essay by Giancarlo de Vera, © 2009
“The men who drew up the Australian Constitution had the American document before them; they studied it with care; they even read the standard books of the day which undertook to expound it”
– Sir Owen Dixon (1942)
Sir Owen Dixon described the Australian constitution as lacking the enthusiasm for constitutional guarantees of personal liberty, in his address to the American Bar Association in 1942. According to Tate, this observation was ‘sharply accurate’, as she considered how we are best to protect human rights in Australian federalism. Tate grappled with how Dixon had to explain how the Australian Constitution did not enshrine guarantees of personal liberty, in a similar fashion to the United States Bill of Rights. Herein a general observation can be made in respect to human rights protection within Australia: with the absence of a constitutional bill of rights, Australia is unique among its common law cousins to have not adopted a statutory bill of rights at the federal level. Hence, what has emerged, is a momentum within state polities to enact statutory bill of rights, with the Human Rights Act 2004 (ACT) (hereafter referred to as AHRA) and the Charter of Human Rights and Responsibilities Act 2006 (Victoria) (hereafter referred to as the VicCharter) being current examples. Furthermore Tasmania and Western Australia are currently exploring implementation of similar human rights legislation. It appears the momentum for enacting such legislations is reflective of a groundswell of public opinion, igniting debate around the need for the enactment of a similar legislation at a federal level.
It has been suggested that s 75(v) of the Australian Constitution is a ‘guarantee that afford practical results’. In Bank of New South Wales v Commonwealth, Dixon famously recognised that ‘[it] was written into the instrument to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding federal power’. Hence in such decisions like Lim v Minister for Immigration and Plaintiff S157/2002 v Commonwealth, the High Court of Australia has historically embodied s 75(v) by guaranteeing administrative decisions and conduct of administrators cannot escape review, as a ‘means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them’.
As a result, following the 1968 Kerr Committee, the Administrative Decisions (Judicial Review) Act 1977 (Cth) formally developed grounds of review. It has been noted that the ADJR Act offers limited possibilities, especially in terms of redress for minority and marginalised complainants, seeking to challenge decisions that affect their civil rights. Furthermore, these ‘heads of review’ are also not sufficiently defined or structured. Following these criticisms, it has been argued that the VicCharter hasbrought clarity to judicial review of administrative action. This is debateable, and for the purpose of this essay, discussion on a prospective federal human rights act (hereafter referred to as FHRA) will be modelled on the main features of the VicCharter to elucidate the impact a FHRA act will have in Australia.
Judicial Review, Legislation Scrutiny, and Improving Government Accountability: Comparative analysis of the VicCharter and AHRA
The protection of individual rights in Australia has been largely articulated and protected by judicial review. In theory, established common law rights and freedoms can be overridden by parliaments (acting within their constitutional powers), but statutory and non-statutory powers are assumed to be granted (respectively, by the legislature of the common law) subject to these fundamental rights. 
Hence it is worth considering how a FHRA will impact on judicial review, with due consideration of the effects AHRA and the VicCharter have had. The AHRA and the VicCharter both require statutory provisions that aim to ensure statute is compatible with listed human rights, ‘so far as it is possible to do so’ consistently with the terms and purposes of statutes. Inevitably the court will be influenced by compatibility statements, particularly in regards to statutory provisions that confer powers on administrators. Hence, the effect on the ability to scrutinise legislation, that may be against the principles in a FHRA are:
‘legislation authorising delegated legislation (often framed in very wide terms) may be read more narrowly than would otherwise be the case. More generally, statutory powers will not be read in a way that authorises breaches of human rights unless the law clearly (in light of its terms or statutory purposes) must be interpreted as authorising particular breaches of human rights.’
In these cases the courts are empowered to issue a declaration of ‘incompatibility’ (in the ACT) or of ‘inconsistent interpretation’ (in Victoria), though these declarations have no impact on the effectiveness of impugned statutory provisions. 
The VicCharter also provides (s 38(1)) that it is ‘unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. Moreover, it specifically states that where a person may (independently of the VicCharter) seek a remedy on the ground that an act or decision was unlawful, ‘that person may seek relief or remedy on the grounds of unlawfulness arising because of’ the VicCharter. What has emerged from these provisions is the introduction of an independent ground of judicial review centred on a breach of human rights, and this also occurred in the UK. There may be a question as to whether Charter-based ‘unlawfulness’ amounts to a jurisdictional error, but declarations and injunctions are clearly available where a breach of a human right is established (s 39 (2)(b) of the VicCharter).
