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Too much order with too little law 30 years on

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Frank Brennan |  22 July 2014

Frank Brennan addresses the Queensland Council for Civil Liberties at The Irish Club, 175 Elizabeth St, Brisbane 8 July 2014.

During this NAIDOC Week, I join with you in acknowledging the traditional owners of the land on which we meet. In doing so, I note that before Mabo such an acknowledgement was rare. But since then community attitudes have been informed by the thinking of our High Court which in developing and applying the common law found that Aboriginal Australians had title to land which pre-existed the assertion of sovereignty by the British Crown and which survived that assertion. That is the firmer legal and social foundation for our relating nowadays.

It's great to have the opportunity to address you here in the Irish Club, the hearth of those Queenslanders with Irish heritage. My great great grandmother Annie and her five children including my great grandfather arrived at Hervey Bay on the David McIver in July 1863. Like many of you, I am a descendant from Irish migrants who came here in search of a better life. In early July last year, I was sitting alone on the shoreline at Urangan at the entrance to the vast Hervey Bay, 150 years to the day since the David McIver entered Hervey Bay carrying 404 immigrants, there having been only one death but also 9 births on the 107 day voyage from Liverpool.

Hervey Bay is a very expansive but shallow bay sheltered from the Pacific Ocean by the majestic Fraser Island. On 6 July 1863, the David McIver spent the day searching for a channel until it was anchored in 4 fathoms of water. Some of the crew then got into a small boat and made for the shore at Urangan close to where I was sitting 150 years later. They came ashore and found two Aborigines. I presume they were males. Those two Aboriginal men then without protest accompanied the crew in the boat and showed the crew the way to Captain Jeffrey's Admiralty Survey Camp. The David McIver was only the second migrant ship ever to come into Hervey Bay and here were two Aborigines happy to extend a helping hand to complete strangers who must have looked very strange indeed. One Aboriginal was then commissioned to send word to Maryborough 40 kilometres away. That Aboriginal walked and ran all through the night to bring word of these new arrivals. A pilot was then dispatched. Within 2 days, a steamer named Queensland arrived, towed the David McIver to White Cliff on Fraser Island, and then received the disembarking passengers to transport them up the Mary River to the port of Maryborough where they arrived on 9 July 1863. I know nothing more about those Aborigines who played their part in the safe arrival and settlement of my forebears. But during this NAIDOC Week, I happily acknowledge my family's debt to them even 151 years later.

If my mob were to arrive by boat today uninvited, they would be sent to Papua New Guinea or sent back to where they came from. 151 years ago, the traditional owners helped my ancestors and their fellow passengers to find safe anchorage so that they might settle here permanently calling Australia home. They extended the hand of peace and welcomed the stranger. Many on the David McIver were eligible for land grants from the newly established Queensland Government. That was the lure for their coming to the other side of the world rather than the United States. It's a matter of some pride for me that one of Annie Brennan's great grandchildren, my father, was one of the judges who just 22 years ago in the Mabo Case said that Aborigines had always owned the land which had been subject to those gratuitous land grants. Paul Keating then did the fabulous job of delivering the 1993 Native Title Act, parliament's response to the uncertainties and possibilities opened up by the High Court decision. Three years later, Labor was out of office and the High Court expanded some of the uncertainties and possibilities of native title in the Wik decision. The Howard government legislated its response to Keating's original Act and the High Court's more recent decision in 1998. It was a poisonous political cocktail – a 4-3 decision of the High Court being considered by an unsympathetic government and a Senate where the late Catholic Tasmanian Brian Harradine had the balance of power. Keating was most displeased with Howard's tinkering with his original legislation. He was also displeased with people like Noel Pearson and me who had publicly praised Harradine for improving significantly on Howard's original position. Keating branded me the meddling priest, a label I have happily worn these last 16 years, though I do have a preference for Kevin Rudd's more poetic descriptor. Rudd, no stranger to this club, labeled me an ethical burr in the nation's saddle.

I have been asked to address the Council on the comparison between the situation as described in my book Too Much Order with Too Little Law and the current developments in Queensland. I have also been asked to comment on the need for a Human Rights Act in this context.

