The Federal Parliament’s Joint Committee on Human Rights is conducting an Inquiry into Australia’s Human Rights Framework, including whether a federal Human Rights Act should be enacted. The Australian Human Rights Commission advocates enacting such an Act and recommends it include the following interpretative provision:

‘If a statutory provision cannot be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.’

Courts applying that provision would be required to use proportionality analysis as part of the interpretative process. Because of conflicting findings from the High Court’s judgment in the Momcilovic case, it’s doubtful that such use of proportionality analysis is constitutionally permissible. That case included consideration of the relationship between the interpretative obligation and proportionality test prescribed by the Victorian Charter of Human Rights and Responsibilities Act 2006.

After finding that the proportionality test plays no role in interpreting legislation, Chief Justice Robert French stated that Parliament’s role in justifying limitations on human rights ‘accords with the constitutional relationship between the Parliament and the judiciary, which, to the extent that it can validly be disturbed [at the state level], is not to be so disturbed except by clear words’. However, because of the strict separation of powers required by Chapter III of the Constitution, it’s unlikely that even clear words would be enough to disturb the constitutional relationship at the federal level.

Justices Susan Crennan and Susan Kiefel stated: ‘If some link between … [the interpretative obligation and proportionality test] were thought to be created … such a result has not been achieved … because … [the proportionality test] contains no method appropriate to the ascertainment of the meaning of a statutory provision.’

Justice Dyson Heydon found, in dissent, that the proportionality test provision is invalid. He stated that the provision ‘contemplates the making of laws by the judiciary, not the legislature’.

In contrast, Justices Bill Gummow, Ken Hayne, and Virginia Bell concluded that the prescribed proportionality test is constitutionally valid and forms part of the interpretative process.

The judicial comments quoted above indicate there’s a substantial risk that it’s constitutionally impermissible for courts exercising federal jurisdiction to use proportionality analysis as part of the interpretative process.

Federal courts already use proportionality analysis in various contexts. However, as shown by the following examples, none of those contexts involves changing the constitutional relationship between Parliament and the judiciary. When a court uses proportionality analysis to assess something done under legislation, it assesses the thing done under legislation, not any primary legislation. When the High Court uses proportionality analysis to assess a law that restricts the implied constitutional freedom of communication on political matters, it does so to determine the validity of that law, not to ascertain its meaning. The same applies when a court uses proportionality analysis to determine whether a State law is inconsistent with the Commonwealth’s Racial Discrimination Act 1975.

Although proportionality analysis is widely considered to be a rational and objective process, it undeniably includes subjective value judgments. Any determination of where to draw the line between conflicting rights and interests depends on the respective weights accorded to those rights and interests. For example, a judge may conclude that freedom of expression outweighs the right to privacy in a particular context, whereas another judge hearing the same case may reach the opposite conclusion. Both judges may have reached their conclusions reasonably and rationally without any error of law. Unavoidably, judges applying proportionality analysis have a wide area of discretion in choosing where to draw the line between conflicting rights and interests.

Federal courts do have wide discretionary powers in some contexts, but this context involves changing the constitutional relationship between Parliament and the judiciary.

The following points therefore need to be carefully considered by those responsible for deciding whether any proposed federal Human Rights Act should include the interpretative provision quoted above. The provision would empower the courts to use proportionality analysis to create the legal limits of the prescribed rights, which would be taken to be legislated limits prescribed by the Act. Courts exercising that power would create legislation, as distinct from just applying it or determining whether a law is valid. Consequently, it’s likely the High Court would consider that the proposed provision breaches the following principle stated by the Court in Western Australia v Commonwealth: ‘Parliament cannot delegate to the Courts the power to make law involving … a discretion or, at least, a choice as to what that law should be…’

This warning won’t be welcomed by those who advocate enacting the ‘dialogue model’ of a Human Rights Act at the federal level. To facilitate the supposed ‘dialogue’ between Parliament and the judiciary, the Australian Human Rights Commission recommends, ‘…that when a court has found [in its published reasons for judgment] a parliamentary intention to override human rights contained in the Human Rights Act, the Attorney-General should be required to trigger a process for reviewing the law in question. For example, the Attorney-General could be required to table the notification in Federal Parliament and Government could be required to respond within a set time-period…’

However, if courts exercising federal jurisdiction aren’t permitted to use proportionality analysis as part of the interpretative process, they won’t be able to interpret statutory provisions in a way that is most compatible with human rights. The capacity for the courts to engage in ‘dialogue’ would therefore be very limited.

It’s time to accept that the ‘dialogue model’ of a Human Rights Act, much favoured by some legal academics, is unsuitable for enactment in Australia at the federal level.

More importantly, it should be recognised that transferring legislative lawmaking power to unelected judges is fundamentally undemocratic and ultimately would damage the institutional integrity of the courts. As identified by High Court Justice Michelle Gordon in a speech given in 2020, that integrity depends in part on, ‘…a culture of politics … in which the social, political and economic challenges which the country faces over time are dealt with, and are expected to be dealt with, through political avenues.’

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