In contrast, the AHRA does not contain analogous provisions, though its effect is similar.  In the ACT: ‘if the statute, which authorises the decision, confers a discretion on the administrator and some of the options opened to the administrator would not breach human rights, the decision may not be authorised.’  In particular a decision made in exercise of a discretionary power which breaches a human right will not be authorised unless the power is granted in terms which clearly authorises the action, or the statute’s purposes requires that the provision be interpreted as authorising such action. Technically, the ground of review would not, by reference to the AHRA, be described as breach of human rights; it would be an ‘error of law’ or ‘jurisdictional error’, established because the legislative provision (when interpreted compatibly with human rights) did not authorise the action taken or the decision made.
It may be, however, that sometimes, like s 38(1) of the VicCharter, it will be required to extend the operation of a statutory bill of rights to the exercise of non-statutory administrative powers. The ACT interpretative provision only purports to affect boundaries of legal powers conferred by statute. In contrast Bayne argues that s 121 of the Legislation Act 2001 (ACT), which states that an AHRA ‘binds everyone, including all governments’, means that the AHRA will also constrain the exercise of non-statutory administrative powers. The difficulty with this argument is that Acts of Parliament will bind only according to their terms, and the AHRA does not purport, by its terms, to affect the scope of non-statutory powers.
By comparison, the impact on the grounds of review in the UK are more scattered. ‘In reviewing decisions for alleged infringement of human rights, UK courts have concluded that proportionality review involves a greater level of judicial scrutiny of the merits of the decision than allowed the under Wednesbury unreasonable standard.’  It is difficult to understand why this is necessarily so, as both proportionality and Wednesbury unreasonableness can in theory be applied with different levels of intensity. In R (on application of Daly) v Secretary of State for the Home Department , it was said that proportionality analysis may require the courts to assess the balance struck between competing interests and the relative weight accorded to particular interests and consideration. But the same is true of Wednesbury unreasonableness. This was established in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986). Hence, in determining whether human rights violations can be justified as a proportionate response to achieve a legitimate interest the court must ask: (1) whether the decision was suitable or rationally connected to achieving a legitimate purpose; (2) whether it was reasonably necessary to achieve that purpose; and (3) whether it nonetheless imposed excessive burdens on affected individuals (i.e. was the impact on individuals out of all proportion to the purpose). 
Analysis: Can Proportionality and human rights work together?
The adoption of this analysis in the human rights context has led to debates about whether or not the more intrusive standards of proportionality review should replace Wednesbury unreasonableness across the board. Similar arguments and debates may arise in the event of federal HRA, to the effect that the standard of review applicable to establish a breach of human rights should seep through into administrative law. Both the AHRA and VicCharter invite the same proportionality review, developed within the context of the UK HRA. More particularly, both the ACT and the Victorian legislation contain provisions, which state that human rights may be subject to ‘reasonable limits’, which can be ‘demonstrably justified’ in a free and democratic society. On this juncture, it might also be interesting to note that international and comparative human rights jurisprudence proceeds on the basis that courts are required to assess whether a limitation on a right is justified by reference to whether or not it is rationally connected to, and reasonably necessary to achieve some legitimate end, and whether the impact individuals is disproportionate to that legitimate end.
One difficulty with such a development is based on the notion that there is a single Australian common law. It has been noted that ‘this makes it difficult’ for the court to ‘unilaterally attempt to develop the common law standard of review in response’ to any existing legislation in a given jurisdiction, and this has been the case in the ACT and Victoria. Furthermore it can also be observed that Australian courts have been cautious with the general concept of proportionality review by the prospect that it will lead the courts further down the path towards merits review.
In large part, this reflects the idea that, at a federal level, such review is thought to be a non-judicial function and thus is precluded by the separation of judicial powers. But this general approach has seeped through to state law. The New South Wales Chief Justice, James Spigelman, concluded that the concept of proportionality lies ‘at the boundaries of accepted administrative law’. Given the recent enactments of the VicCharter and AHRA, it is too soon to predict with confidence the impact that statutory bill of rights may have on Australian administrative law.
Furthermore, we should be reluctant, if not sceptical of UK developments, as the constitutional and legal context that shaped them, is very different from that applicable in Australia. There may be, however, be some tension between the logic driving adoption in the states of statutory bills of rights, indicating more intrusive judicial review, and the conception of the separation of powers that has so far underpinned the Australian law of judicial review.
