The Protection of Human Rights: A Review of Selected Jurisdictions

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Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.

Briefing Paper No. 03/2000 by Gareth Griffith

The purpose of this paper is to present a concise and mostly descriptive account of recent developments in the protection of human rights in selected jurisdictions, notably Canada, New Zealand, South Africa and the United Kingdom. The immediate background to the paper is the reference by the Attorney General on 23 November 1999 to the Legislative Council Standing Committee on Law and Justice to undertake an inquiry and report on the introduction of a ‘statutory NSW Bill of Rights and/or whether amendments should be made to the Interpretation Act 1987 to require courts to take into account rights contained in International Conventions…’.

The paper’s main findings are as follows:
  • most countries have adopted a Bill of Rights in some form or other, either as a constitutionally entrenched document, or by incorporation into domestic law of international and/or regional human rights instruments (page 3);
  • it follows that very few countries can be said with any certainty not to have any kind of Bill of Rights. The position in some countries is hard to determine, including those in a state of constitutional flux at present, as in the cases of Pakistan and Indonesia (page 3);
  • in some federations, including Canada, Germany and the USA, separate Bills of Rights operate at a national and sub-national level (page 4);
  • at present, there does not appear to be an instance of where a Bill of Rights operates at the sub-national but not the national level. Historically, however, at least two examples can be noted: most of the US States had their own Bills of Rights before the US Constitution came into being; in Canada the Province of Saskatchewan enacted the first Bill of Rights in 1947, with a statutory Bill of Rights following at the national level in 1960 (page 4);
  • in Australia the common law protection of rights is supplemented by those rights which are expressly or impliedly protected under the Commonwealth Constitution. These are few in number and highly qualified in nature. Express human rights provisions are mostly absent from the constitutions Acts of the States (page 6);
  • the US Bill of Rights, which is restricted to traditional civil and political rights and is expressed mostly in ‘negative’ terms and without qualification, is an ‘old’ template for the protection of human rights; the UN Declaration on Human Rights, 1948, which is expressed in ‘positive’ terms and includes certain economic and social rights, is a new template, later refined in the European Convention on Human Rights and Fundamental Freedoms, 1950 (ECHR) and the International Covenant on Civil and Political Rights, 1966 (ICCPR). Both the latter seek to incorporate ‘justified limits’ to some of the rights under protection (pages 9-14);
  • when the UK Human Rights Act 1998 comes into effect on 2 October 2000, those ECHR rights ‘incorporated’ into domestic law by the Act will be enforceable in the UK courts. The Act makes it unlawful for a public authority to act incompatibly with certain ECHR rights and allows for a case to be brought in a UK court or tribunal against the authority if it does so. However, a public authority will not have acted unlawfully under the Act if as a result of a provision of primary legislation it could not have acted differently. The Act also requires that when legislation is introduced into either House for a Second Reading, the Minister responsible must make a written statement that he considers the Bill is compatible with the Convention rights, or that he is unable to make such a statement but wishes Parliament to proceed with the Bill anyway (page 17);
  • New Zealand’s statutory Bill of Rights Act was introduced in 1990. Unlike its UK counterpart, under the Act the courts can neither invalidate secondary legislation, nor make declarations of incompatibility with respect to primary legislation. The Act provides for the pre-enactment scrutiny of Bills, which in the case of Government Bills occurs in the form of a report by the Attorney General on the introduction of the Bill into parliament (pages 21-22);
  • Canada’s Charter of Rights and Freedoms, 1982 is a constitutionally entrenched document. It is reckoned to have made a huge impact upon Canadian law. Its innovations include a general ‘justified limits’ clause and a legislative override provision under which a federal or provincial parliament is able to ‘opt-out’ of certain Charter protections. Pre-enactment scrutiny of Bills occurs after a Bill has been introduced into parliament (pages 25-28);
  • the British, Canadian and New Zealand models have all attempted in different ways to resolve the conflict between the doctrine of the supremacy of parliament, on one side, and judicial review, on the other: this takes the form of the legislative override clause in Canada; in New Zealand it is the statutory status of the Bill of Rights under which inconsistent legislation cannot be declared invalid; and in the UK half-way-house arrangements are in place, whereby the courts may quash or disapply subordinate legislation, but only make a declaration of incompatibility for primary legislation (page 34);
  • South Africa’s Constitution of 1996 contains a wide-ranging Bill of Rights designed to protect economic, social and cultural rights, in addition to the traditional civil and political rights (page 32); and
  • proposals to adopt a Bill of Rights have been debated in other Australian States in the past, most recently in Queensland and Victoria (page 35).