I am delighted to be here in Brisbane on the day that your new Chief Justice has been sworn in privately without an official welcome in the Supreme Court. These are difficult times for all Queensland lawyers, including your new chief Justice, Tim Carmody. These are difficult times for the rule of law here in Queensland. I had cause to reflect on these difficulties a while ago when reading the news of Stephen Keim SC and the complications of his having been offered a government brief in a politically uncontroversial matter in an area of law in which he is known to be expert. Stephen and I first got to know each other when we started secondary school sharing a dormitory in Toowoomba almost a lifetime ago. I have therefore long had cause to watch his career as an independent counsel of the Queensland Bar. On withdrawal of the brief without coherent explanation, I contacted him with a reminiscence. Forty-three years ago there was a state of emergency declared in this city while an all white Springbok rugby team played against the Wallabies. I was a first year law student at the University of Queensland at the time. On 2 August 1971, the Vice President of the Queensland Bar published a letter in The Australian saying:

The contemporary discussion of law and order has been overlaid with other issues: apartheid and football (as to which there is little disagreement), politics and protest (as to which there will always be disagreement). The fact remains that law and order are essential to a civilised community…When legitimate protest degenerates into unlawful disruption, governments are invited to assume powers of doubtful legality, and to condone unlawful actions by police. When governments do not exercise their powers honestly and fairly and with statesmanship, they invite disruptive expressions of protest. In either case both the rulers and the ruled attack the concept of law and order. Is it not time for both to examine their consciences?

When attending the Bar common room for lunch that day, a senior silk told the Vice President that there was now no prospect of his ever being a judge. That Vice President happened to be my father. Recently a 1973 letter has come to light from Chief Justice Sir Garfield Barwick to Prime Minister Gough Whitlam suggesting 8 possible future appointees to the High Court. My father was the only Queenslander on the list, and at a time even before his presidency of the bar here, aged just 45. He did end up a judge – being appointed twice by the Fraser government and finally to the chief justiceship by the Keating government. There is a place for conscience and courage in the law, especially when the prevailing political orthodoxy of those who exercise legislative or executive power is contrary to one's deeply considered assessment of human rights and human dignity.

As Chief Justice, Sir Gerard Brennan when speaking at Bond University had cause to observe:

Montesquieu had pointed out that 'there is no liberty, if the power of judgment be not separated from the legislative and executive powers'. Hamilton, following Montesquieu, described an independent Judiciary as 'the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws'. In this country, the separation of judicial from legislative and executive power and the separation of the judges from political activity have been rigorously maintained by the High Court. The separation of the political powers from the judicial power and the repositories of those respective powers from one another guarantees not only the independence of the Judiciary but the appropriate responsibility for the exercise of those powers.

He went on to explain:

Responsibility for the state of the law and its implementation must rest with the branches of government that are politically accountable to the people. The people can bring influence to bear on the legislature and the executive to procure compliance with the popular will. But a clamour for a popular decision must fall on deaf judicial ears. The Judiciary are not politically accountable. The Courts cannot temper the true application of the law to satisfy popular sentiment. The Courts are bound to a correct application of the law, whether or not that leads to a popular decision in a particular case and whether or not the decision accords with executive policy.

The second last time there was a new Supreme Court building opened in this city was September 1981. The then Chief Justice Sir Charles Wanstall reflected:

[King] James regarded himself in authoritarian terms as the embodiment of the Divine Right to dictate, but his Chief Justice, Lord Edward Coke, boldly responded to this assertion in words that have become immortal: 'Sire, you are under God and the law.' And so commenced the struggle for the independence of the judges that was won in England in 1701, when the Act of Settlement finally established it. Today, the people of Queensland, the inheritors of that fundamental and priceless constitutional principle, will recognize in this simple ceremony its symbolic restatement as their enduring right.

Last time a new Supreme Court building was opened in this city, your now newly retired Chief Justice Paul De Jersey recalled these words of his predecessor on receiving the key to the court from the Attorney-General. The Chief Justice said, 'This symbolic act thereby emphasizes the independence of the judiciary from the other branches of State authority, the legislature and the executive.'

