A HUMAN RIGHTS ACT AND THE SEPARATION OF POWERS IN AUSTRALIA

"Won't a human rights act transfer power from politicians, our democratically-elected representatives, to unelected judges?"

Many opponents of a human rights act in Australia cite the extraordinary powers such an act would hand to the judiciary (over the Parliament) as a major reason why it should not be pursued. However, the effect of human rights protected on the separation of powers is dependent on the form such protection would take, either constitutional or legislative.

The separation of powers entails the division of the three types of power – legislative, executive and judicial – onto three separate institutions. Legislative power entails the power to make laws and is concentrated in the Parliament. Executive power means the power to implement laws and is given to the government and its departments. Judicial power gives the High Court the power to decide whether laws are legal according to the Constitution.

A constitutional charter of rights makes rights absolute. If a court finds a law to be inconsistent with the bill of rights, then that law is made invalid. In this way, the bill of rights can ‘trump’ other laws. When opponents to a charter of rights raise the question of its effect on the separation of powers they are generally referring to a constitutional charter model.

A legislative human rights act is an ordinary act of parliament. Such an Act would be able to operate within our existing system of government without altering the existing balance between parliament and the courts. The legislative model encourages rights protection through better transparency and accountability and through dialogue between the courts and parliament. When new policies are being developed, human rights principles will be used as framework. When laws are introduced to parliament, they will be assessed as to whether they are compatible with the human rights act. When a matter is taken to the courts, the courts will be able to either interpret laws to be consistent with the protected human right, or if this is not possible, to declare a law to be incompatible with human rights. Importantly, courts will not have the capacity to dismiss or invalidate laws. The final decision on how to deal with the incompatibility will always remain with the parliament.

This has been the process under the Victorian Charter of Rights, where the Supreme Court can issue a declaration of incompatibility if a state law is found to be inconsistent with rights contained in the Charter. This does not invalidate the law, but does require the Parliament to review and reconsider it, thus preserving legislative authority.

Information taken from the Human Rights Act for Australia website (http://www.humanrightsact.com.au/2008/about-a-hr-act) and the Human Rights Commission website (http://www.hreoc.gov.au/human_rights/charter_of_rights/faq_charter_of_rights.html)