From the foregoing analysis it should be clear that a gap exists between the moral rights of Australian corporations (outlined in chapter 3) and their legal rights (set out in chapter 5). For instance, corporations do not possess legal rights sufficient to guarantee them the protections of the criminal law, to protect the integrity of their decisional processes, or even to safeguard their right to exist.1 If, as I have suggested, corporate autonomy is a form of human autonomy which bears fundamental value in liberal society, the state should have a duty to safeguard the autonomy rights of its corporate citizens by instituting law reform.2 This conclusion therefore outlines the ways in which the gap between the moral and legal rights of Australian corporations might be bridged.
The international law of human rights does not form part of Australian municipal law.3 However the existence of a treaty obligation does give rise to a matter of "external affairs" for the purposes of s.51(xxix) of the Constitution, which empowers the Commonwealth Parliament to enact legislation to fulfil that obligation.4 Thus the Commonwealth relied on the International Covenant on Civil and Political Rights in enacting the Human Rights and Equal Opportunity Commission Act under the external affairs power in 1986.5
There is some authority that the international law of human rights may also be consulted by Australian courts for assistance in determining the common law. In the Mabo case, Brennan J stated:
The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially where international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.6
However the more orthodox view appears to be that international law may only be consulted in cases where the common law is unclear,7 or as a presumptive standard to be used in the interpretation of ambiguous legislation.8
Although these principles apparently apply to all rules of international law, not only those relating to human rights, the scope for their operation in extending the municipal protection of corporate autonomy rights is limited by the fact that such rights are not generally recognised in the international arena.9 For instance, neither the Universal Declaration of Human Rights nor the International Covenant on Civil and Political Rights applies to corporations, but only to individuals.10
The only international instrument to which Australia is a signatory which does protect the autonomy of domestic corporations is the ILO Convention concerning Freedom of Association and Protection of the Right to Organise.11 Articles 3 to 5 of this Convention grant "workers' and employers' organisations" certain rights to conduct their affairs without interference. Article 7 also safeguards the capacity rights of these organisations by providing:
The acquisition of legal personality by workers' and employers' associations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of Articles 2, 3 and 4 hereof.
Australia has not yet specifically enshrined these rights in legislation.
Rights entrenched in the Constitution possess several obvious advantages over common law and statutory rights; for instance, they cannot readily be repealed or overridden, and (on one view at least12) they derive their moral and legal force directly from the will of the people. Unfortunately however, the Australian public has been loath to alter the Constitution through the mechanism provided for that purpose in s.128. Of forty two proposed alterations that have been put to referendum, only eight have been passed.13
Amongst those alterations that failed were two proposals to entrench guarantees of individual rights and freedoms.14 The most recent, which went to referendum in September 1988, would have strengthened the present constitutional rights contained in ss.51(xxxi), 80 and 116. The Constitutional Commission which proposed these alterations also recommended that a more extensive bill of rights be inserted into the Constitution. This latter proposal was never even put to referendum, having previously been described by the Senate Standing Committee on Constitutional and Legal Affairs as having "no prospect" of success.15
In this light, the prospect of the Constitution being altered to provide a bill of rights specifically for corporations must be infinitesimal. The most that can be hoped is that if human rights ever are enshrined in the Constitution, corporate rights might also be protected by the same provisions. This was the Constitutional Commission's recommendation in respect of its proposed bill of rights (although for reasons apparently premised on the fiction theory of corporate personality):
To limit the rights and freedoms of corporations may sometimes limit the rights and freedoms of natural persons as well. Censorship of corporate-owned newspapers, for example, cannot but inhibit the freedom of speech of persons who use the press to ventilate their opinions.16
It would be na´ve to ignore the possibility that rights previously unknown to the common law and unwritten in the Constitution might yet emerge from the case law of the High Court. At least two possible foundations for such development appear from existing authority. The first is the explication of further implied constitutional rights. This process was first championed by Murphy J, who once asserted:
From the nature of our society, an implication arises prohibiting slavery or serfdom. Also from the nature of our society, reinforced by the text ... an implication arises that the rule of law is to operate, at least in the administration of justice. Again, from the nature of our society, reinforced by parts of the written text, an implication arises that there is to be freedom of movement and freedom of communication.17
His Honour also proposed implied freedoms of speech and assembly,18 and implied restraints on the Commonwealth's power to authorise unjustifiable sex discrimination19 and cruel or unusual punishment.20
The members of the present High Court differ in their attitudes to the implication of constitutional rights. In a controversial extra-judicial article Toohey J has suggested that the courts could
conclude that where the people of Australia, in adopting a constitution, conferred power to legislate with respect to various subject matters upon a Commonwealth Parliament, it is to be presumed that they did not intend that those grants of power extend to invasion of fundamental common law liberties - a presumption only rebuttable by express authorisation in the constitutional document. ... In that sense, an implied "bill of rights" might be constructed.21
On the other hand in the Australian Capital Television case Mason CJ seemed to reject this approach:
To make such an implication would run counter to the prevailing sentiment of the framers that there was no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens.22
His Honour's sentiments are echoed by the public outcry over the High Court's recent activism that has followed the Mabo and (to a lesser extent) the free speech decisions.23 Although it is premature to venture a concluded opinion, the High Court has not yet given any warrant for the assumption that further guarantees of individual or corporate autonomy rights will readily be implied into the Constitution.
