Legal Protection for Fundamental Rights and Freedoms: European Lessons for Australia?
| Date | 01 March 1994 |
| DOI | 10.1177/0067205X9402200103 |
| Published date | 01 March 1994 |
| Subject Matter | Article |
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LEGAL PROTECTION FOR FUNDAMENTAL RIGHTS
AND
FREEDOMS: EUROPEAN LESSONS FOR AUSTRALIA?
Timothy H
Jones*
I
would
say,
without
hesitation,
that
the rights of individuals
in
Australia are as
adequately protected as
they
are
in
any
other
country
in
the
world.l
[M]ost citizens of
the
[Euro~ean
Union] enjoy
more
protection
of
their rights
than
do
the
people of the lucky country.
INTRODUCTION
The adequacy of the legal protection given to fundamental rights
and
freedoms is a
topic of concern
in
both
Australia
and
Britain, two jurisdictions which share a common
legal heritage.3 Both have witnessed extensive debates
in
recent times about the
desirability
or
otherwise of a Bill of Rights designed to protect
human
rights.4 The issue
*
1
2
3
4
Faculty of Law, University of Manchester. A
number
of
academic colleagues
provided
advice
and
assistance at various stages
in
the development
of
this article. I
would
like
to
express
my
appreciation to Rodney Brazier, Hilary Charlesworth, Sean Doran, Neil
Duxbury, Jeffrey Goldsworthy, Joseph Jaconelli, Perry Keller, Martin Loughlin
and
Stephen
Weatherill.
None
of
these individuals
should
be
assumed to
endorse
my
views.
An
early
version
of
this
paper
was
presented
at
a symposium, "From Singapore to Maastricht:
Britain
and
Australia, 1942-1992", held
under
the auspices
of
the Centre for Australian
Studies
in
Wales, St David's University College, Lampeter,
in
July 1993. The participants
in
this inter-disciplinary colloquium
provided
welcome encouragement.
Sir Robert Menzies, Central Power in the Australian Commonwealth:
An
Examination
of
the
Growth
of
Commonwealth Power in the Australian Federation (1967)
-at
54. See to the
same
effect
G Sawer, "Protection
of
Human
Rights
in
Australia" [1946] Yearbook on Human Rights
31
at
31:
"There is
probably
no
country
in
the
world
in
which
human
rights,
whether
of
individuals
or
groups,
are
more extensive
or
better protected
than
they
are
in
Australia." Cf
Justice J Toohey, "A Government of Laws,
and
Not
of
Men?" (1993) 4 PLR 158
at
163:
"It
cannot
be
said
that
individual
liberties are as well protected
in
Australia as
in
those
jurisdictions
which
have
express constitutional guarantees of
such
liberties
which
preclude
legislative
or
executive infringement." -
J
Dunn,
"Time to lift
our
EC blinkers" The Bulletin July 71992
at
20.
See G Sawer, "Government
and
Law"
in
J D B Mitchell (ed), Australians and British: Social
and Political Connections (1987)
ch
2;
G Barwick, "Law
and
the Courts"
in
A F
Madden
and
W H Morris-Jones (eds), Australia and Britain (1980) 145. See also Justice} Toohey, "Towards
an
Australian
Common
Law" (1990) 6 Australian
Bar
J 185.
