Human Rights in the High Court of Australia, 1976-2003: The Righting of Australian Law? (2005)

11 March 2005; Final version published in 33 Federal Law Review 287-331 (2005)

Pre-publication version. Please do not quote or cite without author’s permission.

HUMAN RIGHTS IN THE HIGH COURT OF AUSTRALIA, 1976-2003:

THE RIGHTING OF AUSTRALIAN LAW?

FLEUR E. JOHNS*

I INTRODUCTION

Much is made of Australia’s isolation as the only nation in the common law world

without a comprehensive statutory or constitutional scheme for human rights protection.1

Yet, for all their paucity in Australian legislation, human rights seem, at times, to be

everywhere in contemporary Australian legal and political discourse.2 According to two

commentators writing in 1999, ‘the [Australian] judiciary [has become] more conscious

of rights, and more willing to give effect to them where possible’.3 The same

• B.A., LL.B.(Hons) (Melbourne); LL.M., S.J.D. (Harvard); Lecturer, University of Sydney Faculty

of Law. This article is an edited, expanded version of a paper delivered at the Australian and New Zealand Society of International Law (ANZSIL) Annual Conference, Wellington, New Zealand, 4-6 July 2003. It benefited from the insightful and detailed comments of three anonymous referees and from the exemplary research assistance of Alex Giudice.

1 See, e.g., Spencer Zifcak, ‘The New Anti-Internationalism: Australia and the United Nations

Human Rights Treaty System’ (Discussion Paper No. 54, The Australia Institute, 2003) iii: ‘Unlike every other comparable Western nation, Australia does not have a constitutional or statutory Charter of Rights with remedies to match’. For further elaboration of this critique, see Spencer Zifcak, Mr. Ruddock Goes to Geneva (2003). The Australian Capital Territory’s enactment of the Human Rights Act has redressed this lacuna in one jurisdiction. See Human Rights Act 2004 (ACT).

2 For an empirical, functional study of how Australians are deploying human rights language and

claims in political debate, see Mark A. Nolan & Penelope J. Oakes, ‘Human Rights Concepts in Australian Political Debate’ in Protecting Human Rights: Instruments and Institutions (Tom Campbell, Jeffrey Goldsworthy & Adrienne Stone eds., 2003), 75-92. For examples of various positions taken with respect to human rights’ manifestation in Australian law, see the Gilbert + Tobin Public Law Centre Bill of Rights Resource Page, http://www.gtcentre.unsw.edu.au/bills-of-rights-resources.asp at 4 March 2005.

3 John Doyle & Belinda Wells ‘How Far Can the Common Law Go Towards Protecting Human

Rights?’ in Philip Alston (ed), Promoting Human Rights Through Bills of Rights: Comparative Perspectives (1999) 17-74, 71-72. Cf. Jane Stapleton, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ (2003) 24 Australian Bar Review 1, 36 (remarking on ‘the success the High Court has had over the past 20 years in identifying the protection of the

commentators went on to urge ‘reconsideration’ of ‘the training and patterns of thought of

[Australian] lawyers…so that they may be better equipped to think, reason and argue in

terms of rights’.4 In April 2004, Australia’s Human Rights Commissioner, Dr. Sev

Ozdowski, sounded a familiar note in contending: ‘[i]f Australian courts were able to

interpret a domestically developed code of civil rights, in time this Australian

jurisprudence would contribute to better international understanding of our way of life’. 5

This article takes issue with the claim, with which these and similar comments are

inflected, that Australian jurisprudence becomes (or might yet become) more

‘progressive’ as and when Australian law and lawyers affirmatively assimilate principles

of human rights law.6 Jurisprudence emanating from the High Court of Australia over the

past three decades manifests increased willingness on the part of litigants, advocates and

vulnerable as a core moral concern of tort law and the delicacy with which that tool can be creatively deployed’).

4 Ibid. See also George Williams, A Bill of Rights for Australia (2000) 11 (‘The current lack of

protection for fundamental rights in Australia, combined with ignorance of the few rights that we do possess, presents a compelling case for reform’); Hilary Charlesworth, Writing in Rights: Australia and the Protection of Human Rights (2002) 76 (‘the most urgent task is to devise an Australian system to protect human rights’); Aruna Sathanapally, ‘Asylum Seekers, Ordinary Australians and Human Rights’, (Working Paper No. 2004/3, Australian Human Rights Centre, 2004) http://www.ahrcentre.org/content/research_working_papers.htm at 4 March 2005 (‘The present political climate simultaneously demonstrates the need for constitutional human rights safeguards and the improbability of such safeguards being introduced’).

5 Dr Sev Ozdowski OAM, Human Rights Commissioner, ‘The Local Face of Global Justice Policy’

(Lecture to the RMIT students of the Department of Justice and Youth Studies, Melbourne, 16 April 2004) http://www.hreoc.gov.au/human_rights/index.html at 4 March 2005.

6 This assumption has considerable purchase on the Centre-Left and Left of politics in Australia.

According to its most recently published party platform, for example, the Australian Labour Party advocates ‘constitutional reform to achieve a comprehensive recognition of the rights enjoyed by all Australians’. See Australian Labour Party, ALP National Platform and Constitution (2004) chapter 7, [12] http://www.alp.org.au/platform/chapter_07.php at 4 March 2005. The Australian Democrats likewise support ‘enact[ment] of a Bill of Rights and Responsibilities’. See Australian Democrats, Constitutional Reform Policy (2001) [5] http://www.democrats.org.au/policies/policy_dis.htm?id=5&policy=Constitutional+Reform+Policy at 26 August 2004. See also Australian Greens, Democracy (1998) [1.2.4(c)] http://www.greens.org.au/g1democracyfull.htm at 4 March 2005. Contra John Howard, ‘Address’ (Speech delivered at the ceremonial sitting of the Supreme Court Of Victoria to mark the centenary of the High Court Of Australia, Melbourne, 6 October 2003) (‘I belong to that group of Australians who is resolutely opposed to [formally entrenching a bill of rights in Australian law]’).

judges to voice or consider arguments in terms of ‘human rights’.7 Alongside this, the

1980s and 1990s have witnessed a proliferation in the scholarly analysis of Australian law

in terms of human rights.8 In this context, this article raises the following question:

Should moves towards assimilation of human rights into Australian law over the period

1976-2003 be regarded as a ‘journey of enlightenment’, as a member of the Australian

High Court has suggested?9 If so, is this a journey on which those on what is left of the

Left in Australian law should commit to continue?

By way of developing a response to this question, Part II of this article will provide a

snapshot of the phenomenon alluded to above – the growing propensity for arguments

invoking human rights to be aired and given judicial consideration in the High Court of

7 For a similar observation, see Leigh A. Johns, ‘Justice Kirby, Human Rights and the Exercise of

Judicial Choice’ (2001) 27 Monash University Law Review 290, 291 (‘[T]here have been, at least since 1978, more and more examples of the High Court applying international human rights norms’ [footnotes omitted]). For elaboration of the nuances in, and variation from, this trend, see Penelope Mathew, ‘International Law and the Protection of Human Rights in Australia: Recent Trends’ (1995) 17 Sydney Law Review 178; Michael D. Kirby, ‘The Australian Use of International Human Rights Norms: From Bangalore to Balliol – A View from the Antipodes’ (1993) 16 University of New South Wales Law Review 363.

8 Note, for example, the establishment in 1986 of the Human Rights Centre in the Faculty of Law at

the University of New South Wales ‘to coordinate and develop inter-disciplinary teaching and research in the area of human rights, with a particular focus on Asia and the Pacific’. During the first decade of its existence, the Centre organised a series of seminars, workshops, public lectures and occasional publications. In June 1995 the Human Rights Centre received funding from the Federal Attorney General's Department to establish a national human rights database and documentation centre, at which time the Centre was renamed the Australian Human Rights Centre. The Australian Journal of Human Rights was first published through the Centre in 1994: ‘the first journal of its kind in Australia to be devoted exclusively to the publication of articles, commentary and book reviews about human rights developments in Australia and the Asia-Pacific region’. See http://www.ahrcentre.org at 4 March 2005. The Castan Centre for Human Rights Law was established in 2000 ‘to meet the need for, and interest in, the study of human rights law, globally, regionally and in Australia’. See http://www.law.monash.edu.au/castancentre at 4 March, 2005.

9 Michael Kirby, ‘Whither Human Rights? An Address to the Graduating Class’ (2001) 5 University

of Western Sydney Law Review 25, 41. Cf. Janet Albrechtsen has characterised Chief Justice Murray Gleeson as being ‘like some rich kid discovering the Church of Scientology’ or ‘on some evangelical road to discovering the wonders of international law’. Janet Albrechtsen, ‘Justices Leave the Door Wide Open to Killers’ The Australian (Sydney, Australia), 4 December 2002, 15. For discussion of Albrechtsen’s views and other prevailing characterisations of the relationship between Australian and international law, see Hilary Charlesworth, Madeleine Chiam, Devika Hovell, George Williams, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25 Sydney Law Review 423, 424.

Australia. Data will be presented in Part II as to the incidence of references to ‘human

rights’ in judgments of High Court members between 1976 and 2003. A brief survey will

be made of the litigants for whose claims these references have been vehicles.

Part III of this article will turn then to scholarly debates surrounding this apparent rise in

human rights consciousness (or at least human rights language) within Australia’s highest

court. Without doing justice to the full range or substance of these debates, Part III will

present a typology of some of their recurrent features and points of dispute.10 This

exercise will culminate in the following contention. Debates surrounding the

internalisation of human rights in Australian law are fixated to a considerable degree

upon the fragility of that which we understand as ‘the law’, and the need to reinvigorate

that law in accordance with pragmatic understandings of change.11 Scholarly efforts to

10 On the bill of rights debate in Australia, see George Williams, The Case for an Australian Bill of

Rights: Freedom in the War on Terror (2004); Haig Patapan, ‘Competing Visions of Liberalism: Theoretical Underpinnings of the Bill of Rights Debate in Australia’ (1997) 21 Melbourne University Law Review 497; James Allan & Richard Cullen, ‘A Bill of Rights Odyssey for Australia: The Sirens are Calling’ (1997) 19 University of Queensland Law Journal 171; Michael Kirby, ‘The Bill of Rights Debate’ (1994) 29(12) Australian Lawyer 16; Philip Alston (ed), Towards an Australian Bill of Rights (1994); James Thomson, ‘An Australian Bill of Rights: Glorious Promises, Concealed Dangers’ (1994) 19 Melbourne University Law Review 1020; Hilary Charlesworth, ‘The Australian Reluctance About Rights’ (1993) 31 Osgoode Hall Law Journal 195; Brian Galligan, ‘Australia's Rejection of a Bill of Rights’ (1990) 28 Journal of Commonwealth and Comparative Politics 344.

11 Pragmatism here evokes claims and assumptions derived from the philosophical movement that

emerged in the last decades of the nineteenth century, gained precedence during the progressive era of the early part of the twentieth century, and experienced a renaissance in the late twentieth century. In brief, pragmatism advocates a cooperative search for truth (or possibilities for truth) grounded in problem situations, in lieu of radical doubt or the pursuit of certainty. Action and perception are said to be rooted in unreflective beliefs − beliefs that encounter resistance and devastation in the world. The reconstruction of these beliefs in the face of worldly change depends, it is said, upon creative action against the established patterns of unreflective habit. Such creative action takes place in problem situations that demand resolution. Pragmatic truth can only be realised in these situations through a process of agreement or the success of an action, rather than through correspondence with a determined or determining reality. See generally George Herbert Mead, Mind, Self and Society (1934); Charles Sanders Peirce, The Essential Peirce: Selected Philosophical Writings (Nathan Houser & Christian Kloesel eds., 1992); John Dewey, On Experience, Nature, and Freedom; Representative Selections (Richard J. Bernstein ed., 1960); William James, Pragmatism, in Focus (Doris Olin ed., 1992); Horace S. Thayer, Meaning and Action: A Critical History of Pragmatism (2nd ed., 1981). For a fascinating account of the friendships, antagonisms and characters threaded through the history of American pragmatism, see

promote the adoption of human rights language and instruments in Australian law tend to

do as much, or even more, to reassure Australian law and lawyers that progress is being

made than they do to effect meaningful legal, social or political change. Moreover, these

tendencies are engendered not so much by a ruling class cabal or Right wing conspiracy,

as by the prevailing jurisprudential style of Australian case law and scholarship:

specifically, its particular combination of late modernism and legal pragmatism. In other

words, there is no ‘behind’ to these tendencies that this article would plumb. Rather, the

politics of progressive complacency and anxiety are played out on the very surface of the

texts in which Australian lawyers engage with the language of human rights.

