(Circulated by the authority of the Honourable Lionel Bowen, M.P.,
Deputy Prime Minister and Attorney-General)
The purpose of the Bill is to implement the International Covenant on Civil and Political Rights by enacting an Australian Bill of Rights, intended to protect all persons in Australia against infringements of their fundamental civil and political rights and freedoms by governments. This protection is sought to be secured in three ways. These are—
The proposals contained in the Australian Bill of Rights Bill are expected to have a direct cost to the Government, additional to the expenditure already forecast for the Human Rights Commission, of $350,000 in financial year 1985/86 and $1.4 million in each of financial years 1986/87 and 1987/88. There may be some additional costs to Departments and authorities in responding to inquiries by the Human Rights and Equal Opportunity Commission and in undertaking a review of legislation. These costs are not expected to be great having regard to the existing functions of the Human Rights Commission and Australia's existing obligations under the Covenant. It is not anticipated that there will be any significant financial impact from this legislation on industry or other financial sections of the community as the Bill deals with the rights of individuals vis-a-vis Government.
NOTES ON CLAUSES
1. Formal.
2. Clauses 1 (Short Title), 2 (Commencement), 3 (Objects) and 50 (Regulations) will come into operation on Royal Assent. The remaining clauses, except for clause 11, will come into operation on a date to be fixed by Proclamation. Clause 11 will take effect 5 years after the date fixed by Proclamation—this so-called "sunrise" provision will effect a deemed repeal of prior inconsistent Commonwealth and Territory (excluding Northern Territory) laws. The delayed commencement of clause 11 will give Departments and Territory Administrations time to examine laws administered by them and take any action necessary to amend or preserve the operation of laws considered to be in conflict with the Bill of Rights.
3. The objects of the Bill are—
4. This clause should be read with sub-clause 4(b), especially as regards the importance of the paramount objectives which are referred to in paragraph (d) above in resolving conflicts where the promotion of one right set out in the Bill of Rights may infringe another right or the promotion of one person's rights as set out in the Bill of Rights may infringe the rights of another person.
5. Sub-clause 4(1) contains definition provisions. Matters of note are—
6. Sub-clause 4(2) provides tor references to the Governor of a State to be construed, in relation to the Northern Territory, as references to the Administrator of the Northern Territory.
7. Sub-clause 4(3) provides that a reference to the doing of an act includes a refusal or failure to do an act. The sub-clause also permits any unincorporated body of persons that performs an act or practice to which the Act applies to be treated as a body rather than as individual persons. This will assist the Human Rights and Equal Opportunity Commission in its dealings with, for example, an unincorporated advisory committee.
8. Sub-clause 4(4) sets out the circumstances in which a law shall be taken to be in conflict with the Bill of Rights.
9. Sub-clause 4(5) makes special provision for cases of conflict between guaranteed rights (for instance, between free speech and privacy). In such situations the operation of a lawmay simultaneously promote one guarantee in the Bill of Rights while infringing or limiting another. To determine whether such a law conflicts with the Bill of Rights, the courts will sometimes find it necessary, in effect, to strike a balance between the conflicting rights and freedoms involved in the context of the particular law and of the factual situation. The intended effect of sub-clause (5) is that, in striking such a balance, the courts will be guided by the objects set out in clause 3 of the Bill and, in particular, by the "paramount objectives" set out in clause 3(d).
10. It should be emphasised that the guiding statement of objectives in clause 3(d) does not attempt to pick out specific guarantees of rights and assign to those rights an automatic priority over others, thereby establishing a rigid "hierarchy" of rights. Rather, clause 3(d) seeks to articulate certain broader and more fundamental values underlying the whole Bill of Rights. The intention is that in each case of conflict the courts should seek that solution which, in that particular context, best promotes these underlying values.
11. Sub-clause 4(6) ensures that the rights secured are those set out in the Bill of Rights, subject only to the limitations permitted by Article 3 of the Bill of Rights.
12. For the purpose of determining the operation of the Bill of Rights in relation to enactments containing provisions that came into operation on different dates, sub-clause (7) requires a reference to the date on which an enactment came into force to be read as a reference to the date on which the relevant provision of the enactment came into force.
13. Sub-clause 4(8) provides that an Act is to be taken to have been enacted at the time when it receives the Royal Assent.
14. Sub-clause 4(9) provides that a reference to prejudice to the security, defence or international relations of Australia includes a reference to any such prejudice that might result from the divulging of information or matter communicated in confidence by or on behalf of a foreign government or an agency of a foreign government.
15. This clause requires each Article of the Bill of Rights (set out in clause 8 of the Bill) to be treated as a section of the Australian Bill of Rights Act.
16. Sub clause 6(1) provides that the Act binds the Crown in right of the Commonwealth and of Norfolk Island. Sub-clause 6(2) provides that Part V of the Bill, and other provisions in their application in relation to that Part, also bind the Crown in right of each State (which for the purpose of the Bill includes the Northern Territory). However, nothing in the Act renders the Crown liable to be prosecuted for an offence (sub-clause 6(3)).
17. This clause extends the Act to every external Territory. While clauses 6 and 7 deal with matters for which it is necessary to make explicit statutory provision, these clauses are not intended to limit the extraterritorial operation the Bill might otherwise have. Sub-clause 9(2) and the definitions of "act" and "practice" (see sub-clause 4(1)) make it clear that the Bill of Rights is to operate for the benefit of all Australian citizens in their dealings with Australian governments. Thus an Australian citizen engaged in dealings overseas with an Australian government agency would be entitled to the protection of his or her rights and freedoms set out in the Bill of Rights as secured by the Bill.
18. The Australian Bill of Rights (ABR) is set out in clause 8 of the Bill. In addition to its legal effects, it is intended to operate as an inspirational charter for the Australian community. It is therefore drafted, so far as is possible, in clear and simple language. It consists of 32 Articles arranged in six Divisions.
19. The 32 Articles of the Bill of Rights are the major substantive provisions of the Bill, and their placement within clause 8 ensures that they are presented as prominently as possible. At the same time, the separate enumeration of Articles will enable the Bill of Rights to be read and reprinted for educational purposes as a separate, self- contained document.
20. Article 1 of the ABR expresses the basic principle that no-one is above or outside the law, that everyone is entitled to its impartial application, and that, in particular, the fundamental rights and freedoms laid down in the ABR are to be equally enjoyed by everyone.
21. The substance of the right of equality before the law is the important, but limited, principle that there should be no class of persons which is above or outside the framework of the law, or denied access to the law, whatever the law may be. This right does not of itself guarantee that access to the courts might not in fact be qualified on financial or other grounds.
22. Article 1:1 is based upon the terms of Article 2:1 of the Covenant, and on the reference to "equality before the law" in Covenant Article 26. To implement Covenant Article 3, and without in any way limiting Article 1:1, Article 1:2 makes explicit the equal right of men and women to the enjoyment of human rights and fundamental freedoms in the ABR.
23. Article 2 (by ensuring that existing rights and freedoms continue) implements the requirement in Covenant Article 5:2 that a country is not permitted, on the pretext of implementing the Covenant, to restrict existing rights and freedoms.
24. Preserving rights or freedoms under, or recognised by, any other law includes common law as well as statutory rights. The Article is also intended to introduce an element of flexibility which will permit adjustment to future social developments.
