Common(wealth) Knowledge #39: Overriding the Human Rights Act and supremacy of Parliament

A look at human rights protections in Australia and the doctrine of parliamentary sovereignty.

During this past week, the Queensland government has announced tougher criminal laws that will be brought in to curb youth crime. One such reform is making breach of bail a criminal offence for children. State Premier Annastacia Palaszczuk said that this was “in the best interest of the people of this state.” However, the government has since admitted that would violate the Human Rights Act 2019 (Qld), which protects the best interests of children, but that Parliament would be overriding the human rights legislation. So how does Australia protect human rights, and how can a government override them?

Queensland is one of several Australian jurisdictions to have human rights legislation. Victoria and the Australian Capital Territory have previously implemented their own legislation, the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT). The remaining States, the Northern Territory, and the Commonwealth do not have comprehensive human rights legislation, instead relying on a patchwork of anti-discrimination and equality laws.

Australia is well-known for not having a national Bill of Rights as part of its Constitution. Although the United States is most famous for its Bill of Rights, other countries also have their own. South Africa’s more recent equivalent was discussed in Common(wealth) Knowledge #17, and it includes constitutional protections for children's best interests.

The only rights expressly found in the Constitution are a prohibition against the Commonwealth government acquiring property on unjust terms (Section 51(xxi)); trial by jury (s 80); freedom of religion (s 116); and a prohibition against discrimination based on living outside of a given state (s 117). These are complemented by a guarantee of free trade across state borders (s 92) and the implied freedoms of voting and political communication.

But none of these are absolute; there are always exceptions. For example, the High Court of Australia has said that the implied freedom of political communication can be overridden if it is necessary, proportionate, and appropriate. A narrow approach has also been taken in determining whether something is a ‘religion’ for the purposes of Section 116. Not all trials under federal jurisdiction involve juries, either; they are only used in some criminal matters. And even though Section 92 says that “trade … between the States … shall be absolutely free,” restrictions on interstate trade that aren’t protectionist in nature may be allowed.

The most obvious solution to this problem would be to hold a referendum and amend the Constitution to include a Bill of Rights, or at least enshrine some more rights in it. But the problem here is the referendum process itself. The double majority requirement, meaning a majority of Australians and a majority of people in a majority of states, makes referendums difficult to succeed.

In 1944, a referendum was put to the Australian people that would grant the government short-term powers for a post-war national recovery, plus would enshrine the freedom of speech and expression, religious freedom beyond Section 116, and freedom from want and fear. This failed majority requirements, with a 45% national ‘Yes’ vote and only 2 of the 6 states.

A second referendum in 1988 also failed, not succeeding in any state and with only a 30% ‘Yes’ vote. It was intended to expand trial by jury and provide further protections against unjust property acquisition, plus enshrine the separation of church and state.

The alternative to a referendum was adopting legislation to protect human rights. But the issue here is that it wouldn’t be as comprehensive, because the Commonwealth government could also pass laws protecting human rights that could be grounded in heads of power found in the Constitution.

However, Senator Lionel Murphy, who would go on to serve on the High Court and be the first judge to recognise the implied freedom of political communication, found a workaround. Section 51(xxix) granted the Commonwealth government the power over ‘external affairs.’ But what if the government used the external affairs power to adopt United Nations treaties as Commonwealth laws?

In 1973, Murphy attempted to pass the Human Rights Bill 1973 (Cth), based on the International Covenant on Civil and Political Rights. However, a combination of strong opposition and the ICCPR not coming into force until 1977 meant that the government dropped it the next year. Attempts to replicate this a decade later also failed. However, Murphy’s idea was used to pass the Racial Discrimination Act 1975 (Cth) and Sex Discrimination Act 1984 (Cth), both based on UN treaties.

The states have a much better time implementing human rights protections, at least from a legal perspective. Politically speaking, it can still be a headache for them. Like the Commonwealth government, the states have not implemented a constitutional bill of rights, even though they don’t have to deal with referendums. But they have greater freedom to pass human rights legislation.

Section 107 of the Australian Constitution protects the legislative power of the State governments. They have ‘residual legislative powers,’ meaning that they can pass laws on any subject except those that the Australian Constitution prevents them from legislating on. This means they automatically have the power to implement more comprehensive human rights legislation, without needing to use an external affairs power. This has been used in Queensland and Victoria.

The Commonwealth government, under Section 122 of the Constitution, has legislative control over the Territories. But it can give them the power to pass their own laws on certain subjects, which is why they both have Parliaments. This has enabled the ACT to pass its own human rights legislation.

However, the Westminster model of government that Australia uses is largely based on parliamentary sovereignty. This focuses on giving the Parliament more power. It means that legislatures can pass, repeal, or amend any law they want, subject to the Constitution. In Garlett v Western Australia [2022], at paragraphs [79]-[80], the High Court recognised that Parliament’s decisions were matters of policy, and the separation of powers means that the courts should be reluctant to overrule these.

This importance placed on parliamentary sovereignty, combined with a refusal to recognise absolute rights, has led to the ability of the Queensland government to override the protection of the best interests of children found in Section 26(2) of the Human Rights Act 2019 (Qld).

Section 38 of the Act requires any MP introducing legislation to Parliament to give a speech on how the proposed law will be compatible with the Act, although this won’t be binding in a court of law. Section 39 also requires the committee considering the bill to consider its compatibility with the Act. Furthermore, courts must interpret any legislation in a manner that is consistent with the Act, at least to the extent that this is possible, under Section 48.

Despite this, Section 43 allows Parliament to include provisions in legislation that state the entire statute, or parts of it, override the Human Rights Act 2019 (Qld), in exceptional circumstances. Given the decision in Garlett, it is likely that a court would be lenient towards the government deciding that the circumstances are exceptional, given that it is a policy-based decision.

Even though Section 44 requires that a statement must be made to explain why this is happening, Section 47 says that not providing a statement will not invalidate the law. This is the trade-off of not giving human rights constitutional protections, and is a return to the flexibility argument made in relation to constitutional conventions.

The autonomy and sovereignty of Parliament is the primary reason why the Queensland government can override the Human Rights Act 2019 (Qld), and is partly why Australian jurisdictions don’t have constitutional protections of human rights like the United States and South Africa do. Even though South Africa is a former British colony, it has since parted ways with the British constitutional traditions passed on to Australia in the 1800s.

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Sources:

Charter of Human Rights and Responsibilities Act 2006 (Vic).

Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18.

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Garlett v Western Australia [2022] HCA 30.

Human Rights Act 2004 (ACT).

Human Rights Act 2019 (Qld).

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

Racial Discrimination Act 1975 (Cth).