In view of the tendencies identified in Part III, Part IV will broach one pragmatic question

that often seems to go unasked in the debates outlined in the foregoing part. How, if at all,

has the proliferation of rights-talk in Australian law shifted, opened up or otherwise

affected judicial attitudes towards particular issues or claimants? Preliminary analysis of

this question will be developed by reference to two instances of international human

rights law at its day-to-day work in Australian law – namely, the High Court cases of

Pearce v The Queen and Gerhardy v Brown.12

Louis Menand, The Metaphysical Club: A Story of Ideas in America (2001). For an account of the contemporary influence of legal pragmatism, see Brian Z. Tamanaha, ‘Pragmatism in U.S. Legal Theory: Its Application to Normative Jurisprudence, Sociolegal Studies, and the Fact-Value Distinction’ (1996) 41 American Journal of Jurisprudence 315; Steven D. Smith, ‘The Pursuit of Pragmatism’ (1990) 100 Yale Law Journal 409. For an insight into the pragmatic thinking of one member of the High Court of Australia, see M. H. McHugh, ‘The Law-making Function of the Judicial Process’ (Pts 1 & 2) (1988) 62 Australian Law Journal 15, 116. See, generally, Frank Carrigan, ‘A Blast From The Past: The Resurgence Of Legal Formalism’ (2003) 27 Melbourne University Law Review 163.

12 Pearce v The Queen (1998) 194 CLR 610; Gerhardy v Brown (1985) 159 CLR 70. Pearce v The

Queen was selected for the sense of the quotidian that it evokes. It is by no means a beacon of High Court jurisprudence. Rather, one gains a sense, in reading this case, of the justices of the contemporary High Court of Australia going about their daily work in the manner in which they have become accustomed. Gerhardy v Brown was selected as a counterpoint to this case, to exemplify earlier efforts of the High Court of Australia to come to terms with the effect of international human rights conventions in or on Australian law.

Finally, Part V will reflect upon the impact of rights-talk in Australian law and offer some

preliminary theses in this regard. It will be argued that the prevailing preoccupation with

Australian law’s progressive ‘enlightenment’ (through the promise of righteousness that

human rights carry) may be responsible for a profound misdirection of counter-

hegemonic resources and energies within Australia. Emphasis upon entrenching human

rights doctrine within Australian law has tended to foster a complacent faith in the

necessity and inevitability of progress, and in the legal profession as the vanguard of that

progress. Contrary to that expectation, however, the language of human rights has often

had curiously disempowering effects for rights claimants, as will be demonstrated in Part

IV. Rights related convictions, and the sense of purpose that surrounds the bill of rights

debate in Australian law, work in these various ways to allay disquiet. Yet the placating

and demobilising effects of human rights language in Australian law ought to be a source

of disquiet in their own right. Moreover, questions surrounding the effects of human

rights in Australian law are never more pressing than in these times, when disquiet seems

to be subsiding daily before the ostensible requirements of security, prosperity and

stability.

II RIGHTS ON THE RISE

Jurisprudence emanating from the High Court of Australia over the past three decades

reveals a progressively escalating number of references to the phrase ‘human rights’.13

Of course, the incidence of this term alone in High Court judgments does not evidence the

range of influences that international and comparative human rights law and rights-based

13 See Appendix.

political theory has had, and continues to have, on Australian law.14 Nor does it evidence

the extent to which Australian law has withstood such influences. Surveys of the various

ways in which international human rights law and more generalised notions of human

rights have informed the development of Australian law to date are available elsewhere;

such a survey will not be attempted here.15 Moreover, although one might suspect that

growth in human rights’ consideration by the High Court could be an indicator of similar

trends in other Australian courts’ jurisprudence, it is beyond the scope of this article to

examine whether lower courts have consistently followed suit in this regard.

Nevertheless, to the extent that terminological trends do evidence shifts in legal strategy

and thinking, an electronic search of High Court cases for those in which the term ‘human

rights’ appeared between the years 1949 to 2003 yields 160 cases (listed in the appendix)

by which to map such trends.16 These cases afford an indicative sample of the hopes,

pleas and experiences that are being hitched to human rights in Australian law. The

results of this basic survey are summarised in the graph below and detailed in the

Appendix to this article.

14 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 is an example of the High

Court broaching the topic of ‘rights’ in Australian law at some length without explicit reference to the term ‘human rights’. Noteworthy examples of judicial discussion of human rights principles in Australian courts other than the High Court include Nulyarimma v Thompson (1999) 165 ALR 621; Soulitopoulos v LaTrobe University Liberal Club [2002] FCA 1316; Wickham v Canberra District Rugby League Football Club Limited [1998] ACTSC 95; McBain v State of Victoria [2000] FCA 1009. See generally Martin Flynn, Human Rights in Australia: Treaties, Statutes and Cases (2003).

15 For an extensive, detailed account of the status and influence of human rights in Australian

constitutional law, see George Williams, Human Rights under the Australian Constitution (1999). See also Geoffrey Kennett, ‘Individual Rights, the High Court and the Constitution’ (1994) 19 Melbourne University Law Review 581; Michael Kirby, ‘The Role of International Standards in Courts’ in Philip Alston and Madelaine Chiam (eds), Treaty-Making and Australia: Globalisation versus Sovereignty (1995) 82-93.

16 See Appendix.

This graph below indicates the number of High Court judgments including references to

‘human rights’ in each two-year period from 1976/1977 to 2002/2003, the 1949 case of R

v Wallis and the 1975 Seas and Submerged Lands Act case having been excluded.17 The

graph also excludes 25 cases (listed in the appendix) that contained desultory or

incidental references to ‘human rights’ without any substantive discussion of principles or

questions of human rights law. These cases involved, for example, the citation of

authority with the words ‘human rights’ in the title, such as Brandy v Human Rights And

Equal Opportunity Commission and Ors.18

Notwithstanding a decline discernible between 1998-1999 and 2002-2003, the graph

above clearly inclines upwards. The putative beneficiaries of each of the human rights

claims made in the 134 cases surveyed (excluding the 1949 case and the 25 cases

containing incidental references, both identified in the appendix) may be categorised (in

17 R v Wallis (1949) 78 CLR 529. 18 Brandy v Human Rights And Equal Opportunity Commission and Ors (1995) 127 ALR 1.

Human Rights Arguments Before the High Court

1976-1977

1978-1979

1980-1981

1982-1983

1984-1985

1986-1987

1988-1989

1990-1991

1992-1993

1994-1995

1996-1997

1998-1999

2000-2001

2002-2003

rather obtuse terms) as set forth in the following table.

Putative Beneficiaries of the Recognition of Human Rights Arguments or Consideration

of Human Rights References in Judgments of the High Court of Australia, 1976-2003

Criminal defendants/persons under investigation/witnesses 35 Refugees/asylum-seekers/immigrants/non-citizens 22 For-profit corporations/property developers (non-tax-related claims) 20 Aboriginal people/groups/individual ATSIC officials 14 Children (in family law, paedophilia-sentencing cases, etc.) 9 Individual litigants/tortfeasors (judicial bias, immunity, privilege, etc.) 8 Government – in State/Federal disputes 6 Barristers/legal practitioners/judicial officers (immunity, right to practice) 3 Individual and corporate tax/duty payers 3 Persons with intellectual or physical disabilities 2 Political activists (duck-hunting advocate; anti-nuclear protester) 2 Medical patients 2 Candidates for political office (other than non-citizens) 1 Persons with HIV 1 Union members/non-members 1 Homosexuals 1 Custodial parents 1 Female employees 1 Individual property-owners (non-developers) 1 Aged Persons 1 Total 134

The foregoing summary might seem, at first blush, to confirm two prevailing assumptions

as to the impact that human rights may have in Australian law – assumptions expressed

by such leading commentators as Hilary Charlesworth and George Williams. The first of

these relates to rights’ apparent facility to redress a ‘legal history…littered with laws that

[have] discriminated against particular groups’.19 The second concerns rights’ supposed

capacity to protect vulnerable or disadvantaged minority groups from domination

perpetrated or tolerated by the democratic majority.20 These assumptions might

19 Charlesworth, above n 4, 38. See also Williams, above n 4, 9 (‘Any student of Australian history

will be aware of the danger that parliaments can pose to civil liberties’). 20 Charlesworth, above n 4, 38-39. Charlesworth maintains that the unmitigated sway of majority

power is compounded by the Australian political system’s inflection with the ideology of

seemingly be confirmed by the prominence in the foregoing table of recognised targets of

discriminatory laws (aboriginal people and asylum-seekers, for example). So too might

one read the presence in this list of minority groups the isolation of which has tended to

appease the fears and prejudices of the majority (such as criminal defendants,

homosexuals and persons with HIV). Thanks in part to the appearance of protagonists

such as these in cases where human rights principles are aired, Australian courts’ greater

amenability to human rights arguments is widely understood (invoking the title of a 1994

book on the subject, recently republished) as a gradual, albeit discontinuous, ‘retreat from

injustice’.21

Scrutiny of the cases that comprise this record (listed in the Appendix), however, reveals

that those cases in which arguments framed explicitly in terms of human rights have

gained favour tend to focus on a relatively narrow set of concerns. Above all, these

pertain to the allocation of relative power as between traditional institutions of

government. Far from signalling a progressive shift towards concern for the vulnerable,22

these cases see members of the High Court endlessly polishing rather conventional dance

steps, tinkering with the institutional choreography, and quibbling sotto voce about

judicial activism.

High Court members’ references to human rights tend to emerge in the context of

comparative assessment of jurisprudence from other jurisdictions (such as the European

utilitarianism (an ideology concerned with achieving the greatest good for the greatest number). See also Williams, below n 15, 45.

21 Nick O’Neill, Simon Rice and Roger Douglas, Retreat from Injustice: Human Rights in Australian

Law (2nd ed., 2004). 22 Contra Jane Stapleton’s argument that such a shift is discernible in Australian tort law. See

Stapleton, above n 3.

Court of Human Rights).23 They also tend to arise amid judicial pontification on the

historical development of certain common law principles (such as the privilege against

self-incrimination and legal professional privilege).24 Elsewhere, a human rights

reference has often served as a means of validating a particular interpretation of a

legislative or constitutional phrase – an interpretation which, in most cases, the judge in

question could have advanced and defended even without the addition of a human rights

flourish.25 On other occasions, the invocation of human rights language has operated to

seal off Australian law from the very international influences to which human rights law

is said to expose Australian jurisprudence.26

The mere fact that the graph featured above inclines upwards does not, therefore, indicate

that Australian law has been rendered progressively more sensitive to the pleas and

predicaments of the disadvantaged. Indeed, over the latter decades represented in the

graph, commentators proceeding from a variety of disciplinary starting points have

documented the rise of a new Right (in the sense of politically conservative) account of

history and difference in Australian society. Heather McRae, Garth Nettheim, Laura

Beacroft and Luke McNamara have observed, for instance, the mounting predominance

of a politico-legal sensibility bound to ‘standards of formal equality espoused in the

1960s’.27 Kanishka Jayasuriya has characterised the political orthodoxy currently

23 See, e.g., Breen v Williams (1996) 186 CLR 71. 24 See, e.g., Environment Protection Authority v Caltex Refining Co. Pty. Limited (1993) 178 CLR

477; Louis James Carter v The Managing Partner, Northmore Hale Davy and Leake 129 ALR 593 (1995).