25. Article 3 is a limitation or "derogation" clause of general application. Some of the most important rights set out in the Covenant are qualified by detailed limitation provisions permitting a number of exceptions and restrictions: see, for example, Covenant Articles 12 (freedom of movement), 14 (public hearings), 18 (free exercise of religion), 19 (freedom of speech), 21 (freedom of assembly), and 22 (freedom of association). The various justifications for limiting rights or freedoms set out in the Covenant include such important matters as the protection of national security, public safety, public order (ordre public) and public health. Carrying some or all of the Covenant qualifications into the relevant ABR Articles is clearly necessary. However, in order to produce an inspirational charter of rights in a simple declaratory style, the drafting technique of consolidating the qualifications into one Article has been used in preference to attaching detailed qualifications to individual Articles.
26. Many other rights in the Covenant are stated in apparently unqualified terms. Indeed, Covenant Article 4 provides that there should be "no derogation" from certain specified rights and freedoms even "in time of public emergency which threatens the life of the nation". Whether or not all the rights which the Covenant states in unqualified terms are regarded as morally or philosophically absolute, their legal enforcement cannot, in the nature of legal processes, be absolute. The ABR Bill will provide for legislative protection of human rights through the ABR itself; for judicial enforcement through interpretation and application of the ABR; and for administrative measures of investigation and conciliation by the Human Rights and Equal Opportunity Commission. In all these processes a flexible and practical approach is required.
27. A third group of provisions in the Covenant contains inbuilt qualifications: for example, Covenant Article 17 says "no one shall be subjected to arbitrary or unlawful interference". Such qualifications are usually reproduced in the ABR; but because of their generality some further guide to the kind of restrictions that are acceptable is deemed necessary.
28. For all three types of provision in the Covenant, Article 3 of the ABR adopts a similar solution to that adopted in the 1982 Canadian Charter of Rights and Freedoms. All the rights and freedoms of the ABR are declared to be "subject only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society".
29. Article 3 thus allows many of the particular rights in the ABR (which are not themselves absolute in the Covenant) to be limited in the interests of the community and other individuals.
30. It should be noted that this wording imposes a number of restrictions on the permissible limitations of "rights"—
31. Article 3:2 ensures that no limitation may restrict a right or freedom set out in the Bill of Rights to a greater extent than is permitted by the relevant Covenant provision. On the basis of the test provided in Article 3:1, however, it is clear that any permissible limitation on an ABR right need not necessarily restrict that right to the full extent permitted by the Covenant.
32. Article 4 implements the guarantee of "equal protection of the law" contained in Article 26 of the Covenant. The travaux preparatoires to the International Covenant indicate that the guarantee of "equal protection of the law" deals with the content of the law, that is, that the substance of the law should not be discriminatory. This contrasts with the requirement that the application of the law should not be discriminatory, which is the right to "equality before the law" guaranteed by Article 1. By separating the two freedoms into different Articles, it is intended to avoid the restrictive approach taken in respect of section l(b) of the Canadian Bill of Rights and to adopt instead the broader approach favoured in respect of the Fourteenth Amendment to the United States Constitution.
33. The guarantee of equality enshrined in the phrase "equal protection of the law" has never, however, been regarded as absolute. The usual interpretation is that everyone should be treated alike except where discrimination can be justified on proper grounds. The intention of the ABR is that Article 4, when read jointly with Article 3:1, will provide some guidance in the difficult task of determining which discriminations are legitimate. In the United States, the courts have adopted different degrees of scrutiny depending upon the characteristic which forms the basis of the discrimination. For example, discrimination on the basis of race will only be permissible in the most compelling of circumstances; whereas, discrimination on the basis of economic status may only have to be rationally related to a legitimate governmental purpose to be permissible. The United States jurisprudence, it is expected, would be a guide to the courts in their consideration of cases involving discrimination.
34. The effective protection against discrimination required byCovenant Article 26 implicitly permits a measure of "affirmative action" or "benign discrimination", that is, measures that are unequal in their current application but which are designed to redress past inequalities or ensure future equality. Article 4:2 of the ABR makes this explicit and also ensures that nothing else in the ABR will affect "benign discrimination" provisions.
35. Article 5 implements the protection of cultural, religious and linguistic rights of minorities contained in Covenant Article 27. The particular rights guaranteed by Article 5 are guaranteed to a person belonging to a minority group only in community with other members of the minority group to which that person belongs.
36. Article 6 implements Covenant Article 25, which establishes certain basic rights of citizenship—to participate in public affairs "directly or through freely chosen representatives"; to vote and to be elected at "genuine periodic elections", by "universal and equal suffrage" and by secret ballot; and to have access "on general terms of equality" to "public service". The words "public service" may be ambiguous in Australia. Article 6, therefore, substitutes "public employment" to ensure that employment at all three levels of government, and in government authorities, is covered. Otherwise the operative words of the Covenant Article are transcribed without change.
37. The Covenant provision is to operate "without unreasonable restrictions". In the ABR these words are omitted, since reasonable restrictions are permitted by Article 3. Subject to such restrictions and the Constitution, it is intended that the words "universal and equal suffrage" would not normally limit the choice of electoral methods (for example, proportional representation, preferential voting, or "first past the post"), but would require compliance with the formulae "one person, one vote" and "one vote, one value".
38. Article 7 implements Covenant Article 19:2, a broad guarantee of freedom of expression and information. The Covenant Article clearly covers freedom of the press and the media and this has been made explicit in Article 7. Certain limitations are permitted by the Covenant Article; limitations are permitted in the ABR by Article 3.
39. A provision not included in the ABR is Covenant Article 20. It states that propaganda for war and incitement of national, racial or religious hatred shall be prohibited by law. As the ABR is designed to prevent government infringement of individuals' rights, rather than to stop certain behaviour of individuals, these prohibitions are more appropriately implemented by separate and specific legislative measures. Such legislation would then be measured against Article 3 if challenged as contrary to the freedom of expression guaranteed by Article 7.
40. Article 8 implements those parts of Covenant Articles 18 and 19 concerned with freedom of thought, conscience and opinion.
41. Article 9 guarantees the right to have or to adopt a religion or belief without coercion and to manifest that religion or belief, implementing those parts of Covenant Articles 18:1 and 18:2 which are concerned with freedom of religion. Covenant Article 18:3 permits a range of restrictions on the freedom to manifest one's religion; limitations are permitted in the ABR by Article 3. Covenant Article 18:4 is dealt with in Article 14(d)—see below.
42. Article 10 implements the guarantee in Covenant Articles 21 and 22 of freedom of assembly. Certain limitations are permitted by the Covenant provision; limitations are permitted in the ABR by Article 3.
43. Article 11 implements the guarantee in Covenant Article 22 of freedom of association, including the right to form and join trade unions tor the protection of one's own interests. Covenant Article 22 permits restrictions of trade union rights, but limits the permissible restrictions by reference to ILO Convention No. 87. Article 11 of the ABR makes no express provision for restrictions. Restrictions are permitted, however, by Article 3:1 and the effect of Article 3:2 is to restrict the ability to limit Article 11 in the same way as does the Covenant. Following the Covenant, trade union rights are guaranteed by the ABR only to a "person" and "for the protection of that person's interests". In other jurisdictions these words have been broadly construed. On the one hand, they ensure that workers have a right to join unions of their choice; on the other hand, they do not invalidate registration and deregistration provisions.
44. Article 12 implements the protection from arbitrary interference in Covenant Article 17. Article 12:1 protects a person from "arbitrary or unlawful interference" with "privacy, family, home and correspondence", and also protects a person from "unlawful" attacks on "honour and reputation".
