Chief Justice Warren, Your Honours, the Honourable Andrew McIntosh, Members of Parliament, Ladies and Gentlemen:
I acknowledge the traditional owners of this citadel of justice in which we meet, the Wirundjeri people and the Kulin nations. We gather under the auspices of the Victorian Chapter of the International Commission of Jurists to mark the opening of the law year.
This event is now in its fifth year. It is a gathering not just of lawyers but also of interested community groups. We come together acknowledging that the rule of law is dependent on legal professionalism and community respect for the law and its processes.
We come as people of diverse backgrounds. At various places of worship including churches, synagogues and mosques around the city at this same time, lawyers and community leaders will be gathering to pray and to commend their efforts for justice according to law to their God. Here people of all faiths and none gather so that we might affirm each other in our solemn commitment to justice according to law.
I am one of those white Australians who has been feeling a little sad and confused about the happenings in our national capital since 'Australia Day', the 40th anniversary of the Tent Embassy. Being a Canberra resident, I got on my bike and went down to the Embassy on Saturday afternoon. I passed a sign: 'All embassies are afforded protection from the United Nations. You are now entering or leaving the Australian Aboriginal Tent Embassy. Mother Earth Law applies. Please have respect. Abusive behaviour will not be tolerated.'
One Aboriginal man who knew me from Redfern came up and had a great chat. He had some challenging questions for me, including, 'Has white Australia worked out what it wants yet?' So I had plenty to think about as I rode home. Mutual respect is always a good start.
I pay tribute to those many Melbourne lawyers who have contributed so significantly to justice according to law for the two most controversial minorities in Australia — the original owners and the most recent boat arrivals. Our High Court jurisprudence on native title and asylum rights would be seriously underdeveloped but for the consistent advocacy of counsel from the Melbourne Bar and painstaking brief preparation by Victorian solicitors and paralegal staff.
Melbourne is also the city to which the nation looks for the development of a coherent Australian jurisprudence of human rights given your Charter of Human Rights and Responsibilities Act 2006 which from the other side of the River Murray looks as though it might survive long enough to enjoy bipartisan support in your Parliament.
Though we have no national equivalent, the Commonwealth Parliament's Human Rights (Parliamentary Scrutiny) Act 2011, having passed the Senate on the final sitting day last year and having received royal assent over the summer, came into effect three weeks ago.
The Australian Parliament will now be appointing 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 'which is 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 will now be 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, the Executive and the Legislature cannot escape the dialogue about legislation's compliance with UN human rights standards. Neither can the courts, because Parliament has already legislated in the Acts Interpretation Act that 'in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material'.
Parliament has provided that 'the material that may be considered in the interpretation of a provision of an Act' includes 'any relevant report of a committee of the Parliament' as well as 'any relevant document that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted'.
Clearly reports of the Parliamentary Joint Committee on Human Rights and the statements of compatibility provided by the Executive will be relevant in court proceedings in determining the meaning of new Commonwealth statutes which impinge on internationally recognised human rights and freedoms. Victorian lawyers should be well positioned to providing the new parliamentary committee and the courts with assistance in utilising these new interpretative mechanisms.
That's not all. The Gillard Government's human rights framework notes that 'the Administrative Decisions (Judicial Review) Act 1977 enables a person aggrieved by most decisions made under federal laws to apply to a federal court for an order to review on various grounds, including that the decision maker failed to take into account a relevant consideration'.
Ron Merkel QC in his submission to the National Human Rights Consultation pointed out that the High Court has already 'recognised the existence of a requirement to treat Australia's international treaty obligations as relevant considerations and, absent statutory or executive indications to the contrary, administrative decision makers are expected to act conformably with Australia's international treaty obligations'.
I believe that 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 interpreting laws consistent with the parliament's intention that all laws be in harmony with Australia's international obligations, including the UN human rights instruments, unless expressly stated to the contrary. There is no turning back from the federal dialogue model of human rights protection. This calls for considered involvement by lawyers.
Prior to my appointment to chair the National Human Rights Consultation Committee, I had some involvement in the Victorian debate about clause 8 of the Victorian Abortion Law Reform Bill 2008 designed to force a conscientiously objecting doctor to refer a patient seeking an abortion to another doctor who did not share the same conscientious objection.
I thought such a provision was in flagrant breach of the right to freedom of conscience, religion and belief, could not be justified, and would not pass muster if the bill were accompanied by a statement of compatibility as required by the Victorian Charter.
When Lord Joffe's Assisted Dying for the Terminally Ill Bill was first drafted in the United Kingdom, it contained a clause similar to section 8 of the Victorian Abortion Law Reform Act 2008. Originally the Joffe Bill imposed a duty on physicians who invoked their right to conscientiously object, to 'take appropriate steps to ensure that the patient is referred without delay to a physician who does not have such a conscientious objection'.
The Westminster Parliament's Joint Committee on Human Rights remarked: 'We consider that imposing such a duty on a physician who invokes the right to conscientiously object is an interference with that physician's right to freedom of conscience ..., because it requires the physician to participate in a process to which he or she has a conscientious objection. That right is absolute: interferences with it are not capable of justification'.
The UK bill was accordingly amended to provide that 'No person shall be under any duty to refer a patient to any other source for obtaining information or advice pertaining to assistance to die, or to refer a patient to any other person for assistance to die under the provisions of this Act'. Under the revised UK provision, the doctor with a conscientious objection would have no additional legal duty other than 'immediately, on receipt of a request to do so, transfer the patient's medical records to the new physician'.
