A key claim of proponents of human rights statutes is that such statutes can only improve people’s human rights. We can never lose rights.
As is the norm, the Charter gives this claim legislative force in Charter s.5:
A right or freedom not included in this Charter that arises or is recognised under any other law (including international law, the common law, the Constitution of the Commonwealth and a law of the Commonwealth) must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.
This section ensures that we won’t lose our rights simply because they are omitted from the Charter.
However, this leaves a loophole: we might still lose our rights because they are included in the Charter. In a comment on three recent criminal appeal cases published in this month’s Public Law Review, I argue that such an approach was taken by the High Court last year in relation to a number of narrower human rights laws.
The case was Carr v Western Australia  HCA 47. Carr is a moron who, after denying his involvement in a bank robbery during a formal police interview, cheerfully boasted about his prowess (at both bank robbery and interviewing) to his interviewers, unaware that he was being taped on the lock-up’s CCTV. The legal issue mainly involved the interpretation of the WA statute for mandatory recording of confessions. (Incidentally, the High Court interpreted that statute’s exclusionary rule very narrowly, bizarrely claiming that doing so would improve the integrity of WA policing.) However, the High Court took the opportunity (unasked for by the parties to the appeal) to rule that there was no common law rule that the police’s failure to caution Carr or offer him a lawyer could itself require the exclusion of his confession. Why? Because some parliaments had enacted statutes promoting just such a rule:
First, there is no principle of the common law that persons suspected by police officers of having committed a crime must be given a caution before interrogation in which they are warned of their right to silence, or that in default of such warning, evidence of any confession is automatically inadmissible. The only relevant common law principle is that a failure of police officers to warn in these circumstances may result in the trial judge exercising a power to exclude the evidence. If there were a common law principle of a type earlier described, it would not have been necessary to promulgate the Judges’ Rules 1912, or their many equivalents in Australia. It would not have been necessary to enact legislation providing that evidence obtained after a failure to warn is presumed to have been obtained improperly, and liable to exclusion unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way. And it would not have been necessary to enact legislation mandating warnings about the right to silence, as have some jurisdictions.
Secondly, there is no principle of the common law that persons suspected by police officers of having committed a crime must be advised that they are entitled to communicate with a legal practitioner before being interrogated, or that in default evidence of any confession is automatically inadmissible. If there were such a principle, it would not have been necessary for those jurisdictions which have done so to have enacted legislation imposing a duty so to advise.
Parts of this analysis are unspeakably dumb; notably, the uniform evidence legislation (cited in the footnotes) completely replaces the entire common law on admissibility, so how could it be seen as revealing a particular gap in the common law?
But, more troublingly, the High Court is entirely willing – indeed keen – to see the mere passage of statutes (and the adopting of practices) setting down protections for human rights as carrying an inference about the lack of such protections in the common law. It is willing to do this despite the beneficial intent of these various documents. It is willing to do this despite the presence of express savings provisions in some of them. It is also willing to do this despite its own jurisprudence that says that local statutes cannot influence the development of the nation’s common law (a point it re-affirmed in another of the recent appeals I discuss in my comment.)
My worry is that the High Court will, someday, cite the passage of the Charter (and other human rights statutes) as evidence of a (new found) gap in the common law’s protection of those rights. Such an approach may seriously erode the protection of rights, not only in parts of Australia that don’t have human rights statutes, but also in those that do, such as Victoria. The problem in Victoria is the Charter’s limited legal effect in comparison to the common law. What the Charter gives us may be much less than what the High Court removes.