45. Under Article 12:2 (which seeks to clarify what constitutes an "unlawful interference" with privacy), a search or seizure is unlawful unless it—
46. It is intended under Article 12:2(b) that regulatory searches, even of a random nature, which maintain a level of surveillance essential for ensuring compliance with the law, should be regarded as "a necessary element in the proper administration or enforcement" of the specified laws, or "the reasonable regulation" of a regulated activity.
47. Article 12:2 does not deal specifically with search and seizure incidental to arrest as the common law in this area is not precise and in any event it may be wider than would seem permissible under the Covenant. It is, however, intended that a person lawfully effecting an arrest may search the person arrested, the clothing that person is wearing and property under that person's immediate control if the person making the arrest believes on reasonable grounds that it is necessary to prevent the destruction of evidence or to prevent the escape of the person arrested or to prevent the person arrested from causing harm to herself or himself or to the person making the arrest. These are clearly situations within Articles 12:2(c) and (d).
48. Article 13 begins by reciting the broad social policy that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State" as in Covenant Article 23:1. Article 13 then goes on to implement this social policy in the right to marry and found a family, and the requirement of free consent to marriage. The right secured by Article 13(a) is the right of every man and woman to marry a person of the opposite sex and found a family. The phrase "found a family" implies the progeny of the union, natural or adopted. The rights in this Article by themselves would not, for example, give a non-citizen the right to enter or to remain in Australia.
49. Covenant Article 23:4 also requires "appropriate steps" to protect the rights of spouses and children during marriage and after divorce. These requirements are satisfied in the detailed provisions of the Family Law Act 1975.
50. Covenant Article 24:1 appears to have two concerns—
51. Accordingly, Article 14 seeks to ensure that children are not precluded from enjoying the rights and freedoms embodied in the Bill of Rights simply because they are minors, and at the same time recognises that they require special measures of protection because they are minors. Covenant Articles 24:2 and 24:3 create children's rights to a name, nationality and registration of birth. Articles 14(b) and (c) implement these requirements.
52. Article 14(d) (affirming respect for the liberty of parents and guardians to ensure the religious and moral education of their children according to their own convictions) repeats the provisions of Covenant Article 18:4. This liberty of parents and guardians is to be balanced, having regard to the child's age, with the child's own fundamental rights.
53. The word "child" is not defined, as it is expected that courts will regard the prevailing age of majority and the flexibility given by the introductory recital in Article 14 as sufficient to determine the precise rights of young persons in particular circumstances.
54. Articles 15, 16 and 17 recognize rights of freedom of movement and choice of residence; a right of any Australian citizen to enter Australia; and a right of any person to leave Australia. These provisions implement Covenant Article 12.
55. The citizen's right to enter Australia is unqualified in the Covenant. Certain limitations of the other rights are permitted by the Covenant provision; in the ABR limitations are permitted by Article 3.
56. Covenant Article 13 requires that aliens lawfully in Australia may not be expelled except "in accordance with law". Article 15:2 of the ABR implements this requirement. The Covenant provision also provides procedural requirements including an opportunity for review, but these requirements do not apply to national security cases. These procedural requirements are required by the phrase in ABR Article 15:2 "on such grounds and in accordance with such procedures as are established by law". It is not appropriate to the drafting style of the ABR to spell out in detail the procedural requirements.
57. Article 18 implements Covenant Article 6:1 on the deprivation of life.
58. Paragraphs 2, 4 and 5 of Covenant Article 6 set out detailed regulation of the permissible use of the death penalty. However, paragraph 6 then provides: "Nothing in this article shall be invoked to delay or ... prevent the abolition of capital punishment". In the present state of the law in Australia, to regulate capital punishment in the ABR might appear to condone it: hence, consistently with paragraphs 6, the ABR does not implement paragraphs 2, 4 and 5.
59. Covenant Article 6:3 preserves obligations arising from the Convention on the Prevention and Punishment of the Crime of Genocide. This is not an appropriate matter for inclusion in Article 18. In any event, a statute permitting genocide would never meet the Article 3 test of being demonstrably justified in a free and democratic society.
60. Article 18 follows as closely as practicable, consistent with the drafting style adopted in the ABR, the wording of Covenant Article 6:1 and is not intended to modify the existing laws on abortion in Australia.
61. Article 19—the right to liberty and security of person—derives from Covenant Article 9:1. The Covenant Article also prohibits arbitrary arrest or detention, and this prohibition is implemented in Article 19:2.
62. Article 19:4 implements Covenant Article 11, that no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.
63. Article 20 implements the prohibitions in Covenant Article 8 of slavery and servitude, and of forced or compulsory labour. As to the prohibition of forced or compulsory labour, certain limitations are permitted by the Covenant provision. In the ABR, limitations are permitted by Article 3.
64. Article 21 (the right to be informed of the reasons for arrest, and to be informed promptly of any charges) implements Covenant Articles 9:2 and 14:3(a).
65. Article 22 (the right of a person detained in custody to consult a lawyer and to remain silent), protects the rights "to communicate with counsel" and "not to be compelled ... to confess guilt", accorded to accused persons by Covenant Articles 14:3(b) and (g). In order to ensure the effective protection of these important rights, it picks them up at an earlier stage of the criminal process than the Covenant. Generally, throughout this part of the ABR, an effort is made to state the rights in the chronological order in which they would become relevant to an arrested person.
66. Article 23 implements Covenant Article 9:3, but attempts to separate the three distinct rights that appear to be involved: a prompt initial hearing after arrest; a right to bail on reasonable terms (except for good reasons); and a right to be tried within a reasonable time.
67. Article 24 implements the right under Covenant Article 9:4 to test the lawfulness of any detention (for example, by habeas corpus) and, where appropriate, to be released.
68. Covenant Article 9:5 envisages "an enforceable right to compensation" in cases of wrongful arrest, and Covenant Article 4:6 envisages a similar right in cases of wrongful conviction. In Australia such matters are mostly dealt with by the payment by government of ex gratia compensation. There are, in addition, limited common law rights to damages. To create special enforceable rights to damages would go beyond the conception of the ABR as "a shield, not a sword" (see clause 17 of the Bill).
69. Article 25 implements Covenant Article 14:2: a person charged with a criminal offence is to be presumed innocent until proved guilty according to law. The phrase "according to law" does not permit the Parliament to take away the ultimate burden of the prosecutor to prove guilt beyond a reasonable doubt (R v Appleby (1971) 3 C.C.C.(2d) 354 (S.C.C.)> R v Russell (1971) 15 C.R.N.S. 289 (N.S.C.A.)).
70. Article 26 creates, for both civil and criminal cases, a right "to a fair and public hearing by a competent, independent and impartial tribunal". This implements a guarantee in Covenant Article 14:1. The Covenant provision also declares that all persons "shall be equal before the courts and tribunals". This requirement is sufficiently implemented by the general provisions for equality before the law in Article 1 of the ABR. Certain limitations are permitted by the Covenant provision. In the ABR limitations are permitted by Article 3.
71. Article 27 should be read with Articles 21 to 23 above. Together these Articles implement a series of "due process" rights relating to the conduct of investigations into and trial of criminal offences required by Covenant Article 14:3. A special effort is made in this Article not only to create specific enforceable rights but also, so far as possible, to group within the Article the rights in the chronological order in which they would become relevant. For example, Article 27(b) states the right to communicate with a lawyer; but Article 27(a) first ensures that a person charged will be informed of the right to legal assistance.