Back in 1981, there had been controversy here in Queensland, as there has been recently, about the exercise of executive and judicial power. The then governor was not a lawyer, but a very savvy Navy Commodore, Sir James Ramsay. Opening what proved to be a very unsatisfactory court building, he very satisfactorily stated the relevant principle:

We, in this country today, can be grateful that our predecessors, the colonisers of this land, brought with them and instituted the practices of English law. For it is a dynamic system. It can, and must, and will evolve to solve and meet the changes in social, industrial and international relationships taking place in the world today. 'Law and order' is one of today's important political issues. There is a danger however that we try to achieve too much order with too little law, by bypassing the processes we have inherited from those eight centuries of experience and hard fought battles against tyranny. The people of Queensland look to the law to defend their rights.

That year I was spending a brief time at the Victorian Bar. Over the previous years while studying theology and philosophy, I spent my vacations coming here to Queensland to appear in the Magistrates' Court defending protesters who had fallen into the web of legal regulations being wrongly applied to thwart public protest at the whim of the then premier. I was briefed to appear because it was difficult for young barristers here to take the briefs because there was a directive within crown law that those appearing were never to receive any government work. I remember on one occasion running into a mate from law school days who by then was a judge's associate. He is now a respected Supreme Court judge so I will not name him. He told me that he had just been up to crown law trying to fix up his pay. He met a magistrate who unloaded rather freely. The magistrate said that he was tied up in the 'expletive deleted' demonstrator court: 'We have this flash Jesuit from the south who has come putting all sorts of legal arguments which we cannot understand. But that's not the worst of it. When we reject his submissions, he is just so 'expletive deleted' polite.' I returned to Melbourne that weekend well-satisfied, though troubled that my advocacy was not sufficient to render comprehensible the points being made about onus of proof and the prosecution's undue reliance on averment provisions.

Reflecting on the experience in the demonstrator court, I wrote my first book, drawing the title Too Much Order with Too Little Law from the insightful remarks of the Queensland governor. It was Peter Applegarth writing on the letterhead of the Queensland Council for Civil Liberties who recommended publication of the manuscript to the University of Queensland Press. I was honoured to have the book launched by Bill Pincus then President of the Bar.

Three decades on, Queensland once again has a populist premier who finds some political advantage in skewing the balance between law and order, impugning the integrity and vocation of the legal profession. He has described defence lawyers as hired guns. I understand litigation is now pending. No doubt the Premier will retain the services of competent paid counsel. Following upon the Premier's claim that defence lawyers 'will see, say and do anything to defend their clients', I was heartened to read the remarks by Justice Peter Applegarth to a jury being empanelled in your splendid new Supreme Court building:

[T]he lawyers who appear before you in this case and the lawyers who appear in all the cases in this building have high duties, duties to prosecute to the best of their ability, duties to defend to the best of their ability, duties to represent the interests of those who they appear for.

But they have higher duties. And they're demanding. And I'm pleased to say that in this country we have, with very rare exceptions, lawyers who will put their duty to the court and their duty to justice higher than the interests of their clients and winning a case.

Undoubtedly there are many challenges confronting our elected leaders in dealing with violent crime and with pathological sex offenders. But long-term sustainable solutions must be based on respect for judicial independence and for the role of the legal profession. Having chaired the National Human Rights Consultation in 2009, I am convinced that Australia's exceptionalism in failing to legislate comprehensively for the protection of human rights will put increasing pressure on the relationship between the three branches of government. Responding to that pressure, our courts are now isolated from courts elsewhere, including those in the United Kingdom which are constrained and directed by Strasbourg and their own Human Rights Act. In the UK, the Tories long concerned about the influence of Strasbourg are no longer suggesting the repeal of their Human Rights Act but the passage of a new Bill of Rights which will include the principles of the European Convention on Human Rights. Our courts are less able to profit from the cross-fertilisation of ideas from other equivalent jurisdictions such as the UK, New Zealand, Canada and the USA.

At his swearing in, Queensland's most recent High Court Justice, Patrick Keane took some comfort that the Australian judiciary were not a social elite as in some other countries, being drawn from the egalitarian democracy shaped by those Australians of the Depression and War eras who provided selflessly and generously for the education of their children. He invoked Martin Luther King who said, 'The arc of the moral universe is long, but it bends toward justice.' With a touch of nationalistic pride, Keane opined that it bends more sharply in that direction here in this part of the southern hemisphere because of the egalitarianism of our forebears.

