Justice Murray Gleeson AC, Non-Permanent Judge of the Hong Kong Court of Final Appeal (“CFA”), recently gave an address in which he compared the approaches of the Australian Constitution and the Basic Law to rights and freedoms. This article highlights key observations he made during the address and views he expressed in a post-event interview on the usefulness of comparative jurisprudence when examining the scope of rights and freedoms under different legal regimes.
In early June, Justice Gleeson joined an after work event, organised by the Hong Kong Chapter of the Law Council of Australia and hosted by Minter Ellison, to compare the approach of the Australian Constitution and the Basic Law to rights and freedoms.
The Hon. Chief Justice Geoffrey Ma gave the opening remarks, in which he reminisced about the first time he met Justice Gleeson. It was 1978. He was a pupil in London, working on a sale of goods case over which Justice Gleeson was presiding. Justice Ma indicated that the respect and deference with which prominent members of the Bar and Bench treated his Lordship left a lasting impression upon him. “I thought to myself then as a pupil and as a young person … ‘that’s the person that I want to be’. I have tried in my years of practice to be like [Justice] Gleeson in hopes that one day I would meet [him] properly,” he said fondly.
Justice Ma indicated that sitting on the Bench with Justice Gleeson has been a privilege. All permanent justices of the CFA attended this event.
Life in the Law
Justice Gleeson was born in 1938 in Wingham, a small country town in northern New South Wales (“NSW”). He attended local Catholic primary school, run by Black Josephites (Sisters of St. Joseph). It was said at the funeral of the sister who taught Justice Gleeson sixth grade, it was she who taught him what justice really meant.
At the age of 11, Justice Gleeson moved to Sydney to attend boarding school and then law school. After gaining a first-class honours degree from the University of Sydney and spending a year as a solicitor with Murphy & Moloney, he was called to the Bar in 1963, reading in the same chambers with Laurence Street (his future predecessor as Chief Justice of NSW) and on the same floor as Anthony Mason (his future predecessor as Chief Justice of Australia).
In 1974, Justice Gleeson took silk. His career as senior counsel was second to none. In his opening remarks, Justice Ma said even nowadays, people still refer to Justice Gleeson as being “the best there ever was”. Bret Walker has observed that Justice Gleeson “dominated wherever his varied practice took him.” By 1989, he was an Honorary Master of the Bench of the Middle Temple.
In 1998, Justice Gleeson was appointed as Chief Justice of NSW. Walker noted that he was the first barrister to be thus elevated directly since 1934. While his appointment was popular, his cross-examination skills and “stare” proved daunting for advocates.
In an opening speech Justice Spigelman gave at the launch of Michael Pelly’s biography of Justice Gleeson, he recalled the “stare” as being so powerful that counsel would withdraw questions or abstain from objections by simply being its recipient. Roderick Meagher has been often quoted as saying “[Justice] Gleeson likes flowers. He stares at them to make them wilt.”
In addition to the “stare”, Justice Gleeson is also well known for his distinct sense of humour. While shared mostly in private, Walker has noted that Justice Gleeson’s characteristic dry wit and mordant understatement have been displayed in nearly all his public speeches as a leading barrister – and frequently during his judicial life.
Justice Gleeson was appointed a Companion of the Order of Australia in 1992. From 1998 to 2008, he served as the Chief Justice of the High Court of Australia. In 2009, he became a Non-Permanent Judge of the CFA.
Importance of Historical Context
In introducing his discussion points, Justice Gleeson noted the importance of historical context, juxtaposing his reflection on his first visit to Hong Kong with his general observations on the proliferation of human rights-related matters in modern times.
1966 was the first time Justice Gleeson set foot in Hong Kong. He was in route to London for his first appearance in the Privy Council. At that time, the then-British colony was rapidly expanding, with the population increasing from 600,000 in 1945 to 3 million by 1960. Early to mid-twentieth century, China was a closed society, divided by a civil war. In 1966, Mao launched a campaign that became known as the Cultural Revolution.
Justice Gleeson also recalled the upheavals in Europe in the early to mid-twentieth century, followed in the 1980s and 1990s by a surge of human rights declarations and legislation, international and national. During this period there was also a trend across many common law jurisdictions, wherein the theme of jurisprudence shifted from subjects such as property, contracts, torts and criminal law to human rights-related matters, he explained. Anticipating disbelief, he encouraged attendees to test his claim by reviewing the index of a volume of Appeal cases from the 1920s and then one from the last 10 years.
Hong Kong was no exception. In 1991, the Hong Kong Bill of Rights Ordinance gave provisions of the International Covenant on Civil and Political Rights (“ICCPR”) effect as part of Hong Kong’s domestic law, just as the Human Rights Act 1998 of the United Kingdom gave domestic effect to the European Convention on Human Rights. During this time, events in Tiananmen Square unfolded and conflict erupted in the Balkans. Uncertainty over Hong Kong’s future also loomed as the 1997 hand over approached.