72. Article 27(c) provides tor free legal aid "if the interests of justice so require and the person lacks sufficient means to pay for the assistance". This implements the similarly qualified right in Covenant Article 14:3(d). The reference to "the interests of justice" is understood as permitting reasonable discretions in the granting of legal aid, based on the merits of the case and on the seriousness of the offence.
73. Other rights set out in Article 27 (all based on Covenant Article 14:3) are the rights to adequate time and facilities to prepare a defence; to be present at any trial and to conduct a defence; to examine prosecution witnesses and have defence witnesses called and examined; to receive the free assistance of an interpreter when needed; and to be protected against self-incrimination. In Article 27(i), the words "against himself" used in Covenant Article 14:3(g) have been omitted because, as the right only applies to a person in relation to the offence with which that person is charged, they are unnecessary. Further, in relation to self-incrimination, see also Article 22.
74. Covenant Article 14:4 requires a procedure for juveniles which takes account of their age. This requirement is implemented in Article 27 (j).
75. Covenant Article 14:6 requiring a person "to be compensated according to law" for a miscarriage of justice has not been included in the ABR as Australia has made a reservation to Covenant Article 14:6 in the following terms—
76. Article 28 prohibits the creation of retrospective criminal offences, or a retrospective increase in penalties (Covenant Article 15:1). It should be noted that in both the Covenant and the ABR the ban on retrospectivity applies only to criminal offences and penalties.
77. Article 29 recognizes a right to review of conviction and sentence (Covenant Article 14:5).
78. Article 30 prevents "double jeopardy" (Covenant Article 14:7). As to Covenant Article 14:6 (compensation on reversal of conviction or pardon), see Article 24 above.
79. Article 31 implements rights in relation to deprivation of liberty contained in Covenant Article 10. Article 31:1 (all persons deprived of liberty to be treated with humanity and respect toe human dignity) implements covenant Article10:1.
80. Other paragraphs of Covenant Article 10 require segregation of prisoners: accused persons from those already convicted, and juvenile offenders from adults (with appropriate treatment for juveniles). In the Covenant the first of these requirements is to operate "save in exceptional circumstances"; the second is absolute. Both requirements are implemented by Article 31:2, but in both cases only "so far as is practicable". This limitation is consistent with Australia's reservation to Covenant Article 10 which reads—
The reservation and the formulation of Article 3 recognise and encourage the moves already underway in Australian prison administrations towards strict compliance with the Covenant, but do so with due allowance for the practical exigencies which State administrations may encounter in the short term.
81. Article 32 prohibits torture and inhuman treatment, and medical experimentation without consent, and implements Covenant Article 7. The implementation of this prohibition is essential because it is fundamental to a general statement of human dignity.
82. It is intended that the Bill of Rights will not override the law (including both the statute law and the common law as it applies in a State) of any State (including for this purpose the Northern Territory). To this end, the effect of the Bill of Rights is set out in sub-clause 9(1) so that—
83. By reason of the definitions of "law", "law of a Territory", "law of the Commonwealth" and "Commonwealth enactment" in sub-clause 4(1), sub-clause 9(1) will have the effect of applying the Bill of Rights to the common law as it operates in a Territory, as it applies in relation to a matter arising under a Commonwealth enactment or as it is applied by a Commonwealth enactment. Thus the Bill of Rights will be able to be relied upon to modify or over-ride any inconsistent common law as it applies to federal matters, for example the common law applicable to the application of the Crimes Act 1914 or the common law picked up by section 68 of the Judiciary Act 1903.
84. By reason of the definitions of "act" and "practice" in sub-clause 4(1), sub-clause 9(2) ensures that the effect of the Bill of Rights, for the purposes of Part V of the Bill, is limited to protecting individuals against violations of their rights arising from the impact of laws or the actions of governmental institutions. It does not affect the rights of individuals in relation to each other except when such rights flow from an impugned law.
85. Sub-clause 9(3) makes clear that the Bill of Rights applies only for the benefit of natural persons.
86. Sub-clause 10(1) provides, in effect, that the Bill of Rights is to operate in the first instance as a "rule of construction". This means that, in construing any Commonwealth or Territory law, the courts are to seek an interpretation that does not conflict with a right or freedom in the Bill of Rights.
87. Sub-clause 10(2) makes clear that a similar approach is to be applied when interpreting the terms in which power is given for the making of Commonwealth or Territory statutory instruments.
88. Sub-clause 10(3) prevents an instrument, which would not be deemed to be repealed by clause 11 until 5 years after the commencement of clause 11, being deemed to be invalid by reason that the legislation under which it was made had been construed under clause 10 to be in conflict with the Bill of Rights.
89. Clause 11, subject to the "sunrise" provision contained in sub-clause 2(3), provides that where an Act enacted before the Bill of Rights is in conflict with the Bill of Rights, it is, to the extent of the conflict, repealed. The key to the operation of clause 11 is "conflict" with the Bill of Rights. "Conflict" is defined in sub-clauses 4(4) and (5). It should also be noted that an Act is to be regarded as conflicting with the Bill of Rights only after it has been construed under sub-clause 10(1), that is, only after an attempt has been made to construe the Act in a way that would result in the Act not being in conflict with the Bill of Rights.
90. To the extent of the Parliament's power to do so, clause 12 is intended to prevent any violation of human rights by later Commonwealth laws. In order to override the Bill of Rights, a law will have to state expressly that it is intended to do so. Thus, while a future Parliament may derogate from the ABR, it cannot do so by accident and it cannot do so in secret. Any derogation would have to be exposed to full parliamentary and public scrutiny.
91. The basic scheme of clause 12 is modelled on that of section 2 of the 1961 Canadian Bill of Rights (which unlike the later 1982 Canadian Charter of Rights and Freedoms, was not a constitutional instrument), as interpreted by the Supreme Court of Canada in R. v Drybones (1970) 9 D.L.R. (3d) 473. The fundamental idea underlying the decision in R. v Drybones is that two inconsistent enactments of the same Parliament can both be valid but, to the extent of the inconsistency, only one can be operative; and that Parliament may therefore give a direction as to which of the two conflicting provisions shall be operative in a particular case. This is what sub-clauses 12(2) and (4) are intended to do.
92. Sub-clause 12(1) identifies the Commonwealth Acts to which clause 12 applies, that is, later Commonwealth Acts which conflict with the Bill of Rights.
93. Sub-clause 12(2) provides for the case where a later law does provide "by express words of plain intendment" that its provisions, insofar as they conflict with the Bill of Rights, shall prevail. In such a case, the intention is that both the Bill of Rights and the later law will be valid laws of the Commonwealth, but that the later law shall be operative and the Bill of Rights inoperative only to the extent of the conflict and only for so long as the conflict persists.
94. Sub-clause 12(3) provides that sub-clause 12(2) shall apply to a provision that authorises the making of instruments, but not to an instrument made under that provision. Inconsistent instruments are dealt with in clause 13.
95. Sub-clause 12(4) provides for the case where a later law does not provide "by express words of plain intendment" that its provisions, insofar as they conflict with the Bill of Rights, shall prevail. In such a case, both laws are again intended to be valid, but it is the Bill of Rights that is operative and the inconsistent late law that is inoperative—again, only to the extent of the conflict and only for so long as the conflict persists.