When confronted with cl 8 of the Abortion Law Reform Bill, it was not surprising that the Victorian Scrutiny of Acts and Regulations Committee saw a need to provide parliament with a compatibility statement and drew attention to the equivalent attempted provision in the UK, the response by the UK Committee, and the amendment proposed in the UK Parliament.
But the Victorian Parliament and most of the Victorian legal community saw no need for a statement of compatibility and failed to provide any coherent rationale for the interference with human rights. Clause 8 was legislated with some claiming no interference with the right to freedom of conscience.
While s.8 remains on the Victorian statutes book, religious critics of Human Rights Acts will remain convinced that such human rights regimes are applied only selectively and ideologically, impairing the fundamental rights of religious persons.
Though lawyers have no distinctive role in articulating a private or public morality on contested issues such as abortion and euthanasia, they do have a responsibility to assist with the development of the community's understanding of what makes for good law making.
It would be a tragedy for human rights protection if a notion took hold that human rights law is simply a vehicle for imposing a soft left, social agenda of individual liberty and self-determination regardless of the legitimate claims of the vulnerable members of society and those with consciences and belief systems different from the majority.
Being a priest, might I put in a special plea for freedom of religion which includes not just freedom from religion but also freedom for religion — the freedom for religious people to believe and practise their religion without undue state intervention.
This month, the US Supreme Court unanimously upheld the so-called ministerial exception allowing religious communities a complete exemption from all discrimination law when hiring and firing their own religious ministers. Justifying the ministerial exception, Chief Justice Roberts writing for the court said:
The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments.
We Australians, lacking the same constitutional safeguards as nations like the US and being more wantonly secular in our public discourse, are good at maintaining freedom from religion, but not so vigilant at maintaining freedom for religion.
Let me give one more contemporary challenge for lawyers wanting to assist with the development of the community's understanding of what makes for good law making.
We are about to consider the report of the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution. One of their suggestions is the inclusion of a one line prohibition of racial discrimination: 'The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin', followed by a double pronged special measures exemption for laws or measures having 'the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group'.
Understandably many other members of the community will look to lawyers not to answer whether racial discrimination is a good or bad thing, nor to work out what special measures should be permitted, but rather to determine whether the insertion of such a clause in a Constitution which does not have a comprehensive bill of rights is workable and desirable, and to assess how such a stark constitutional provision would sit with the complex plethora of existing laws prohibiting such discrimination.
The general non-discrimination clause proposed is a variant on the equality right proposed by the 1988 Constitutional Commission which tentatively put forward a comprehensive constitutional bill of rights. That Commission included legal luminaries Maurice Byers, Leslie Zines and Enid Campbell, and political luminaries Gough Whitlam and Rupert Hamer. They first proposed a modest improvement and expansion of the few rights presently articulated in our Constitution and then the addition of a new Chapter VIA of our Constitution — Rights and Freedoms.
They treated these two matters separately 'not because the rights and freedoms presently protected by the Constitution are necessarily more important than rights and freedoms which are not so protected, but rather because we estimate that proposals to alter the Constitution to strengthen and extend existing guarantees are less likely to be misunderstood than proposals to incorporate in the Constitution guarantees of an entirely new kind.'6 In the end, not even the former won acceptance at the referendum; and of course, no major political party was interested in proposing the latter.
These luminaries were very upfront in acknowledging 'that adoption of the proposed new Chapter on Rights and Freedoms would produce a radical change in the effective allocation of power as between Parliaments and the Courts. It would, for practical purposes, give to the courts the last word in deciding a wide range of issues which are sometimes very difficult and which many people regard as issues which cannot always be satisfactorily resolved by methods of adjudication.'
The expert panel on indigenous recognition has presented the government with a raft of measures going beyond the simple 1988 suggestion that s.25 be repealed and s.51(xxvi) be replaced with a power to make laws with respect to Aborigines and Torres Strait Islanders.
Whereas the National Human Rights Consultation committee which I chaired decided to omit a general equality right from any proposed comprehensive statutory charter of rights and freedoms because there was already a complex panoply of discrimination legislation, the expert panel has suggested a constitutional general equality right but without constitutional recognition of the other rights which usually get listed in a bill of rights. This suggestion requires careful legal analysis.
The community will be well served by the legal profession if in the forthcoming dialogue about matters as diverse as euthanasia, same sex marriage and constitutional recognition of Indigenous rights, we lawyers have a commitment not just to contributing our two bob's worth as citizens on the laws and policies we would like or prefer, but also to assisting the community with deciding what makes for good law making.
There is a code of good conduct, and perhaps even an ethics or morality, for assessing not just the ends of law and policy but also the means for getting there. The community will be more happily in our debt if we lawyers discharge that professional obligation without fear or favour, whatever our personal views about ultimate policy outcomes on contested social and moral questions.
On behalf of the community, I thank those lawyers who will discharge this public service in the year ahead in addition to their daily burdens of doing their best for their clients. Let's leave this court building this morning committed to respect for each other and for the rule of law.
Text is from Fr Frank Brennan SJ's address the Opening of the Legal Year 2012 at the International Commission of Jurists, County Court of Victoria, 30 January 2012.