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The University Of Sydney Faculty Of Law

Introduction

In my essay, I will examine the different constrains faced by the judiciary in protecting human rights under its current circumstances and through this, establish that the judiciary should play a larger and more active role in the impartial and independent implementation and protection of human rights in a fashion that manifests the rule of law to a large extent and least compromise the democratic nature of the government.

The Rule of Law, Democracy and Human Rights

Sir Ninian Stephen, a former Justice of the High Court, Governor-General and international jurist, mentioned in his 1999 Annual Lawyer's Lecture for the St James Ethics in Sydney that, 'Maintaining the rule of law is the true basis of a democratic society. Without it democracy is a misleading and empty phrase.' Subsequently, in the words of Lord Woolf, a former English Chief Justice: 'Human rights come with democracy, whether the government wants them or not', we can gather that democracy, the rule of law and human rights are interrelated, interdependent and indivisible.

It seems apparent that to most efficiently uphold human rights; a judiciary should always consider the rule of law and the maintenance of democracy as far as possible in its application.

Firstly, to examine if the rule of law is being fully manifested by the Australian judiciary, we must recognise the relevant principles under the rule of law evident in a fair and equitable judiciary process:

There must be an independent judiciary, so that it may be relied upon to apply the law.

Enforcement of the law must be impartial and honest.

The law must possess characteristics of certainty, generality and equality. Certainty requires the law be prospective, open, clear and relatively stable. Laws must be of general application to all subjects. They must apply equally to all.

These principles dictate what I personally believe to be the ideal nature of the judiciary's role in its protection of human rights. With close relation to the doctrine of separation of power, the independence of the judiciary, the international standards of human rights and judiciary activism, I will examine the significance of each principle, the limitations against the exercise of these principles faced by the judiciary, how these constrains should be resolved and eventually establish my thesis for a larger and more active judicial role later on in my essay.

Separation of Powers Doctrine - Judiciary Independence

We apply the rule of law in Australia in a way that recognises the separation of powers - between the parliament or legislature, the executive and the judiciary.

This separation and consequent independence is consistent with the rule of law, which calls for an independent legal representation, and also key to the judiciary's effective functioning and upholding of human rights through honest and impartial means.

While all branches of government are responsible for passing laws that deliver justice and ultimately protect human rights, they are propelled by different imperatives and operate on different agendas. The parliament, our elected representatives, takes into account the public opinions, which are often one-sided or leaned against the majority, extensively in favour of their support through votes. In a state of representative democracy such as Australia, this ensures the parliament's electoral accountability and grants them the credibility to make laws for the people.

This puts the parliament's legislators in a dilemma - as much as they are elected to implement the public will, the public will is often difficult to ascertain or implement. On top of that, public will does not always translate into just policies through which all individual rights of every citizen will be protected. Hence, very often, the parliament is left to implement only those constituency concerns brought up by the popular demands of the majority partisans.

The judiciary, on the other hand, has a different obligation to the public. Its concern is leaned more towards the public's interest which is in this case, individual rights, than to the opinions of the general public. Out of all the three arms of the government, the judiciary is most likely the only one directly accountable for delivering justice, and in this case the protection of human rights.

From this we can deduce that the judiciary is more motivated by the agenda of protecting individual human rights as opposed to the parliament whose objectives might be influenced by biased popular demands which might not result in policies that will cater to each and every individual of the state. Hence, a larger and more active judicial role will prove to be more efficient towards an impartial implementation of individual human rights.

If an independent judiciary is to enforce means in favour of individual human rights, it should do so even under circumstances which may contribute to politically controversial or inconvenient outcomes. The fact that the particular issue may lead to political controversy is a flimsy rationale for abdicating this role, for it is in politically sensitive cases that the rights of individuals are most frequently trampled upon.

This brings us to the aspect of judicial impartiality which stems from the independent function of the judiciary. Judicial impartiality requires the judiciary to be devoid of any form of prejudice in its judgements and issues, basing their decisions on only facts in accordance with the law, provided that the purpose of the law is just and principled. Once again, this reinforces upon the fact that the judiciary is motivated by the un-bias agenda of justice free from political influence and urges of the ever-changing popular demand.

