Last week we featured a post by Professor Brice Dickson on whether the common law would adequately fill any void left by the Human Rights Act 1998 (UK) (HRA), should it be repealed.  He referred to a lecture given by Dyson Heydon, former justice of the High Court of Australia (HCA).  Today, Emma Hoiberg takes a close look at Dyson Heydon’s remarks.

Dyson Heydon’s lecture earlier this year, “Are Bills of Rights Necessary in Common Law Systems?”, used the HRA to identify four “central functions”, two “key characteristics” and seven “problems” with Bills of Rights. However, many of the problems Heydon identifies may not assume the same significance if a Bill of Rights similar to the HRA existed in Australia. Some problems, like loss of national sovereignty, are peculiar to the UK’s relationship with the European Court of Human Rights. Other problems, such as Heydon’s concern that giving judges a human rights jurisdiction causes them to stray into other areas that courts have traditionally abstained from, cannot be predicted with much certainty.

Heydon’s problem with the advisory nature of declarations of incompatibility would be unlikely to arise at a federal level in Australia, due to the separation of powers in the Australian Constitution which requires the HCA to only exercise judicial power. Advisory declarations have been held to be non-judicial. A declaration of incompatibility would at the very least need to be binding on the parties to the dispute in order to be constitutionally valid in Australia (see Momcilovic v Rat[587] (Crennan & Kiefel JJ) and also the Report of National Human Rights Consultation Committee, Appendix E).

Heydon also takes issue with the interpretative power in s 3(1) of the HRA, which he describes as giving courts the power to remould legislation in a way which does not reflect the legislative will. However, the HCA has expressed reluctance to use an interpretative power like s 3(1) of the HRA to change the meaning of legislation. In Momcilovic v The Queen, the High Court interpreted a similar (but differently worded) provision in the Victorian Charter of Human Rights and Responsibilities Act 2006as simply a legislative expression of the principle of legality. Only Heydon, in dissent, found that the Victorian provision was drafted with the HRA in mind and should be interpreted broadly.

Heydon’s primary argument centres around the familiar debate of whether the judiciary is a competent or legitimate branch of government to make decisions about human rights. This is probably the most compelling of Heydon’s arguments, and not one to which there can be a simple response. It should be pointed out, as I have previously argued on this Blog, that the HCA is regularly called upon to apply vaguely worded constitutional provisions involving questions of social or political policy, such as voting rights, preventative detention schemes and the upcoming hearing on the validity of the Australian Capital Territory’s marriage equality laws. It is accepted without question that the High Court is both a competent and legitimate body to be resolving these controversies.

Heydon concludes by identifying three alternative techniques to protecting human rights that do not require a Bill of Rights: the separation of powers; the principle of legality; and the specific rules of the general law. The HCA has used the first two techniques to protect rights, although with differing results. Ironically, the HCA has considerably expanded the reach of the separation of powers contained in the Australian Constitution, by implying into the Constitution a requirement that the separation of judicial power applies at not only the federal level but also the state level. This implied constitutional protection has been used in a number of cases to invalidate excessive or indiscriminate legislative restrictions, but it arguably goes beyond the intention of the drafters of the Constitution. At the same time but at the opposite end of the spectrum, the High Court has maintained that the principle of legality applies only insofar as the wording of the legislation is ambiguous. It cannot assist with legislation which clearly intends to infringe human rights.

When Heydon’s critique of Bills of Rights is applied to the Australian context, two things can be seen. First, the difference in Australia’s constitutional structure and the reticence of the HCA to interpret Bills of Rights liberally means that a Bill of Rights like the HRA may not have many of the problems that Heydon identifies. Secondly, Heydon’s alternatives to a Bill of Rights have in fact been used by the High Court with varying efficacy. Perhaps, then, a Bill of Rights should not be too lightly dismissed in the Australian context.

Emma Hoiberg is an Australian lawyer who completed the BCL in 2012, specialising in comparative human rights and focusing upon the protection of human rights in Australia and the United Kingdom.  A copy of her Masters dissertation can be found here.