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Smith, Stephen E --- "Statutory interpretation and human rights by James Spigelman" [2010] OtaLawRw 12; (2010) 12 Otago Law Review 429

Last Updated: 25 February 2012

^{Statutory Interpretation and Human Rights}

(by James Spigelman, the McPherson Lecture Series Volume Three, University of Queensland Press, 2008, 152 pp)

Since 2006, the TC Beirne School of Law at the University of Queensland has hosted an annual series of lectures, which have been named after Mr Justice Bruce McPherson, formerly of the Queensland Court of Appeal. In 2008, the McPherson Lectures were delivered by Mr Justice James Spigelman, who has been the Chief Justice and Lieutenant Governor of New South Wales since 1998, and this short book reproduces the text of Justice Spigelman’s three lectures. In all respects it represents an outstanding addition to the University of Queensland’s McPherson Lecture Series.

As Justice Spigelman notes early on, he has been writing about statutory interpretation and human rights for a number of years now, and these lectures may be said to be a summary or a “re-packaging” of a number of his previous works on these subjects.¹ The first lecture, “The Common Law Bill of Rights”, examines the way in which common law courts in jurisdictions that lack a bill of rights have nevertheless protected human rights through means of statutory interpretation. The second lecture, “The Application of Quasi-constitutional Laws”, examines the manner in which non-entrenched, statutory bills of rights have been applied in Australia, New Zealand, and the United Kingdom. The final lecture, “Legitimate and Spurious Interpretation”, examines the limits of statutory interpretation as a means of protecting human rights under both the common law bill of rights and quasi-constitutional statutory instruments.

As Justice Spigelman notes in introducing his first lecture, the effect

^{in Australia of the worldwide “human rights revolution” of the past}

^{60 years has been quite modest. In most other common-law countries,}

^{human rights documents have been adopted at the national or federal}

^{level, whether it has been done by formal constitutional entrenchment}

^{(as in Canada and South Africa) or by regular parliamentary enactment}

^{(as in New Zealand and the United Kingdom). In Australia, however,}

^{only the governments of Victoria2 and the Australian Capital Territory3}

^{have adopted statutory bills of rights. The concept has been rejected by}

^{New South Wales, Justice Spigelman’s jurisdiction, and, more recently,}

¹ These include JJ Spigelman “Statutory Interpretation: Identifying the Linguistic Register” [1999] NewcLawRw 1; (1999) 4 Newc LR 1; JJ Spigelman “The Poet’s Rich Resource: Issues in Statutory Interpretation” (2001) 21 Aust Bar Rev 224; JJ Spigelman “Blackstone, Burke, Bentham and the Human Rights Act

2004” (2005) 26 Aust Bar Rev 1; JJ Spigelman “Principle of Legality and the Clear Statement Principle” (2005) 79 Aust LJ 769.

^{2 Charter of Human Rights and Responsibilities Act 2006 (Vic).}

^{3 Human Rights Act 2004 (ACT).}

by the Commonwealth government.⁴ But as Justice Spigelman discusses, the flexibility of statutory interpretation under the common law has long provided a way for the courts of Australia to nevertheless protect fundamental human rights. Over time, this “common law bill of rights” has allowed Australian courts to develop rebuttable presumptions that Parliament does not intend to abrogate certain individual rights, including the right to free speech, the right not to be deprived of property without adequate compensation, the right to personal liberty, the right to freedom of movement, the right to have one’s religion treated equally, and the array of criminal law protections that ensure fair trials.

Justice Spigelman does not argue for or against the adoption of a national Australian bill of rights, but he does recognise the limitations inherent in a jurisdiction that opts to use only the common law bill of rights. As an illustration of how the Australian common law bill of rights has long been operative but limited, Justice Spigelman examines the High Court of Australia’s 1934 Kisch case.⁵ That year, the Commonwealth Government of Australia made efforts to prevent Egon Kisch, a leftist Czechoslovak journalist and anti-fascist rabblerouser, from attending a communist peace congress in Sydney. Under the Immigration Restriction Act 1901, a visitor or immigrant to Australia could be prevented from entering the country if he or she failed to pass a language dictation test, in which the applicant was required to satisfactorily demonstrate literacy in a “European language” of the examiner ’s choice. Because Kisch had a knack for languages, the Australian government decided to administer the examination in Scottish Gaelic, a relatively obscure European dialect. Predictably, Kisch failed the test. (However, he nevertheless managed to attend the congress after he jumped from his ship near Melbourne, breaking his leg in the process.) Eventually, the matter came before the High Court: was Scottish Gaelic a “European language” for purposes of the Act in question? Perhaps surprising advocates of statutory textualism, the majority of the Court held that it was not, and that therefore the test given to Kisch was invalid. The majority of the Court used what Justice Spigelman calls “orthodox steps of statutory interpretation” to determine that in the context of the Act, Parliament did not intend that immigration applicants be examined in obscure minority languages or dialects. Thus, Justice Spigelman says, “a result affirming the right to freedom of movement was attained” [p 22].

However, what makes the Kisch case particularly apposite in illustrating the nature of the common law bill of rights is the recognition, highlighted by Justice Spigelman, that the underlying purpose of establishing the dictation test was to prevent non-European and non-white migrants from entering Australia. The Immigration Restriction Act 1901 was essentially the founding document of the racist White Australia Policy, which endured until the 1970s. And so, although the common law bill of

⁴ Phillip Coorey “Bill of Rights Looks Dead in the Water” Sydney Morning

^{Herald (17 February 2010).}

^{5 Ex parte Kisch [1934] HCA 63; (1934) 52 CLR 234.}

rights protected the freedom of entry and movement of a white European political activist, for decades it was impotent in preventing widespread race and ethnicity-based discrimination. In this respect, although the common law bill of rights “works” in protecting human rights, ultimately its provisions are rebuttable by explicit legislative action, and the purity of parliamentary supremacy is retained.