His Lordship explained that since the 1980s and 1990s, this pattern of international instruments, and domestic legislation, has become influential, directly and indirectly, in judge-made law.
Hong Kong versus Australian Approach
Before diving into the specifics, Justice Gleeson gave the audience a general primer on different approaches jurisdictions can adopt to protect human rights and their potential implications. He noted that some prefer to entrench rights in constitutional provisions, while others favour enacting legislation.
“Constitutions typically limit the law-making power of legislatures, and enable (and oblige) judges to rule upon the validity of legislation and upon the lawfulness of executive action. When a right, or a freedom, is created or protected by an Act of Parliament, or by judge-made law, then Parliament may, if it sees fit, alter, qualify, or even remove the right or freedom. When the right or freedom is constitutionally entrenched, Parliament is bound by what is in the Constitution, and judges (in Australia, the adjective “unelected” is often added at this point) have the power and responsibility of ruling upon whether legislation conforms to the requirements of the Constitution. Furthermore, constitutions are difficult to amend,” he said.
Whichever approach is adopted, he noted that the politico-legal context in which an instrument or law is prepared and enacted is instructive.
Turning to the approach adopted under the Basic Law, the constitutional document of Hong Kong that was adopted on 4 April 1990 by the Seventh National People’s Congress of the People’s Republic of China and went into effect on 1 July 1997 (replacing the Letters Patent and the Royal Instructions), Justice Gleeson again noted the unique politico-legal context in which it was enacted. He then explained that the drafters enshrined myriad rights and freedoms into the provisions of Chapter III, which deals with Fundamental Rights and Duties of the Residents of Hong Kong. Article 39 imports the ICCPR and certain other international instruments, and the Hong Kong Bill of Rights.
Under this model, the judiciary in Hong Kong must act as a check on the legislative and executive branches. Justice Gleeson explained that “[j]udicial review of legislation when it is challenged as infringing the Basic Law is commonplace, and is undertaken by the courts, and especially the [CFA], in a manner familiar in human rights jurisprudence.” To illustrate the process, he quoted an extract from the judgment of Ribeiro PJ in Kong Yunming v Director of Social Welfare (2013) 16 HKCFAR 950:
"[S]ome rights are non-derogable and absolute, in which case, no infringement is permitted and no question of proportionality arises. But in other cases … the law may validly create restrictions on constitutionally protected rights provided that such restriction can be justified on a proportionality analysis.
The starting-point is the identification of the constitutional right engaged … The next step is to identify the legal or administrative measure said to infringe or restrict that right. … The Court then asks whether that restriction pursues a legitimate social aim and, having identified that aim, it asks whether the impugned restriction is rationally connected with the accomplishment of that end. If such rational connection is established, the next question is whether the means employed are proportionate or whether, on the contrary, they make excessive inroads into the protected right."
“That kind of judicial review of legislative action in order to uphold constitutionally entrenched standards is not the way Australia deals with human rights issues generally,” Justice Gleeson said.
Turning to the politico-legal context in which the Australian Constitution, an enactment of the United Kingdom Parliament that came into force on 1January 1901, Justice Gleeson noted that “[i]t was not the outcome of a war, or a revolution, or a struggle against oppression. It came into being in order to give effect to the agreement of the people and government of a number of British colonies to unite in a federal union. Those colonies enjoyed varying degrees of self-government, and none was sovereign. There was no written constitution in the United Kingdom. On the other hand, a federal system of government requires a written constitution in order to define the relationship between the constituent parts of the Federation and, in particular, to allocate legislative power as between the central authority and the authorities of the States or their counterparts (in the case of Canada, the Provinces).”
“The Australian Constitution was largely (although not completely) drafted in Australia, and approved by the colonial parliaments and by a referendum process,” he continued. “Australia was part of the British Empire: a matter of vital importance to its defense and foreign relations. The framers of the Constitution regarded themselves as British. They admired British institutions. In the United Kingdom, and in Australia, at the beginning of the twentieth century people looked to Parliament and to the common law to protect their rights and freedoms; not to broadly stated declarations of human rights. The framers did not set out to make the Constitution a charter of rights and freedoms. To have done that would have been inconsistent with the politico-legal context in which the instrument was prepared, and contrary to the legal culture which the colonies inherited. The Constitution was essentially a structural plan for a federal system of government.”
Quoting a 2001 speech Sir Anthony Mason delivered to the Australian Association of Constitutional Law, his Lordship said:
"The Australian Constitution … [i]n essence … defines and delimits the powers of government. It distributes the powers of government vertically between the Commonwealth and the States, making provision also for the Territories, and it distributes the powers horizontally between the three branches of government [legislative, executive and judicial]."