25 See, e.g., Malika Holdings Pty Ltd v Stretton [2001] HCA 14 (per Kirby J re: interpretation of

section 167 of the Customs Act 1901 (Cth)). 26 See, e.g., Sykes v Cleary (1992) 176 CLR 77 (per Dawson J, discussing conflicts of laws doctrine

prohibiting Australian courts from giving effect to certain foreign laws). 27 Heather McRae, Garth Nettheim, Laura Beacroft and Luke McNamara, Indigenous Legal Issues:

Commentary and Materials (3rd ed, 2003) 70. See also Janna Thompson, ‘From Slaughter to

prevailing in Australia as ‘a strategic mix of enthusiastic commitment to the values and

policies of economic liberalism with an equally assiduous propagation of illiberal policies

that draw on reactionary and nostalgic understandings of community and culture’.28

Argumentative positions in the debate surrounding the proliferation of human rights

language in Australian law remain curiously obdurate in the face of reports of this

changing political landscape. The conviction that disadvantaged and outnumbered groups

in Australian society are likely to benefit from the ‘human-righting’ of Australian law

endures notwithstanding the curious concurrence of human rights’ rise in Australian law

and the ascendancy of conservative voices in Australian politico-legal debate. No causal

connection necessarily links these two discursive trends. Yet, similarly there is no reason

to presume that the former (the work of an overtly rights-conscious judiciary) necessarily

militates against the latter (the work of those espousing neo-conservative politico-legal

views). Indeed, it is a contention of this article that judicial invocation of human rights in

Australian law, and scholarly preoccupation with judicial action in that regard, has

fostered both a placid confidence in the march of progress and a myopic faith in the

central institutions of government, both of which are often misplaced. While it is beyond

the scope of this article to try to explain the rise of the Right in Australia, it could be that

the tendencies with which this article is directly concerned have something to do with this

phenomenon. For now, some speculative suggestions as to how such a connection might

be borne out will have to suffice.

Abduction: Coming to Terms with the Past in Australia’ (Working Paper 2003/4 Centre for Applied Philosophy and Public Ethics (CAPPE), 2003); Patricia Harris & Vicki Williams, ‘Social Inclusion, National Identity and the Moral Imagination’ (2003) 3(3) The Drawing Board: An Australian Review of Public Affairs 205, 217-218.

28 Kanishka Jayasuriya, Howard, Tampa, and the Politics of Reactionary Modernisation (7 March

2003), The Drawing Board: An Australian Review of Public Affairs - Digest, http://www.econ.usyd.edu.au/drawingboard/digest/0303/jayasuriya.html at 4 March 2005.

Hypotheses about the relationship between the move to the Right in Australian politics,

and the move to the human right in Australian law, could take many forms. One could,

for instance, speculate that framing certain actions as human rights law violations, and

mobilising litigation strategies to address these, assuages the sense of helplessness that

convergence upon a centrist politico-economic agenda has engendered in at least some

quarters of what was once the Left. As an agenda of free trade, anti-unionism and

opposition to public ownership has come to be expressed in terms of necessity by political

voices on the Left and Right alike, so attention has focused on an ever-narrowing circle of

struggles-for-change expressed in terms of law – specifically, human rights law. It is in

the limited ambit of these struggles, perhaps, that experiences of political agency are

sought amid a pervasive sense that the nominally deregulated (yet highly legalised) global

market has narrowed the range of sites available for political contestation. So, the focus

is on those abused and denigrated in prisons in Iraq, rather than upon endemic sexual,

physical and substance abuse in prisons across Australia and the democratic world. So,

too, attention is captured by the violation of rights of asylum-seeker detainees, rather than

by the over-representation of immigrants in the most informal and vulnerable sectors of

the contemporary economy.29

Alternatively, one might surmise that the proliferation of human rights language in

Australian law is more a reflection of the Centre-Right’s capture of the discursive high

ground than synonymous with any attempt to resist that capture. One might, accordingly,

29 Cf. David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism, 20;

300 (2004) (‘The urgent need to develop a more vigorous human politics is sidelined by the effort to throw thin but plausible nets of legal articulation across the globe. Work to develop law comes to be seen as an emancipatory end in itself’; ‘Occupying the field, the humanitarian vocabulary can channel attention to a limited range of questions’).

read the Australian High Court’s willingness to express itself in human rights terms as

indicative of generalised support for regulatory harmonisation, with a view to rendering

Australian court judgments as fungible in international markets as Australian goods and

services. The adoption of human rights language in Australian law might be one way of

signalling a legal environment comprehensible by and open to foreign investment.30

Normalisation of the claims of indigenous groups, labour unions and other disruptive

sorts in terms of human rights law might similarly be construed as a form of re-branding.

Once reframed as appeals for human rights, the risk of disruption posed by such groups’

demands may be neutered and proceduralised in internationally recognisable terms.

Either one of these hypotheses would require further elaboration in order to persuade.

This work has, in part, been done elsewhere and will not be attempted here.31 In this

article, these hypotheses are put forward only to highlight the strangeness of the persistent

expectation that human rights’ assimilation into Australian law (through, for instance, a

bill of rights) would yield counter-hegemonic outcomes in support of those historically

disenfranchised in Australian law and society. Strange as it may be, this expectation

continues to issue from many sources. The next section of this article will survey the

legal scholarly material by which this expectation is, in part, cultivated (whether as a

source of hope or a source of fear). This survey of legal scholarship in Part III will probe

how the association of human rights with progress and/or activism is sustained in

Australian jurisprudence.

30 For celebratory accounts of the ‘synergy’ between, on one hand, human rights, and, on the other,

free trade, economic efficiency and foreign investment, see Steve Charnowitz, ‘The Globalization of Economic Human Rights’ (1999) 25 Brooklyn Journal of International Law 113; G.B. Madison, The Political Economy of Civil Society and Human Rights (1998); William H. Meyer, Human Rights and International Political Economy in Third World Nations (1998). For a critical account of this relationship, see Makau Wa Mutua, ‘The Ideology of Human Rights’ (1996) 36 Virginia Journal of International Law 589.

31 See, e.g., Mutua, ibid and Kennedy, above n 29.

III HUMAN RIGHTS IN AUSTRALIAN LAW: A TYPOLOGY OF CONTEMPORARY DEBATE

Scholarly and popular calls for the internalisation of human rights in Australian law take

various forms. Some argue for the introduction of a comprehensive statutory scheme of

human rights protection, learning from the United Kingdom’s Human Rights Act 1998

(UK) and/or New Zealand’s Bill of Rights Act 1990 (NZ).32 Some contend that statutory

entrenchment should ideally segue into constitutional entrenchment.33 Some favour

bolstering pre-enactment scrutiny of legislation for compliance with international human

rights conventions to which Australia is a party.34 Some advocate importing human rights

interpretively, in judicial decision-making and/or otherwise – ‘thinking more about how

international human rights norms might be interpreted and deployed…in [Australia’s]

political and legal institutions’.35 As indicated above, this article can do justice to neither

the full range of substantive concerns nor the many nuances of the debate surrounding

these intersecting proposals.36

This article will, nevertheless, evoke the tenor and pitch of this debate by highlighting

some matters with which it seems particularly preoccupied. In short, scholarship

32 See, e.g., Megan Davis, George Williams, ‘A Statutory Bill of Rights for Australia? Lessons from

the United Kingdom’ (2002) 22(1) University of Queensland Law Journal 1. For comparison of the Australian and New Zealand political environments with respect to rights’ protection, see John Craig, ‘The “Bill of Rights” Debate in Australia and New Zealand: A Comparative Analysis’ (1994) 8 Legislative Studies 67.

33 Charlesworth, above n 4, 70-71. See also Dr Sev Ozdowski OAM, ‘The Relevance of Human

Rights in Contemporary Australia’ Australian Human Rights Commissioner (Speech to the Activating Human Rights and Diversity Conference: Global and Local Voices, Byron Bay, 1-4 July 2003).

34 David Kinley, ‘The Legal Dimensions of Human Rights’, in David Kinley (ed), Human Rights in

Australian Law (1998), 2-25, 21-22. 35 Sarah Pritchard, ‘The Jurisprudence of Human Rights: Some Critical Thought and Developments

in Practice’ [1995] Australian Journal of Human Rights 2, 136.

concerning human rights in Australian law seems focused to a considerable degree upon

the relative fragility of ‘the law’, and the constant danger of that law’s obsolescence.

Contemporary debate among legal scholars about human rights’ place in Australian law is

exceedingly concerned with the reaffirmation of ‘the law’ in opposition to that which is

classified as not-law (or not-law-enough).

This veneration and defence of Australian law in the context of human rights-related

debates takes a variety of forms. On occasions, studies of human rights’ protection in

Australian law avow that law’s responsiveness to political processes ‘properly’ staged

elsewhere. Writings in this vein set out to affirm the suppleness and rationality of

Australian law, as well as the modernity of the parliamentary democracy that it helps to

sustain.37 Elsewhere, worries are expressed about the extent to which Australian law is

out of step with the humanist faith of the modern era by reason of its apparent

imperviousness to right-based updating.38 In either case, inquiry congregates around

concern for the viability and currency of Australian law.

The rhetorical assembly points to which scholarly debate on human rights in Australian

law tends to return may be summarised as follows in the chart below. This act of

classification is informed less by diagnostic than by semiotic thinking: diagnostic

thinking being concerned with determining the nature of a thing for purposes of its

normative correction. In contrast, semiotics (the study of signs) is concerned with

36 See above n 2 and n 10 for further literature. 37 See, e.g., James Allan, ‘Paying for the Comfort of Dogma’ 25 Sydney Law Review 63, 73 (‘In a

well-established democracy like Australia, important rights, important human interests, can be (and generally are) as well – if not better – protected without a bill of rights’).

38 See, e.g., Charlesworth, above n 4, 76 (‘It seems ironic that Australia still clings to a 19th century

British faith that Parliament is a natural and perfect protector of human rights when Britain itself has discarded this conviction’).

questions such as this: ‘With what tools do legal arguers generate the experience of

necessity…’? This entails ‘rigorously constraining oneself to the structural analysis of

the textual productions of the arguers, and ignoring…their claims about how their

arguments reflect the “truth”…’.39 The following chart is informed by the latter

approacch.

A A Typology of Recurrent Propositions in Debate Concerning the Role of Human

Rights in Australian Law

1 Writings in Favour of more

Vigorous or Explicit Protection of Human

Rights in Australian Law

2 Writings Defensive of the

Constitutional, Statutory and/or Judicial Status

Quo Regarding Rights’ Protection

(a) Politics and social change are primarily matters for government and/or other ‘public’

institutions.

Critical attention and reformist effort should

be directed towards statutory and/or

constitutional amendment.

Parliament is the most appropriate forum in

which to negotiate and effect political change.

(b) Legal text is highly malleable and interpretation is more significant a directive force

than authorship; through interpretation, law is forever adapting to those changing ‘contexts’

that afford its relatively stable interpretive background.

39 Duncan Kennedy, ‘A Semiotics of Legal Argument’ in Academy of European Law (ed), Collected

Courses of the Academy of European Law (1994) Vol. III, Book 2, 309-325, 319-320. See also Roland Barthes, The Semiotic Challenge (Richard Howard trans., 1988) 7-8 (observing that semiology is concerned with attacking both ‘the petit-bourgeois good conscience’ and ‘the symbolic and semantic system of…the Occidental enclosure’, while remaining loyal to ‘the tenacious alliance of the political and the semiological’). Cf. Jack M. Balkin, ‘The Promise of Legal Semiotics’, (1991) 69 Texas Law Review 1831.

Rights may be shaped and reshaped over

time as circumstances require. The choices

made in the course of their interpretive

development should be brought into the

foreground of public consciousness.

The common law is sufficiently agile to remain

responsive to changing social and economic

contexts and the problems that they yield.

