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The influence of human rights on judicial decision-makingThe Hon Catherine Branson QCFederal Magistrates Court 2009 Plenary 29 September 2009 1 IntroductionMay I acknowledge the Gadigal people of the Eora nation, the traditional owners of the land upon which we meet, and pay my respect to their elders past and present. I would like to thank Chief Federal Magistrate John Pascoe for inviting me to It is almost a year since I left the Federal Court to become President of the Australian Human Rights Commission. The first year of my term has been an exciting and an enlightening one. I have met with an extremely diverse range of people and have had the opportunity to speak to many audiences about human rights protections in Australia. Many of the things that I have been able to do are not things that I could have done as a Federal Court judge. As you will be aware, this year we have had a National Consultation on Human Rights which asked Australians what human rights are important to them and whether and how they think human rights could be better protected in Australia. Consequently, human rights have been a hot topic, with the consultation reigniting debate about whether Australia needs to have a federal law protecting human rights. You may be relieved to know that I do not propose today to rehearse the arguments in favour of an Australian Human Rights Act. But questions about how human rights impact on the law and what role courts and tribunals should play in enforcing human rights have been fiercely debated. Today, I would like to illustrate the present relevance of human rights to judicial decision-making, including the work of the Federal Magistrates Court. That is, to explore how, even without a Human Rights Act, it is legitimate and appropriate for judicial decisions to be influenced by the jurisprudence of human rights. 2 General observations about human rights and the work of courtsI would like to begin, however, by sharing some general observations on human (a) Introduction to human rights Respect for human right underpins every well-functioning democracy, including our own. Absent respect for human rights, the rule of law will break-down. Absent respect for human rights there will be members of our community whose voices are not heard on issues of importance to us all or whose contributions to public debate are not received with appropriate respect. So what do we mean by ‘human rights’? International law recognises human rights falling into two broad categories – civil and political rights and economic, social and cultural rights. Civil and political rights include such rights as the right not to be arbitrarily detained, the right to a fair hearing, the right to vote, respect for privacy, freedom of speech and freedom of religion and belief. These rights are often described as requiring the state to refrain from interfering with individual liberty. Economic, social and cultural rights include rights such as the right to an adequate standard of living, the right to education, the right to health care, the right to social security, and the right to take part in cultural life. These rights are commonly understood as obligations on the state to take positive steps to provide for individuals. Of course, international law recognises that it is not possible for all economic, social and cultural rights to be instantly realised. The obligation on states with respect to these rights is to take steps towards achieving their full realisation progressively. One important right that does not really belong to either category is the In practice, the distinction between civil and political rights on the one hand, and economic, social and cultural rights on the other, is somewhat artificial. The realisation of all human rights is necessary for an individual to live with dignity and to enjoy equality. Many civil and political rights cannot be realised unless economic, social and cultural rights are also secured. For example, if a person does not enjoy their economic right to adequate housing, they might have difficulty enjoying various civil and political rights including the right to privacy and the right to vote. It is important to remember that very few human rights are absolute. Some human rights should not be infringed in any circumstances, such as the right not to be tortured or held in slavery. But most human rights can be subject to reasonable limitations. Circumstances often require that different rights be balanced. This might involve the competing rights of individuals. The right to freedom of speech, for example, is subject to the right of others to privacy and not to be defamed or to be the subject of racial or religious vilification. In other cases the rights of individuals might need to be balanced against the rights of the community. An individual’s right of freedom of movement might need to be balanced against the right of community members to health (think of the early days of swine flu); an individual’s right not to be detained might need to be balanced against the right of members of the community to live free from violence (think of national security laws). Where rights must be balanced the test of proportionality is critical - is the restriction a proportionate response to a pressing social need?[1] In extraordinary circumstances, it may even be permissible to suspend or restrict certain rights provided that the limitations are reasonable and justifiable in a free and democraticsociety.[2] In short, human rights jurisprudence is much more nuanced than is often suggested. (b) The application of human rights It is often said that human rights are ‘universal’. But does this claim to universality mean that human rights are to be applied in an identical manner in every part of the world, irrespective of the specific social context in which they are realised? I agree with Lord Hoffman who, in a recent lecture, answered this question in the negative. He pointed out that while human rights may be universal at the level of abstraction (for example, everyone is entitled to a fair trial), they are, at the level of application, national in character (for example, in one jurisdiction the prevalent police culture may call for an absolute ban on the admissibility of illegally obtained evidence while in another jurisdiction a judicial discretion to admit such evidence if strongly probative will be justifiable).[3] As this example makes clear, the application of human rights, through the enactment and interpretation of legislative provisions giving rise to enforceable rights, does not take place in a social and legal vacuum. As I have already mentioned, and as you as judicial officers will appreciate intuitively, individual rights are recognised, denied or qualified by courts by reference to a balancing exercise against otherrights and ‘the public aspects...of the public interest’[4]. These aspects include functional efficiency, resource allocation and other pragmatic considerations relevant to the particular decision. Such an exercise, as Lord Hoffman pointed out, is best carried out ‘in the context of a given society and its legal system’[5] by an arbiter with an appreciation of the culture in which those rights operate. I am unable to refrain from pointing out that an Australian Human Rights Actwould enable Australian courts to do just that. (c) Respect for human rights when acting in The final general observation which I wish to make is that, as judicial officers, you are in a position to demonstrate respect for human rights not only through your decisions but also through the manner in which you exercise the power vested in you. It perhaps goes without saying, but is worth remembering, that simple things like treating courteously and respectfully those who come before you can do much to help create a culture in which human rights are respected as a matter of course. I note that your court’s Service Charter for the provision of administrative services is a positive initiative in this regard. 3 The influence of human rights on the development of Australian law in the courtsAs you all know, in Australia, as in many countries, international human rights instruments do not become part of our domestic law without the passage of appropriate legislation. Our Federal Parliament has enacted a number of statutes which recognise particular human rights but we are unique amongst Western democracies in not having any over-arching protection of human rights - either a constitutional Bill of Rights or a form of Human Rights Act. However, even without a Human Rights Act there is considerable scope for Australian decision-makers, including judicial officers, to take human rights principles into account. Decisions which are informed by human rights principles are likely, for the reasons that I will expand upon shortly, to be better decisions leading to better outcomes for individuals while nonetheless being based on sound legal principle. Human rights principles can legitimately influence judicial decisions in three principal ways:
3.1 The use of human rights in statutory
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