96. The effect of clause 13 is similar to that of clause 12. Subordinate legislation (including Territory enactments) made under a later Commonwealth Act could be made to prevail over the Bill of Rights by an express statement of intention; but only if an intention to that effect were formed and expressed by the Parliament itself in the authorising Act.
97. Where a court finds that a later (or after 5 years' operation, an earlier) Commonwealth law is in conflict with the Bill of Rights (and has therefore been rendered inoperative or repealed by the Bill of Rights), the consequences might be far reaching. A court confronted with such a prospect might feel driven to adopt a narrow construction of the ABR. In such instances, therefore, clause 14 is intended to offer the courts an alternative which would enable them to avoid such results while still giving the Bill of Rights provisions a broad interpretation. To this end, clause 14 will give the courts the power to make a declaration (based on "grave public inconvenience or hardship") which will have the following effects—
98. As in such cases, the result would be that the person who had successfully argued that a law was inconsistent with the Bill of Rights would be unfairly denied "the fruits of victory", an exception is made to the effects of any declaration made under this clause to allow the Bill of Rights to have an immediate operation limited to the individual case.
99. Sub-clause 14(1) provides a brief preliminary explanation of these intentions.
100. Sub-clause 14(2). which applies to both earlier and later Commonwealth laws which conflict with the Bill of Rights, enables a court to make a declaration that it is "satisfied" that "grave public inconvenience or hardship" would be caused unless sub-clause (4) were to apply; and provides that where such a declaration is made, sub-clause (4) shall apply.
101. Sub-clause 14(3) allows the same procedures to be used (to similar effect) in a case where a Territory enactment is found to be inconsistent with the Bill of Rights.
102. Sub-clause 14(4) provides that where a declaration under sub-clause (2) or (3) has been made, the relevant law shall be deemed to have been in force up to the date of the court's declaration. This is to be so "for all purposes exceptthe purposes of the proceedings in which the declaration ... was made". This exception allows the successful litigant to have "the fruits of victory" in the individual case.
103. Sub-clause 14(5) fixes the date from which the saving or reinstatement of a law under sub-clause (4) shall commence. For earlier laws it is to commence from the commencement of section 14: up to that date any such law would remain in force in any event, since the Bill of Rights is not retrospective. For a later law, the saving or reinstatement is to commence from the date on which the law came into force.
104. Sub-clause 14(6) ensures that the saving or reinstatement extends also to any instrument made under any law to which sub-clause (4) applies. Again, an exception is made to preserve "the fruits of victory".
105. Of these first six sub-clauses, the crucial operative provision is sub-clause 14(4), under which the impugned law is deemed to be in force up to the date of the court's declaration. In many cases, this will be sufficient to avoid any disruptive consequences that might otherwise flow from the operation of clauses 11 to 13. In some cases, however, it might be necessary to allow a further period in which the relevant legislature can take appropriate action. Sub-clauses 14(7) to (9) provide for this further period of grace. Of course, these provisions are applicable only to a case in which a declaration under sub-clause 14(2) or (3) has already been made.
106. In such a case, sub-clause 14(7) enables the court to make afurther declaration that it is "satisfied" that "grave publicinconvenience or hardship" would be caused unless sub-clause (8) were to apply.
107. Sub-clause 14(8) provides that where a declaration under sub-clause (7) has been made, the relevant law shall be deemed to remain in force for a further period of three months from the date of the court's declaration. As before, an exception is made to preserve "the fruits of victory".
108. Sub-clause 14(9) ensures that the further three months' saving or reinstatement extends also to any instrument made under any law to which sub-clause (8) applies.
109. It is not intended that this machinery should be used to extend the life of a law indefinitely, by granting the same law a series of successive reprieves in successive legal proceedings. Rather, the intention is that any provision conflicting with the Bill of Rights should be given a maximum of one period of three months' reprieve only. To ensure that this is the case, sub-clauses 14(2) and (3) do not permit the making of a declaration where a similar declaration has already been made in relation to the same conflict with the Bill of Rights.
110. Clause 15 provides that the Act is not intended to exclude or limit the operation of a law of a Territory that furthers the objects of the International Covenant on Civil and Political Rights and is capable of operating concurrently with the Commonwealth scheme.
111. Judicial interpretations of laws in the light of the Bill of Rights, and judicial determinations of the consequences of a conflict with the Bill of Rights, will arise where the law in question is impugned in court proceedings. For example, a person charged with infringement of a particular law may wish to argue by way of defence that the law is inoperative by virtue of clause 12 (or that the law has been repealed by clause 11). It is not thought necessary to make any specific provision enabling such a person to argue such a defence; its availability will arise simply from the application of the Bill of Rights as provided in clause 9. Nor will specific provision be made for other cases in which Bill of Rights issues may arise in the course of pending proceedings. Clause 16 does, however, make provision for particular enforcement in respect of Article 12 (which deals with the right to privacy, including unlawful search and seizure) and Division 6 of the Bill of Rights (which deals primarily with the due process rights of a person accused of a criminal offence).
112. Sub-clause 16(1) provides that where the court is satisfied that evidence was obtained in a manner which infringed those rights, the party tendering that evidence must satisfy the court that the admission of the evidence would substantially benefit the public interest in the administration of criminal justice, and that that benefit would outweigh any prejudice to the rights and freedoms of any person, including the defendant, that would flow from the infringement or the admission of the evidence.
113. Sub-clause 16(2), in circumstances where those rights have been infringed, confers a broad judicial discretion to make such order as the court considers "appropriate and just in all the circumstances" for the purpose of ensuring "that the administration of justice is not brought into disrepute". This broad discretion will not limit the courts to existing remedies.
114. The Bill of Rights is intended as a shield, not a sword. Clause 17 makes it clear that no one can sue or be sued, or be prosecuted, on the basis of an infringement of the Bill of Rights.While, however, an infringement of the Bill of Rights cannot itself give rise to an action, existing remedies (for example, actions for false imprisonment) will continue to be available.
115. Sub-clause 18(1) provides a procedure for the removal of Bill of Rights issues from a federal, State or Territory court into the Full Court of the Federal Court. Removal may be made ("for sufficient cause") on the application of a party and shall be made on the application of the Attorney-General of the Commonwealth. Removal will only be permitted from courts exercising review jurisdiction.
116. Sub-clause 18(2) defines "review jurisdiction" as appellate jurisdiction and the jurisdiction to review by way of injunction, prerogative writ or similar order, or declaratory order.
117. Sub-clause 18(3) ensures that the Federal Court has jurisdiction to hear any cause so removed.
118. Sub-clause 18(4) provides for the transmission of documents to the Registry of the Federal Court when a cause is removed to that Court.
119. Sub-clause 18(5) provides that nothing in clause 18 affects the operation of Part VII of the Judiciary Act 1903, which deals with the removal to the High Court of causes under or involving the Constitution.
120. Clause 19 provides that when a cause is removed into the Federal Court, further proceedings shall be as directed by that Court.
121. Sub-clause 20(1) provides that a cause removed into the Federal Court may at any time be remitted to the Court from which it came.
122. Sub-clause 20(2) provides that the cause shall be remitted if the Federal Court finds that it does not have jurisdiction.
123. Clause 21 provides that when a cause is removed, any interlocutory orders, attachments, undertakings or injunctions already given in that cause remain in force.
124. Clause 22 provides than when a cause is removed, the defendant may rely upon any defence which would have been available to him if the matter had begun in the Federal Court.