Judicial Activism

Activist judges view their role as promoting justice. In an ideal world, parliament would respond immediately to gaps in the law and redraft laws to remove the scope for injustice. But we do not live in an ideal world. Only a certain amount of legislation can be passed in the limited number of parliament sitting days each year. Additionally, members of parliament may be more focused on their mandate, political ideology or political expediency. They may put energy into new laws that will heighten their chances of re-election than checking each and every law for potential injustices. There may be some unglamorous areas of law that escape parliament's attention altogether, or where the legislation is ambiguous and poorly drafted, and in these cases judicial activism may be necessary.

A minority of people today will possibly concur with Montesquieu's view that judges are merely 'but the mouth which pronounces the words of the law.' Such a statement promotes a view of justice as being merely bureaucratic and mechanical, with no thought for ideals, principles or consequences. As though judges just recite the law like 'human ciphers, lacking emotions and beliefs about the society in which they live.'

This perspective of the judiciary process is not only highly impractical and unrealistic, but also undesirable. In the case of Australia where there is no general charter of fundamental rights within its constitution, the role of the judge in applying the law is highly restricted. But for an activist judge, the Bangalore Principles 1988 provides guidelines for a legitimate approach for the introduction of human rights jurisprudence. In essence, this principle provides that where a local statute is ambiguous or where there is no exactly applicable common law principle, the judge may resolve the ambiguity or fill the gap in the common law by reference to universal human rights jurisprudence where this is relevant.

One of the greatest examples of judiciary activism is the case of Mabo v Queensland 1992 in which the 'Terra Nullius' was dismissed in favour of the rights of the Aboriginal people to their land and territorial properties.

International Standards and Judicial Discretion

Apart from the Bangalore Principles, S75 (I) of the constitution vests the High Court with original jurisdiction in relation to 'matters arising under a treaty'. This enlarges the role of the judiciary as they can now consider treaties such as that of the International Covenant of Civil and Political Rights to implement and thereby protect human rights which will otherwise be neglected within the domestic legal framework. An example will be that of Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh in which the significance of the Convention on the Rights of the Child was drawn by the majority of the High Court stating that the ratification of such instruments creates the basis for a legitimate expectation for the rights of the children involved in this case. The precedence of this case sets a trend which reflects the growing significance of this method of utilising international human rights law in litigation.

It has often been acknowledged that universally accepted human rights norms provide the most obvious standards to which Australian judges may refer, and that point is perhaps even more apt in the context of judicial discretion. In cases where by judges exercise judicial discretion, their approach to the task at hand most often involves weighing up broader public opinion against the interests of the individual. In essence, the exercise of discretion is often adopted by judges, who are best placed to consider the relevant facts of a given case, to achieve fairness and justice in its procedure as well as in outcome.

For human rights advocates, this represents a valuable component of any legal system, and in this sense, has a natural affinity with international human rights standards. However, judicial discretion may also be viewed from another perspective. Inherently, the existence of discretion implies the absence of fixed legal rules and the capacity for individual choices to be made by judges. Thus, it encapsulates the potential for abuse and the exercise of discretion based on the personal or subjective views of particular judges. However, few discretionary powers are never absolute and most are subject to stringent guidelines, whether statute prescribed or developed by judges over time. In addition, all exercises of judicial discretion are subject to review by a superior court, albeit on limited grounds.

On top of that, another major constrain that the judiciary is facing in its implementation of international human rights standards is the government's fear of losing its state and national sovereignty when conforming to international standards and hence adopting an over-anxious and irrationally defensive 'bunker mentality', in turn eager to dismiss all international obligations or the recognition of foreign authority on the domestic level.

The same notion of protecting Australian sovereignty from international law also seemed to underpin the Australian Government's 2002 vote against the adoption of an optional protocol to the torture convention.

This deep anxiety and bunker mentality led to an almost irrational stressing of legal form over substance, the questioning of the integrity and professionalism of United Nations human rights bodies, and above all, the adopting of an attitude that borders on a dismissive disregard of international opinion which differs from the Australian government. This stance hints at a dangerous disengagement from the international regimes for human rights protection and promotion which is against Australia's favour.

Hence, it will be wise for the judiciary to exercise discretion as international standards may lend legitimacy and great relevance to the values espoused by judges when carrying out their judicial functions, particularly in instances where the law is ambiguous or silent.