Proportionality and deference: An inextricable relationship
Within the context of rights adjudication, there is general consensus that in undertaking judicial review, proportionality and deference is inextricably linked.  What links the two is a variability of intensity of review (the intensity will depend on the context), where the ‘proportionality standard need not be applied in an all-or-nothing manner…[instead] one or more of the criteria which constitute proportionality may receive greater or lesser scrutiny’. As Aroson notes, ‘in the context of rights based review subject to a standard of proportionality, deference accommodates the need for leaving executive decision-making with workable margins’. Implicit in this is the notion that judicial review is not central to government activity, and drawing the line between judicial interpretation and judicial law-making is paramount. Respect of such a distinction is the base requirement for transparent and sufficient justification of the exercise of public power, lending itself to the parallel notion that deference is earned insofar the reason for its support can be scrutinised.  Hence, it is not sufficient to assert that the court defer for reasons of constitutional legitimacy or institutional competence (and for the executive for that matter).
So while a FHRA will invite and legitimise judicial participation in the human rights discourse, it will need to ensure judicial review and deference is not reoriented detrimentally. While proportionality has the potential for a greater level of scrutiny of rights-based matters; a balance between proportionality and human rights to work must be struck for it to work well together. That said it must treat interferences with human rights with intense scrutiny.  However, an intense and inflexible application of proportionality ‘can blur the line between judicial review and (de facto) merits review or shift the line inappropriately (not relatively) to the values at play’.  Hence where an interference with a human right occurs, applying substantial deference will be required as rights adjudication will rein a multitude of issues that an (undemocratically elected) court will be forced to consider.  Hence a FHRA could be understood as an indication from the polity for the judiciary to promote and promote rights, and while this may be crucial in rights discourse and debate in a robust democracy, it mustn’t be used as an instrument to further judicial excess. If so, proportionality and deference as tools will need to be used responsibly. Such responsibility is not formulaic, and it is unlikely the law will be developed sufficiently to provide a precise answer informative enough for a clear delineation of responsibility between the arms of government. After all human rights protection and promotion, dialogically speaking, requires a vast range of views. As such, no branch of government could possibly be labelled as the supreme source of rights adjudication, and while the balance between proportionality and human rights must be struck, it is unlikely a FHRA (given the main features of the VicCharter) will achieve this.
Hence within this context, the purported effectiveness of a FHRA may be premature. However, at our current point in Australian history, this does not constitute a reason to be discouraged about the state of human rights protection and promotion in this country. As Hettiarchi concludes, in respect to Australia:
‘Proportionality and deference serves well the sacred and profound values (complex, dynamic, and fluid as they may be), they are designed to reflect. They [have] help[ed] maintain the line between judicial review that is responsible (legality) and excessive (merits). Moreover, decision-makers, whether executive or judicial, are being forced to explain their decisions transparently and persuasively. While there is scope for improvement, signs are encouraging. Such are the lessons from which Australia, at least the state and territories about embark on this course, can learn.’ 
The focus should be addressing how proportionality and deference are orientating the way in which judicial review occurs, and perhaps this is the way forward for the continued promotion and protection of human rights in Australia
Conclusion: The way forward
If we are to model a FHRA on the VicCharter, the previous analysis on judicial review and the ability to scrutinise legislation, indicate that shortcomings need to be addressed to properly respond to concerns over government accountability. Furthermore, a healthy human rights discourse will require a vast array of perspectives, in order to inform best practices and guidelines for the continued promotion and protection of human rights in Australia. Contextual discrepancies between human rights legislation within Australia and abroad have lead to an inability to predict how they will definitively impact on Australian society and law. Hence it is clear the road to a FHRA needs to sustain a critical engagement with current groundswell of pubic opinion, to ensure the fluidity of values implicit in determining what human rights should be protected. While international human rights norms abound, the diversity of Australia will need to be a key consideration in any FHRA. With the end of the National Human Rights Consultation approaching, it will be a test of time that will determine whether or not a FHRA will improve government accountability.
 Tate, op cit., at 220
Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 363
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 36; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513-514 
 Referred to as the ADJR Act hereafter.
 Evans S & Evans, C ‘Legal redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 PLR 281; McHugh, Hon AC QC, ‘A Human Rights Act, the courts and the Constitution’, Presentation given at the Australian Human Rights Commission (5 March 2009), 21: and referring to his judgment in Al-Kateb v Godwin (2004) 219 CLR 562, at 18.
 Rubenstein, citing Galligan (1986): Rubenstien, K ‘Towards 2001: an assessment of the possible impact of a bill of rights on administrative law in Australia – Part 1’ (1993) 1 AJAL 22.
 Cane & McDonald, L., Principles of Administrative Law: Legal Regulation of Governance, (2008) Oxford University Press, Hong Kong, 1998: 185
 See s 21 (1) of the Victorian Charter and ss 30(1) and (2) of the Act HRA.
 Cane & McDonald, op. cit, 183
 Stellios, J. ‘Federal Dimensions to the ACT Human Rights Act’ (2005) 47 AIAL Forum 33.