When made a life member of the Queensland Bar in February, Keane, as he often does, delved into legal history to make his point:

When Justice Jeffrey was made James II's chief justice of the King's Bench [in 1683]he adjured his fellow judges:

'Be sure to execute the law to the utmost of its vengeance upon those that are now knowne, and we have reason to remember them, by the name of Whigs; and you are likewise to remember the snivelling trimmers; for you know what our Saviour Jesus Christ says in the Gospel, that 'they that are not for us are against us'.'

This seems to have been the last occasion when it was thought respectable for judges to be told to go about their work in accordance with the wishes of the executive government. It was also the last occasion when the naïve notion that you are 'either with us or against us' was applied to the work of the courts and the legal profession.

The very point of the legal system, and the profession which serves it, is that the profession is not 'either for us or against us': whatever the private opinions of its members may be, in the honourable service of justice, each is obliged to be politically neutral and professionally detached. And that is how it ought to be.

We should not be unduly agitated by the occasional rocky moment. Things have been a lot worse in times past.

In the challenging times ahead here in Queensland all members of the profession need to take to heart President Margaret McMurdo's comments to newly admitted practitioners:

As members of the legal profession, together with the assistance of an independent judiciary, you play an institutional role in Queensland's precious democracy. The independent legal profession operates as a check on the abuse of executive power and ensures that every citizen has access to the rule of law which provides equal justice for all, regardless of gender, race, skin colour, religion, sexual preference, power or wealth.

May this continue to be the case in the Sunshine State no matter what the prevailing ethos of executive government or the populism of the parliament. Without the lawyer's independence and attention to conscience, the arc of the moral universe will be skewed away from justice when our elected leaders think they can maintain order without law. Together, performing their respective roles, and respecting the roles of others, elected politicians, unelected judges and professional lawyers can deliver that most valuable social good — justice according to law, for all persons. Despite our differences, we all need to support each other in discerning and then playing our part in the midst of present controversies.

As you who live here know only too well, all is not well here in the Sunshine State. Campbell Newman's government is running a strong 'law and order' line, and there's nothing new in that. Governments often find political advantage in being tough on crime. In the process, they sometimes think something is to be gained by having a go at the judges for being out of touch and for being soft on crime, and by taking practical steps to toughen them up. Judges are well used to this sort of commentary and political bravado, getting on with their job of sentencing offenders, ensuring that the sentence matches the crime and the circumstances of the criminal. Fortunately, we Australians live under constitutional arrangements which guarantee, more or less, that executive government is popularly elected with the ministry being drawn from the party or parties enjoying a majority in the lower house of parliament (or in Queensland, the only house of parliament). Our judges are not elected and they enjoy independence from the executive government once appointed, in that they can be dismissed only by vote of the parliament determining proven misbehaviour. The risky part is the judicial appointment process.

The appointment of High Court judges sometimes excites strong political interest because those seven constitutional luminaries have the final say interpreting the division of powers between the Commonwealth and the States. The appointment of state judges rarely excites strong political interest, though often accompanied by lots of speculation and interest in the legal profession. Even the appointment of a state chief justice is usually a matter of only passing interest for the public.

When Jim Spigelman decided to retire as chief justice of New South Wales in 2011, a routine set of consultations with the legal profession took place with the state Attorney-General Greg Smith then issuing a mundane press release announcing the appointment of Tom Bathurst and appending a matter-of-fact CV of the appointee's legal expertise and experience. Bathurst was then sworn in publicly, being welcomed in open court by his fellow judges, members of the legal profession, representatives of government and members of the public.

In February, Campbell Newman made the long awaited announcement that Paul de Jersey, your long serving Chief Justice would be your new governor. Campbell Newman said he would take time to appoint a new chief justice, in line with a promise to be more consultative: 'We will be consulting with senior members of the legal profession in Queensland. Obviously I will also be asking His Honour for his opinion and we'll make an announcement when we've undertaken that process. But we're going to listen and we're going to consult.'