Representative Democracy vs. 'Brute Majoritarianism'

Thomas Jefferson, the third President of the USA and the principal author of its Declaration of Independence wrote in 1795 that: 'It is to secure our rights that we resort to government at all'. Australia's government is that of a representative democracy which adopts the principle that the government body is elected by the people, representing the people, for the people. A representative democracy that emphasizes individual liberties is called a liberal democracy. One that does not is an illiberal democracy. There is no necessity that individual liberties are respected in a representative democracy. However, the rule of law will only be fully reflective in a liberally democratic state where the principles of generality and equality are evident. What democratic societies promote are the rights of its citizens and their participation in decision-making about the rules they will be governed by, this aligns the ideology of democracy with liberty and the protection of individual human rights.

It is hence very much ironic and ludicrous to find that in Australia today, controversies have arisen over the debate about the extent of judicial involvement in protecting human rights, and the expanded judicial partaking and boundaries we have promoted to those rights.

The criticism appears to be that rights should be distributed by legislatures, not courts, and that the enforcement of the Charter by courts has therefore resulted in judicial trespass on legislative supremacy, resulting in an impairment of democratic governance.

However, a more active judicial role is only undemocratic if our understanding of 'democracy' is limited to 'brute majoritarianism'; if we believe democracy to be little more than 'might is right', or take the utilitarian perspective of Bentham, and believe that the majority's happiness is worth the suffering of the few.

All in all, Democracy is enhanced, not threatened, by a judiciary effectively fulfilling its Charter mandate of justice, and democratic values are strengthened not only by a legislature with a larger role, but also by a strong and independent judiciary. The role of the judiciary is and should always be to protect and uphold the rights of these people to the fullest extent of the law, and inform the Legislature when it considers that those rights have been breached so that together a mutually respectful and independent partnership on behalf of the public's right to justice is maintained.

As Lillian Hellman once said: 'I will not cut my conscience to fit this year's fashions,' this means that the judgments in the courts will occasionally be inconsistent with some public expectations and as an inevitable result, create controversy. However, judgments which are controversial are not thereby illegitimate or undemocratic.

Alexander Hamilton, one of the framers of the American Constitution has said: '[W]here the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former.' These words highlights the fact that the wishes of the majority, as expressed through their votes to form an elected government, are subject to the demands of the constitution and at the very core of the democratic commitment to judicial independence and constitutional supremacy.

Therefore, an independent judiciary should enforce the rights on the basis that there must be some things that even a majority, through Parliament, must never be allowed to do, because to do so would constitute an attack on the very people whose interests they supposedly represent. This is not to be seen as undemocratic, but as the operation of democracy properly understood.

Conclusion

Ultimately, the judicial role is secondary to the authority of Constitution and the law. Nevertheless, a judge's role in the implementation and protection of human rights is without a doubt, significant. However, to be able exercise this role to its fullest extent, a judge will need to be given the premises and power they need to perform more active and enlarged functions.

Apace with the growing universality of human rights in these decades, many common law states have taken on the urgency to codify human rights into its constitution. Despite Australia's recent efforts to align itself alongside these countries with its introduction of The Human Rights Act (ACT) in 2004 and The Victorian Charter of Human Rights and Responsibilities (VIC) in 2006, Australia remains the only common law country that has yet to integrate a bill of rights into its constitution. This limits the judiciary's repertoire of rights recognised to sources such as that of the current constitution, which may not be sufficient to cover all individual rights, and the international human rights standards which are often recognised only selectively and always inconsistent as a result of the government's 'bunker mentality'.

This leads me to the proposal for a legislative bill of rights. Despite the many criticisms against this act, I have proven in my essay that such a bill, which will contribute to an enlarged and more active role for the judiciary, does not fundamentally alter the process of an independent and impartial judicial action, nor will it threaten the democratic fabric of the nation. On the contrary, it serves to preserve the sovereignty of the state by protecting the rights of individuals on a domestic level and expands the repertoire of rights recognised, which may thereby be enforced by an active judiciary.

Furthermore, a bill of rights will also serve as a 'template' or standardisation of the human rights in Australia and contribute to the generality and certainty of the law under the constitution. All in all, apart from my opinion on the claim that the judiciary should play a larger and more active role in its implementation and protection of human rights, I strongly believe that it is the most capable institution among the three arms of the governments in exercising this endeavour due to its nature of impartiality and motivation based on the principled agenda of justice and the rule of law.

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