Rights’ enshrinement would artificially arrest

law’s development in this regard.

(c) Law needs to be more attentive to particularism; excesses of universalism are to be

avoided.

Law needs to become more open to the

claims and experiences of particular

marginalised and minority groups within

Australian society.

The distinctive properties of Australian law and

the sovereign authority of Australian

governmental institutions need to be defended

against over-reaching external influences.

(d) Law needs to be comprehensive, continuous and consistent; excesses of particularism

are to be avoided.

Piecemeal legislative reform towards the

protection of human rights is undesirable

and unsatisfactory. The integration of

human rights law into Australian law needs

to be effected in a comprehensive and

coherent manner.

The inter-temporal continuity of Australian law

needs to be upheld, regardless of the particular

predilections of the present time.

Disproportionate focus on the judicial branch

of government would likewise be disruptive of

constitutional equilibrium. Judges have limited

capacity for comprehensive social and political

oversight and as such are ill suited to manage

rights-based balancing of conflicting socio-

economic goals and demands.

In whichever of the above columns they are categorised, legal scholarly accounts of

human rights’ role in Australian law seem, through these recurring cycles of argument, to

strive to bring law into ever-closer contact with a non-legal, transitory realm of the real.

That real is variously characterised: as context, society, practical reason, meaning,

authenticity, democratic accountability, or in some other way. At the same time,

however, this insistence upon engagement with the real seems animated not so much by

the immanence of such non-legal domains as by a sense of the fragility or neediness of

the legal realm. Fear of Australian law’s imminent corruption, dissipation or

obsolescence seems to inform both ‘sides’ of the debate surrounding human rights in

Australian law.

To contend that the debates surrounding human rights protection in Australian law

revolve around certain recurring tenets, and that these tenets span proponents and

opponents of a bill of rights, is not to argue for the uniform or consensual nature of such

debates. Nor is it to maintain that these debates may satisfactorily be reduced to two

opposable ‘sides’. The allegiances, motivations and styles of participants in this debate

undoubtedly shift and diverge in ways that are significant. To highlight some points to

which this debate returns is, however, to challenge the notion that the upward inclination

of the graph in Part II signifies progressive adaptation to social change exterior to law’s

narratives of progress. An account of legal reform initiatives in the human rights field in

Australia might just as well be characterised as cyclical as progressive.40 How, then,

might we understand the persistent perception of, and orientation towards, progress in

40 Cf. Nietzsche’s thesis of ‘the eternal recurrence of the same’: Friedrich Nietzsche, ‘Thus Spoke

Zarathustra’ in Ecco Homo (1902), reprinted in Basic Writings of Nietzsche, 751-767, at 760 (Walter Kaufmann trans., 2000) (1967). See also the cyclical account of history put forward by the 18th century Napolitan scholar Giambattista Vico: Giambattista Vico, Vico: Selected Writings (Leon Pompa ed. & trans., 1982). See further Enrico DeMas, Time and Idea: The Theory of History in Giambattista Vico (1953).

writings concerning human rights in Australian law over the decades surveyed in the

foregoing sections of this article? One way in which this progress orientation and other

recurring features of Australian legal scholarship on human rights might be understood is

as a manifestation of that scholarship’s style. In particular, these might be read as

indicators of that scholarship’s uneasy combination of modernism and pragmatism; that

is, its distinctive approximation, respectively, of the cultural phenomenon of Modernism

and the philosophical tenets of Pragmatism.

B The Late Modernism of Australian Jurisprudence Concerning Human Rights

The emphasis upon transience, change and realism that – I have argued – characterises

debates surrounding human rights in Australian jurisprudence seems related to the

tendency to associate human rights with progress and/or progressivism (or, often in a

pejorative sense, activism). This in turn may be connected to the style of the human

rights debate in Australian law, a sense of which I have tried to evoke in the table above.

To suggest that jurisprudence surrounding human rights’ place in Australian law has a

stylistic dimension worthy of critique is to direct attention away from (one might say to

bracket) questions of intent and knowledge on which diagnoses of false consciousness,

elite conspiracy or popular ignorance tend to focus.41 One cannot readily awaken people

from a style. At the same time, the description of law in terms of its aesthetics or

sensibility does not allude to something hard-wired or natural. People do have some

41 Cf. Duncan Kennedy, A Critique of Adjudication (fin de siècle) (1997), 346-348. See also Annelise

Riles, ‘Global Designs’ (1999) 93 American Society of International Law Proceedings 28; Annelise Riles ‘The View from the International Plane: Perspective and Scale in the Architecture of Colonial International Law’ (1995) 6 Law and Critique 39; David Kennedy ‘The International Style in Postwar Law and Policy’ (1994) 1 Utah Law Review 7.

active sense of styling their lives in the course of living them, yet this is not an experience

of authorship, ownership or individualised control. There are too many accidents,

inequities, fads, pressures and contingencies and too much interdependency for authorial

experiences to endure in this context. The notion that Australian jurisprudence in a

particular area (re)produces an eclectic yet patterned style (bound up in perplexing ways

with broader socio-cultural trends) resists rationalising that jurisprudence in terms of

cause and effect; surface and undercurrent; law and society, theory and practice, or law

and politics. Style evokes, at once, something far more plastic than ‘structure’, something

far less deliberate than ‘agency’ and, potentially, something far more charged with

hierarchy, ambition and struggle than ‘context’.42

Scrutinised for style, then, the preoccupations of jurisprudence concerning human rights’

place in Australian law (as I have characterised these) are redolent of the cultural

phenomenon known as Modernism.43 Just as debate regarding human rights’ role in

Australian law has revolved around that law’s adaptation to the flux of contemporary

experience, so James McFarlane writes of Modernism:

42 Cf. Pierre Bourdieu, Distinction: A Social Critique of the Judgment of Taste (Richard Nice trans.,

1984), 250-252: ‘Culture is a stake which, like all social stakes, simultaneously presupposes and demands that one take part in the game and be taken in by it…anyone who wants to “succeed in life” must pay for his accession to everything which defines truly humane humans by a change of nature, a “social promotion” experienced as an ontological promotion, a process of “civilization”…a leap from nature to culture, from the animal to the human; but having internalized the class struggle, which is at the very heart of culture, he is condemned to shame, horror, hatred of the old Adam, his language, his body and his tastes…his roots, his family, his peers, sometimes even his mother tongue, from which he is now separated by a frontier more absolute than any taboo…Pretension, the recognition of distinction that is affirmed in the effort to possess it…thus helps to maintain constant tension in the symbolic goods market, forcing the possessors of distinctive properties threatened with popularization to engage in an endless pursuit of new properties through which to assert their rarity’.

43 Cf. Nathaniel Berman, ‘Modernism, Nationalism, and the Rhetoric of Reconstruction’ (1992) 4

Yale Journal of Law & the Humanities 351; Nathaniel Berman, ‘“But the Alternative is Despair”: Nationalism and the Modernist Renewal of International Law’ (1993) 106 Harvard Law Review 1793; Desmond Manderson, ‘Beyond the Provincial: Space, Aesthetics, and Modernist Legal Theory’ (1996) 20 Melbourne University Law Review 1048.

Initially, the emphasis is on fragmentation, on the breaking up and the progressive

disintegration of those meticulously constructed ‘systems’ and ‘types’ and ‘absolutes’ that

lived on from the earlier years of the century, on the destruction of the belief in large

general laws to which all life and conduct could be claimed to be subject. As a second

stage – though, as in the case of all of these changes, never in obedience to any tidy or

consistent chronological pattern – there came a restructuring of parts, a re-relating of the

fragmented concepts, a re-ordering of linguistic entities to match what was felt to be the

new order of reality…Finally, in its ultimate stages, thought seemed to undergo something

analogous to a change of state: a dissolving, a blending, a merging of things previously held

to be forever mutually exclusive. A sense of flux, the notion of continuum, the running

together of things in ways often contrary to the dictates of simple common sense…alone

seemed able to help in the understanding of certain bewildering and otherwise inexplicable

phenomena of contemporary life.44

The focus on Australian law’s advancement through adoption of (or defence against)

human rights law principles seems to be fostered, furthermore, through reiteration of a

law/non-law oscillation: a dynamic that is likewise characteristic of Modernism. Law is

described as a field for resolving political conflicts and problems arising from outside

law; law is assessed in relation to a non-law world of socio-economic inequity; law is cast

as an outcome of political negotiations staged elsewhere. In the gyrations between these

law/non-law arenas, law becomes invested with a sense of purpose and the possibility of

progress: a characteristically modernist impulse towards forward movement.45

44 James McFarlane, ‘The Mind of Modernism’ in Malcolm Bradbury & James McFarlane (eds),

Modernism: A Guide to European Literature 1890-1930 (new ed, 1991), 71-93, 80-81. 45 See, e.g., Charlesworth, above n 4, at 76 (‘[T]he centenary of federation is an appropriate time to

contemplate constitutional change and renewal…It will take time and energy and persistence and it may be only a later generation who see this come to fruition’).

In these ways, jurisprudence surrounding the place or impact of human rights in

Australian law could be read as characteristically late modernist in style.46 At another

moment or in another milieu, judges, legal scholars and other contributors might be

inclined to produce the jurisprudence in this area in a different style, which stylistic shift

could have serious ramifications. For now, though, it is the aesthetic of late Modernism

(or rather a lower case, legal approximation of the same) that seems to have taken hold in

this area of Australian law.

C The Pragmatism of Australian Jurisprudence Concerning Human Rights

If Australian jurisprudence concerning human rights may be characterised as modernist –

which modernism fosters a preoccupation with Australian law’s frailty and timeliness –

this modernism sits somewhat uncomfortably with the pragmatism with which Australian

jurisprudence in this field also appears to have been infused over the period under

scrutiny (1976 to 2003). Australian law’s pragmatism in this regard corresponds only

unevenly to that mode of thought propagated in the United States during the late

nineteenth century and the first half of the twentieth century under the rubric of

Pragmatism; a mode of thought that enjoyed somewhat of a renaissance in the final

decades of the twentieth century.47 Nevertheless, a particular, rather weak version of

legal pragmatism (an irregular corollary to the philosophical tradition of Pragmatism) has

46 ‘Late Modernism’ distinguishes the Modernism of this jurisprudence from the disruptive, fraught,

insurrectionary style of the modernist avant-garde of the interwar years. For an account of Modernism’s periodisation, see David Harvey, The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change (1990), 38.

47 Above n 11.

exercised particular purchase upon the writing and practice of human rights, not least in

Australian law.48

The term ‘pragmatism’ in this context broadly evokes a belief that the rational purport of

a proposition or, indeed, a law, ‘lies exclusively in its conceivable bearing upon the

conduct of life’; that is, in its plausible (in anticipation) or observable (in retrospect)

effects.49 The reading and writing of law in pragmatic terms entails, therefore, acceptance

of an ‘inseparable connection between rational cognition and rational purpose’, such that

the search for truth is surpassed by attention to ‘a series of problems capable of

investigation’.50 Attempting some explanation of the postulates of Pragmatism developed

in his own work, as well as that of William James and John Dewey (among others),

Charles Sanders Peirce offered the following:

[P]ragmatism is, in itself,…no attempt to determine any truth of things…All pragmatists

will…agree that their method of ascertaining the meaning of words and concepts is no other

than…experimental method…this experimental method being itself nothing but a particular

application of an older logical rule, ‘By their fruits ye shall know them’.51

48 Cf. Kennedy, above n 29, xxiv (‘Campaigns to renew the traditions of international

humanitarianism have quite regularly been launched as efforts to return to pragmatism…As international humanitarians have become more pragmatic about their advocacy and their policy making, they have come to participate ever more successfully in governance…The result is a regime – a professional language and practice of pragmatic humanitarianism’). On the relationship between legal pragmatism and philosophical Pragmatism, see Thomas C. Grey, ‘Freestanding Legal Pragmatism’ (1996-1997) 18 Cardozo Law Review 21 (arguing that jurisprudential pragmatism can and should stand apart from philosophical pragmatism, notwithstanding their conceptual and genealogical linkage).