The second way in which the High Court might expand the range of autonomy rights recognised by the law is by ruling that these rights form a common law limitation on the sovereignty of Parliament. Although such rights might be characterised as constitutional in the broadest sense, they may be distinguished from the implied constitutional rights discussed above in that they would (if recognised) predate the enactment of the Commonwealth Constitution, having previously bound the States,24 and perhaps the Imperial Parliament before them.25
Cooke P of the Court of Appeal of New Zealand has raised this possibility by suggesting in several cases that "[s]ome common law rights presumably lie so deep that even Parliament could not override them."26 These dicta were disapproved in Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations,27 but in Union Steamship Co. of Australia v King28 the full High Court expressly left open the possibility that "the exercise of [the States'] legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of justice and the common law...".29
The High Court has shown no further signs of accepting this line of reasoning, and cannot be expected to do so lightly. To recognise fundamental common law rights as a limitation on legislative power would constitute an unprecedented derogation from the doctrine of Parliamentary sovereignty; indeed, on one view it "would contravene both the separation of powers and s.128 of the Commonwealth Constitution."30 Moreover, it may yet take many years before corporate autonomy rights are accepted as being "deeply rooted in our democratic system of justice and the common law."
Both State and Federal Parliaments have legislative power to enact statutory guarantees of corporate rights. The States derive this power from the plenary jurisdiction conferred by their State Constitution Acts, subject to s.109 of the Commonwealth Constitution which provides that Commonwealth legislation shall prevail over inconsistent State legislation. The Commonwealth derives its power to protect the rights of corporations (or at least of foreign, trading or financial corporations) from s.51(xx) of the Constitution.31 Thus in Actors and Announcers Equity Association of Australia v Fontana Films Pty. Ltd.32 Murphy J stated, "Parliament could, if it wished, enact a comprehensive criminal and civil code dealing with the protection of foreign[,] trading and financial corporations, their property and affairs ...".33
Although statutory rights may be amended or repealed more easily than constitutional rights, their effectiveness should not be underestimated. It seems that a statute can validly provide that its provisions may not be impliedly repealed by subsequent legislation.34 This can ensure that unless Parliament explicitly adverts to the repercussions of overriding statutory rights, the legislation which purports to do so is ineffective. Moreover, it has been held that State Parliaments can entrench legislation by enacting "manner and form" provisions which prescribe a certain procedure for the amendment or repeal of the legislation.35
Of each of the possible avenues for the protection of corporate autonomy rights outlined above, statutory law reform is presently the most viable. The statutory initiatives called for depend on the rights at issue. Rights which apply equally to corporations and individuals, such as the protections of the criminal law, are politically most likely to be guaranteed by legislation protecting both classes of persons, as New Zealand's Bill of Rights 1990 does. The Commonwealth could enact such legislation in reliance on the external affairs power36 in conjunction with the corporations power in s.51(xx). Other rights which do not apply to individuals, such as freedom from unjustified interference with the corporation's decisional processes and its right to autonomous existence, could appropriately be guaranteed in the Corporations Law.
Although these proposals have not yet surfaced on any published law reform agenda, this does not mean that lawmakers do not recognise the need for corporate rights. Many of the legal rights which corporations already possess arguably rest on an implicit recognition of such a need. However without a theoretical conception of the corporation as an entity capable of bearing autonomy rights, proposals to expand their legal rights are unlikely to be seen as bearing moral force (unless a utilitarian justification can be found). The purpose of this paper has been to supply such a theoretical conception, and thus to demonstrate that corporations do have rights.
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