By Cheryl Saunders

Laureate Professor Emeritus at Melbourne Law School

The Human Rights Act 1998 has had a significant impact on institutional design and theories of rights protection in comparative constitutional law. Initially introduced in the UK as a mechanism for ‘bringing rights home’, it came to be regarded elsewhere in the world as a creative means of providing a measure of protection for rights in an uncodified constitutional context, while leaving the sovereignty of Parliament intact. Together with the conceptually similar New Zealand Bill of Rights Act 1990, it became, in time, the centrepiece of a claim that a new Commonwealth model of constitutionalism had been borne. It also played a role in the elaboration of theories about ‘weak form judicial review’ and interinstitutional dialogue.

Over the course of the 2000s the Human Rights Act began to be adapted for use in sub-national jurisdictions in Australia, despite the codified constitutional environment, which inevitably constrained some of its features. For those outside the common law world, these developments offered a fascinating example of the lengths to which common law jurisdictions were prepared to go to pursue the universalist goal of rights protection without sacrificing their distinctive attachment to parliamentary sovereignty. 

At this macro level, then, the Human Rights Act already might be considered the epitome of modernity. And even at the more micro level, focussing on the protected rights themselves, it is hard to understand what the model canvassed in the current consultation paper offers to deserve categorisation as ‘modern’. Of course, it is more modern than the Bill of Rights 1688, but that serves an entirely different purpose. The addition of trial by jury to the list of rights already protected in the Human Rights Act might be nice, but hardly reflects a recent development.

Limitation of the right to privacy might be regarded as a backward step in an age where significant intrusion into private lives is both possible and practised, even where no skerrick of public interest is involved. There is no attempt, as I understand it, to explore the potential of new rights to reflect the emerging concerns of our time. Such concerns might include, for example, the increasing reliance on artificial intelligence in the exercise of statutory discretions affecting individuals and the pending impacts of climate change on the lives and livelihoods of people. 

I am not sufficiently immersed in the case law on the Human Rights Act to engage with the points made in the consultation paper about its machinery provisions, including the approach to statutory interpretation that it authorises and the remedies for which it provides. I note, however, that these and other related points go to the pushmi-pullyu character of the relations between the institutions of government that have been a feature of the British constitution for centuries. They prompt me to ask a question that has bothered me for some time.  

Why is it, in so much common law discourse, that arguments about the need to restrict the role of courts in rights protection and related aspects of public law never consider what necessarily is the other side of the coin: the capacity and willingness of the political branches of government to play their part in protecting rights and maintaining constitutional principles and values?

The British constitutional tradition, inherited by many other states in some form, assumes an integrated set of arrangements in which institutions complement each other and each has a distinctive role to play. The insistence on parliamentary sovereignty requires a greater justification than the legitimacy conferred by quinquennial elections, important although this is. It also, surely, rests on assumptions about the manner in which the Parliament uses its sovereignty in law-making and carries out its responsibilities for scrutinising the executive government which it has created and substantially empowered.  

A host of issues needs attention from this perspective. They include, by way of topical example, the channelling of the sovereignty of Parliament to enact ‘skeleton legislation’ authorising law-making on significant matters by subordinate rules to which Parliament pays little attention and over which it has relatively little effective control. They also include the extent to which decisions affecting public and individual interests are made by the executive in ways that are beyond the reach of Parliament at all, through the exercise of ill-defined prerogative and other forms of executive power recognised by the common law. 

These and other historical lacunae in the reach of the authority of Parliament have grown in significance through globalisation and privatisation. A truly modern approach to constitutional reform would tackle long-standing problems like these, which go to the efficacy of parliamentary government on which the separation of powers relies.