Constitutional Limits on Bills of Rights Introduced by a State or Territory

Published date01 September 2007
AuthorStefanie Wilkins
Date01 September 2007
Subject MatterArticle
Stefanie Wilkins*
The introduction of the Human Rights Act 2004 (ACT) ('the HRA'), although
contentious,1 is indicative of a move towards the introduction of bills of rights at State
or Territory level in Australia.2 The HRA is modelled on the UK Human Rights Act3
and the New Zealand Bill of Rights Act,4 and has precipitated discussion in several
States on the merits of introducing their own bills of rights,5 with Victoria enacting the
Charter of Human Rights and Responsibilities Act 2006 (Vic).6
However, one significant area of uncertainty, which has been given little
consideration,7 is how the HRA (and equivalent legislation at State level) will operate
within Australia's constitutional framework. Section 32 of the HRA enables the ACT
Supreme Court to issue a 'declaration of incompatibility' when a provision of ACT
* LLB (Hons), BE (Civil) (Hons), GDLP. This article was originally submitted as an Honours
Dissertation at the University of Adelaide. I would like to thank Professor John Williams
for his comments and guidance in the preparation of this article. I would also like to thank
Professor Geoffrey Lindell for his comments on earlier version of this paper.
1 See, eg, Bill Stefaniak, 'Our Laws Are Enough', The Canberra Times (Canberra), 25 April
2002, 11; see also ACT Bill of Rights Consultative Committee, Towards an ACT Human
Rights Act (2003) 17–21, 33–7, 39–41.
2 See, eg, ACT Bill of Rights Consultative Committee, above n 1, 38.
3 Human Rights Act 1998 (UK) c 42.
4 Bill of Rights Act 1990 (NZ).
5 Australian Associated Press, NSW: Iemma Willing to Consider Charter of Rights Proposal (20
March 2006) ACT Human Rights Act Research Project
s/index.html> at 29 May 2006; Judy Jackson, 'Human
Rights Reference to Law Reform Institute' (Press Release, 9 February 2006); Ben Spencer,
'McGinty Considers Bill of Rights', The West Australian (Perth), 1 April 2006, 62; Nick
Lenaghan, Victoria to Adopt Human Rights Charter (2 May 2006) ACT Human Rights Act
Research Project> at 29 May 2006; contra
Standing Committee on Law and Justice, Parliament of New South Wales, A NSW Bill of
Rights (2001); Victorian Human Rights Consultation Committee, Draft Charter of Human
Rights and Responsibilities (2005).
6 This article does not address the content of that Act; however, where sections of the HRA
are discussed, references are provided to the equivalent sections in the Victorian Act.
7 James Stellios, 'Federal Dimensions to the ACT Human Rights Act' (2005) 47 AIAL Forum 33;
Standing Committee on Legal Affairs, ACT Legislative Assembly, Scrutiny of Bills and
Subordinate Legislation Report No 42 (2004) 11–12.
432 Federal Law Review Volume 35
legislation is incompatible with a right enunciated in the HRA.8 However, this
declaration is intended to initiate 'dialogue' between the judiciary and the legislature:9
it does not invalidate the legislation, or affect the rights of the parties in the dispute in
which the declaration is made.10 This article will address the constitutional limits that
may be placed on the exercise of this novel 'remedy'. Some of these constitutional
limits are unique to the ACT and its Supreme Court, while many will also be
applicable to bills of rights introduced by a State.
A consideration of the Australian constitutional framework requires recognition
that Chapter III of the Australian Constitution establishes an integrated judicial system,
with the High Court as the ultimate appellate court.11 One effect of this framework is
the creation of a uniform system of common law12 and a unitary federal jurisdiction13
throughout Australia. However, in conferring power on the parts of the system not
created by the Commonwealth Parliament, Parliament must take these courts as it finds
them.14 Thus, courts not created by Commonwealth Parliament may be able to
exercise powers which cannot be exercised by the High Court due to the limits placed
on the High Court by Chapter III. In some cases, this may frustrate the intended
integrated system: there may be certain powers which, when exercised by a State or
Territory court, cannot be reviewed by the High Court.15
The availability of an appeal from a 'declaration of incompatibility' issued by a
Territory (or State) court is critical. If no appeal can be made to the High Court, human
rights jurisprudence may develop independently in each State or Territory. This could
create uncertainty in the law16 and have adverse practical consequences.17 As the HRA
8 Human Rights Act 2004 (ACT) s 32(2).
9 ACT Bill of Rights Consultative Committee, above n 1; Explanatory Memorandum, Human
Rights Bill 2003 (ACT).
