"Constitution poses no obstacle to national Human Rights Act"

Australian Human Rights Commission – Media Release – Wednesday, 6 May 2009

Concerns that a national Human Rights Act would fall foul of the Constitution can be confidently put aside, President of the Australian Human Rights Commission Cathy Branson QC said today.

Ms Branson said constitutional validity of a national Human Rights Act was questioned earlier this year by former High Court Judge Michael McHugh who expressed doubts that elements of the proposed model were constitutionally valid.

“To clear the air, the Australian Human Rights Commission recently held a roundtable, bringing together some of Australia’s leading constitutional and human rights lawyers, including Mr McHugh and former Chief Justice Sir Anthony Mason, to discuss the constitutional validity of a Human Rights Act,” Ms Branson said.

“The roundtable reached unanimous agreement on a number of important issues, most importantly, that a Human Rights Act can be drafted in a way that is constitutionally valid.”

The roundtable statement concerning the constitutional validity of an Australian Human Rights Act can be found at http://www.humanrights.gov.au/letstalkaboutrights/roundtable.html

Ms Branson said the principal concern had been that it might be unconstitutional for a court to issue a declaration of incompatibility, a common feature of Human Rights Acts elsewhere.

“The Australian Constitution prevents a court exercising federal jurisdiction, such as the High Court, from making an order that does not directly affect any person’s rights,” Ms Branson said.

Ms Branson said the roundtable agreed that this concern could be addressed by taking the courts out of the notification process.

“Instead, an independent body such as the Australian Human Rights Commission could keep a watch on cases and notify the Parliament through the Attorney-General if a court were unable to interpret the legislation in a way that was compatible with the Human Rights Act,” she said.

“This would ensure that Parliament was be notified of significant cases in which a court was not able to interpret legislation consistently with human rights. Of course, having been notified, Parliament would retain the final say about whether the law should be changed.”

Ms Branson said that requiring courts to interpret laws consistently with human rights where possible and requiring the Parliament to give further consideration to laws which do not respect human rights would enhance the accountability of elected representatives and the transparency of our democratic processes.

“The time is right for Australia to join with other Western democracies in giving formal protection to human rights in Australia through a national Human Rights Act,” Ms Branson said.

“I urge all who agree with me to set aside concerns about the Constitution and concentrate on sending the clear message to the National Consultation on Human Rights that we want Australia to be a country in which human rights matter.”