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The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and the Courts

Published online by Cambridge University Press:  01 January 2025

Dan Meagher
Dan Meagher*
Affiliation:
School of Law, Deakin University.
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Abstract

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (‘the Act’) has established a new model of pre-legislative rights scrutiny of proposed Commonwealth laws. This is undertaken by the political arms of government and involves: (1) the requirement that a statement of (human rights) compatibility must accompany proposed laws and certain legislative instruments when introduced into Parliament; and (2) the establishment of the Parliamentary Joint Committee on Human Rights (‘PJCHR’) which regularly reports to the Parliament on the compatibility of its proposed laws with human rights.

This article looks at the relationship between the Act – and these two new mechanisms – and the interpretive role of the courts. It does so by first considering the (possible) direct use of statements of compatibility and PJCHR reports by Australian courts in the interpretation of Commonwealth laws that engage human rights. It then assesses whether the Act may exert an indirect influence on the content and scope of the common law interpretive presumptions that protect human rights.

Type
Article
Information
Federal Law Review , Volume 42 , Issue 1 , March 2014 , pp. 1 - 25
Copyright
Copyright © 2014 The Australian National University

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Footnotes

Earlier versions of this article were presented at the Australian Association of Constitutional Law Victorian Seminar Series, Melbourne, 7 June 2012 and in a staff seminar at the Faculty of Law, University of Tasmania, Hobart, 13 June 2013. Thanks to Matthew Groves and the two anonymous referees for their invaluable feedback and suggestions.

References

1 Rosalind, Dixon, ‘A New (Inter)National Human Rights Experiment for Australia’ (2012) 23 Public Law Review 69, 77.Google Scholar

2 Commonwealth, Parliamentary Debates, House of Representatives, 30 September 2010, 271 (Robert McClelland, Attorney-General).

3 Attorney-General's Department (Cth), Australia's Human Rights Framework (2010) <http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_AustraliasHumanRightsFramework_AustraliasHumanRightsFramework>.

4 National Human Rights Consultation Committee, National Human Rights Consultation — Report (2009) <http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReportDownloads>.

5 See, eg, Sean, Lau, ‘Editorial: The Future of Human Rights in Australia’ (2010) 33 University of New South Wales Law Journal 5. See further a collection of eight articles in (2010) 33 University of New South Wales Law Journal 8–238, a special issue on the future of human rights in Australia following the release of the HRFGoogle Scholar.

6 See also Bryan, Horrigan, ‘Reforming Rights-Based Scrutiny and Interpretation of Legislation’ (2012) 37 Alternative Law Journal 228; James Stellios and Michael Palfrey, ‘A New Federal Scheme for the Protection of Human Rights’ (2012) 69 Australian Institute of Administrative Law Forum 13Google Scholar.

7 The Act (Cth) s 4.

8 Ibid s 7.

9 Ibid s 7(c).

10 Ibid ss 8, 9.

11 Ibid s 3.

12 The seven human rights treaties are the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969); Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990); Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008).

13 David, Kinley and Christine, Ernst, ‘Exile on Main Street: Australia's Legislative Agenda for Human Rights’ (2012) 1 European Human Rights Law Review 58, 61.Google Scholar

14 Commonwealth, Parliamentary Debates, House of Representatives, 30 September 2010, 272 (Robert McClelland, Attorney-General).

15 Ibid 271.

16 Ibid.

17 Ibid 271–2.

18 Ibid 272.

19 Commonwealth, Parliamentary Debates, Senate, 25 November 2011, 9662 (George Brandis, Shadow Attorney-General).

20 (1995) 183 CLR 273, 290–1 (Mason CJ and Deane J), 302 (Toohey J), 304–5 (Gaudron J) ('Teoh’).

21 (2003) 214 CLR 1; see also Matthew Groves, ‘Treaties and Legitimate Expectations — The Rise and Fall of Teoh in Australia’ [2010] Judicial Review 323; Wendy Lacey, ‘A Prelude to the Demise of Teoh: The High Court Decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam’ (2004) 26 Sydney Law Review 131.

22 The Act, ss 8(4), 9(4).

23 Ibid ss 8(5), 9(5).

24 George, Williams and Lisa, Burton, ‘Australia's Exclusive Model of Parliamentary Rights Protection’ (2012) 33 Statute Law Review 58, 77Google Scholar.