 ‘Public authority’ is defined in s 4(1) by reference to both institutional and functional criteria. The acceptance of functional criteria for the determination of the scope of application of the Victorian Charter may have an impact on the approach taken to scope of judicial review more generally.
 s 38(2) of the Victorian Charter states that ‘if, as a result of a statutory provision or provisions made by or under any Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision’, s 38 (1) does not apply. For discussion in the context of the Human Rights Act 1998 (UK), see YL v Birmingham City Council  UKHL 27.
 Cane & McDonald, op. cit., 194
 Cane & McDonald, ibid
 Bayne, P., ‘The Human Rights Act 2004 (ACT) and Administrative Law: A Preliminary View’ (2007), 52 Australian Institute of Administrative Law Forum 3, at n 334
 Cane &McDonald, L, op cit., 185
R (on application of Daly) v Secretary of State for the Home Department  2 AC 532
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 41.
 Cane & McDonald, ibid
 Taggard, M. (ed), The Province of Administrative Law, Hart Publishing, Oxford, 1999: 279
 Bayne, op cit., n 334.
 See Lange v Australian Broadcasting Corp (1997) 189 CLR 520, 563-4.
 Evans, C and Evans, S., ‘Legal Redress under the Victorian Charter of Human Rights and Resposibilities’ (2006) 17 Public Law Review 264, n 334, 278.
 Perhaps the most quoted passage on the need for judges to respect the legality merits distinction was written in the context of a state case: Attorney-General (NSW) v Quinn (1990) 170 CLR 1, 36 (Brennan J).
 Bruce v Cole (1998) 45 NSWLR 163, 185
 Hettiarchi, P., ‘The Sacred and the Profound: Judicial Review and Rights, Proportionality and Deference to Executive Conduct’ (2007), 29 Australian Bar Review 223
 Hettiarachi, op cit., 235
 Aronson, M, Dyer, B, & Groves, M, Judicial Review of Administrative Action, Lawbook Co., Pyrmont, 2004: 144
 Deblejak, J., ‘ Parliamentary Sovereignty and Dialogue Under the Victorian Charter of Human Rights and Responsibilities: Drawing the line between judicial interpretation and judicial review’, 39 Monash Law Review 1, 9
 Allan, T.R.S., ‘Common Law Reasons and the Limits of Judicial Deference’, in Dyzenhaus, D. (ed.), The Unity of Public Law, Hart, Oxford, 2004.
 Hettiarachi, op. cit., 238-9
 Hettiarchi, op. cit., 250
 Hettiarchi, ibid
 Hettiarchi, op. cit., 251
 Hettiarchi, op cit. 250-1
 Hettiarchi, op. cit., 251
Allan, T.R.S., ‘Common Law Reasons and the Limits of Judicial Deference’, in Dyzenhaus, D. (ed.), The Unity of Public Law, Hart, Oxford, 2004.
Aronson, M, Dyer, B, & Groves, M, Judicial Review of Administrative Action, Lawbook Co., Pyrmont, 2004
Bayne, P., ‘The Human Rights Act 2004 (ACT) and Administrative Law: A Preliminary View’ (2007), 52 Australian Institute of Administrative Law Forum 3,
Beckett, Simon ‘Interpreting Legislation Consistently with Human Rights’, Paper presented at the 2007 National Administrative Law Forum, Canberra, 14-15 June 2007.
Cane & McDonald, L., Principles of Administrative Law: Legal Regulation of Governance, (2008) Oxford University Press, Hong Kong, 1998
Deblejak, J., ‘ Parliamentary Sovereignty and Dialogue Under the Victorian Charter of Human Rights and Responsibilities: Drawing the line between judicial interpretation and judicial review’, 39 Monash Law Review 1, 9
Dixon, O. , ‘Two Constitutions Compared’ in Judge Woinarski (ed.), Jesting Pilate and Other Papers and Addresses (1965) 100, 101. Evans, C and Evans, S., ‘Legal Redress under the Victorian Charter of Human Rights and Resposibilities’ (2006) 17 Public Law Review264
Hettiarchi, P., ‘The Sacred and the Profound: Judicial Review and Rights, Proportionality and Deference to Executive Conduct’ (2007), 29Australian Bar Review 223
Stellios, J. ‘Federal Dimensions to the ACT Human Rights Act’ (2005) 47 AIAL Forum 33
Tate SC, P., ‘Protecting Human Rights in a Federation’ (2008), 33 Monash Law Review 217.
Taggard, M. (ed), The Province of Administrative Law, Hart Publishing, Oxford, 1999
Stellios, J. ‘Federal Dimensions to the ACT Human Rights Act’ (2005) 47 AIAL Forum 33