Human Rights Protection in Australia: Interpretation Provisions and Parliamentary Supremacy

Published date01 March 2004
Date01 March 2004
Julie Taylor*
In Ghaidan v Mendoza,1 the English Court of Appeal held that s 3 of the Human Rights
Act 1998 (UK) c 42 required that a previously enacted UK statute be interpreted so as to
preclude express or implied discrimination against same-sex couples, consistently with
art 14 of the European Convention on Human Rights.2 The Court considered that s 2(2) of
the Rent Act 1977 (UK) c 42, which referred to a person living with the original tenant
'as his or her wife or husband', should not be read to exclude same-sex couples. Buxton
LJ stated that the principle of deference to the will of Parliament did not assist in
deciding the case.3 Section 2(2) was interpreted as applying to a person living with a
tenant 'as if they were his or her wife or husband',4 despite the fact that the UK
Parliament intended it to be restricted to partners of the opposite sex.
The position would be different, however, if the Commonwealth Parliament
enacted a provision similar to the one under consideration in Ghaidan v Mendoza,
despite the enactment of internationally recognised rights in the Sex Discrimination Act
1984 (Cth).5 The traditional doctrine of parliamentary supremacy would require
Australian courts to give effect to the later Act, even if it abrogated rights contained in
the Sex Discrimination Act. These different approaches to legislation that affects the
* BA (Asian Studies), LLB (Hons), University of Western Australia. The author thanks Jim
Thomson, George Winterton, and the anonymous referees for comments on earlier drafts.
1 [2002] 4 All ER 1162.
2 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for
signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953). See
Nicholas Bamforth, 'A Constitutional Basis for Anti-Discrimination Protection?' (2003) 119
Law Quarterly Review 215, 218. Bamforth notes four limitations on the 'interpretative
obligation' raised in this case.
3 [2002] 4 All ER 1162, 1179 [17] (Buxton LJ). Keene LJ gave a concurring judgment: at 1175–6
[37]–[45]; Kennedy LJ agreed with both judgments: at 1176 [46].
4 Ibid 1174 [35] (Buxton LJ) (emphasis in original).
5 Discrimination against same-sex couples was held to be inconsistent with the Sex
Discrimination Act in different circumstances: see McBain v Victoria (2000) 99 FCR 116
(Sundberg J). The High Court upheld the decision but did not consider the question of
inconsistency: Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372. For
analysis of the McBain litigation, see Kristen Walker, 'The Bishops, The Doctor, His Patient,
and the Attorney-General: The Conclusion of the McBain Litigation' (2002) 30 Federal Law
Review 507.
58 Federal Law Review Volume 32
internationally recognised human right to freedom from discrimination6 highlight two
issues. First, what is the effect of parliamentary supremacy for human rights
protection? Secondly, to what extent are interpretation provisions, such as s 3 of the
Human Rights Act 1998 (UK), effective in providing or strengthening this protection?
This article examines these two issues. Part one considers the doctrine of
parliamentary supremacy and the implications of this doctrine for human rights
protection in Australia. Part two postulates some identifying characteristics of
interpretation provisions. Part three compares the approach of courts to those
provisions in Australia, the UK, Canada, and New Zealand. Part four argues that
interpretation provisions in human rights statutes are not necessarily irreconcilable
with parliamentary supremacy. Part four concludes that the High Court could hold
subsequently enacted provisions that are inconsistent with an interpretation provision
inoperative to the extent of the inconsistency.
The Commonwealth Parliament has used the external affairs power to enact human
rights statutes such as the Racial Discrimination Act 1975 (Cth) and the Sex
Discrimination Act 1984 (Cth). However, these are, like other Commonwealth statutes,
capable of express or implied repeal by any subsequent Commonwealth statute. The
external affairs power could also be used to enact a statutory Bill of Rights protecting
internationally recognised human rights, but any such statute would be susceptible to
express or implied repeal. Given that the possibility of entrenching a Commonwealth
Bill of Rights or other human rights statutes through the s 128 Commonwealth
Constitution amendment process appears unlikely,7 parliamentary supremacy, and
associated rules of statutory interpretation and implied repeal, constitute significant
obstacles to the effective protection of human rights.
Truly effective protection of human rights would compete with the doctrine of
parliamentary supremacy, if that protection were to limit Australian Parliaments'
legislative power. Parliamentary supremacy continues to affect the development of
Australian constitutional law.8 In Kable v Director of Public Prosecutions, which
6 See, eg, Convention on the Elimination of All Forms of Discrimination Against Women, opened
for signature 18 December 1979, 1249 UNTS 13, arts 2 and 3 (entered into force 3 September
1981) ('CEDAW'); European Convention on Human Rights, art 14.
7 Including the referenda of 1999, only 8 of the 44 proposals, on 19 referendum days, have
passed: Tony Blackshield and George Williams, Australian Constitutional Law and Theory:
Commentary and Materials (3rd ed, 2002) 1301. This includes the proposal rejected in 1988, to
extend to the States rights already protected against the Commonwealth in the
Commonwealth Constitution (trial by jury, freedom of religion, and the requirement of just
compensation for expropriated property): Gerry Ferguson, 'The Impact of an Entrenched
Bill of Rights: The Canadian Experience' (1990) 16 Monash University Law Review 211, 216.
Nationally, 30.33 per cent of voters favoured this proposal, while 68.19 per cent voted
against, the lowest 'Yes' vote ever recorded in Australia: George Williams, 'Legislating for a
Bill of Rights Now' (Paper presented at the Department of the Senate Occasional Lecture
Series, Canberra, 17 March 2000) 29.
8 Michael Wait, 'The Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution
Revisited' (2001) 29 Federal Law Review 57, 60; Tony Blackshield and George Williams,
Australian Constitutional Law and Theory: Commentary and Materials (2nd ed, 1998) 131; Sir
Anthony Mason, 'The Role of a Constitutional Court in a Federation: A Comparison of the

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