“One important conclusion that has been drawn from the structure of the Constitution itself is that it mandates a high degree of separation of powers between the three branches of government at the Commonwealth level. This has had far-reaching consequences for the Australian apparatus of government,” he said.
Justice Gleeson noted s. 75 of the Australian Constitution was one express provision of particular significance. “It confers on the High Court of Australia original jurisdiction (which, because it is in the Constitution and not legislation, cannot be withdrawn or modified) to make certain kinds of orders against ‘an officer of the Commonwealth’ to enforce compliance with the law or to restrain breaches of the law. This provision ensures that the Executive government is subject to the law. It enshrines the rule of law. Subjection of the Executive government to the law as declared and enforced by the courts is the crucial difference between the rule of law and what is sometimes called rule by law.”
Justice Gleeson explained that while drafters of the Basic Law chose to extensively entrench broadly stated human rights within the Basic Law, or to constitutionalise them and rely on the judiciary to protect them, the drafters of the Australian constitution substantially, but not entirely, left the protection of rights and freedoms in the hands of democratically elected parliaments, and the common law which, he noted could be and often is altered by Parliament. “Placing rights beyond the reach of Parliament creates what is sometimes described as a ‘democratic deficit’. It is something with which many legal and political commentators [in Australia] are, to say the least, uncomfortable.”
“The Australian approach favors resolving human rights-related issues by the political process than by judicial decision,” he continued. “The outcome of the political process may not be to everyone’s liking, but people generally accept it as part of what is involved in living in a liberal democracy. They may be less accepting of judicial resolution of such issues. The rule of law does not imply rule by lawyers.”
Justice Gleeson said that there is also a Human Rights and Equal Opportunity Commission in Australia which is funded by, but is independent of, the Federal Government. “It investigates, and reports to the Federal Parliament on, issues or complaints concerning human rights compliance and discrimination.”
The South China Morning Post reported on Anna Wu’s request for the Hong Kong Government to establish a human rights commission in the city. To date, the Government has declined to do so (see Hong Kong Government Pours Cold Water on Call for a Human Rights Commission, South China Morning Post (21 May 2016)).
Usefulness of Comparative Jurisprudence
In response to questions raised after his talk, seeking his view on “implied rights” within the context of constitutional law, Justice Gleeson explained that “the Basic Law, both directly and indirectly (in its reference to other laws and instruments) protects rights and freedoms which are also recognised in international instruments and in the laws of other places with a range of systems of government.” While comparative jurisprudence can be of assistance as a guide to the understanding of the content of those rights and freedoms in the practical context in which issues arise for resolution, he emphasised that it is the law of Hong Kong itself that is controlling.
“The implication of constitutional rights is sometimes more controversial than the application of an express provision,” he said. “In Australia, for example, the recognition of an implied freedom of political communication has led to some debate concerning the ambit of the freedom. Similar debates, however, occur as to the ambit of some express rights.”
“Australia’s treaty obligations enter into Australian law directly only when they are put into effect by domestic legislation. The question of the extent to which they can have an indirect influence (the ICCPR is an example) is debatable, but varies with the subject matter of the treaty.”
CFA’s International Make-Up
When commenting on the benefits of the international make-up of the CFA, Justice Gleeson said it “manifests the continuing contribution of the common law to the principle of ‘one country, two systems’.”
When asked if Australian judges sitting as non-permanent judges of the CFA make any special contribution, he said that he does not in general see them as making a contribution that is unique or that distinguishes them from United Kingdom or New Zealand judges. However, he does believes SirAnthony Mason, who served on the CFA for 20 years, has made a very special contribution by reason of his length of service and the range and importance of cases he sat on.
The Law Council of Australia
The Law Council of Australia (“Law Council”) was established in 1933 and is the peak national representative body of the Australian legal profession that speaks on behalf of its constituent bodies on national issues and to promote the administration of justice, access to justice and general improvement of the law. It advises governments, courts and federal agencies on ways in which the law and the justice system can be improved for the benefit of the community. It also represents the Australian legal profession overseas, and maintains close relationships with legal professional bodies throughout the world.
The International Law Section of the Law Council started establishing chapters about five years ago to enable Australian lawyers working abroad to stay in touch with each other and with Australian legal developments. The Hong Kong Chapter was formally established in 2012. Membership is opened to practising and non-practising lawyers who have graduated from Australian law schools and those who have expressed interest in the Australian legal environment.
The Hong Kong Chapter of the Law Council of Australia will host an evening reception with the Hon. Mr. Justice Joseph Fok PJ on 3 November 2016. This event is open to members and non-members alike. To be kept informed of this and other future events, please contact Mr. Anthony P. Chow at email@example.com.