Last month, with great fanfare, Campbell Newman appeared at the Supreme Court flanked by Chief Justice de Jersey and his Attorney-General Jarrod Bleijie to announce the appointment of Tim Carmody as Queensland's new chief justice. The government described the event as a 'launch' of the new chief justice. There is no rule to say that one should just do these things in an understated way by media release as they did in Sydney with the appointment of the eminently qualified and suitable Tom Bathurst. Usually an appointment should just speak for itself. The appearance of the premier, the future governor and the proposed chief justice together at the Supreme Court was novel, providing a picture in stark contrast to the usual separation of powers. Judge Carmody spoke and affirmed that he would be independent as a chief justice: 'I am fiercely independent. If my views happen to coincide with the Government's that is pure coincidence.' By this stage alarm bells were ringing. To me, this was the equivalent of a new archbishop holding a press conference in the cathedral with the papal nuncio and proclaiming his faith in Jesus Christ. True, but why the need to say it? Over the next 24 hours, things unravelled badly.

Unlike Tom Bathurst, Tim Carmody was not your usual prospective appointee as chief justice. Except for his close relationship with the Attorney-General and his expressed coincidence of viewpoint with government about law and order issues, there is no way that he would be in the mix for consideration. Despite some of the more shrill observations by his critics (and he has had many in the legal profession), this closeness and coincidence of views would not necessarily rule him out of consideration if he had the requisite prudence, experience and learning in the law. He took to the airwaves to defend himself and his appointment. This is unheard of in the Australian system. He revealed on air that not one of the 26 serving Supreme Court judges had congratulated him, and that he would have to knock on the door of each of them to determine if they were friend or foe. Imagine, a new chairman of a major corporation like BHP Billiton announcing to the public that he had not been congratulated by any serving board member and that he would now have to take soundings, presumably building alliances and dividing his board into camps. The shareholders would not be happy.

As for Premier Newman's much promised consultation, we will never know if he consulted Chief Justice de Jersey and what was said, and neither should we. This is what made de Jersey's presence at the press conference in his own court building so problematic, given that Newman and Carmody used the press conference to make such self-serving remarks. Peter Davis, then President of the Bar representing the barristers of the State was devastated that either the Attorney General or one of his staff had leaked details of their confidential discussions to others including Carmody even before the decision had been made to appoint him. Davis wrote to all the barristers saying, 'The Bar Association ought to be involved in the process of appointment of judges. That is done through the President. As I have no faith in the integrity of the process, I cannot engage further in it. I have concluded, with great regret and sadness, that I ought not continue to hold the office of President.'

It turned out that a junior barrister, Ryan Haddrick, who was close to both Carmody and the Attorney General (having been his chief of staff) had expressed displeasure at the Bar Council's view on who should or should not be appointed as Chief Justice. Haddrick thought the Bar needed to accept the fait accompli that Carmody would be appointed, and arrogantly and high-handedly wrote to Mark Plunkett, a member of the Bar Council saying, 'Common sense needs to prevail. There are two more Supreme Court appointments, three District appointments and about five Magistrates to go this term. I want some of them to be barristers!! and not solicitors!!!'.

The president of the Law Society wrote to all the solicitors saying, 'The matters raised by Peter Davis QC are of singular concern as they go to the process of judicial appointment which, if tainted, runs the very great risk of undermining the confidence of the profession and the community in individual appointments which then flows onto the larger institution of the courts. Such an outcome cannot be contemplated. The issues raised must be addressed if we are to preserve confidence in our system of justice.'

Queensland is in for a very hard time with the community's confidence in the courts being tested while politicians beat the 'law and order' drum. New South Wales Chief Justice Bathurst in October last year observed: 'Because the judiciary has neither 'the might of the sword or of the purse', as the old saying goes, the institutional strength of the courts necessary for judicial independence itself largely relies on community confidence. It is, at least in part, the community's confidence and support for the judiciary that serves to protect the courts from incursions by other arms of government. In other words, community confidence in the judiciary is both a goal, and an important element in maintaining, the separation of powers.' Campbell Newman and his Attorney have trashed this community confidence for dubious short-term political gain.

