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(An edited version of this entry appears in The Conversation, 24/1/13)

Australia lacks a national bill of rights and the many attempts of Labor Governments over the years to adopt one – whether statutory or constitutional - have failed. But Australia already has a raft of human rights laws, including many anti-discrimination Acts. The Gillard government has now turned to these Acts, proposing their consolidation into a single Human Rights and Anti-Discrimination Bill. The government’s stated aim is to harmonise and simplify the law, and to facilitate compliance. That the existing Acts have created a complicated, sometimes inconsistent, rights landscape is not open to doubt. But, many who campaigned in 2009-10 against the Human Rights Act that was proposed by the National Human Rights Consultation Committee and reluctantly abandoned by the government, will be scrutinising this new Bill for signs that it is intended as a surrogate.

The Bill, indeed, goes further than simply bringing the existing Acts together. No one should be surprised that it is already deeply controversial. Among the hundreds of submissions on the ‘Exposure Draft’ that have been received by the Senate’s Legal and Constitutional Affairs Committee, many have raised objections, including about the Bill’s constitutional validity.

The legal issues are complex, but there is some relief, at least, for those who fear a ‘back-door’ bill of rights. Debate about the desirability of a bill of rights is rarely about whether ‘rights’ should be protected. Mostly, it is about the recognition of particular rights, and, in particular, about who should enforce them. Bill of rights opponents (like myself) rarely oppose the legal protection of rights but, rather, resist the idea of rights-based judicial review; that is to say, the power of courts to determine whether legislation, as such, is rights-compliant. They believe that parliament should make the law without courts looking over its shoulder, and that the courts should enforce the law, and not decline to enforce it or declare it ‘incompatible’, because, in the judges’ opinion, it does not protect rights. Contentious legislation should be subject to political debate and, if it is objectionable, ultimately ‘sentenced’ at the ballot box.

One of the main objections to the Human Rights and Anti-Discrimination Bill is that it extends the scope of rights protection, creating, in effect, new rights. But at least it does not attempt to create a ‘superstatute’ - an Act that ‘trumps’ all other Acts. The Constitution makes Commonwealth laws override inconsistent State laws, but a ‘superstatute’ would override all other Acts or laws, including those passed by the Commonwealth parliament itself. It would effectively ‘constitutionalise’ rights, making all other laws subordinate to it, and thus subject to a judicial determination about their conformity. The creation of such an Act was probably tempting. Unique among the anti-discrimination Acts, the Racial Discrimination Act (1975) includes a provision that makes the Act prevail over all other Australian laws. The government might have generalised this provision, importing it from the Racial Discrimination Act, and applying it to all types of discrimination. It has not done so. It has included a ‘trumping’ provision in the Bill, but, as before, this is confined to laws concerning racial equality.

So, whatever the government’s intention, the Bill is not quasi-constitutional, at least not in this sense. But is it constitutionally valid? Constitutional invalidity is the ultimate trump card of a law’s opponents. Every Commonwealth Act must rest on a constitutional power. The current anti-discrimination Acts rely on the Constitution’s ‘external affairs’ power which, among other things, permits the parliament to incorporate Australia’s international treaty or convention obligations into legislation. The Bill makes it clear that this is its ‘main constitutional basis’. (It names several supplementary powers, but these are unlikely to be controversial.) The recitation of constitutional powers, however, does not make an Act constitutionally valid.

Law Professors, Nicholas Aroney and Patrick Parkinson, believe the Bill gives the Commonwealth powers that exceed what the Constitution grants. The Act’s provisions extend to persons in non-official roles (including volunteers) and even in informal settings, under the broad heading of ‘public life’. Additionally, discrimination can be claimed because a person, in public life, feels insulted or offended. School yard bullies, rude customers, gossiping employees, abusive sporting spectators, Aroney and Parkinson suggest, may become liable. But, as they know, this is not a constitutional argument.