125. Sub-clause 23(1) authorises the Attorney-General of the Commonwealth to intervene in any court in proceedings that relate to the Bill of Rights.
126. Sub-clause 23(2) provides for such order as to costs as the court thinks fit to be made against the Commonwealth where the Attorney-General intervenes.
127. Sub-clause 23(3) makes clear that the Attorney-General's power to intervene under sub-clause 23(1) is additional to any other intervention powers the Attorney-General may have.
128. Sub-clause 24(1) provides that when a cause involving a Bill of Rights issue is pending in the High Court, or a federal, State or Territory court exercising review jurisdiction, the court shall not proceed with the matter until it is satisfied that notice has been given to the Attorney-General of the Commonwealth, and that a reasonable time has elapsed to enable the Attorney-General to consider the question of intervention.
129. Sub-clause 24(2) provides that when a cause involving any bill of Rights issue is pending in a court (other than the High Court) not exercising review jurisdiction, the court may decide not to proceed with the matter until it is satisfied that notice has been given to the Attorney-General of the Commonwealth and that a reasonable time has elapsed to enable the Attorney-General to consider the question of intervention.
130. Sub-clause 24(3) defines " review jurisdiction" as appellate jurisdiction and the jurisdiction to review by way of injunction, prerogative writ or similar order, or declaratory order.
131. Sub-clause 24(4) permits a court, for the purposes of sub-clause 24(1) and (2), to adjourn and to direct the giving of a notice.
132. Sub-clause 24(5) provides that the "notice" requirement is satisfied if steps have been taken that, in the opinion of the court, could reasonably be expected to bring the matter to the attention of the Attorney-General. If the Attorney-General is already a party to the cause, no notice is required.
133. Sub-clause 24(6) provides that the cost of an adjournment under clause 25 may be paid by the Commonwealth if the Attorney-General authorises such a payment.
134. Sub-clause 24(7) enables a court, notwithstanding the provisions of sub-clause (1), to grant such urgent interlocutory relief in any case as the interests of justice may require.
135. This clause is to be read together with the Human Rights and Equal Opportunity Commission Act 1985. The purpose is to add to the functions of the Commission by conferring on it functions relating to the Bill of Rights.
136. Paragraph 25(a) empowers the Commission to inquire into any act or practice of any governmental agency or authority (Commonwealth, State or Territory) which may infringe the Bill of Rights. (See the definitions of "act", "practice" and "authority" in sub-clause 4(1)). In the course of such an inquiry the Commission may endeavour, by conciliation, to effect a settlement" if it considers such a procedure appropriate. If not, or if an unsuccessful attempt at settlement has been made, then in any case where the Commission concludes that the Bill of Rights has been infringed, it must report to the Minister for the time being administering the Australian Bill of Rights legislation. The reporting machinery is more fully described in clauses 41 and 42.
137. Paragraphs 25(b) and (c) are concerned with promotional, research and educational functions.
138. Paragraph 25(d) empowers the commission to examine enactments and, when requested, proposed enactments with a view to identifying possible conflicts with the Bill of Rights, and to report to the Minister the results of any such examination. (See the definitions of "proposed enactment" and "enactment" in sub-clause 4(1)). The power extends to enactments or proposed enactments of the Commonwealth and of each State or Territory.
139. Paragraph 25(e) empowers the Commission to report to the Minister on Commonwealth laws that should be passed, or Commonwealth action that should be taken, on matters pertaining to the Bill of Rights. Such reports may be made at the request of the Minister or on the Commission's initiative.
140. Paragraph 25(f) confers the usual incidental powers.
141. Under this clause, an inquiry by the Commission under paragraph 25(a) into an act or practice may be initiated by written complaint. Sub-clause (1) requires that on receipt of such a complaint the Commission shall (subject to clause 27) conduct an inquiry, and shall attempt to effect a settlement unless the Commission considers this inappropriate. Sub-clause 26(2) imposes on any prescribed person authorised to carry out the inquiry functions of the Commission a duty to assist, where necessary, a person who wishes to make a complaint in the formulation of the complaint or the reduction of the complaint to writing.
142. The complaints referred to in clause 26 may be made by any person—not necessarily the person whose rights and freedoms are allegedly infringed. There is no "standing" requirement.
143. Sub-clauses 26(3) to 26(5) make provision for a person detained in custody to have his or her complaint and other correspondence with the Commission transmitted in confidence to and from the Commission. There are similar provisions in the Ombudsman Act 1976.
144. This clause defines the circumstances in which the Commission is required to exercise its powers of inquiry under paragraph 25(a) into acts or practices.
145. Under sub-clause 27(1) the Commission shall conduct such an inquiry at the Minister's request, or in response to a complaint under clause 26, or when the Commission considers it is desirable to do so.
146. Sub-clause 27(2) requires the Commission to obtain the consent of the Minister administering the Australian Bill of Rights legislation before commencing to inquire into a State act or practice or to examine a State enactment.
147. Sub-clause 27(3) requires that before commencing any such inquiry, the Commission shall notify "the responsible Minister", that is, the Minister of the Commonwealth, State or Territory apparently responsible for the administration of the matter in connection with which the act or practice occurs. See the definition of "responsible Minister" in sub-clause 4(1).
148. Sub-clause 27(4) gives the Commission a discretion not to inquire into an act or practice, or to discontinue such an inquiry. Under paragraphs 27(3)(a) and (b), this discretion may be exercised if the Commission is satisfied that the Bill of Rights has not been infringed, or if it is of the opinion that an inquiry is not desired by the person or persons whose rights or freedoms are alleged to have been infringed. In addition, where there is a complaint under clause 26, paragraph 27(3)(c) permits the Commission to decide not to inquire or to discontinue an inquiry in response to the complaint where—
149. To reduce the risk of dual investigations under the Bill and the Complaints (Australian Federal Police) Act 1981 into the conduct of police officers, sub-clause 27(4) prevents the Commission investigating a complaint about an act or practice where the subject matter of the complaint is or has been the subject matter of investigation by the Ombudsman under the Complaints (Australian Federal Police) Act, unless the Commission and the Ombudsman agree that the Commission should inquire into the matter.
150. Sub-clause 27(5) requires the Commission to make a decision whether or not to inquire into an act or practice within 2 months of receiving a complaint. This provision is designed to ensure that the Commission acts relatively quickly in deciding whether or not to exercise its discretionary powers under clause 27.
151. If, for any reason, the Commission decides to not to inquire or to discontinue an inquiry, sub-clause 27(6) requires the Commission to advise the complainant in writing of its decision and its reasons.
152. Sub-clause 28(1) empowers the Commission to do all things that are necessary or convenient to the carrying out of its functions under the Bill. Sub-clause 28(2) enables the Commission to report to the Minister at any time and requires it to report when the Minister so requests.
153. Sub-clause 29(1) provides that the Commission may conduct its inquiries and examinations in such manner as it thinks fit and may inform itself without being bound by the rules of evidence.
154. Sub-clause 29(2) enables the Commission to give directions for the purpose of preserving the anonymity of the complainant or of a person who has furnished or proposes to furnish information or who has produced or proposes to produce a document or who has given or proposes to give evidence or who has made or proposes to make a submission where it considers it is necessary to protect the security of employment, privacy or any right or freedom of the person guaranteed by the Bill of Rights.
155. Sub-clause 29(3) enables the Commission to direct that evidence or information given or the contents of a document produced to the Commission not be published or be published only in such manner and to such persons as the Commission specifies.