Once the governor in council appointed Tim Carmody, Paul de Jersey, the Chief Justice soon to be governor said, 'It became incumbent on all of us who are involved in the legal process to support its current expression. The stability of the legal system is integral to our democratic system and must be maintained.' This injunction would have carried greater weight if the Chief Justice had not agreed to the Executive takeover of the Supreme Court building to conduct what government media outlets described as the launch of the Chief Justice. It would have carried greater weight if the serving Chief Justice had abided by precedent and not joined members of the Executive when announcing the new Chief Justice. It would have carried greater weight if the new Chief Justice were to present himself in his new court for a public swearing in and official welcome by the profession, the government and the people of Queensland. The statement would have carried greater weight if it had made mention of the integrity of the legal system as well as its stability. When opening the new Supreme Court building in Brisbane two years ago, Chief Justice de Jersey rightly praised the splendid architecture of the building which reflected the transparency and openness of the judicial process. Sadly, his vision has turned to ashes as he departs for Government House.

Given the recklessness of some who exercise Executive power and the populism of some parliaments, we Australians face the perennial question about a bill of rights or a Human Rights Act. I was privileged to chair the 2009 National Human Rights Consultation with a committee — Mary Kostakidis, Mick Palmer and Tammy Williams, assisted by Philip Flood — with diverse views about how best to protect human rights in Australia. The Murdoch press was fond of portraying us as a group of likeminded lefties. The diversity of our views however ensured the transparency and integrity of our processes, especially given that we did not reach agreement on our recommendations about a Human Rights Act until five minutes to midnight.

As chair, I was on the record favouring a modest statutory human rights act. But our individual opinions were irrelevant to the task at hand, which was to conduct a public consultation on three questions posed in our terms of reference:

Which human rights (including corresponding responsibilities) should be protected and promoted?

Are these human rights currently sufficiently protected and promoted?

How could Australia better protect and promote human rights?

We were asked to identify options which would preserve the sovereignty of Parliament and not include a constitutionally entrenched bill of rights.

At community roundtables, participants were asked what prompted them to attend. Some civic-minded individuals simply wanted the opportunity to attend a genuine exercise in participative democracy; they wanted information just as much as they wanted to share their views. Many participants were people with grievances about government service delivery or particular government policies. Some had suffered at the hands of a government department or at least knew someone who had been adversely affected—a homeless person, an aged relative in care, a close family member with mental illness, or a neighbour with disabilities. Others were responding to invitations to involve themselves in campaigns that had been instigated when the Consultation was launched. Against the backdrop of these campaigns, the Committee heard from many people who claimed no legal or political expertise in relation to the desirability or otherwise of any particular law; they simply wanted to know that Australia would continue to play its role as a valued contributor to the international community while pragmatically dealing with problems at home.

Outside the capital cities and large urban centres, the community roundtables tended to focus on local concerns, and there was limited use of 'human rights' language. People were more comfortable talking about the fair go, wanting to know what constitutes fair service delivery for small populations in far-flung places. At Mintabie in outback South Australia, a quarter of the town's population turned out, upset by the recent closure of their health clinic. At Santa Teresa in the red centre, Aboriginal residents asked me how I would feel if the government required that I place a notice banning pornography on the front door of my house. They thought that was the equivalent of the government erecting the 'Prescribed Area' sign at the entrance to their community. In Charleville, western Queensland, the local doctor described the financial hardship endured by citizens who need to travel 600km by bus to Toowoomba for routine specialist care.

The Committee learnt that economic, social and cultural rights are important to the Australian community, and the way they are protected and promoted has a big impact on the lives of many. The most basic economic and social rights—the rights to the highest attainable standard of health, to housing and to education—matter most to Australians, and they matter most because they are the rights at greatest risk, especially for vulnerable groups in the community.

We put forward three tranches of measures to be considered for further protecting and enhancing human rights. I will deal with them in ascending order of controversy and in descending order of broad community endorsement. The government ultimately implemented those measures winning the broadest community endorsement while deciding not to enact a Human Rights Act which, though supported by the majority of people consulted, was supported less strongly than other options.

At many community roundtables, participants said they didn't know what their rights were and didn't even know where to find them. When reference was made to the affirmation made by new citizens pledging loyalty to Australia and its people, 'whose rights and liberties I respect', many participants confessed they would be unable to tell the inquiring new citizen what those rights and liberties were and would not even be able to tell them where to look to find out. In the report, we noted the observation of historian John Hirst 'that human rights are not enough, that if rights are to be protected there must be a community in which people care about each other's rights'. It is necessary to educate the culturally diverse Australian community about the rights all Australians are entitled to enjoy. 81 per cent of people surveyed by Colmar Brunton said they would support increased human rights education for children and adults as a way of better protecting human rights in Australia. At community roundtables there were consistent calls for better education.