25 In particular see s 15AB(2)(e): ‘any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted'.

26 (1986) 68 ALR 416, 420 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

27 See D C, Pearce and R S, Geddes, Statutory Interpretation in Australia (LexisNexis, 6th ed, 2006) 80–3Google Scholar.

28 Sir Anthony Mason, ‘Purposive Interpretation — A Glimpse of the Elysian Fields or a Descent into a Stygian Cave’ (Paper delivered at ‘A Symposium on Statutory Interpretation', University of South Australia Law School, 7 May 2012) 18.

29 Ibid 19.

30 Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, 340 (Gaudron J).

31 See, eg, in the United Kingdom context: Wilson v Secretary of State for Trade and Industry [2003] 3 WLR 568 at [140], where Lord Hobhouse observed that the use of parliamentary material from Hansard by counsel — first permitted by the House of Lords decision in Pepper v Hart [1993] AC 593 — has not been helpful ‘as an aid to statutory construction’ but has ‘caused additional expense in the conduct of litigation'.

32 Brennan v Comcare (1994) 50 FCR 555, 573 (Gummow J).

33 Singh v Commonwealth (2004) 222 CLR 322, 336 (Gleeson CJ).

34 Project Blue Sky (1998) 194 CLR 355, (McHugh, Gummow, Kirby and Hayne JJ) 384.

35 See, eg, Acts Interpretation Act 1901 (Cth) s 15AA: ‘In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation'.

36 Williams and Burton, above n 24, 80; The Guidelines issued by the Attorney-General's Department can be accessed at Australian Government Attorney-General's Department, Public Sector Guidance Sheets <http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSectorGuidanceSheets/Pages/default.aspx>. They make clear that a proportionality analysis is to be undertaken when a Bill limits a right and that a Bill is compatible with rights if it is a proportionate limitation: Australian Government Attorney-General's Department, Permissible limitations <http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSectorGuidanceSheets/Pages/Permissiblelimitations.aspx>.

37 See, eg, the statements of compatibility for the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, Explanatory Memorandum, Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 (Cth), 4-7 and the Military Court of Australia Bill 2012, Explanatory Memorandum, Military Court of Australia Bill 2012 (Cth), 4-9; see also Williams and Burton, above n 24, text accompanying nn 129–43, contending that the existing statements of compatibility:

have varied to such a great extent, in length, analysis and detail [that it] suggests that different departments have different levels of expertise and interest in compliance, and that the level of scrutiny that the system enables will therefore be patchy. They note also that:

[Statements of compatibility] have not yet had a significant impact on parliamentary debate. Many of the Bills tabled have not yet been debated at length. Some have been both debated and passed without reference to SOCs.

38 Mr Harry Jenkins, ‘Human Rights at your Fingertips, Online and in Practice’ (Speech delivered at the launch of ‘Human Rights are in our Hands', Canberra, 29 October 2012) 7–8.

39 Parliamentary Joint Committee on Human Rights, Fourth Report of 2012 (November 2012) 2.

40 Parliamentary Joint Committee on Human Rights, Fifth Report of 2013 (March 2013) 30.

41 Statement of Compatibility for the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012, available in Explanatory Memorandum, Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 (Cth), 4 (Attachment A).

42 Ibid.

43 Parliamentary Joint Committee on Human Rights, Seventh Report of 2012 (November 2012) 20-1.

44 This was the case as at 5 February 2014.

45 Victoria — see Victoria, Parliamentary Debates, Legislative Assembly, 12 November 2009, 4024 (Robert Cameron); New Zealand — see New Zealand Ministry of Justice, Section 7 Reports <http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/domestic-human-rights-protection/about-the-new-zealand-bill-of-rights-act/advising-the-attorney-general/section-7-reports-published-before-august-2002/section-7-reports-published-before-august-2002>

46 Commonwealth, Parliamentary Debates, House of Representatives, 30 September 2010, 271 (Robert McClelland, Attorney-General).

47 Mr Harry Jenkins MP, ‘The PJCHR's Role in Enhancing Respect for Human Rights’ (Speech delivered at the Australian Government and Non-Government Organisations Forum on Human Rights, Parliament House, Canberra, 14 August 2012) 4 <http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights//media/Committees/Senate/committee/humanrights_ctte/statements/pdf/ngo_forum_140812.ashx>.