49 Charles Sanders Peirce, ‘The Essentials of Pragmatism’ in The Philosophical Writings of Peirce

(Justus Buchler ed., 1955), 251-268 at 252. 50 Ibid 253, 259. 51 Ibid 271.

With specific regard to law, John Dewey attempted a pragmatic analysis of legal rules as

follows:

[T]he law as ‘embodied reason’ means a formulated generalization of means and

procedures in behaviour which are adapted to secure what is wanted. Reason expresses a

function, not a causal origin. Law is reasonable as a man is sensible who selects and

arranges conditions adapted to produce the ends he regards as desirable.52

Notwithstanding Dewey’s and other philosophical pragmatists’ ventures onto legal

terrain, it is important to note the distinctive trajectory of legal pragmatism in

jurisprudential thought and writing. As Thomas Grey has observed ‘[b]oth the

contextualist and the instrumentalist strands of legal thought were independently well-

established, generally in opposition to each other, long before [philosophical] pragmatism

came on the scene’.53 Grey continued: ‘The contribution of the American legal

pragmatists, from [Oliver Wendell] Homes through Roscoe Pound, Benjamin Cardozo,

Karl Llewellyn, Lon Fuller, to Richard Posner, has been to argue…that historical and

instrumental jurisprudence present two compatible and equally necessary perspectives on

the complex reality of law’.54 In this regard, legal pragmatism emulates the

‘encompassing orientation towards inquiry…the interaction of impulse, habit, and

reflection’ characteristic of Pragmatism, as against the more stringent direction towards

specific social ends characteristic of Benthamite utilitarianism or pure instrumentalism.

Legal pragmatism, nevertheless, has charted its own path in countering purism, departing

52 John Dewey, The Public and its Problems (1927), 57. 53 Grey, above n 48, 24. 54 Ibid.

in significant ways from philosophical Pragmatism. Legal pragmatism has, for instance,

remained preoccupied with the concrete ‘test’ of judicial decision-making, as opposed to

the fabulist milieu of the pragmatic agent, always ready to revise his or her belief. In this

regard, legal pragmatism’s route might be described as ‘a theoretical middle way between

grand theorizing and anti-intellectual business-as-usual’.55

Indications of the prevalence of a version of this legal pragmatism in Australian High

Court jurisprudence may be discerned, for example, from Mason CJ’s judgment in the

Australian Capital Television Pty. Ltd and the State of NSW v Commonwealth case. In

that case, the Chief Justice made a pragmatic assessment of whether or not an implied

freedom of communication should be taken to comprise part of the normative architecture

of the Constitution; an assessment that hinged upon such an implied right’s ‘conceivable

bearing upon the conduct of life’:

Experience has demonstrated on so many occasions in the past that, although freedom of

communication may have some detrimental consequences for society, the manifest benefits

it brings to an open society generally outweigh the detriments.56

Brennan J’s judgment in the same case exhibited a similar evaluative approach:

In reviewing the assessment made by the Parliament, it is necessary to form some estimate

of the effect of the restrictions imposed by [the legislative provisions at issue] on the flow

of information needed or desired by electors to form their political judgments. If those

55 Ibid, 38. 56 Australian Capital Television Pty. Limited and the State of New South Wales v The Commonwealth

(1992) 177 CLR 106, [52].

restrictions effectively deny electors the opportunity to form political judgments or

substantially impair their ability to do so, the restrictions are invalid.57

So too, in the 2002 case of Roberts v Bass, did Gaudron, McHugh and Gummow JJ

present a pragmatic rationale for the qualified privilege attaching to a defamatory

statement made pursuant to a duty to make it:

The common law protects a defamatory statement made on an occasion where one person

has a duty or interest to make the statement and the recipient of the statement has a

corresponding duty or interest to receive it. Communications made on such occasions are

privileged because their making promotes the welfare of society.58

A pragmatic orientation towards the agent’s perspective and a contextual, practical

evaluation of his or her actions may also be discerned later in the same judgment:

In a case like the present, persons handing out how-to-vote cards may honestly believe that

they are informing the electorate of their candidate's views and may not themselves have

thought about whether much or any of the content of the how-to-vote card is true. Such

persons will not lose the protection of the occasion because they had no positive belief in

the truth of any defamatory matter in the how-to-vote card. It is proper for them to

communicate their candidate's views to voters, and they do not lose their protection

because, although acting for the purpose of the privileged occasion, they had no positive

belief in the truth of the defamatory matter….Roberts’ reasoning process is open to serious

criticism and led him to an unfair conclusion…But no matter how irrational his reasoning

57 Ibid [19] (emphasis added). 58 Roberts v Bass (2002) 212 CLR 1, 26, [62].

might seem to a judge, it is unfortunately typical of ‘reasoning’ that is often found in

political discussions. If Roberts' conduct on this matter [were] held to constitute malice

sufficient to destroy the privilege of communicating electoral material to voters, the

freedom of communication protected by the Constitution would be little more than a grand

idea of no practical importance.59

The foregoing remarks are not, of course, synonymous with a considered exegesis on

legal pragmatism, and even less a direct evocation of the views of William James or John

Dewey. Nevertheless, these examples (and others among those listed in the Appendix) do

suggest a jurisprudential instinct of pragmatic derivation: an instinct to justify a particular

account of the law by reference to a practical assessment of the relevant agent’s

conditions and a consideration of that law’s anticipated or observable effects. It is in this

relatively diluted sense that Australian jurisprudence engaged with human rights may be

characterised as pragmatic.

Just as the High Court, in considering arguments framed in human rights terms, manifests

this pragmatic disposition, so much of the legal scholarship surveyed above (in section A

of this Part III) is pragmatic in its commitment to ceaseless tinkering and consequential

evaluation.60 William James insisted upon ‘bring[ing] out of each word its practical cash-

value, set[ting] it at work within the stream of…experience [such that] [i]t appears less as

a solution, then, than as a program for more work, and more particularly as an indication

59 Ibid [100], [110]. 60 See, e.g., Christine Parker, ‘Public Rights in Private Government: Corporate Compliance with

Sexual Harassment Legislation’ (1999) 5(1) Australian Journal of Human Rights 159 (‘The test of legal reform is whether social change occurs as a result’).

of the ways in which existing realities may be changed’.61 Robert McCorquodale

mapped out a comparable program of work – a program that will be familiar to any reader

of human rights law scholarship – at the end of a 1999 essay: ‘[T]here is a considerable

distance to travel before international human rights can be considered to be implemented

in Australia…yet…[i]t is still possible to bring human rights to life in Australia’.62

The pragmatism of William James called attention also to the ‘absolutely controlling’

effect of ‘older truths’ and argued for ‘a serious rearrangement of our preconceptions’.63

In a commensurable way, Peter Bailey, speculating as to a possible ‘way forward’ for

human rights’ implementation in Australia, has railed against the ‘limitations’ imposed on

thought by ‘Australian legal culture’ and urged an immediate shedding of those strictures

to permit ‘rethinking’.64 In Australia, human rights scholars recommend, as

contemporary pragmatist Richard Rorty has recommended, the taking of ‘fairly small,

reformist steps’ contingent upon ‘reaching accommodation between competing

interests’.65

In laying out such a program of reform, the pragmatism of Australian jurisprudence

regarding human rights seems often to cannibalise its modernism. The modernist sense of

experience as a staccato ‘series of…presents’ has tended to get smoothed out into a

61 William James, Pragmatism (Fredson Bowers & Ignas K. Skrupskelis eds., 1975), 32 [emphasis in

original]. 62 Robert McCorquodale, ‘Implementing Human Rights in Australia’ (1999) 5(2) Australian Journal

of Human Rights 1, 3. 63 James, above n 61, 35. 64 James, above n 61, 35; Peter Bailey, ‘Implementing Human Rights – The Way Forward’ (1999)

5(2) Australian Journal of Human Rights 167. 65 Richard Rorty, ‘Remarks on Deconstruction and Pragmatism’, in Deconstruction and Pragmatism

Chantal Mouffe ed., 1996), 13-18 at 17.

narrative of continuous (albeit incremental) development.66 The resulting confluence

between a sense of convulsive change and a sense of ongoing progress seems only to fuel

the above-noted anxiety about Australian law’s irrelevance. In other instances, such as

those discussed in Part IV of this article, the modernism of Australian law in this area

seems to trump its pragmatism, so that dedication to the authorial enterprise of

imaginatively re-ordering the world takes precedence over pragmatic evaluation of the

implications of doing so. In both cases, the tendency of Australian legal scholarship on

human rights to worry about its own timeliness and incompleteness could be read as

expressive of an unresolved relationship between its pragmatic instincts and its late

modernist predilections.

66 Harvey, above n 46, 53 (quoting Frederic Jameson ‘Postmodernism, or the cultural logic of

capitalism’ (1984) 146 New Left Review 53).

IV ASKING THE PRAGMATIC QUESTION: WHAT ARE HUMAN RIGHTS’ EFFECTS IN

AUSTRALIAN LAW?

To the extent that the style of jurisprudence surrounding human rights in Australian legal

scholarship tends, as I have argued, towards modernism and pragmatism, the question

arises why this jurisprudence is not more inflected by Modernism’s tragic sensibility?67

Likewise, what has become, in this jurisprudence, of Pragmatism’s suspicion of any

‘preten[se] that the eternal is unrolling’ and its insistence that ‘we ought to start as if [the

world] were wholly plastic’?68 What of pragmatists’ observation that ‘[n]othing outside

of the flux secures the issue of it’?69 How did human rights law emerge from this diluted,

modernist, pragmatic melange as the doctrinal-institutional herald of hope (or activist

dissipation) for Australian law, according to so many legal writers? What would happen

if those proffering pragmatic arguments for human rights’ prioritisation in Australian law

turned their pragmatic torchlight upon their own project?

Those who are sceptical about international human rights law’s integration into domestic

law readily compile accounts of rights-based interpretation around the world and the

negative impacts with which it is ostensibly associated.70 Their principal objections lie

67 See, e.g., Harvey, above n 46, at 35 (‘The aestheticization of politics through the production of

such all-consuming myths (of which Nazism was but one) was the tragic side of modernist project that became more and more salient as the ‘heroic’ era came crashing to an end in World War II…the modernism of the inter-war years was ‘heroic’ but fraught with disaster’). A reading of legal modernism emphatic of these tragic, absurd and surreal strains informs, for example, Duncan Kennedy’s version of ‘modernism/postmodernism’. See Kennedy, above n 41, 7-8. For broad-ranging discussion of Duncan Kennedy’s project, see ‘Symposium: Critical Legal Studies (Debut de Siècle): A Symposium on Duncan Kennedy's A Critique Of Adjudication’ (2001) 22 Cardozo Law Review 701-1189.

68 James, above n 61, 116. 69 Ibid 125. 70 See, e.g., Keith D, Ewing, ‘The Unbalanced Constitution’ in Tom Campbell, K.D. Ewing & Adam

Tomkins (eds), Sceptical Essays on Human Rights (2001), 103-117, 116: ‘Through legislation it

with the augmentation of judicial power, the judicialisation of politics, and the

politicisation of judicial law-making that they envisage resulting from a more whole-

hearted turn to human rights in Australian law.71

Those who advocate further movement towards rights-based modes of judicial

interpretation and legislative enactment tend to answer these objections in relatively

general terms. Some point, for example, to the international human rights obligations by

which Australia is already bound and decry their incomplete or haphazard fulfilment.72

Others counter that ‘the current Australian constitutional system already accords

considerable power to judges’ and that ‘[n]o clear line exists between legal and political

decision-making…the politics of judicial choice between rival interpretations of words

cannot be eradicated’.73 In addition, considerable effort has been made to trace the

doctrinal plight of human rights in Australian constitutional law.74 This line of inquiry

has been pursued both to refute the irrelevance of human rights to Australian law and to

argue for civil and political rights already recognised in the Australian Constitution to be

given more ‘meaningful operation’.75

has been possible gradually to overcome some of the obstacles to equality which the common law has created, legislation being the greatest form of expression of the will of the people in a democracy (however imperfectly the system may operate). The effect of the Human Rights Act [1998 (UK)] is to disturb that process by reasserting the liberal principles of the constitution, and by putting on a constitutional pedestal the principle of liberty which is given a new legal priority…We are left to the benevolence of the judges who wax lyrical about individual rather than popular sovereignty and who are now empowered to reassert these claims against the other branches of government’ [footnote omitted].