The limits of the common law bill of rights continue to be tested today. In his second lecture, Justice Spigelman discusses the High Court of Australia’s 2004 Al-Kateb case, in which a 4:3 majority of the Court held that a stateless person could be indefinitely detained by the Australian government.⁶ Al-Kateb is a Kuwaiti-born Palestinian who had applied for refugee status in Australia. His application was denied, and the governing legislation stated that an unsuccessful refugee claimant “must be kept in immigration detention” until being deported. However, neither Kuwait nor any other country would accept Al-Kateb, and so the prospect of indefinite detention under the Act arose. Justice Spigelman uses the case as an example of a situation where the common law right to personal liberty was insufficiently robust to overcome the plain-language interpretation of parliamentary intent that was adopted by the majority. Although he takes no position on the desirability of change, Justice Spigelman suggests that things might have turned out quite differently if the Court had been forced to interpret the intent of Parliament in the context of a quasi-constitutional document like the New Zealand Bill of Rights Act 1990 or the United Kingdom’s Human Rights Act 1998.

What a quasi-constitutional statute may do that the common law bill of rights cannot accomplish is that is may force (or at a minimum, entice) a Court to depart from the traditional practice of statutory interpretation, in which the Court interprets the words used in the legislation and thereby purports to determine the intent of Parliament. Instead, a quasi- constitutional document can direct the Court to actively prefer methods of statutory interpretation that will result in the conclusion that the statute that is being examined is consistent with the fundamental rights enshrined in the quasi-constitutional document. In such instances, the Court is more concerned with protecting a right than in divining the intent of Parliament. For example, s 3 of the United Kingdom’s Human Rights Act 1998 requires that “so far as it is possible to do”, legislative enactments “must be read and given effect in a way which is compatible” with the enumerated rights of the European Convention on Human Rights. In the House of Lords, Lord Nicholls has interpreted this to mean that “to an extent bounded only by what is ‘possible’, a court can modify the meaning, and hence the effect, of primary and secondary legislation”.⁷ This takes us a long way from the common law bill of rights, and bestowing this power upon the Courts is controversial. Indeed, it is the spectre of shifting of power from Parliament to the Courts that is the primary reason the Commonwealth government recently backed

⁶ Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (HC).

^{7 Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 (HL) at [32].}

away from the adoption of a national bill of rights. As Justice Spigelman notes, “[t]he proposition that a court can interpret a particular act other than in accordance with the intention of Parliament at the time of the enactment of that act is a fundamental change”, and one that is “most striking to an Australian lawyer” [p 75].

But, as Justice Spigelman is fond of saying, there are statutes and there are statutes, and not all quasi-constitutional enactments are created equally. The Canadian Bill of Rights,⁸ a quasi-constitutional

1960 enactment of the Parliament of Canada, was largely ineffective in persuading Canadian courts to depart from traditions of parliamentary supremacy, and its perceived failure was one of the primary reasons later Canadian governments pushed for constitutional entrenchment of a bill of rights. While s 2 of the Canadian Bill of Rights contains language that is roughly equivalent in content to s 3 of the Human Rights Act 1998, the impact of the two Acts on the judicial process of statutory interpretation could not have been more different. Other quasi- constitutional documents are phrased more timidly. The New Zealand Bill of Rights Act 1990 (NZBORA), for example, does not go as far as s 3 of the Human Rights Act 1998. Section 6 of the NZBORA specifies that if an interpretation of a statute “can be given” that is consistent with the enumerated rights, that interpretation “shall be preferred to any other meaning”; the Court of Appeal and the Supreme Court have interpreted “can be given” as meaning “can reasonably be given”.⁹ Not so with the Human Rights Act 1998: Lord Steyn has stated that in adopting s 3 of that Act, “Parliament specifically rejected the legislative model of requiring a reasonable interpretation”.¹⁰ It is stuff like this that makes the judicial traditionalists wince.

Whether the two statutory bills of rights that have been enacted in Victoria and the Australian Capital Territory will be treated more like the Human Rights Act 1998 or more like the old Canadian Bill of Rights has not yet been settled, but Justice Spigelman opines that he is “sceptical whether Australian judges will go as far as the English judges have gone” [pp 79–80]. The result may be that they are treated not unlike the NZBORA. Justice Spigelman does not tip his hand as to where he comes down in all of this, but he does make it clear that while the matter appears to be largely settled “in jurisdictions from which Australians once drew guidance, including both the United Kingdom and Canada”, in Australia “the debate is still continuing” [p 114].

Finally, a more general word about these lectures may be offered. The publication of an oral lecture as a written essay always entails risk: far too often, the text fails to capture original aspects of the oral presentation that are critical to what made the lecture great. The rhythm and cadence of presentation, facial expressions, hand gestures and other body language,

⁸ Canadian Bill of Rights, RSC 1985, app III.

^{9 Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA) at 272; R v Hansen}

^{[2007] 3 NZLR 1 (SC) at 157–158, 289–290.}

^{10 R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45 (HL) at [44].}

the reactions of the audience—all of these factors and more can convert what would otherwise be a humdrum read into a memorable lecture, and all of these aspects are necessarily lost when a lecture is reduced to words. Although I was not present for Justice Spigelman’s lectures and so cannot vouch for the quality of his original presentations, this textual reproduction of them does not result in an awkward read, and the value of this book is not diminished by the fact that it was originally delivered orally. The lectures are unfailingly crisp and clear and are an enjoyable and enlightening read for anyone interested in the debate over the proper role of the judiciary in the ongoing human rights revolution.

Stephen E Smith Faculty of Law University of Otago.