The second tranche of proposals for enhancing human rights protection included recommendations for ensuring that Commonwealth public authorities could be more attentive to human rights when delivering services and for guaranteeing compliance of Commonwealth laws with Australia's voluntarily assumed human rights obligations. We recommended that the Human Rights Commission have much the same role in hearing complaints of human rights violations by Commonwealth agencies as it presently has in relation to complaints of unlawful discrimination.

We also recommended an audit of all past Commonwealth laws so that government might consider introducing amendments to Parliament to ensure human rights compliance, that all future Commonwealth bills be accompanied by a statement of human rights compatibility, and that there be a parliamentary committee which routinely reviews bills for such compliance. These measures are fully respectful of parliamentary sovereignty yet are stronger than other models where parliament is able to receive the parliamentary committee report on human rights violations long after the legislation has been passed. We saw no point in window dressing procedures which close the gate only once the horse has bolted.

The third tranche of our recommendations related to a Human Rights Act. Many Australians would like to see national government take more notice of human rights as they draft laws and make policies. The majority of those attending community roundtables favoured a Human Rights Act, and 87 per cent of those who presented submissions to the Committee and expressed a view on the question supported such an Act. In the national telephone survey, 57 per cent expressed support for a Human Rights Act, 30 per cent were neutral, and only 14 per cent were opposed.

Our committee did recommend a Human Rights Act which would grant judges the power to interpret Commonwealth laws consistent with human rights, provided that interpretation was always consistent with the purpose of the legislation being interpreted. This power would be more restrictive than the power granted to judges in the United Kingdom where Parliament has been happy to give judges a stronger power of interpretation because a failed litigant there can always seek relief in Strasbourg before the European Court of Human Rights. Understandably, the English would prefer to have their own judges reach ultimate decisions on these matters, rather than leaving them to European judges. We have no such regional arrangement in Australia.

Most civil and political rights can be limited in the public interest or for the common good or to accommodate the conflicting rights of others. Nowadays the limit on such rights is usually determined by inquiring what is demonstrably justified in a free and democratic society. Under the dialogue model we proposed, courts could express a contrary view. But ultimately it would always be Parliament's call. This makes it a very different situation from the US where, under a constitutional model, judges have the final say.

Some politicians have said that they or their colleagues would be too timid to express a view contrary to the judges and thus the judges in effect would have the last word on what limits on rights are demonstrably justified in a free and democratic society. Such timidity is not my experience of Australian politicians. After all, if the contest is about what is justified in a free and democratic society, who is better placed than an elected politician to claim that they know the country's democratic pulse on the legitimate limit on any right?

Our elected leaders were able to adopt many of the recommendations in our report without deciding to grant judges any additional power to scrutinise the actions of public servants or to interpret laws in a manner consistent with human rights. In future, they could decide to take the extra step, engaging the courts as a guarantee that politicians and the public service will be kept accountable in respecting, protecting and promoting the human rights of all Australians. Our report sets out how this could best be done—faithful to what we heard, respectful of the sovereignty of parliament, and true to the Australian ideals of dignity and a fair go for all.

Government decided to put a Human Rights Act on the long finger. But they did legislate to provide for statements of compatibility and for a parliamentary committee on Human Rights, in the Human Rights (Parliamentary Scrutiny) Act 2011 which came into effect in early 2012. Parliament appointed a ten member Parliamentary Committee on Human Rights which is required to examine bills and legislative instruments 'for compatibility with human rights'. The Committee may also examine existing Acts and inquire into any matter relating to human rights referred to it by the Attorney-General. 'Human rights' are defined to mean 'the rights and freedoms recognised or declared' by the seven key international human rights instruments on civil and political rights, economic, social and cultural rights, racial discrimination, torture and other cruel inhuman or degrading treatment, including the Conventions on women, children and persons with disabilities. Anyone introducing a Bill or legislative instrument to Parliament is required to provide 'a statement of compatibility' which must include an assessment of whether the Bill (or instrument) is compatible with human rights.

