Submission to the Parliamentary Inquiry into Australia's Human Rights Framework: Why the Australian Parliament should not enact a Human Rights Act

Abstract

The Australian Parliamentary Joint Committee on Human Rights is undertaking an inquiry into the protection of human rights under Australian law. One of the questions being considered is whether the Australian Parliament should enact a federal Human Rights Act. In this submission to the inquiry, we argue that the Parliament should not enact a federal Human Rights Act. In making this central point, we also submit that the existing human rights charters operating in Victoria, Queensland and the Australian Capital Territory do not appropriately protect human rights. We present four key arguments.

First, respect for human rights does not require enactment of a statutory charter of rights. Human rights are best protected by carefully drafted legislation which specifically addresses particular issues in a manner that ensures a reasonable level of certainty and predictability for those affected by the law. The enactment of abstract ‘rights’ does the very opposite because it introduces vagueness and uncertainty into the law.

Second, charters of rights distort the proper functioning of the courts. They invite judges to evaluate legislation against standards that are so broad and vague that they amount to an open-ended assessment of whether the law ought to have been enacted. This entangles courts in what are essentially political controversies, undermining public confidence in their political impartiality and impairing their ability to uphold the rule of law.

Third, statutory charters of rights do not produce dialogue, even though this is one of the main reasons put forward for their adoption. All real-life political contests concern confrontations between competing rights, interests and objectives. The ability and willingness of parties to engage in genuine deliberation over contested political matters is dependent on factors that have little to do with the existence of a charter of rights. The human rights charters enacted in Victoria, Queensland and the Australian Capital Territory have not made genuine dialogue any more likely than it otherwise would have been.

Fourth, charters of rights are a kind of constitutional statute because they regulate the making, administration and adjudication of law. Constitutional statutes should not be enacted without bipartisan support because they constitute the ground-rules of our democratic system.

Keywords: human rights, bills of rights, charters of rights, dialogue, legal certainty, legal predictability, juristocracy