See M R Wilcox,
An
Australian Charter
of
Rights? (1993); R Brazier, Constitutional Reform: Re-
shaping the British Political System (1991)
ch
7;
L Spender (ed), Human Rights -The
58
Federal
Law
Review
Volume
22
has
been
brought
to the fore in Britain largely as a result of the unimpressive record of
the
United
Kingdom before the European
Court
of
Human
Rights. British laws have
been
found to
be
inadequate in the protection given to fundamental rights
and
have
had
to
be
changed to reflect the requirements of the European Convention
on
Human
Rights (referred to variously as the ECHR, the European Convention
and
the
Convention in the following text
and
footnotes). The United Kingdom's membership of
the
European
Community has also
had
a considerable impact
both
on
the content of the
law
and
on
traditional legal attitudes. As the Chief Justice, Sir Anthony Mason, has
commented, these European advances "will affect the traditional affinity between
Australian
law
and
English
law
and
serve to emphasise
our
legal isolation.''5 The
further significance of these developments for Australia is that the areas of the law
which
have
been
found to
be
in contradiction
with
fundamental rights are "all
but
identical
with
Australian common law"6
and
"[t]here is little reason to assume that legal
protection of individual rights
in
Australia
would
measure
up
any better.''7 Judges in
both
Australia
and
Britain are coming to recognise the inadequacy of their traditional,
common
law
conceptual framework where fundamental rights are concerned. The
seeming
paradox
is that
at
a time
when
Australia seeks to assert its political
distinctiveness from Britain, some of its judges continue to gain inspiration from the
European
legal experience
in
Britain.s This article examines the
nature
of current
Anglo-Australian academic
and
judicial debates,
drawing
parallels where appropriate,
5
6
7
8
Australian
Debate
(1987); M Zander, A
Bill
of Rights? (3rd
ed
1985); C Campbell (ed),
Do
We
Need
a
Bill
of
Rights? (1980); S Encel, D Horne
and
E Thompson (eds),
Change
the
Rules!
Towards
a
Democratic
Constitution
(1977);
G Evans, "An Australian Bill of Rights?" (1973)
45(1) Australian Quarterly
4.
See also
the
works cited
within
nn
144
and 185, below.
Sir
Anthony
Mason,
"A
Bill
of
Rights for Australia?" (1989) 5 Australian
Bar
J
79
at
80.
There
is
no
doubt
that
this sense
of
isolation has been accentuated
by
developments
in
Canada
(Bill
of
Rights 1960
and
Charter of Rights and Freedoms 1982)
and
New
Zealand (Bill of
Rights Act 1990). See Sir Ninian Stephen "Time to Take Stock" Australian
Financial
Review
Magazine April1992, 14 at
26;
Sir Anthony Mason, "The Role
of
a Constitutional Court
in
a
Federation: A Comparison
of
the Australian
and
the
United States Experience" (1986) 16 F L
Rev
1
at
8.
In
a
way,
however, these developments have served only to demonstrate the
present
affinity between the legal systems
of
Australia
and
Britain,
and
to emphasise their
shared
isolation from the Western mainstream:
both
countries having so far failed to
adopt
Bills
of
Rights. G Sturgess
and
P Chubb,
Judging
the
World:
Law
and
Politics
in
the
Worlds'
Leading
Courts
(1988)
at
70, quote Sir Anthony Mason as having said: "The majority of
countries
in
the
western
world
do
subscribe to a Bill
of
Rights
on
the basis
that
individual
and
minority rights often
need
protection,
and
the
only
effective protection is
by
a Bill
of
Rights.
If
we
don't
adopt
a Bill of Rights I
am
inclined to think that
we
will
stand
outside
the
mainstream
of legal developments
in
the western world."
N K F O'Neill, "A never
ending
journey? A history
of
human
rights
in
Australia"
in
L Spender, above n
4,
7
at
15.
See also Electoral
and
Administrative Review Commission,
Report
on
Review of
the
Preservation
and
Enhancement
of Individuals' Rights
and
Freedoms
(1993)
at
48; Senate Standing Committee
on
Constitutional
and
Legal Affairs, A
Bill
of Rights
for
Australia? An
Exposure
Report
for
the
Consideration
of
Senators
(1985)
at
16.
B Gaze
and
M Jones,
Law,
Liberty
and
Australian
Democracy
(1990)
at 32.
See, for example,
Dietrich
v
The
Queen
(1992) 109 ALR 385 at 392-393
per
Mason
CJ
and
McHughJ.
