National Human Rights Consultation Submission 

AGWW-7MD24X 

Name: Greg McIntyre SC 

Submission Text: 

The following points express views which differ slightly from
 
any I have noted so far as being published:
 

 

(a) The Australian Constitution does not empower the Commonwealth
 
Parliament to enact a law which authorises a Court to make a non-binding
 
declaration of incompatibility, because such a declaration would not amount
 
to an exercise of judicial power. The function of requiring a response from
 
Parliament is not an exercise of judicial power and inappropriately bridges
 
the separation of powers between the judiciary and the Parliament. The
 
attempt to create that bridge is emphasised by those laws which do purport
 
to vest that power in courts limiting it to superior courts.
 
(b) The United Kingdom, New Zealand and the Australian States and
 
Territories (whose constitutions are partly written and partly unwritten)
 
do not have such a clearly stated separation of powers between the
 
Judiciary and the other arms of government as is provided for in respect of
 
the Commonwealth of Australia by section 71 and 72 of the Constitution
 
(Cth¬): see Attorney-General (Commonwealth) v R; Ex parte Boilermakers’
 
Society of Australia (1957) 95 CLR 529. In that respect the position under
 
those jurisdictions, which have vested a power in judicial officers to make
 
non-binding declarations of incompatibility of laws and refer the same to
 
Parliament, is distinguishable from the position under the Constitution of
 
the Commonwealth of Australia, which clearly separates the power of
 
judicial officers exercising federal jurisdiction from the legislative and
 
executive functions of government.
 

 
(c) The function of making non-binding findings of incompatibility and
 
reporting the same to the Parliament is more appropriately a function of a
 
standing commission of inquiry, such as the Human Rights and Equal
 
Opportunity Commission, which fits within the executive rather than the
 
judicial arm of government.
 

 
(d) Courts exercising federal jurisdaction are presently empowered by the
 
operation of section 109 of the Constitution (Cth) to make declarations of
 
invalidity with respect to inconsistency between State laws and any
 
Commonwealth Human Rights Act and to interpret a Human Rights Act as
 
intended by the Parliament to repeal any earlier inconsistent Commonwealth
 
law.
 

 
The Law Society of Western Australia has adopted a Position Paper on an
 
Australian Human Rights Act which expands on the law supporting the views
 
above. As Convenor of the Society's Human Rights Commitee I drafted the
 
paragraphs concerning the role of Federal Courts and am responsible for the
 
final content of the paper (which has been forwarded as an attachment to a
 
submisssion immediately before this).
 
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