A tale of three cases: reflections on rights protection

Discussions about a Charter of Rights used to involve the suggestion that the common law provided all the protection that was needed for any community from the depredations of their governments. The last two decades of experience and especially the actions of governments in the fake war on terror have convinced even great common lawyers that a Human Rights Act of some kind is now needed in Australia (Sir Gerard Brennan, The Constitution, Good Government and Human Rights, March 12, 2008).

Those who fear a Charter of Rights should remember that we already benefit from a number of mini Bills of Rights, both entrenched and legislative only, in our existing legal system. The Racial Discrimination Act 1975; the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 all apply to governments as well as members of the community and operate as much appreciated mini rights protectors.

Entrenched mini Bills of Rights are found in the Commonwealth Constitution. Freedom to discuss matters relating to government and politics has been held to arise from a number of provisions of the Constitution.

Chapter III of the Constitution which relates to the way in which judicial power has ensured that government decision making, even in the politicians’ vexed area of immigration, is subject to a minimum of judicial scrutiny in that the grant of Constitutional writs for jurisdictional error cannot be legislated out of existence. (See Bodruddaza v Minister for Immigration and Multicultural Affairs  [2007])

Chapter III also operates to prevent Courts, which exercise the judicial power of the Commonwealth (which includes most State Courts as well as Commonwealth Courts), from engaging in activities which may cause them to lose the fearless independence on which the rule of law depends. (See Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996])

Notwithstanding the crucial part that these provisions have played over the last 11 decades, the protections found in the Constitution sometimes appear accidental and their effectiveness displays a hit and miss quality.

While issues concerning protection of our rights may be debated from first principles, descent into empiricism is sometimes helpful. In the week ending July 18, 2008, three important decisions were handed down by the Full Court of the Federal Court of Australia. The decisions emphasised the love of governments for rights to be removed by arbitrary means and, preferably, under a veil of secrecy. Although it has been a good week for the common law, its ability to protect basic human rights ran out of steam on one occasion and the protections provided by Chapter III of the Constitution were more miss than hit.

In Evans v New South Wales [2008], a Full court of the Federal court consisting of Justices French, Branson and Stone ruled clause 7 of the World Youth Day Regulations 2008, so far as they empowered police and SES officers to direct persons to stop being annoying enforceable by the criminal law, were invalid as not being supported by a proper reading of the legislation under which they were made. They also read the regulations down so that restrictions on sale of various specified objects including religious objects and giftware did not apply to the pamphlets and condoms that protestors were hoping to shower upon our devout young visitors.

And how did the Court manage it? They did not rely on the implied right to freedom of expression in the Constitution. They didn’t need to. The Court said that “there is little scope, even in contemporary society for disputing that … freedom of speech is regarded as fundamental subject to reasonable regulation for the purposes of an ordered society”. The common law said, according to the Court, that, in authorising the Executive to make regulations to achieve the purposes of the World Youth Day Act 2006, the Parliament could not have intended that people would be prevented from exercising their rights of free speech just because other people might find it annoying. Well done, common law.

In O’Sullivan v Parkin [2008], a Full Federal Court consisting of Justices Ryan, North and Jessup gave victory to United States rights activist, Scott Parkin and asylum seekers Mohammed Yussef Sagar and Muhammed Faisal - who had been stranded on Nauru for a very long time - in the latest round of their respective battles to overturn the catch 22 adverse security assessments imposed by ASIO.

Each of the applicants has alleged that the security assessments must involve jurisdictional error because no facts exist to justify an adverse security assessment. In order to advance their case, they want ASIO to tell them what documents exist relevant to the proceedings. ASIO have a great argument against this:

You don’t know why you are a security risk because we will not tell you so your whole case must be speculative. Therefore, you should not get a list of our documents.