71 See, e.g., Allan, above n 37. 72 See, e.g., Dianne Otto, ‘From “Reluctance” to “Exceptionalism”: The Australian Approach to

Domestic Implementation of Human Rights’ (2001) 26 Alternative Law Journal 219. 73 Charlesworth, above n 4, 73. 74 The leading text in this regard is Williams, above n 15.

However, despite its pragmatic tone, the literature that promotes rights’ further

integration into and promotion within Australian law (mostly emanating from what might

be termed the Left or Centre-Left of Australian law) reveals relatively few attempts

pragmatically to assess the effects of rights-based modes of legal thinking in Australian

settings. As a result, the widespread perception that human rights amount collectively to

‘good’ remains for the most part undisturbed by those who might offer a sympathetic

understanding of the various ways in which this equation might be challenged or

rethought. This may reflect a strategic choice on such persons’ part. It is nonetheless a

choice that this article sets out to question. In this part, the pragmatism of Australian

legal debate about human rights will be turned upon itself; the progress narrative in which

Australian human rights jurisprudence often trades will be mobilised against its own

progressivism.

A A Case Study: Pearce v The Queen

Of the many cases cited in the appendix to this article, Pearce v The Queen represents a

relatively peripheral, humdrum instance of human rights at work in Australian law.76 As

such, it affords an ideal setting in which to chart the possibilities, gestures and impulses

that are triggered by the most quotidian of ‘rights-talk’ in the Australian High Court.

The appellant in this case, Mr. Douglas Pearce, was indicted in the Supreme Court of

NSW. He had been charged, inter alia, with maliciously inflicting grievous bodily harm

with intent to do the victim grievous bodily harm, and breaking and entering the

75 Ibid 245. 76 Pearce v The Queen, above n 12.

dwelling-house of that victim and, while in that house, inflicting grievous bodily harm.

Before the primary judge, Pearce sought a stay of the proceedings as oppressive or an

abuse of process on the ground that they placed him in double jeopardy. Pearce had been

charged for two crimes arising from substantially the same facts – his breaking into the

victim’s home and beating the victim. This application was rejected and Pearce was

sentenced on each of the two disputed counts to 12 years of penal servitude, to be served

concurrently with each other (but cumulatively with a sentence imposed for another

offence). An appeal from this sentence to the Court of Criminal Appeal was dismissed,

but special leave was granted for an appeal to the High Court of Australia.77

A majority of the High Court allowed the appeal by a vote of 4:1. In a joint judgment,

McHugh, Hayne and Callinan JJ opined that the sentence doubly punished the appellant

for a single act (namely, infliction of grievous bodily harm) and was therefore flawed as

contrary either to ‘good sentencing practice’ or to a positive rule of law against any

individual being placed in double jeopardy.78 They also found that the sentencing

otherwise involved an error to the extent that the primary judge failed to take into account

the differences in conduct being punished in each instance, before subjecting the

appellant to two, concurrent 12 year terms.79 Gummow J concurred, agreeing that the

sentencing process had miscarried by failing to take into consideration what Gummow J

characterised as a ‘rule of practice’ against duplication of penalty for what is substantially

a single act.80

77 Ibid 612-613 (per McHugh, Hayne and Callinan JJ). 78 Ibid 623. 79 Ibid 624.

Kirby J was the only judge to invoke human rights principles in the course of his

judgment and also the only judge who voted to dismiss the appeal. Kirby J agreed with

the rest of the High Court that the ‘risk’ of double jeopardy merited consideration at a

number of points throughout a criminal proceeding. He endorsed the majority’s

sensitivity to the danger of ‘the State with all its resources and power…mak[ing] repeated

attempts to convict an individual for an alleged offense, thereby subjecting him [or her] to

embarrassment, expense and ordeal and compelling him [or her] to live in a continuing

state of anxiety and insecurity’.81 Kirby J also agreed that the sentencing by the primary

judge was defective in that insufficient attention was given to the risk of double

punishment.82 Nevertheless, Kirby J concluded that the total sentence imposed was not,

‘in the brutal circumstances of the offences’, a sentence made in error.83 The reasoning of

the primary judge was ‘defective’, but the orders were ‘right’ and should therefore be left

undisturbed, Kirby J maintained.84

Kirby J’s dissenting judgment in Pearce v The Queen, like the judgments of those in the

majority, was reasoned on the basis of common law principles and authorities.

Nevertheless, in the course of his judgment, Kirby J made three references to human

rights principles. First, he noted that the rule against double jeopardy has been recognised

‘as one of the rules of universal human rights’. In this respect, he cited Article 14.7 of the

International Covenant on Civil and Political Rights, Article 4(1) of Protocol Number 7 to

80 Ibid 629. 81 Ibid 636 (quoting Green v United States 355 US 184, 187-188 (1957)). 82 Ibid 654-655. 83 Ibid 655. 84 Ibid.

the European Convention for the Protection of Human Rights and Fundamental Freedoms

and Article 8(4) of the American Convention on Human Rights.85

Secondly, he cited findings of the United Nations Human Rights Committee as authority

relevant to the question whether the prohibition on double jeopardy transcends sovereign

state boundaries.86 The question whether considerations of double jeopardy only

prohibited revisitation in any one State of an offence previously adjudicated in that State

was, however, ultimately one that Kirby J elected to leave to another day.87

Thirdly, Kirby J invoked human rights more generally in his characterisation of certain

historical common law pleas in bar as assertions of ‘a right [of the accused] to be relieved

of a second criminal prosecution or charge’. According to Kirby J’s assessment, this

characterisation underlined the need for clarification as to the circumstances in which

such a right might lawfully be enforced.88

There are a number of ways in which one might assess the impact of these scattered

instances of ‘rights-talk’ in Kirby J’s judgment in Pearce v The Queen. It might be

maintained that Kirby J’s oft-celebrated adoption of a ‘human rights perspective’ here

encouraged personalisation of the parties and fostered a more context-attentive, wide-

85 Ibid 631, n 105. See International Covenant on Civil and Political Rights, opened for signature 19

December 1966, GA Res 2200A (XXI), 999 UNTS 171 (entered into force 23 March 1976; entered into force for Australia 13 November 1980 except Article 41 which entered into force on 28 January 1993); Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 22 November 1984, ETS No 117 (entered into force 1 November 1988); American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978).

86 Pearce v The Queen, above n 12, 645 n 178 (citing UN Human Rights Committee, AP v Italy, UN

Doc CCPR/C/Op/2 (1990)). 87 Ibid 645. 88 Ibid 652.

angle view of the crime. Kirby J referred to Mr. Pearce as ‘a 33 year old Aboriginal

Australian of disadvantaged background’. The victim of Mr. Pearce’s crime was likewise

identified as ‘Mr. William Rixon, then aged 72 years’. The reader of Kirby J’s judgment

learns that, as a result of the crime, Mr. Rixon lost the use of his left eye, suffered brain

damage, and was confined to a nursing home where he was reduced to ‘a mere shadow of

the man that he was before the assault’. Kirby J also placed the crime in the town of

Yamba, New South Wales, where Mr. Rixon lived alone in a house which Mr. Pearce

entered at night ‘armed with a heavy wooden object’. One learns too from Kirby J’s

judgment that the crime yielded a mere $45, taken from Mr. Rixon’s wallet.89 In the

judgments of the other members of the High Court, no such scene-setting was attempted

and the two protagonists were referred to merely as the ‘appellant’ and the ‘victim’.

McHugh, Hayne and Callinan JJ confined their description to the following: ‘The

appellant broke into the victim’s home and beat him’. Gummow J declined to elaborate,

referring the reader to the facts ‘detailed in the judgments of the other members of the

Court’.90

In addition, it might be contended that the interjection of international human rights law

provided Kirby J with a rationale and an inspiration for strengthening the protection that

the common law otherwise affords individuals against the danger of double jeopardy. For

example, Kirby J rejected a narrow rule of double jeopardy that would only prohibit

double punishment for the same crime. Instead, he preferred a reading of the authorities

that yielded a prohibition on duplication in trial, prosecution and/or punishment. Kirby J

89 Ibid 632. 90 Ibid 612, 625.

justified this reading in part on the basis that such a rule would be inconsistent with terms

of Article 14(7) of the International Covenant on Civil and Political Rights.91

Furthermore, one might read Kirby J’s judgment in Pearce v The Queen as more frank

than the judgments of the other members of the High Court in respect of the sort of

society that it cherishes, by virtue of its attention to human rights concerns. George

Williams’ celebrated study of human rights under the Australian Constitution supports

such an interpretation. Professor Williams asserts that the High Court’s ‘new-found

concern for human rights’ has been a ‘key factor in [the] process of exposing the policy

underpinnings of the Court’s decision-making’.92 One might focus in this regard on

Kirby J’s discussion of the ‘extreme violence to Mr Rixon’ and his weighing of the

injustice done to the victim against the ‘theoretical possibilit[y]’ that injustice might have

resulted from the primary judge’s sentencing approach. Vindication of ‘theoretical’

injustice not occasioned in this instance did not, in Kirby J’s judgment, warrant disregard

for the need to prevent the sort of random violence actually wielded against Mr. Rixon.

By comparison, the following quotation offered by McHugh, Hayne and Callinan JJ

sounds rather legalistic and obtuse (even though it might easily have been cited in support

of Kirby J’s finding):

[T]he criminal law…has to employ methods which are, in important respects, rough and

ready, and in the nature of things it cannot take fully into account mere individual

limitations and the philosophical considerations involved in the theory of moral, as distinct

91 Ibid 636-637. 92 Williams, above n 15, 246.

from legal, responsibility…To achieve even a minimal degree of effectiveness, it should

avoid excessive subtleties and refinements.93

Yet the impulses of societal out-reach and reflexive problematisation that one might

attribute to Kirby J in Pearce v The Queen sit uneasily with any close reading of the effect

of his reasoning in terms of its allocation of authority. In each of the foregoing instances,

that which presented itself as a gesture towards the right-bearing appellant ultimately

served to devolve greater authority upon the judge and the prosecutor than upon the

purported right-holder. Thus, Kirby J reasoned that:

[T]he rules to be applied [against double jeopardy] should be simple and such as to provide

the judge with the powers appropriate to the circumstances to protect an accused against the

risks of repeated prosecution and the risk of double punishment in respect of the same

offence.94

Kirby J maintained that confidence had to be placed in ‘judicial dut[ies]’, ‘judicial

function[s]’ and ‘judicial discretion’ when seeking relief from ‘injustice or oppression

occasioned by the bringing of further proceedings, the oppressive inclusion of

overlapping charges or the subjection of a person to double vexation and the peril of

double punishment’. So too should ‘those who represent accused…be alert to [the

judicial] facility when they scrutinise the indictment containing the charges which the

prosecution brings’.95 The appeal to rights seemed to translate into an appeal for faith in

93 Pearce v The Queen, above n 12, 622 (quoting Sir John Barry, The Courts and Criminal

Punishments (1969) 14-15). 94 Ibid 638. 95 Ibid 653.

the expertise and ‘alert[ness]’ of a technocratic legal elite. Kirby J’s incidental references

to human rights in Pearce v The Queen seemed to do more to locate the judge (and the

legal profession of which the judge is a part) in a place of cosmopolitan learning and

ever-expanding technical authority than to reposition or bolster the status of the

accused.96 The effect of this may not have been to augment the political power of the

judiciary in the manner that some commentators tend to fear.97 Rather the effect of Kirby

J’s style of rights-based decision-making was, in part, to endorse and validate the

‘corrective’ hold that right-enforcing legal professionals and other experts retain on the

power, identity, body and land of ‘a 33 year old Aboriginal Australian of disadvantaged

background’.