156. Sub-clause 29(4) provides that a direction given under sub-clause 29(3) does not prevent a person from communicating a matter contained in the evidence, information or document which is the subject of the direction where that person has knowledge of the matter otherwise than by reason of the evidence or information having been given or the document having been produced to the Commission.
157. Sub-clause 29(5) requires the Commission in deciding whether or not to give a direction under sub-clause 29(3) to have regard, as relevant to the circumstances, to the need to prevent—
158. Sub-clause 29(6) requires the Commission, in having regard to the matters in sub-clause 29(5), to try to achieve an appropriate balance between the need to prevent those consequences and the desirability of ensuring that interested persons are sufficiently informed of the results of the Commission's examination or inquiry.
159. Sub-clause 29(7) prescribes the penalties for contravening a direction given under either sub-clause 29(2) or (3).
160. Although the Commission is authorised to attempt a settlement of any matter into which it inquires, the possible terms of a negotiated settlement should be limited so that settlements of convenience which do not adequately recognise the rights involved are not made. An appropriate settlement would need to reflect a recognition of the right or freedom alleged to have been infringed, and a recognition of the need to protect that right or freedom, and clause 30 requires the Commission, in endeavouring to effect any settlement, to have regard to these matters.
161. Sub-clause 31(1) empowers a member of the Commission to require a person, by notice in writing, to furnish any information or to produce any documents relevant to an inquiry under paragraph 25(a) or to an examination under paragraph 25(d), in any case where the Commission has reason to believe that that person is able to do so.
162. Sub-clause 31(2) makes provision for an intelligence agency to be notified where the Commission requires another agency having material which came from the intelligence agency to produce that material. This will allow the intelligence agency to be aware of a possible need to approach the Attorney-General for a certificate under clause 36. For the purposes of sub-clause 31(2), sub-clause 31(3) provides that an intelligence agency is one of the Australian Secret Intelligence Service, the Australian Security Intelligence Organization, the Office of National Assessments, or the Defence Signals Directorate or the Joint Intelligence Organisation of the Department of Defence.
163. Under sub-clause 31(4) any documents produced to the Commission may be copied by it and retained by it for as long as necessary, but with reasonable access to the documents afforded to any person who would normally have such access.
164. Sub-clause 31(5) empowers members of the Commission, by notice in writing, to require a person to attend to answer questions where the Commission has reason to believe that the person can give information relevant to an inquiry under paragraph 25(a).
165. Sub-clause 31(6) provides for a person who is required to attend under sub-clauses (1) or (5) to be paid reasonable attendance money.
166. Sub-clause 31(7) makes provision for the protection of information or documents concerning the affairs of a taxpayer not to be disclosed to the Commission in response to a requirement under sub-clause 31(1) unless the information or document would only identity the complainant in response to whose complaint the Commission is conducting an inquiry or unless the information or document would not identity the taxpayer to whose affairs the information or document relates.
167. Under this clause persons attending pursuant to clause 31 may be examined on oath or affirmation by a member of the Commission.
168. This clause provides that, for the purpose of an inquiry and attempted settlement under paragraph 25(a), the Commission may, by notice in writing, direct the relevant persons to attend a compulsory conference. Sub-clause 33(1) authorises such directions. Sub-clause 33(2) provides for penalties for non-compliance.
169. Sub-clause 33(3) requires that, when a compulsory conference is to be held, directions to attend shall be given to the complainant; to the person allegedly responsible for the act or practice complained of; and to any other person who, in the opinion of the Commission, is able to give relevant information or whose presence may assist in settling the matter. By sub-clause 33(4), each person required to attend is entitled to reasonable attendance money.
170. Sub-clause 33(5) provides that a notice given under sub-clause (1) may include a requirement for the production of documents.
171. This clause regulates the procedure at compulsory conferences. Production of documents may be required (sub-clause 34(1)); the conference shall be held in private and conducted in such a manner as the person presiding thinks fit (sub-clause 34(2)); a corporate or unincorporated body may attend through a member, an officer or employee (sub-clause 34(3)); and representation (for example. legal representation) is not permitted except with the consent of the person presiding (sub-clause 34(4)).
172. This clause provides for penalties for failure to attend before a member of the Commission, for refusal to make an oath or affirmation, and for failure to furnish information, answer a question or produce a document.
173. Sub-clause 36(1) prevents the Commission, and the persons exercising its functions, from requiring disclosure of information or documents where the Commonwealth Attorney-General certifies that such disclosure would be contrary to the public interest because it would—
174. Sub-clause 36(2) prevents the Commission, and the persons exercising its functions, from requiring the giving of any information as to the existence or non-existence of information concerning a specified matter or as to the existence or non-existence of a document required to be produced by the Commission where the Commonwealth Attorney-General certifies that disclosing the existence or non-existence of information or documents would be contrary to the public interest by reason that it would prejudice—
This provision allows relevant agencies to give a "neither confirm nor deny" response in relation to information or documents where such a response is necessary to protect very sensitive matters.
175. Sub-clause 36(3) makes a similar provision to sub-clause (1) where a State Attorney-General certifies that the disclosure would be contrary to the public interest because it would—
176. Under sub-clause 36(4), a person cannot refuse to furnish information, produce a document or answer a question on the grounds that to do so would—
177. However, the information, the production of the document or the answer to the question is not to be admissible in evidence subsequently against the person, except on a charge of providing false or misleading information in contravention of clause 37.
178. Sub-clause 36(5) ensures that a person cannot be penalised under any other law for furnishing information, producing a document or answering a question when required to do so.
179.Sub-clause 36(6) provides an exception to sub-clause (4) in order to allow a refusal to furnish information, to produce a document or to answer a question on the ground of self-incrimination in relation to an offence where a charge has been laid but not finally dealt with.
180.This clause provides for penalties for knowingly giving false or misleading information to the Commission or to any person performing its functions.
181. This clause provides for penalties for insulting, obstructing, hindering, molesting or interfering with a member of the Commission or a person acting on behalf of the Commission while the member or person is holding an inquiry or carrying out an investigation.
182. This clause requires that, before the Commission makes an adverse report to the Minister on an act or practice which in its view infringes the Bill of Rights, it shall give to the person responsible, and to the responsible Commonwealth, State or Territory Minister, a reasonable opportunity to make oral or written submissions to the Commission or both.
183. Where the Commission inquires into an act or practice in response to a complaint, but finds that the Bill of Rights has not been infringed, sub-clause 40(1) requires it to notify the complainant of its findings and of its reasons.
184. Sub-clause 40(2) permits the Commission to exclude material from a notice given under sub-clause 40(1) having regard to the matters and obligations of the Commission mentioned in sub-clauses 29(5) and (6).
185. Sub-clause 41(1) is concerned with the report to be made to the Minister administering the Australian Bill of Rights legislation after an examination under paragraph 25(d) of an enactment or proposed enactment. It applies where such an examination discloses, in the Commission's view, a conflict with the Bill of Rights. It requires that the report shall include any recommendations for amendment which the Commission may wish to make, and that a copy of the report shall be given to the Minister apparently responsible for the enactment or proposed enactment.
186. Sub-clauses 41(2) and (3) are concerned with the reports to be made to the Minister administering the Australian Bill of Rights legislation after an inquiry under paragraph 25(a) into an act or practice. They apply where the Commission has found that the Bill of Rights has been infringed, and where settlement has not been considered appropriate, or has been attempted unsuccessfully.