48 Section 7 states:

Where any bill is introduced into the House of Representatives, the Attorney-General shall, —

(a) in the case of a Government Bill, on the introduction of that Bill; or

(b) in any other case, as soon as practicable after the introduction of the Bill, —

bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

49 Andrew Butler, ‘Judicial Review, Human Rights and Democracy’ in Grant Huscroft and Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (Hart Publishing, 2002) 50–1.

50 Mr Harry Jenkins MP, ‘Human Rights Compatibility: Parliamentary Scrutiny and Human Rights in Australia’ (Speech delivered to the New South Wales Bar Association Human Rights Committee Professional Development Seminar, Sydney, 28 February 2013) 8 <http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/;/media/Committees/Senate/committee/humanrights_ctte/statements/2013/pdf/NSW_Bar_Assocn_HumanRightsCommittee_seminar_280213.ashx>.

51 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 28 ('the Charter’), Human Rights Act 1998 (UK) s 19 ('HRA’).

52 The Supreme Court has cited s 28 statements of compatibility in the following cases: Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414, 436–37; Magee v Delaney [2012] VSC 407 (11 September 2012) [94]–[96] ('Magee’); Bare v Small [2013] VSC 129 (25 March 2013) [154]–[164] ('Bare’). Thanks to Jeremy Gans for bringing these cases to my attention.

53 Ibid [96].

54 Jack, Beatson et al (eds), Human Rights: Judicial Protection in the United Kingdom (Thomson/Sweet & Maxwell, London, 2008) 471–72Google Scholar.

55 R v A [2002] 1 AC 45, 75 [69].

56 Aileen, Kavanagh, ‘Pepper v Hart and Matters of Constitutional Principle’ (2005) 121 Law Quarterly Review 98, 120Google Scholar.

57 Ibid 121.

58 Beatson et al, above n 54, 471.

59 Ibid.

60 See, eg, Aileen Kavanagh, Constitutional Review Under the UK Human Rights Act (Cambridge University Press, 2009) ch 4: ‘Section 3(1) as a strong presumption of statutory interpretation'. It should however be noted that Kavanagh considers the approach of the UK courts to s 3 is permissible (indeed mandated) interpretation, rather than impermissible judicial legislation.

61 [2004] 2 AC 557, 571 [30], 572 [32].

62 Momcilovic v The Queen (2011) 245 CLR 1, 48–50 (French CJ), 87–90 (Gummow J), 209–11 (Crennan and Kiefel JJ) ('Momcilovic’); see generally Chief Justice James Spigelman, Statutory Interpretation and Human Rights (University of Queensland Press, 2008) 70–80.

63 Commonwealth, Parliamentary Debates, House of Representatives, 30 September 2010, 272 (Robert McClelland, Attorney-General).

64 Resolution to Establish the Parliamentary Joint Committee on Human Rights, 13 March 2012. See, Commonwealth, Parliamentary Debates, Senate, 13 March 2012, 1602.

65 See, Parliament of Australia, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 <http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries>; Parliament of Australia, Committee Reports 2013: Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 <http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013>; Parliament of Australia, Committee Reports 2012: Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 <http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2012>.

66 See ‘The Klug Report: Report on the Working Practices of the JCHR', published in Joint Committee on Human Rights, Twenty-Third Report (July 2006): <http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/239/23902.htm>.

67 Lord Lester of Herne Hill QC, Lord Pannick QC and Javan Herberg (eds), Human Rights Law and Practice (LexisNexis, London, 3rd ed, 2009) 810.

68 Ibid.

69 Beatson el al, above n 54, 472.

70 Ibid.

71 See, eg, A v Secretary of State for the Home Department [2005] 2 AC 68, 99-102 [22]–[29] ('the Belmarsh case’) where Lord Bingham of Cornhill agreed with the JCHR that s 23 of the Anti-terrorism, Crime and Security Act 2001 (UK) — which authorised indefinite detention of suspected international terrorists — was incompatible with the right to liberty under art 5 of the European Convention on Human Rights but not that the derogation was unjustified.

72 See, eg, the PJCHR's analysis and assessment of the Social Security Legislation Amendment (Fair Incentives to Work) Bill in Parliamentary Joint Committee on Human Rights, Parliament of Australia Fourth Report of 2012 (November 2012) 5–20.