In this instance, it is the law and bearers of legal expertise that seemed to be the primary

beneficiaries of the deployment of human rights language in the High Court. Rights

language seemed to affirm the cosmopolitan righteousness and benevolence of the law,

rather than to shift or extend the range of its insights. The incantation of the appellant’s

96 In relation to ‘ever-expanding technical authority’, see David Trubek et al., ‘The Future of the

Legal Profession: Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas’ (1994) 44 Case Western Reserve Law Review 407. See also Torbjorn Vallinder, ‘The Judicialization of Politics – A World-Wide Phenomenon: Introduction’ (1994) 15 International Political Science Review 91; Ran Hirschl, ‘The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions’ (2000) 25 Law & Social Inquiry 91; Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (1989).

97 See, e.g., Jeremy Waldron, Law and Disagreement (1999) (exhibiting a preference for giving

political priority to processes of legislative deliberation over those of judicial review on the basis of the former’s allegedly superior democratic credentials and exhibiting commensurate circumspection about bills of rights). See also Bob Carr, ‘The Rights Trap: How a Bill of Rights Could Undermine Freedom’ 17(2) Policy 18 http://www.cis.org.au/Policy/winter01/polwin01-4.pdf at 26 August 2004. I do not share Professor Waldron’s confidence in the greater ‘legitimacy’ of legislative processes, nor his related faith that the performative enactment of ‘disagreement’ in such fora renders them more amenable to the living out of difference than other arenas of political engagement. On the other hand, I am inclined to agree with the view expressed by Professor Charlesworth that power is ubiquitous in legal decision-making, no matter how opposed to ‘activism’ judges proclaim themselves to be. Accordingly, the supposed ‘transfer’ of power to the judiciary under the rubric of rights’ interpretation seems to be somewhat of a red herring. See Charlesworth, above n 73 and related text.

identity markers (his status as a ‘33-year old Aboriginal Australian of disadvantaged

background’) and the graphic recitation of his crimes serve only to magnify the reader’s

sense of distance from this person. Instead, the reader is encouraged to follow the erudite

wanderings of Kirby J’s judgment: from the Roman forum, through scenes of the Old

Testament and the court of King Henry II, to the British House of Lords, the

Constitutional Court of India and the Supreme Court of the United States.98 Mr. Pearce,

the right-bearer, fades into inconsequentiality in the midst of this fabulous panorama of

the world’s modern defenders of rights of which Kirby J becomes one.

Thus, in Kirby J’s judgment in Pearce v The Queen, the unstable relationship between

pragmatism and modernism in Australian human rights jurisprudence played out in

favour of the latter. The orientation of this judgment is less towards the effects of human

rights’ introduction into Australian law for the would-be right claimants, than for the law

itself. Kirby J seemed to proceed from an assumption that benefits for all engaged with

Australian law will flow from its being rendered a more wholly, self-consciously modern

work. Accordingly, the term ‘human rights’ in Kirby J’s judgment in Pearce featured as

the mot juste at the centre of a transcendent, autonomous scheme proceeding from a

judicial imagination severed from the strictures of past and place. The goal in Pearce

was, in Kirby J’s words, ‘to cut away at least some of the confusion and uncertainty of the

old law and to place the provision of relief against double jeopardy on a clearer

foundation’.99 Human rights law instruments and principles were presented here, above

all, as a response to the perceived needs of the law.

98 Pearce v The Queen, above n 12, 630-631, 643, 644. 99 Ibid 632.

B A Second Case Study: Gerhardy v Brown

Observation of the work of the current High Court might leave one with the impression

that Kirby J is waging somewhat of a one person struggle in relation to the development

of human rights jurisprudence in Australia. In the face of this impression, it is critical to

pay due regard to the many decisions listed in the appendix to this article (and reflected in

the graph and table in Part II) of which Kirby J has not been the sole human rights-

wielding protagonist. Accordingly, the second of the case studies to which attention will

be directed, by way of probing the effects of human rights law in Australian

jurisprudence, was handed down in 1985 and concerned the validity of the Pitjantjatjara

Land Rights Act 1981 (S.A.) (the ‘PLRA’): Gerhardy v Brown.100

The main purpose of the PLRA was, as Gibbs CJ observed at the outset of his decision, to

provide for title to a large tract of lands traditionally ‘owne[d]’ (in the words of s.4 of the

PLRA) by three distinct yet associated indigenous language-groups (collectively referred

to as ‘the Pitjantjatjara’) to be vested in a body corporate of which all such Pitjantjatjara

peoples were members (Anangu Pitjantjatjaraku).101 The lands in question comprised just

over one tenth of the total land area of South Australia.102 The question of the PLRA’s

validity came before the High Court as a result of an initial complaint from one David

Alan Gerhardy. Gerhardy alleged that an indigenous person who was not a member of

the Pitjantjatjara people, Robert John Brown, had entered the lands owned by the

100 Gerhardy v Brown, above n 12. 101 Ibid 75. 102 Ibid 75, 86, 89, 107, 145, 151.

Pitjantjatjara without seeking or obtaining the permission of Anangu Pitjantjatjaraku or its

delegate, and was therefore guilty of an offence under s.19(1) of the PLRA.103 In the

course of considering the question of Brown’s liability under the PLRA, the special

magistrate in question raised issues as to the PLRA’s whole or partial invalidity by virtue

of its conflict with s.9 of the Racial Discrimination Act 1975 (Cth.) (the ‘RDA’).104 At

first instance, Millhouse J of the South Australian Supreme Court ruled that s.19 of the

PLRA was indeed invalid, being in conflict with s.9 of the RDA and Article 5(d)(i) of the

International Convention on the Elimination of all Forms of Racial Discrimination (the

‘CERD’),105 the CERD appearing as a schedule to the RDA. Gerhardy appealed that

decision to the Full Court of the South Australian Supreme Court which appeal was

removed to the High Court upon application of the Attorney-General for South Australia.

According to the judgment of Gibbs CJ, three arguments were made before the High

Court in support of the defendant’s (Brown’s) case. First, it was alleged that the PLRA

103 S.19(1) of the Pitjantjatjara Land Rights Act 1981 (S.A.) [hereinafter, the ‘PLRA’] rendered any

person (not being a Pitjantjatjara) who entered the lands to which the PLRA pertained without the permission of Anangu Pitjantjatjaraku guilty of an offence and liable to a penalty not exceeding the maximum penalties of a $2,500 fine where the offence was committed intentionally (plus $500 for each day during which the convicted person remained on the land after unlawful entry) or, in any other case, a $200 fine.

104 S.9 of the Racial Discrimination Act 1975 (Cth.) [hereinafter, the ‘RDA’] provides inter alia: ‘It is

unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.’

105 International Convention on the Elimination of all Forms of Racial Discrimination, opened for

signature 7 March, 1966, [1975] ATS 40 (entered into force generally 4 January 1969, except Art. 14 which entered into force generally 4 December 1982; entered into force for Australia 30 December 1975, except Art. 14 which entered into force generally 28 January 1993) [hereinafter the ‘CERD’]. Art. 5(d)(i) of the CERD obligates States Parties ‘to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:…(i) The right to freedom of movement and residence within the border of the State’.

made an exception to or otherwise detracted from the efficacy of the RDA, the latter

being intended as a complete statement of Australian law relating to racial discrimination.

Gibbs CJ construed this as an argument that the PLRA represented a constitutionally

impermissible attempt by South Australia to enter a legislative field wholly covered by

Commonwealth legislation. This argument was rejected implicitly by all members of the

court and explicitly by the only member who considered it expressly, Gibbs CJ, who

observed that the PLRA was not a law relating to racial discrimination.

Secondly, it was contended that s.19 of the PLRA was directly inconsistent with s.9 of the

RDA, rendering the former invalid under s.109 of the Constitution. Again, this argument

was rejected implicitly by four members of the Court, and rejected explicitly by the three

members, Gibbs CJ, Brennan and Deane JJ, that considered it expressly.106

Thirdly, it was submitted that the PLRA was a State law to which the provisions of

s.10(1) of the RDA applied, such that all rights conferred on Pitjantjatjara persons by s.19

of the PLRA were, by operation of s.10(1) of the RDA, also conferred on non-

Pitjantjatjara persons.107 This hinged initially on the question whether ss.18 and 19 of

the PLRA precluded a ‘right’ from being enjoyed by persons of a particular race, colour

or national or ethnic origin, notwithstanding its enjoyment by another such group of

persons.108 In this context, ‘right’ in s.10(1) of the RDA was given the same meaning as

106 Gerhardy v Brown, above n 12, 82, 121-122, 146. 107 S.10(1) of the RDA provides as follows: ‘If, by reason of, or of a provision of, a law of the

Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.’

108 S.18 of the PLRA read: ‘All Pitjantjatjaras have unrestricted right of access to the lands’.

in Art. 1(1) of the CERD because, as an exercise of the external affairs power pursuant to

Australia’s signing of the CERD, the provisions of the RDA would be valid only if they

carried into effect the provisions of the CERD.109 The word ‘right’ in s.10(1) was taken

to refer ‘only to a human right “in the political, economic, social, cultural or any other

field of public life”’. According to the High Court the right of access to lands granted by

the PLRA was such a right. In so far as s.19 of the PLRA positively prohibited non-

Pitjantjatjaras from enjoying a right that the Pitjantjatjara people enjoyed under s.18 of

the PLRA, a majority of the High Court concluded that the PLRA discriminated by

reference to race, colour or origin in a manner prohibited by the RDA.110 Accordingly,

absent the saving effect of s.8(1) of the RDA and Art. 1(4) of the CERD,111 s.10(1) of the

RDA would have the effect of ensuring persons other than the Pitjantjatjara would have

unfettered access to the lands to which the PLRA pertained.

On this final point, the High Court unanimously (albeit in seven separate judgments)

ruled that the PLRA was a special measure taken for the sole purpose of securing

adequate advancement of certain racial or ethnic groups or individuals requiring

109 Gerhardy v Brown, above n 12, 85, 101. Art.1(1) of the CERD referred, in the context of the

definition of ‘discrimination’ to ‘human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’.

110 Gerhardy v Brown, above n 12, 87, 104, 107, 123, 147. Contra Wilson and Dawson JJ’s (at 112,

162) neither of whom found it necessary to reach a firm conclusion as to whether or not the PLRA effected racial discrimination in view of the fact that it was a special measure within the meaning of s.8(1) of the RDA.

111 S.8(1) of the RDA provides as follows: ‘This Part does not apply to, or in relation to the

application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3).’ Article 1(4) of the CERD provides: ‘Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’

protection to ensure their enjoyment or exercise of human rights.112 The three groups

collectively dubbed the Pitjantjatjara were held to require such protection and the PLRA

was found to have afforded them no more protection than was necessary in the

circumstances. As such, the PRLA was saved from the operation of s.10(1) of the RDA

by s.8(1) of the RDA and was upheld as valid.

In this case, unlike Pearce, the turn to human rights law was prompted by the legislation

in question, not an initiative of the advocates or the judiciary in the case. As noted above,

s.8(1) of the RDA made express reference to Art.1(4) of the CERD, the latter providing

for the taking of special measures to ensure equal enjoyment or exercise of ‘human rights

and fundamental freedoms’. Nevertheless, throughout Gerhardy v Brown, members of

the High Court (with the exception of Murphy and Wilson JJ) expressed varying degrees

of discomfort with this language, and the language of human rights law in general. They

voiced, in particular, concerns about the incorporation of the ‘vague and elastic’

terminology of the CERD into the RDA.113 Thus, notwithstanding the Court’s extensive

handling of terms as vague and elastic as the ‘reasonable person’,114 or ‘due notice’,115

there was something about the language of ‘human rights and fundamental freedoms’ that

seemed to pose, for most members of the bench, a particularly tricky and ostensibly alien

interpretative challenge. Dawson J, for instance, observed:

112 See ibid. 113 Gerhardy v Brown, above n 12, 86. See also 102, 126, 148, 157. 114 See, e.g., Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1. 115 See, e.g., Landale v Menzies and Another (1909) 9 CLR 89.