So at a national level, neither the executive nor the legislature can escape the dialogue about legislation's compliance with UN human rights standards. Neither can the courts, because of the provisions of the Acts Interpretation Act which make reports of the Parliamentary Committee on Human Rights and statements of compatibility relevant in court proceedings determining the meaning of new Commonwealth statutes which impinge on internationally recognised human rights and freedoms.

Ultimately Australia will require a Human Rights Act to set workable limits on how far ajar the door of human rights protection should be opened by the judges in dialogue with the politicians. We will now have a few years of the door flapping in the Canberra breeze as public servants decide how much content to put in the statements of compatibility, as parliamentarians decide how much public access and transparency to accord the new committee processes, and as judges feel their way in interpreting the laws. There is no turning back from the federal dialogue model of human rights protection.

Five years on from our report and three years into the operation of the new federal human rights framework, the National Human Rights Consultation is still perceived as a failed attempt to enact a federal Human Rights Act. It was nothing of the sort. The Committee was faithful to its public trust in providing government and the Parliament with accurate information about community perceptions on the protection of human rights. The government responded by adopting the three most popular remedies for enhancing human rights protection: human rights education; statements of compatibility from the Executive; and a parliamentary committee for human rights. The human rights education campaign has now run its course. The new Abbott Government has not indicated any intention to scrap statements of compatibility or the parliamentary committee. There is every indication that most Australians are content with this ongoing Australian exceptionalism. It remains to be seen if the new measures are sufficiently robust.

Here in Queensland, the Carmody court will have its work cut out for it given the present 'law and order' mindset in the Executive government and the perennial curial challenge to maintain the separation of powers, the subservience of all branches of government to the law, and the independence of the legal profession. Those of you who are barristers should cherish Pat Keane's reminder: 'Barristers tend to be the natural enemies of those with power; and sometimes the power we are obliged to oppose is the power of the State. No-one who has power likes to be thwarted in the exercise of power for what seems to him or her to be the public good.'

I wish Chief Justice Carmody well now that he has been sworn in as Chief Justice of Queensland. For the sake of stability and integrity of the legal system, it is now time for all of us to drop the public questioning of his suitability for high office and to subject his judgments to the same scrutiny and to treat them with the same respect as we would accord any other judgments from the Supreme Court of Queensland. It is time for the Newman government to return to appropriate modes of consultation with the legal profession about judicial appointments and to the more traditional modes of announcing such appointments. We must avoid the public perception of a fudging of the separation of powers, with the Executive appropriating to itself the mantle of judicial independence expressed by Chief Justice de Jersey having to stand silent in his own court building while politicians used the state's most senior judicial appointment to further a crass law and order campaign, heaping humiliation upon a judiciary and a legal profession committed to according all persons justice according to law. At his farewell as Chief Justice, Paul de Jersey paid tribute to the legal profession's 'efficiency, ethical commitment and established independence'. Long may those attributes inform the character and focus of the Queensland Council for Civil Liberties. Thank you for the opportunity to return to my home state and to offer these reflections on an historic day in the Sunshine State.


Frank BrennanFrank Brennan SJ AO is professor of law at the Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. He is currently in the USA taking up the Gasson Chair at Boston College.

 



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At his public welcome to the Court, Chief Justice Carmody announced, "As foreshadowed after my private swearing-in, this event is being held in public to give the other arms of government and both branches of the legal profession the opportunity of formally recognizing our recent appointments. The keen-eyed among you may have noticed that there are fewer judges sitting up here than some might have expected. Following the practice elsewhere in Australia, the more customary fanfare and ceremonial aspects have been dispensed with in favour of a distinctly low-key and much more informal affair. Appearance on the bench has been limited to Justice Flanagan and myself so that, as it should be, the focus is fixed firmly on the two of us as the newest additions to the judicial ranks." This is no explanation of why you would limit the attendance of fellow judges. Why should they not be afforded the opportunity to formally recognise the appointments? Sadly, these initial comments from the bench by the new Chief Justice just don't stack up. Not a good start with the media saying his fellow judges have snubbed him while he claims the initiative of having precluded their presence.

Frank brennan Sj 02 August 2014

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