73 Parliamentary Joint Committee on Human Rights, Parliament of Australia, Practice Note 1, 1.

74 Ibid.

75 Parliamentary Joint Committee on Human Rights, above n 40, 21.

76 See, eg, regarding the Social Security Legislation Amendment (Fair Incentives to Work) Bill in its Fourth Report of 2012, above n 72, 1–3; Australian Sports Anti-Doping Authority Amendment Bill 2013 in in Parliamentary Joint Committee on Human Rights, Parliament of Australia Second Report of 2013 (February 2013)

77 Project Blue Sky (1998) 194 CLR 355, 384 (McHugh, Gummow, Kirby and Hayne JJ) (emphasis added).

78 This may, at least as a practical matter, ease the legitimate concern raised by Shadow Attorney-General Brandis in the second reading debate for the Act that it was critical to ‘locate the scrutiny of legislation from a human rights point of view at the heart of the parliamentary process’ and not allow the executive, through statements of compatibility, to ‘self-certify human rights compliance’ which ‘relocates the power, or at least shares the power, between the legislative arm and the executive arm of government.’ — Commonwealth, Parliamentary Debates, Senate, 25 November 2011, 9663 (George Brandis, Shadow Attorney-General).

79 Project Blue Sky (1998) 194 CLR 355, 384 (McHugh, Gummow, Kirby and Hayne JJ).

80 (1994) 179 CLR 427, 435 (Mason CJ, Brennan, Gaudron and McHugh JJ) ('Coco’) where the principle of legality was applied in order to protect from statutory encroachment the common law ‘right of a person in possession or entitled to possession of premises to exclude others from those premises'. This proposition was endorsed at 446 (Deane and Dawson JJ).

81 Re Bolton; Ex parte Beane (1987) 162 CLR 514 ('Ex parte Beane’).

82 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

83 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 ('Saeed’).

84 See, eg, ibid 271 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

85 Ex parte, Beane (1987) 162 CLR 518 (Mason CJ, Wilson and Dawson JJ)Google Scholar.

86 See Dan, Meagher, ‘The Common Law Principle of Legality in the Age of Rights’ (2011) Melbourne University Law Review 449, 460–64Google Scholar.

87 Coco (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ); Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, 329 (Gleeson CJ).

88 Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, 329 (Gleeson CJ).

89 Saeed (2010) 241 CLR 252, 260 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

90 See Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (5th ed, Thomson Reuters, 2013) ch 7.

91 Momcilovic (2011) 245 CLR 1, 40–44 (French CJ), 170-175 (Heydon J), 217–20 (Crennan and Kiefel JJ).

92 Ibid 44.

93 Ibid 50.

94 See R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 131–2 (Lord Hoffman); see generally Sir Philip Sales, ‘A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998’ (2009) 125 Law Quarterly Review 598, 600–7.

95 Potter v Minahan (1908) 7 CLR 277, 304 (O'Connor J): principle of legality; Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 363 (O'Connor J): presumption of consistency.

96 Plaintiff S 157 (2003) 211 CLR 476, 492 (Gleeson CJ).

97 Kartinyeri v Commonwealth (1998) 195 CLR 337, 386 (Gummow and Hayne JJ).

98 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, 552–3: the principle of legality does not require legislative ambiguity; Plaintiff S 157 (2003) 211 CLR 476, 492 (Gleeson CJ): the presumption of consistency requires legislative ambiguity.

99 Spigelman, above n 62, 39.

100 See, eg, Ex parte Beane (1987) 162 CLR 518; Plaintiff S 157 (2003) 211 CLR 476; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; Evans v New South Wales (2008) 168 FCR 576; Saeed (2010) 241 CLR 252; Plaintiff M/47-2012 v Director General of Security (2012) 292 ALR 243.

101 See, eg, Al-Kateb v Godwin (2004) 219 CLR 562, 589–91 (McHugh J) where his Honour launched a stinging attack on the relevance and legitimacy of the presumption of consistency under contemporary Australian political conditions; Coleman v Power (2004) 220 CLR 1, 27 where Gleeson CJ said that ‘the formulation of a general principle of statutory interpretation by reference to international obligations requires some care’ and said it may only apply to statutes expressly intended to give effect to international treaties.

102 For a similar argument regarding the ‘repatriation’ of international human rights norms to the common law (of New Zealand), see Janet McLean, ‘From Empire to Globalization: The New Zealand Experience’ (2004) 11 Indiana Journal of Global Legal Studies 161, 174 where she writes:

The process of repatriation, however, can also be a process of radical change that effectively remakes the common law. In part these processes are motivated by a desire by some judges to identify the source of the change as internal rather than as completely imposed from the outside.