1994
Legal
Protection
for
Fundamental
Rights
and
Freedoms
59
and
sugfests
why
Australia increasingly
may
seek inspiration from developments
in
Europe. ·
THE
COMMON
LEGAL INHERITANCE
Australia
and
Britain have remarkably few constitutional guarantees of fundamental
rights. This is
not
to say, of course, that the two countries are
without
any
such
protections. The
Magna
Carta
of 1215 ("that great confirmatory instrument
...
which is
the
ground
work
of all
our
Constitutions"10)
and
the Bill of Rights of 1689 ("the
product
of
an
alliance
between
parliamentarians
and
common lawyers"
11
) remain,
but
they
have
a limited field of operation12
and
are inadequate as
modern
statements of fundamental
rights.13
And
as subsequent discussion will demonstrate, the Australian Constitution
does have something to
say
on
the subject.
It
is nevertheless the case
that
the Anglo-
Australian tradition
has
been
to place faith in the common law, supplemented
by
legislation
in
specific areas, together
with
responsible
and
representative Parliamentary
government, as the best means
by
which fundamental rights can
be
protected. As Sir
Ninian Stephen
has
noted: "The 'founding fathers' of
our
Constitution took
it
for
9
10
11
12
13
Cf Sir
Harry
Gibbs, "The Constitutional Protection of
Human
Rights" (1982) 9
Monash
U L
Rev
1
at
5:
"The fact
that
the United Kingdom adheres to the European Convention
may
provide a reason
why
that
country should
adopt
a bill
of
rights
founded
on
that
Convention. As
an
Australian I cannot comment
on
that
aspect
of
that
matter. However,
no
such consideration applies to Australia." But as
was
stated
by
M Cranston, "What are
Human
Rights?"
in
W Laqueur
and
RRubin
(eds),
The
Human
Rights
Reader
(1979) 17
at
24:
"[T]he rights set forth
in
the European Convention are
not
meant
to
be
the rights of
Europeans only,
but
to
be
the rights of all men. The European Convention is just as
much
a
universal document,
in
this sense, as are the Universal Declaration
and
the Covenants of
the United Nations. The European Convention confers certain positive rights
on
inhabitants
of member states. But it claims moral rights for everyone as well-and
indeed
it
would
make
no
sense as a statement
of
human rights if it
did
not
do
so." (See also J
Waldron
(ed),
Nonsense
upon
Stilts:
Bentham,
Burke
and
Marx
on
the
Rights of
Man
(1987)
at
178-180
and
197.) If this is accepted, the
onus
is
on
those
who
would
share the reservation
of
Sir
Harry
Gibbs to demonstrate
that
fundamental rights are as well protected
in
Australian
law
as
they are
under
the ECHR;
or
to identify those rights contained therein
which
are unsuitable
for application
in
Australia
or
(more contentiously) the protection
of
which Australians
do
not
deserve.
(It
is submitted that it
would
be impossible to conclude that the rights set
out
in
the European Convention are "enjoyed"
by
all Australians; cf Toohey, above n 1
at
163-
164.
To fully resolve this argument,
of
course, one
would
need
to engage
in
a
comprehensive
audit
of
fundamental rights
in
Australia.)
Ex
parte
Walsh
and
Johnson:
Re
Yeats
(1925) 37 CLR
36
at
79
per
Isaacs
J.
SA
de
Smith
and
R Brazier, Constitutional
and
Administrative
Law
(6th
ed
1989)
at
72.
J G Starke, "Durability of the Bill of Rights of 1688 as Part
of
Australian Law" (1991)
65
ALJ
695.
See also Electoral
and
Administrative Review Commission,
Report
on
Consolidation
and
Review
of
the
Queensland
Constitution (1993), chs 2
and
9.
,
The Electoral
and
Administrative Review Commission's Issues
Paper
No
20,
Review
of
the
Preservation
and
Enhancement
of Individuals' Rights
and
Freedoms
(1992) at 45, makes the
point
that they can
be
seen as "antithetical to equality
and
freedom because
of
their
discriminatory preoccupation
with
...
enshrining the Protestant faith
and
the rights
of
feudal
land
owners."
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