MARK ALDRIDGE

HIGH COURT CONFIRMING WE HAVE NO RIGHTS?

For many years I have had a strong interest in exactly what our rights are in Australia, and while finding my feet in their defense, I came to the conclusion not only do we have no defined rights, well defined enough for the people to use them in their defense, here the High court confirm what I have been saying.

It offers some faith that when interpreting the Constitution, that here we see the attempt to adopt rights based definitions, where legislation would depart in the opposite direction.

My arguments over the past decade that justice would best be served by a “Bill of Rights” entrenched into our constitution by way of referenda, become very valid under this argument, not just to help define limitations missing from our constitution, but to ensure the people themselves understand theirs.

Extracts from what Justice Kirby said at "Interpretative principle" ...............Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of fundamental rights rather than an interpretation which would involve a departure from such rights.

(Newcrest Mining (WA) Limited v The Commonwealth of Australia [1997] HCA 38(14 August 1997)

Australian law, including its constitutional law, may sometimes fall short of giving effect to fundamental rights. The duty of the Court is to interpret what the Constitution says and not what individual judges may think it should have said.

If the Constitution is clear, the Court must (as in the interpretation of any legislation) give effect to its terms. Nor should the Court adopt an interpretative principle as a means of introducing, by the backdoor, provisions of international treaties or other international law concerning fundamental rights not yet incorporated into Australian domestic law.

However, as has been recognised by this Court and by other courts of high authority, the inter-relationship of national and international law, including in relation to fundamental rights, is "undergoing evolution". To adapt what Brennan J said in Mabo v Queensland [No 2], the common law, and constitutional law, do not necessarily conform with international law.

However, international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights.

To the full extent that its text permits, Australia's Constitution, as the fundamental law of government in this country, accommodates itself to international law, including insofar as that law expresses basic rights.

The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their governance. It also speaks to the international community as the basic law of the Australian nation which is a member of that community.

One highly influential international statement on the understanding of universal and fundamental rights is the Universal Declaration of Human Rights. That document is not a treaty to which Australia is a party. Indeed it is not a treaty at all.

It is not part of Australia's domestic law, still less of its Constitution. Nevertheless, it may in this country, as it has in other countries, influence legal development and constitutional interpretation. At least it may do so where its terms do not conflict with, but are consistent with, a provision of the Constitution.

The use of international law in such a way has been specifically sanctioned by the Privy Council when giving meaning to express constitutional provisions relating to "fundamental rights and freedoms".

Such jurisprudence has its analogies in the courts of several other countries. The growing influence of the Universal Declaration upon the jurisprudence in the International Court of Justice may also be noted.

The Universal Declaration states in Article 17: "1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property."

Whilst this article contains propositions which are unremarkable to those familiar with the Australian legal system, the prohibition on the arbitrary deprivation of property expresses an essential idea which is both basic and virtually uniform in civilized legal systems. Historically, its roots may be traced as far back as the Magna Carta 1215,

Article 52 of which provided: "To any man whom we have deprived or dispossessed of lands, castles, liberties or rights, without the lawful judgment of his equals, we will at once restore these".

A more specific documentary embodiment of the notion may be found in Article 17 of the French Declaration of the Rights of Man and of the Citizen, 1789: "Property, being an inviolable and sacred right, none can be deprived of it, except when public necessity, legally ascertained, evidently requires it, and on condition of a just and prior indemnity".

Like protections against arbitrary and uncompensated deprivation of property may be found in the constitutions of most civilized countries. In the Fifth Amendment to the United States Constitution it is provided that: "No person shall be deprived of property, without due process of law; nor shall private property be taken for public use, without just compensation."

Ordinarily, in a civilized society, where private property rights are protected by law, the government, its agencies or those acting under authority of law may not deprive a person of such rights without a legal process which includes provision for just compensation. Whilst companies such as the appellants may not, as such, be entitled to the benefit of every fundamental human right,

s 51(xxxi) of the Australian Constitution, must be understood as it commonly applies to individuals entitled to the protection of basic rights. It must be given a meaning and operation which fully reflects that application. In this way, in Australian law, it extends to protect the basic rights of corporations as well as individuals.

When the foregoing principles, of virtually universal application, are remembered, it becomes even more astonishing to suggest that the Australian Constitution, which in 1901 expressly and exceptionally recognised and gave effect to the applicable universal principle, should be construed today in such a way as to limit the operation of that express requirement in respect of some laws made by its Federal Parliament but not others. Where there is an ambiguity in the meaning of the Constitution, as there is here, it should be resolved in favour of upholding such fundamental and universal rights.

The Australian Constitution should not be interpreted so as to condone an unnecessary withdrawal of the protection of such rights. At least it should not be so interpreted unless the text is intractable and the deprivation of such rights is completely clear.

Neither of these conditions applies here. Nor should arbitrary deprivation of property be lightly attributed to a constitution, such as the Australian Constitution, given the history of its origins and its purpose.

That purpose is to be the basic law for the government of a free people in a nation which relates to the rest of the world in a context in which the growing influence of international law is of ever increasing importance.”

The biggest issue facing all Australians beyond the urgent need to define and defend our rights, is to ensure our legislators do the same, because the high court is a very expensive place to fight for our rights.

Mark Aldridge