LAWS50024 Lecture 19: WEEK 10 Lectures 19+20
26 Jul 2018
School
Department
Course
Professor
Seminar 19: Protection of Rights in Australia
19.1. Traditional protection of rights
▪ Saunders: potential for legislative power to override rights and freedoms
▪ Australian constitution light on protection of rights (unlike European Constitutions that have
recognised human rights but also economic, cultural rights; e.g. Ecuador protection of mother nature
rights) much more substantive protection of rights in all kinds of ways where as Australia constitution
very right
➢ Traditional position ‘to enumerate our rights is to limit them, we have confidence in
democracy and responsible government and the common law, don’t give too much power to
courts
▪ Constitution associated with centrality of the idea of principles of separation of power, responsible
government, parliamentary sovereignty, representative democracy
▪ Parliamentary sovereignty wins always but protection via elections, efficiency of electoral system
(short parliamentary terms), people vote for parliament but this does protect minority rights (may not
even be aware of minority rights or may not be popular, so idea representative democracy always
safeguards rights is problematic)
▪ Does parliamentary sovereignty always sits with ROL? (Saunders) There are limitations to Dicey’s view
▪ Model of responsible government was able to safeguard rights in Australia, comparing to US system
(with Bill of Rights), Australia system does not require such Bill of Rights
▪ Limited Constitutional protections: light list of protection of rights
➢ S 116: protection for freedom of religion
➢ S 41: right to vote (link to parliamentary sovereignty, is unique and have greater involvement
in parliament where in other systems, voting is optional)
➢ S 51(xxxi): right to ensure that if Cth requires your property, you have right to compensation
(acquisition of property on just terms) – Castle no just terms that could adequately
compensate him for his ‘castle’
➢ S 80: right to jury trial for indictable offence
➢ S 177: freedom from discrimination between states
➢ S 92: trade between the Cth should be free
➢ Implied rights – freedom of political communication
19.2. Common law protection
▪ Dietrich v R (Right to a fair trial rather than right to representation)
➢ Heart of the right: right to fair trial and if that led to a right to legal representation at public
expense
➢ There was a right to fair trial but court the court said it was not absolute and lead to
application of what the applicant wanted
➢ But, international instruments and express declaration of rights in other countries have
attempted to define (broadly) some of the attributes of a fair trial [300]
o European Convention for the Protection of Human Rights and Fundamental
Freedoms s 6 enshrines such basic minimum rights: adequate time and facilities to
prepare defence and right to the free assistance of an interpreter
o ICCPR Article 14 (Australia is a party): contains similar minimum rights
o Canadian Charter of Rights and Freedoms s 11 similar rights
o Similar rights in the due process clauses of 5th & 14th amendments of the US
Constitution
o Applicant used this in argument
➢ Court used legislative protections: Imperial Act would be permitted to be represented by
counsel backed up judges but right to counsel is not the same as provided at public expense
➢ Australian law does not recognize that an indigent accused on trial for a serious criminal
offence has a right to the provision of counsel at public expense
➢ However, does require fair trial and requires analysis on case by case analysis and judges of
discretion by considering context of the case and may allow an adjournment or stay in cases
where they consider that trial will not be fair without representation
➢ NOTE technique in ascertaining the content of right to fair trial
➢ Notice was given to AG as there was a constitutional matter effect but AG did not make
submission (class 18)
➢ Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 11(1)(f) assigns to the
Commission the function, inter alia, of inquiring into and reporting on any act or practice
that may be inconsistent with or contrary to human rights as declared in the scheduled
instruments. The intention of the establishment would be one part of an overall programme
to incorporate international human rights obligations into domestic law highlighted in the
preamble [305]
➢ Result: Stay, proceeding quashed (court will not grant this for every case) restart trial
▪ Plaintiff S157 v Cth: Statutory interpretation and rights protection – principle of legality, privative
clauses construed narrowly, presumed parliament not intending to deprive citizens of access of
courts, international obligations where ambiguity arises
19.3. Protection by Parliament and government
▪ Responsible government – have requirement that government must have support of lower house
and ability of either house to block resolution, double dissolution (new election): idea that people can
change the government if they want but this is limited
▪ Importance of Parliamentary scrutiny of rights
▪ Australian Human Rights Commission Act 1986:
➢ S 8: Constitution of commission: lists all commissioners in Commission responsible for
substantive roles enshrined usually in particular Acts (find all current commissioners and past
office holders on website)
➢ S 11: Functions of Commission
Treatment of asylum seekers in detention →practical examples of commission in operation:
hefty report and set out human rights abuses, especially of rights of children
S 11(f) important function & gives rise to tensions with government
➢ S 13 provides wide powers to the Commission
▪ Human Rights (Parliamentary Scrutiny) Act 2011: scrutiny and transparency – encouraging open
discussion of human rights matters
➢ Establishes joint committee on human rights and sets out statements of compatibility
requirements
➢ S 7: functions of committee
➢ S 8: not requiring compatibility of bills /legislation but requires statements of compatibility;
Must cause the statement of compatibility prepared assessing whether the Bill is compatible
with human rights, but is not binding on courts and does not affect the validity, operation or
enforcement of the Act
▪ Victoria is one of few jurisdictions which has Charter of Human Rights and Responsibilities Act 2006:
➢ S 1: sets out purpose to protect and promote human rights by: setting out human rights
➢ S 7: human rights – what they are and when they may be limited
➢ S 8-27: sets out substance (familiar in ICCPR) e.g. recognition and equality before law, right
to life, protection from torture and cruel, inhuman or degrading treatment
➢ S 32: Interpretation (refer part 4 below)
▪ Slaveski v Smith & Anor:
➢ Issues/ questions”
o Does s 25(2)(f) of the Charter require that the word ‘trial’ in s 197 of the Criminal
Procedure Act 2009 be interpreted to include the trial of an indictable matter heard
on appeal from the Magistrates’ Court, so as to permit a County Court judge in an
appropriate case to order Victoria Legal Aid to provide free legal aid? NO
o Does s 25(2)(f) of the Charter operate to afford an enforceable right to legal
representation to a person who is eligible upon criteria of the Legal Aid Act 1978,
independent of the exercise of any discretion by Victoria Legal Aid under the Legal
Aid Act 1978? NO, right is conditional upon person being eligible for legal
representation under the Legal Aid Act, which is dependent upon favorable exercise
Document Summary
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