] A J P Taylor, The Origins of the Second World War (1964) p 235.

[20] Edwards v California 314 US 160 at 186 (1941).

[21] (2011) 245 CLR 1.

[22] It provides:

         “So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.”

[23] Jeremy Webber, "A Modest (but Robust) Defence of Statutory Bills of Rights" in (eds) Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone, Protecting Rights Without a Bill of Rights (2006) pp 275-284.

[24] James Allan, "The Effect of a Statutory Bill of Rights where Parliament is Sovereign:  the Lesson from New Zealand" in (eds) Tom Campbell, K D Ewing and Adam Tomkins, Sceptical Essays on Human Rights (2001) 375 at 376.

[25] Kenneth Minogue, "What is Wrong with Rights" in (ed) Carol Harlow, Public Law and Politics (1986) 209 at 223. 

[26] Grégoire C N Webber, The Negotiable Constitution:  On the Limitation of Rights (2009) p 7.

[27] Tom Campbell, "Does anyone win under a bill of rights?  A response to Hilary Charlesworth's 'Who wins under a bill of rights?'" (2006) 25 University of Queensland Law Journal 55 at 57. 

[28] Sir Gerard Brennan, "The Impact of a Bill of Rights on the Role of the Judiciary:  An Australian Perspective" in (ed) Philip Alston, Promoting Human Rights Through Bills of Rights:  Comparative Perspectives (1999) 454 at 460.

[29] Lord Sumption, "Judicial and Political Decision-Making:  The Uncertain Boundary" [2011] Judicial Review 301 at 313-314 [31]-[32].

[30] "Two kinds of compatibility:  more about section 3 of the Human Rights Act 1998" [1999] Public Law 377 at 382.

[31] Abebe v The Commonwealth (1999) 197 CLR 510 at 528.

[32] A W Brian Simpson, Human Rights and the End of Empire:  Britain and the Genesis of the European Convention (2001) p 51.

[33] A W Brian Simpson, Human Rights and the End of Empire:  Britain and the Genesis of the European Convention (2001) p 51.

[34] Quoted in (ed) Kevin A Ring, Scalia Dissents:  Writings of the Supreme Court's Wittiest, Most Outspoken Justice (2004) p 43. 

[35] J Willis, "Statutory Interpretation in a Nutshell" (1938) 16 Canadian Bar Review 1 at 17. 

[36] Lord Irvine of Lairg, "The Development of Human Rights in Britain Under an Incorporated Convention on Human Rights" [1998] Public Law 221 at 229.                                       .

[37] Guenter Lewy, The Catholic Church and Nazi Germany (1968) pp 265-266; (ed) Robert S Wistrich, Who’s Who in Nazi Germany (2002) p 71.