103 Especially so after the controversy that attended the High Court's decision in Teoh (1995) 183 CLR 273. There were three (unsuccessful) attempts to legislatively reverse the effect of the Teoh decision and two ministerial statements issued (by the Labor Government in 1995 and the Coalition Government in 1997) for the same purpose. The High Court then, as noted, retreated considerably from this position in Ex parte Lam (2003) 214 CLR 1.

104 See Sir Anthony Mason, ‘Mike Taggart and Australian Exceptionalism’ in David Dyzenhaus, Murray Hunt and Grant Huscroft, A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart Publishing, 2009) 180.

105 Chief Justice Robert French, ‘Oil and Water? International Law and Domestic Law in Australia’ (Speech delivered at the Brennan Lecture, Bond University, 26 June 2009), 21 <http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj26June09.pdf>.

106 (1998) 194 CLR 355.

107 Spigelman, above n 62, 39.

108 Zaoui v Attorney-General [No 2] [2006] 1 NZLR 289 ('Zaoui’); Ye v Minister for Immigration [2010] 1 NZLR 104.

109 [2006] 1 NZLR 289.

110 Section 6 states:

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

111 See Philip Joseph and Thomas Joseph, ‘Human Rights in the New Zealand Courts’ (2011) 18 Australian Journal of Administrative Law 80, 97–9.

112 Claudia, Geiringer, ‘International Law through the Lens of Zaoui: Where is New Zealand At?’ (2006) 17 Public Law Review 300, 317–8Google Scholar.

113 See Paul, Rishworth, ‘Interpreting Enactments: Sections 4, 5 and 6’ in Paul, Rishworth et al, The New Zealand Bill of Rights (Oxford University Press, 2003) 132–3Google Scholar.

114 New Zealand Bill of Rights Act 1990 (NZ).

115 Rishorth, above n 113.

116 Geiringer, above n 112, 315–9.

117 See Dan Meagher, ‘The Common Law Presumption of Consistency with International Law: Some Observations from Australia (and Comparisons with New Zealand)’ [2012] New Zealand Law Review 465, 475–81.

118 French, ‘Oil and Water? International Law and Domestic Law in Australia', above n 105, 37.

119 Ibid 21; Chief Justice Robert French, ‘Protecting Human Rights without a Bill of Rights’ (Speech delivered at the John Marshall Law School, Chicago, 26 January 2010), 25-36 <http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj26jan10.pdf>.

120 David Dyzenhaus, Murray Hunt and Michael Taggart, ‘The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation’ (2001) 1 Oxford University Commonwealth Law Journal 5, 33 (citations omitted).

121 See Spigelman, above n 62, 29. The right to non-discrimination on the grounds of race, sex, age and disability has been enshrined in Australian statute law for some time: Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Age Discrimination Act 2004 (Cth). See, eg, Mabo v Queensland (No 2) (1992) 175 CLR 1, 58 (Brennan J) ('Mabo’) where his Honour in the course of overruling those cases that underpinned the common law doctrine of ‘terra nullius’ stated that ‘[t]o maintain the authority of those cases would destroy the equality of all Australians before the law.'

122 See Mabo 175 CLR 1, 42-3 (Brennan J).

123 Kevin Boreham has suggested that freedom of religion may already be recognised as a fundamental right at common law: see Kevin Boreham, ‘International Law as an Influence on the Development of the Common Law: Evans v New South Wales’ (2008) 19 Public Law Review 271.

124 See Lord Browne-Wilkinson, ‘The Infiltration of a Bill of Rights’ [1992] Public Law 397, 398; Chief Justice Murray Gleeson, ‘The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights’ (2009) Public Law Review 26, 33–4.

125 Zaoui [2006] 1 NZLR 289, [90]–[91] (Keith J).

126 Ye v Minister of Immigration [2010] 1 NZLR 104, [21]–[25]; see also Joseph and Joseph, above n 111, 90–1.

127 Plaintiff S10-2011 v Minister for Immigration and Citizenship (2012) 290 ALR 616, 624 (footnote omitted).

128 Thanks to Matthew Groves for drawing this important point to my attention.

129 Chief Justice Robert French, ‘Public and Private Law: The Intersection’ (Speech delivered at Latrobe University Law School, Melbourne, 30 October 2009), 9–10 <http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj30oct09.pdf>.