10 Human Rights Act 2004 (ACT) s 32(3).
11 Breavington v Godleman (1988) 169 CLR 41, 120–5 (Deane J); Kable v Director of Public
Prosecutions (NSW) (1996) 189 CLR 51, 112–14 (McHugh J), 137–9 (Gummow J) ('Kable');
Abebe v Commonwealth (1999) 197 CLR 510, 559 (Gaudron J) ('Abebe'); Kruger v
Commonwealth (1997) 190 CLR 1, 175 (Gummow J); Australian Law Reform Commission,
The Judicial Power of the Commonwealth, Report No 92 (2001) [2.34], [2.67]; Gould v Brown
(1998) 193 CLR 346, 479 (Kirby J).
12 Lipohar v The Queen (1999) 200 CLR 485, 500 (Gleeson CJ), 505–6 (Gaudron, Gummow and
Hayne JJ) ('Lipohar'); Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 563–7
(per curiam) ('Lange').
13 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 514, 518 (Gleeson CJ, Gaudron, McHugh,
Gummow and Hayne JJ) ('Pfeiffer'); Commonwealth v Mewett (1997) 191 CLR 471, 524–5
(Gaudron J) ('Mewett').
14 Kable (1996) 189 CLR 51, 68 (Brennan CJ), 96 (Toohey J), 101–2 (Gaudron J), 110 (McHugh J);
Le Mesurier v Connor (1929) 42 CLR 481, 495–8 (Knox CJ, Rich and Dixon JJ); Federated
Sawmill, Timberyard and General Woodworkers' Employes' Association (Adelaide Branch) v
Alexander (1912) 15 CLR 308, 313 (Griffith CJ).
15 See, eg, Holmes v Angwin (1906) 4 CLR 297 ('Holmes'); C A MacDonald Ltd v The South
Australian Railways Commissioner (1911) 12 CLR 221; cf Kable (1996) 189 CLR 51, 85–6
(Dawson J).
16 Malcolm Farr, 'States Rights Push Wrong', The Daily Telegraph (Sydney), 7 April 2006, 17.
17 Australian Law Reform Commission, above n 11, [2.65].
2007 Constitutional Limits on State and Territory Bills of Rights 433
is based on the International Covenant on Civil and Political Rights,18 the nature of
Australia's international obligations may also be interpreted independently by State
and Territory courts if no appeal can be made to the High Court.
There are two primary limits placed on the exercise of power by the High Court: it
must exercise solely judicial power (or power ancillary thereto)19 only in relation to
matters.20 The application of these limits to s 32 depends on a careful analysis of the
effect and nature of a declaration.
In Part One, I will address the effect and nature of a declaration, before considering
whether this represents an exercise of judicial power. In Part Two, I will consider the
position of the ACT Supreme Court in the Australian constitutional framework to
identify the circumstances in which appeals may be made from it to the High Court,
and compare the position of State Supreme Courts. Part Three will address the
relationship between judicial power and 'matter', and the question of whether a
declaration of incompatibility can constitute a 'matter'. Finally, in Part Four, I will
consider whether s 32 of the HRA is invalidated by the Kable21 principle.
I will demonstrate that there are substantial constitutional hurdles which may
preclude the High Court from reviewing the exercise of the power conferred by s 32, or
may even render the power invalid. The aim of this article is to identify the
constitutional issues arising from the HRA and to consider the arguments relating to
each of these issues.
In order for s 32 to be a valid conferral of power on the Supreme Court, and for a
declaration to be capable of appeal to the High Court, a favourable response to each
and every constitutional issue is required. Some of the questions relating to the
application of the HRA have two possible resolutions, of which one leads to a
conclusion that the declaration is beyond review by the High Court, thus rendering
other questions moot. However, the areas of law addressed in this article are
contentious, and may have an uncertain application to the HRA, and consequently the
conclusions drawn are tentative. Thus, these issues will be addressed separately (as far
as possible), so that an adverse conclusion on one issue does not preclude analysis of
other issues.
A Content of the Human Rights Act
The HRA confers two roles on the judiciary.22 The first of these is statutory
interpretation. Section 30 provides that '[i]n working out the meaning of a Territory
law, an interpretation that is consistent with human rights is as far as possible to be
18 International Covenant on Civil and Political Rights, opened for signature 16 December 1966,
999 UNTS 171 (entered into force 23 March 1976).
19 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ('Boilermakers' Case').
20 In re Judiciary and Navigation Acts (1921) 29 CLR 257.
22 The judicial functions are fully set out in Part 4.
23 Human Rights Act 2004 (ACT) s 30(1); cf Charter of Human Rights and Responsibilities Act 2006
(Vic) s 32.

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