187. In such a case, sub-clause 41(2) requires an initial report which shall include the Commission's findings and reasons, and may include any recommendations for preventing a repetition of the act or a continuance of the practice which infringes the Bill of Rights. The recommendations may include a recommendation that compensation be paid. This initial report shall be furnished to the Minister administering the Australian Bill of Rights legislation and also to the Commonwealth, State or Territory Minister who appears to be responsible for the relevant act or practice. The report shall also be furnished to the complainant, where the complainant is the person affected by the act or practice, or may be furnished to a complainant who is not the person affected by the act or practice.
188. Sub-clause 41(3) applies when a period of 60 days has elapsed after the report under sub-clause 41(2) is furnished to the Minister, and the Commission has neither altered its opinion that the act or practice infringes the Bill of Rights nor been satisfied that reasonable steps have been taken to prevent the recurrence or continuation of the problem. At that stage, the Commission is to make a second report to the Minister administering the Australian Bill of Rights legislation, incorporating both the initial report and any response which has been received from the responsible Minister. This second report shall indicate whether, so far as the Commission is aware, any action has been taken (and if so what) in response to its initial findings, and shall also explain why the Commission is not satisfied that reasonable steps have been taken to prevent a repetition of the relevant act or a continuation of the relevant practice.
189. The effect of sub-clauses 41(2) and (3) is thus to give to the responsible Minister, before the Commission's final report, a period of 60 days in which to persuade the Commission to alter its opinion, to take remedial action or to make representations which must be included in the Commission's final report.
190. Sub-clause 41(4) permits the Commission to exclude material from a report given under sub-clause 41(2) or (3) having regard to the matters and obligations of the Commission mentioned in sub-clauses 29(4) and (5).
191. Where the Commission does exclude, under sub-clause (4), material from a report, sub-clause 41(5) requires the Commission to prepare and furnish a separate report to the Minister administering the Australian Bill of Rights legislation setting out the excluded material and its reasons for excluding the material.
192. Under sub-clause 42(1), a report on an examination of an enactment or proposed enactment made pursuant to paragraph 25(d), a report as to enactments that should be made by the Parliament or action that should be taken by the Commonwealth recommended in relation to the Bill of Rights under paragraph 25(e), or a final report on an inquiry into an act or practice made pursuant to sub-clause 41(3), must be tabled in each House of the Parliament within 15 sitting days. However, the tabling requirement does not apply to an initial report on an act or practice made pursuant to sub-clause 41(2). The 60 day period allowed by the two-stage reporting procedure in clause 41 thus provides an opportunity for remedial action by which to avoid the tabling of an adverse report in the Parliament.
193. Moreover, where the report concerns a State, the tabling requirement is subject to a further delay (this time for a maximum of 30 days) under sub-clauses 42(2) and (3). In the case of a report on a State enactment or proposed enactment made pursuant to sub-clause 41(1), the only delaying mechanism is that imposed by clause 42(3); but in the case of a report on a State act or practice pursuant to sub-clause 41(3), the delay required by clause 42 is additional to that imposed at an earlier stage under clause 41.
194. In both these cases where a State is concerned, sub-clause (2) requires the Minister administering the Australian Bill of Rights legislation to furnish a copy of the report to the relevant State Attorney-General. Sub-clause 42(3) then provides that the Minister shall not table the report in the Parliament until a period of 30 days has elapsed, or the State Attorney-General has supplied the Minister with a relevant statement. As soon as either of these events has occurred, the report is to be tabled within 15 sittings days, and any relevant statement received from the State Attorney-General at any time before the tabling occurs shall also be tabled.
195. This clause enables the Commission to delegate its powers to a member, staff member, or other prescribed person (sub-clause 43(1)). Members may also delegate their powers (sub-clause 43(2)). A power exercised by a delegate is deemed to have been exercised by the Commission or by the delegating member (sub-clause 43(3)). The Commission and its members may continue to exercise their powers notwithstanding any delegation (sub-clause 43(4)).
196. This clause imposes duties of confidentiality on past and present members of the Commission; on its staff; and on any person who is or has been authorised to perform its functions.
197. Under sub clause 44(1), such persons shall not record, divulge, communicate or otherwise use any information about another person gained while acting under the provisions of the Act, except in the performance of a duty under the Act. A penalty is imposed for non-compliance.
198. Under sub-clause 44(2), such persons shall not be required to divulge such information of the kind referred to in sub-clause (1), or to produce a document relating to such matters, to any court or tribunal (see the expanded definition of "court" in sub-clause 44(4)), except under the present Act.
199. However, sub-clause 44(3) makes it clear that the requirement of confidentiality does not prevent the giving of information or production of documents where this is done either pursuant to an arrangement under clause 45, or is required or permitted by another Act.
200. The Government hopes that, wherever possible, the Commonwealth regime of protection for human rights will be complemented by State laws. Especially where a State has established an appropriate human rights agency of its own, it may be appropriate to arrange for powers of the Commission to be exercised by the State or by that agency.
201. Sub-clause 45(1) authorises such arrangements to be made between the Minister responsible for the Australian Bill of Rights legislation and the appropriate State Minister. In relation to the examination of enactments or proposed enactments, only the enactments or proposed enactments of the State concerned may be subject to such arrangements. In relation to inquiries into acts or practices, the subject of such an arrangement would be the acts or practices of the State concerned and of its officers and authorities and certain acts and practices of Commonwealth agencies in that State.
202. Such arrangements may deal with incidental or supplementary matters (sub-clause 45(2)), and may be varied or revoked (sub-clause 45(3)). Any such arrangement, or any variation or revocation, shall be in writing and shall be published in the Gazette (sub-clause 45(4)).
203. Sub-clause 46(1) protects the Commission or a prescribed person against actions and other proceedings for damages in relation to anything done or omitted to be done in good faith in the performance (or purported performance) of the functions of the Commission or in the exercise (or purported exercise) of any power or authority of the Commission. Sub-clause 46(2) protects persons from civil actions for loss, damage or injury by reason only that a complaint or submission has been made to the Commission or information has been furnished to the Commission.
204. Clauses 47 and 48 seek to ensure that, for constitutional purposes, certain provisions are "severable".
205. This clause indicates that each Article of the Bill of Rights, as set out in Part II of the Bill, is intended to be severable.
206. This clause makes it clear that clause 14 is intended to be severable from the rest of Part III (sub-clause (1)). Sub-clauses 14 (2) to (6), which deal with declaring an impugned law to have remained in force prior to the court's decision, are intended to be severable from sub-clauses 14 (7) to (9), which deal with declaring an impugned law to remain in force after the court's decision (see sub-clause 48(2)). The provisions of sub-clause 14(4) and (6), by which an impugned law may be declared to remain in force until the date of the court's declaration, and sub-clauses 14(8) and (9), by which the law may be declared to continue in force for an additional 3 months, are intended to operate even if the "fruits of victory" exception is not regarded as valid (sub-clauses 48(3) and (4)). Sub-clause (5) additionally preserves the operation of the general provision for statutory severability embodied in section 15A of the Acts Interpretation Act 1901.
207. This clause enables the Attorney-General to authorise the granting of legal aid, in cases of hardship, to any person invoking the Bill of Rights in any legal proceedings where, having regard to the public interest in having important questions relating to the operation of the Bill of Rights determined by the courts, it is reasonable to make the grant.
208. This clause provides a regulation-making power.
209. The Schedule sets out the English text of the International Covenant on Civil and Political Rights.