The Bill, they add, goes beyond the terms of the human rights conventions upon which the parliament relies. Those conventions target particular ‘vertical’ conduct: that of employers, providers of services, and so on, people in positions of power. They do not require, or authorise, the regulation of all ‘public life’. Furthermore, Aroney and Parkinson say, the Bill ‘cherry-picks’ among obligations, protecting certain rights over others, whereas the conventions require implementation, and balancing, of all rights. The Bill also breaches the Constitution’s freedom of political communication, by making political opinion that offends (in a work context) a ground for alleging discrimination. (This particular argument has attracted the greatest attention in the media, and made odd bedfellows of critics across the political spectrum.) Additionally, the Bill gives excessive power to the Commonwealth, depriving the States of their constitutionally protected sphere of power.

So, are Aroney and Parkinson right? Is the Bill unconstitutional?

The High Court has overseen a significant expansion of the external affairs power over the years. Few limitations now surround what the parliament can do with this power, so long as the law in question concerns a geographically external matter. International conventions are unquestionably ‘external.’ But adherence to a convention must be bona fides; that is, not merely an excuse for expanding Commonwealth power. The latter, however, is almost impossible to demonstrate, and no Act has been struck down under that test. Furthermore, although the High Court has questioned the validity of laws relying on vague and open-ended international aspirations, it has rejected claims that all of a convention’s obligations must be included in an Australian Act or that the Act must precisely reflect the convention’s terms. Still, an Act must be reasonably appropriate and adapted to, or in conformity with, the convention upon which it relies. Aroney and Parkinson write that parts of the Bill ‘rely upon tenuous extrapolations from the texts’ of international treaties; if the Court agreed, these parts, at least, might be in doubt. The Court, however, has been fairly deferential to the parliament in identifying conformity to a convention, and in allowing the parliament to decide the manner of implementing international obligations.

International human rights conventions are not the only aspect of the external affairs power upon which the Bill relies. The Bill also states that the Act relates to ‘matters of international concern’, and ‘matters external to Australia’. These expressions are drawn from cases where legislation has been held to be valid, notwithstanding the absence of a relevant international instrument. Australia’s law that criminalises ‘sex tourism’, for example, is valid under these tests. But it will be harder to demonstrate that the regulation of Australian conduct in ‘public life’ is a matter of international concern. Again, however, no law has yet been struck down on this ground.

The current case law, it must be said, is not highly encouraging for the Aroney and Parkinson argument. They themselves describe the chance of success only as ‘not weak’. On the other hand, no constitutional power is entirely open-ended. The argument that a law giving effect to a convention cannot stray too far from the convention’s terms has a reasonable chance of success (the federalism argument is probably weaker). In the past, after decades of expansion in other constitutional powers, the Court has drawn a line. The external affairs power may now be ripe for line-drawing.

In contrast, the freedom of political communication argument is relatively strong, since the court has previously ruled against laws that inhibited political speech, even though the latter was intentionally offensive. But this would only result in the ‘severing’ or removal of the political opinion offence section from the Bill. Unless the external affairs argument succeeded, the rest would remain.

The current Court is difficult to predict. Not only has it recently enjoyed two new appointments, its record is mixed. In the recent past, it has given expanded application to the Constitution’s rights provisions. In the 2012 Schools Chaplains case, it reined in Commonwealth executive power. But, in the same year, in the tobacco plain packaging case, it rejected the argument for expanding property rights and the consequential restriction of Commonwealth power.

In any case, constitutional challenges are uncertain, time-consuming, and costly. Aroney and Parkinson make the valid point that many claims of discrimination are best handled outside the law. The same should apply to this Bill. The Bill clearly goes too far in subjecting non-coercive conduct to the courts (or the alternative dispute resolution table). Even the Australian Human Rights Commission questions the ‘offend or insult’ discrimination ground. The Attorney-General should take note of public opinion, amend the Bill, and not wait for a legal challenge. Political common sense is always preferable to litigation; it should prevail.