It was worth electing Rudd after all! I’m smiling today about the appointment of Robert French as the next Chief Justice of Australia. Unless he leaves early, we’ll have nine years of the French Court, which will hopefully be enough to get us over ten years of the Gleeson Court. It’ll be the French Court who will decide some key lingering questions about the Charter, not to mention potentially hear some regular appeals from the Victorian Court of Appeal about its operation.
So, why am I pleased? Mainly, because of my lack of enthusiasm for two of the other judges who’ve been mooted for the job: the CJs of NSW and Victoria. For starters, I’d like some geographic diversity. After all, would someone like Dyson Heydon have ever been appointed if it wasn’t for Howard’s Sydneyphilia? But it’s also about the incumbents themselves. I’ve never been all that impressed by Jim Spigelman, perhaps because I don’t much like his judgment writing style; I’m thinking two hundred paragraphs of quotes from very precedents, followed by: “For the above reasons, I allow/dismiss the appeal.” But it’s especially because of my shock at an incident back in 2001 when Bob Carr, incensed at the sentences being handed out in rape cases, demanded that Spigs come to talk to him about it… and Spigs went!
As for Marilyn Warren, she’s put her name to two lousy Charter judgments so far this year, both involving giving short shrift to freedom of expression (see here and here), and one involving some very dubious process too (see here.) While I hold onto the hope that these were abberations (or just specific to that particular right), for now, I’m quite relieved that Gillard’s rumoured push for her to be chief has not occurred. That being said, I’m a little torn on gender diversity grounds and certainly hope a woman will replace Kirby (albeit also alarmed at the prospect of three Susans on the court.) So, French is basically the devil I don’t know, as is his court (given its lack of criminal law jurisdiction.) But the Gleeson court (full of state judges and commercial federal judges) leaves me enthusiastic for someone from a different background, given his association with native title law.
But, more importantly from a Charter perspective, his published speeches have promising indications on his willingness to engage with Victoria’s new statute in a positive way: he’s clearly been following the new human rights statutes and the debate about them closely, especially in his native WA. While he meets James Allan’s test of not coming out in support of such statutes, I don’t think Professor Allan will be very pleased with his approach, for example relying on George Williams’s analysis of the pros and cons. More importantly, his speeches have touched on two of the big political and constitutional issues about Victoria’s Charter:
First, this is what he had to say about the question of whether declarations of inconsistent interpretation are incompatible with federal judicial power:
The creation of an express power in a State court to make purely advisory declarations may become a live issue in Western Australia in the near future. The State Government is contemplating the enactment of statutory protection for human rights. A statutory Bill of Rights could not be used to strike down subsequent legislation inconsistent with it except, perhaps, by means of manner and form entrenchment. A lesser mechanism, modelled on that adopted in the United Kingdom, would allow a court in proceedings brought under a Human Rights Act to declare any State statute incompatible with a human right or freedom guaranteed by the Act. This is the procedure used in the Australian Capital Territory and under the Charter of Human Rights and Responsibilities Act 2006 (Vic). Section 36 of the latter Act relevantly provides:
(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.
Such a declaration does not affect the validity, operation or enforcement of the statutory provision in respect of which it is made. Its consequences are essentially political. Subject to any appeal against a declaration the minister administering the statutory provision must prepare a written response to be laid before each House of Parliament and published in the Government Gazette.
It seems questionable whether an appeal would lie from such a declaration to the High Court under s 73 of the Constitution, it being merely an advisory opinion. That concern, if well founded, could have unfortunate implications. There are presently two human rights statutes in force in Australia using the UK inspired model. A Western Australian statute, if enacted, is likely to do the same. While the Supreme Courts of the States and Territories are likely to respect each others decisions on similar points of interpretation and application, an authoritative national jurisprudence will only be developed if the High Court has a role as the ultimate appellate court in this important area.
Declarations of incompatibility would raise particular problems if introduced in the federal sphere. A Commonwealth statute adopting provisions modelled on those of the States is likely to run up against the problem that, while the decision in Re Judiciary and Navigation Acts stands, such declarations could not be made at all in the exercise of federal jurisdiction. A recent paper in the November 2007 edition of the Constitutional Law and Policy Review makes the point well: … a declaration of incompatibility would not determine any immediate right, duty or liability involved in the relevant controversy. Nor would it determine what the rights of the parties would be if the law had been properly applied.
Obviously there’s no positive signs there in terms of French’s view on the legal question – although the tenor of the rest of his speech is how fuzzy the law on declarations and Chapter Three is – but I’m very heartened by his focus, from a policy perspective, on the costs of all this federal judicial power guff. No nonsense about the collapse of the separation of powers here.
Second, and perhaps better still, he had this to say in his speech on activism:
It is clear that both the common law and the statute law abound with legal rules and standards which judges are empowered to apply and develop case by case in a principled way. The rules of decision that govern their application emerge from an accumulation of individual judgments. A similar exercise is involved in the application of statutory charters of human rights. Yet there is often sharp debate about the nature of the function which such charters confer upon judges. A statutory charter of human rights may affect the interpretation of statutes and define boundaries for the lawfulness of official action. It may even affect private legal relations depending on its terms. The rights it defines are generally subject to broadly stated qualifications such as the limits referred to in the Victorian Charter of Human Rights and Responsibilities: … such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom …
Obviously the verbal formulae of human rights charters leave much room to move in terms of judicial choices about what constitute reasonable limits on human rights. Nevertheless courts applying such statutes carry out familiar and well established judicial functions. Through their decisions a common law of human rights can be developed. Australian courts coming to the task for the first time may draw upon, without being bound by, the substantial jurisprudence of the United Kingdom, Canada, New Zealand and the United States. And they are subject ultimately to the legislature which may amend or repeal the statute or pass legislation inconsistent with it. Whatever the rights and wrongs of the debate about human rights laws and the adequacy of the existing institutional mix together with the common law for their protection, the function that such statutes confer upon the judiciary does not seem qualitatively different from that which it already discharges across a wide range of jurisdictions. Whether or not such charters mandate judicial activism depends upon the definition of that term. If it be limited by some notion of impropriety, then it is hardly improper for the judge to do what the legislature has asked in interpreting and applying such a charter. In any event, as will be seen later, the definition of ‘judicial activism’ is elusive. The statutory charter initiates a common law process within limits defined by the legislature and subject to amendment by it.
The case of a constitutional Bill of Rights, which sets boundaries upon legislative power, raises additional fundamental considerations about the ultimate role of the legislature in maintaining the balance between communal and individual rights and obligations.
Ooh. Allan, Albrechtsen and Carr will be gnashing their teeth at all that. But the real joy is French’s sanguine view about the style of lawyering involved in applying a human rights statute, which he sees as not especially different from other lawyering. This undermines, I think, the concern that the Victorian Consultation Committee had about state judges being told to act compatibly with human rights and, in particular, that being subject to a rights mandate would somehow bust the nation’s unified common law. French’s reference to a ‘common law of human rights’, whatever that means, doesn’t suggest that he’d have any worries about state parliaments telling state courts to take account of human rights in everything they do.
Of course, French will be just one judge in seven and the court will remain packed with Gummow and similarly dull Howard appointments for quite some time (unless Labor goes for the ‘nine judges’ stacking option.) And it’s notoriously hard to pick what a High Court judge will be like. Still, it’s clearly one of the best appointments we could hope for at the moment. (And think of who’d be CJ in a month if Rudd hadn’t gotten in! Gummow CJ? Heydon CJ?!!!)