Myth 3: Judges would use a Human Rights Act to bully politicians into changing laws to comply with human rights
The myth: The proposed Human Rights Act would allow judges to "declare" that legislation is incompatible with human rights. Although declarations of incompatibility would not invalidate legislation, they would allow judges to bully politicians into changing the law, because experience from the United Kingdom has shown that governments always change the law when such a declaration is made.
The reality: The power to declare legislation to be incompatible with human rights is likely to only be available to High Court Judges. Any declaration of incompatibility:
- would not make a difference in the case at hand: the High Court would still have to apply that legislation;
- would not make a difference in future cases: the legislation would remain valid; and
- would not compel the Parliament to change the legislation in any way.
The fear that Parliament would automatically "cave in" to a High Court declaration of incompatibility and change the relevant legislation betrays a lack of trust in Parliament rather than in the courts. Parliament is unlikely to respond to judicial interpretations that it believes are untenable, or so politically unpopular as to jeopardize the position of the government of the day.
It is true that the UK Parliament has heeded every judicial declaration since the UK Human Rights Act was passed in 1998. However, while the UK Parliament is not bound to heed a declaration of incompatibility, its failure to do so would probably lead to a case before the European Court of Human Rights: the UK is legally bound to follow a similar decision by that Court. No international court has the power to make such decisions over Australia.
In Victoria, which enacted a human rights law in 2006, Parliament has already acted to "undo" a rights-compatible interpretation of Extended Supervision Orders for serious sex offenders (see myth 2 for a discussion of the interpretation power). In that case, Parliament made the legislation harsher and less human rights compliant so that a similar interpretation would not be possible in the future. In light of this example, it seems unlikely that the Australian Parliament would be as "compliant" as the UK Parliament in responding to declarations of incompatibility.
Furthermore, many laws require only minor tweaking to render them human rights compliant. A declaration of incompatibility may often serve the purpose of highlighting minor deficiencies which Parliament is quite happy to address.
For a longer discussion of the arguments regarding declarations of incompatibility, see this section of the Castan Centre's submission to the National Human Rights Consultation.