It may be questioned whether the term ‘human right’ or ‘fundamental freedom’ has any

meaning in our system of law which, at least hitherto, has not recognized any such

classification or rights and freedoms.116

Likewise, Mason J, cast human rights as an exotic and rather troubling jurisprudential

import:

As a concept, human rights and fundamental freedoms are fundamentally different from

specific or special rights in our domestic law which are enforceable by action in the

courts against other individuals or against the State, the content of which is more

precisely defined and understood.117

This was regardless of the High Court’s prior consideration, on repeated occasions, of

arguments expressly traced to the English Bill of Rights of 1688.118

Far from opening up the full range of possibilities inherent in judicial action, then, the

introduction of human rights language into Australian law seemed, at least in 1985, to

exert a chilling effect on the High Court’s thinking. Legislative invocation of human

rights seemed to represent to the members of that bench an invitation to depart from know

terrain – an invitation to which they responded with hesitancy, even suspicion. The High

Court adopted here the very law/non-law distinction that I have argued is characteristic of

writing surrounding human rights in Australian law. In this instance, however, human

rights were understood to emanate largely from the non-law side (or at least the non-

Australian-law side) of this categorisation. It is arguable that, notwithstanding the

enactment of a series of items of Commonwealth legislation making express reference to

116 Gerhardy v Brown, above n 12, 157. 117 Ibid 102. 118 See Victoria v Australian Building Construction Employees' and Builders Labourers' Federation

(1982) 152 CLR 25; Sankey v Whitlam (1978) 142 CLR 1; Cormack v Cope Queensland v Whitlam (1974) 131 CLR 432.

human rights,119 this sense of human rights as alien, problematic juridical claims – claims

consequently to be handled with great circumspection – has never wholly subsided within

the Australian judiciary.120

Irrespective of this guardedness, Gerhardy v Brown does permit readers to observe, in a

particular instance, some other effects of human rights on judicial thinking in the High

Court of Australia. For Mason J, for instance, the legislative invocation of human rights

confronted the bench with a ‘paradox’. This arose from Mason J’s recognition, on one

hand, of human rights’ expression as ‘values common to all societies’ and, on the other,

that ‘the rights which are accorded to individuals in particular societies are the subject of

infinite variation throughout the world’. As a consequence, it was not, according to

119 See, e.g., Migration Act 1958 (Cth), ss.91D and 198A(3) (requiring the Minister to report to

Parliament, in respect of the prescription of nations as ‘safe third countries’, on ‘the meeting by the country, or each of the countries, of relevant human rights standards for the persons in relation to whom the country is prescribed as a safe third country’, and enabling the Minister to declare that a specific country ‘meets relevant human rights standards in providing…protection [to persons who are given refugee status]’); Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s.6(8) (enabling the Governor-General to declare certain organisations ‘prescribed organisations’ for purposes of the offences set forth in the Act, provided that the Minister is ‘satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering…a serious violation of human rights’); Privacy Act 1988 (Cth), Preamble (‘[W]hereas, by th[e] [International] Covenant [on Civil and Political Rights], Australia has undertaken to adopt such legislative measures as may be necessary to give effect to the rights of persons not to be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence…’); Human Rights Commission Act 1981 (Cth); Human Rights and Equal Opportunity Commission Act 1986 (Cth); Inspector-General of Intelligence and Security Act 1986 (Cth), s.4(b) (‘The objects of this Act are…to assist Ministers in ensuring that the activities of those agencies are consistent with human rights’); Native Title Act 1993 (Cth), s.209(1)(b) (requiring the Aboriginal and Torres Strait Islander Social Justice Commissioner to report annually as to ‘the effect of [the] Act on the exercise and enjoyment of human rights’ by Aboriginal peoples and Torres Strait Islanders); Human Rights (Sexual Conduct) Act 1994 (Cth); Evidence Act 1995 (Cth), s.138(3)(f) (permitting a court to take into consideration, with respect to evidence obtained improperly or in contravention of Australian law, ‘whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights’); Housing Assistance Act 1996 (Cth), Preamble (‘Australia has acted to protect the rights of all its citizens, including people who have inadequate housing, by recognising international standards for the protection of universal human rights and fundamental freedoms…’).

120 See, e.g., the recent case of Al Kateb v Godwin [2004] HCA 37, per Gleeson CJ at [74]: ‘It is not

for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights’.

Mason J, possible ‘to distil common values readily or perhaps at all’.121 Mason J

nevertheless persisted in seeking to link the particular legislative initiatives taken in the

PLRA to broader themes and concerns voiced under the rubric of human rights. These

connections he deduced from comparative law examples and by ‘taking account of

matters of general public knowledge concerning Aboriginals’.122 Here, then, one

witnesses human rights triggering the twin impulses highlighted above: a modernist

impulse, discernible in ‘a blending, a merging of things previously held to be forever

mutually exclusive’; and a pragmatic impulse whereby meaning is deciphered through

observation of a proposition’s ‘bearing upon the conduct of life’.123

The effect of Mason J’s recognition of indigenous rights as human rights was, however,

curiously disempowering for the right-holders in question. Vindication of the rights of

the Pitjantjatjara people was expressed to be contingent upon the soundness of a

legislative belief that ‘indigenous people may require special protection as a group

because their lack of education, customs, values and weakness, particularly if they are a

minority, may lead to an inability to defend and promote their own interests in

transactions with the members of the dominant society’.124 Moreover, in Mason J’s

judgment, as in all the judgments in Gerhardy v Brown, the rights enshrined in the PLRA

121 Gerhardy v Brown, above n 12, 102. 122 Ibid 104-105 (‘[T]he concept of human rights, though generally associated in Western thought

with the rights of individuals, extends also to the rights of peoples and the protection and preservation of their cultures. Legislative action having the purpose and effect of reserving land for indigenous peoples and prohibiting its acquisition by others is not uncommon. It has taken in place, for example, in Fiji and American Samoa’).

123 Macfarlane, above n 44 and related text; Peirce, above n 49 and related text. A further illustration

of the latter approach can be found in the judgment of Gibbs CJ in Gerhardy v Brown, above n 12, 86: ‘The words of the [CERD], and those of the [RDA] which are taken from the [CERD] are vague and elastic and in applying them one is likely to get more assistance from the realities of life than from books of jurisprudence’.

124 Gerhardy v Brown, above n 12, 105.

were understood as ‘special measures’. As such, they were to be ‘primarily…measures of

a temporary character…conferring special rights…[to] alleviate the disadvantages under

which the people of a particular race labour at a particular stage in their evolution’.125

The capacity of the Pitjantjatjara to retain lands traditionally owned by them was

conditioned entirely upon their continued adoption of a posture of ‘weakness’ – their

retaining a place at an earlier point on a scale of human evolution to that of ‘dominant

society’ – in the eyes of the State legislature.126

Brennan J’s handling of human rights law in Gerhardy v Brown likewise exhibits the

modernism and pragmatism characteristic of human rights jurisprudence in Australia.

Brennan J turned to international human rights law ostensibly as a way of ascertaining the

‘true meaning’ of the RDA.127 ‘[H]uman rights’, Brennan maintained, ‘are inalienable

rights and freedoms that a human being possesses simply in virtue of his humanity,

independently of any society to which he belongs, independently of the legal regime

which governs it’.128 Brennan J quickly concluded, however, that ‘it [was] not necessary

to give an exhaustive definition to human rights’ in view of the ‘differing contents’ that

‘the respective religious, cultural and political systems of the world’ attribute to such

notions.129 Rebuffing ‘attempt[s] to determine any truth of things’ in pragmatic terms

125 Ibid 105-106. 126 Cf. Wojciech Sadurski’s critique of the High Court’s decision in Gerhardy v Brown for failing to

make allowance for ‘positive discrimination’ as a proper inference from the principle of non-discrimination. That is, Sadurski maintained that the validity of the PLRA should have proceeded from its substantive, non-discriminatory goal of indigenous ‘improvement’ rather than from its consistency with the exceptional ‘special measures’ clause of the RDA. See Wojciech Sadurski, ‘Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Case that Wasn’t’ (1986) 11 Sydney Law Review 5.

127 Gerhardy v Brown, above n 12, 124. 128 Ibid 126. 129 Ibid.

reminiscent of Peirce,130 Brennan J instead looked to a progress-oriented view of history

to generate interpretive momentum, relating a story of progressive, albeit convulsive

modern development:

The modern international concern with human rights and fundamental freedoms for all

had its origin in the treaties signed and declarations made by certain European States after

the First World War guaranteeing the protection of racial minorities.131

From here, Brennan J traced a grand, cosmopolitan route through international and

common law texts. He travelled from the 1935 Advisory Opinion of the Permanent Court

of International Justice on Minority Schools in Albania, via the 1945 writings of Sir

Hersch Lauterpacht and the International Court of Justice’s 1966 findings in the South

West Africa Cases, to the 1976 judgment of the Supreme Court of India in State of Kerala

v N.M. Thomas and the 1978 decision of the U.S. Supreme Court in University of

California Regents v Bakke.132 The ‘validity’ of observations made in these settings –

that ‘[e]quality of opportunities for unequals can only mean aggravation of inequality’ –

was, Brennan J maintained ‘manifest’.133 The PLRA was not, in this account, a hard-won

political compromise hammered out in the South Australian parliament after decades of

indigenous activism, negotiation and strategising.134 Rather it was, Brennan J suggested,

130 Above n 51 and related text. 131 Gerhardy v Brown, above n 12, 124. 132 Ibid 128-131. 133 Ibid 129. 134 See Richard Bradshaw, ‘Aboriginal Land Rights in South Australia’ (1991) 2/50 Aboriginal Law

Bulletin 20; Max Charlesworth, The Aboriginal Land Rights Movement (1984); Nicolas Peterson and Marcia Langton (eds.) Aborigines, Land and Land Rights (1983).

the result of decades of judicial struggle – rational, intellectual struggle – against ‘an

engine of oppression destructive of human dignity’.135

Yet, for all its grandeur and sweep, the outcome of this jurisprudential endeavour in

Gerhardy v Brown was measly in the extreme. All differential treatment on racial

grounds that ‘denie[d] formal equality before the law’ was held to fall foul of the RDA’s

prohibition of racial discrimination, but for the contingent, transitory exception of ‘special

measures’.136 As Wojciech Sadurski has observed of the High Court’s judgment in

Gerhardy v Brown, ‘[t]he mountain…brought forth a mouse’.137 At the end of a

circuitous jurisprudential itinerary, the Pitjantjatjara people were left with ‘particular

supports’ intended ‘to secure [their] “adequate advancement”’, to be kept perpetually

‘under review’ by the State in question – South Australia.138 This precarious assemblage

was to afford the Pitjantjatjara peoples ‘hearth, home, the source and locus of life, and

everlastingness of spirit’.139

‘The wishes of the beneficiaries [of a special] measure’ were characterised by Brennan J

as being of ‘great importance (perhaps essential) in determining whether a measure [was]

taken for the purpose of securing their advancement’.140 Yet ultimately, the story of

Gerhardy v Brown was not a story of the Pitjantjatjara’s experiences and political

preferences. For all its pragmatic overtures, the High Court’s decision in Gerhardy v

135 Gerhardy v Brown, above n 12, 129. 136 Ibid 132. 137 Above n 132, at 31. 138 Gerhardy v Brown, above n 12, 137, 140. 139 Ibid 136 (quoting Professor Stanner). 140 Ibid 135.

Brown did not set the PLRA ‘at work within the stream of…experience’ in an open-

ended, experimental spirit.141 Rather, in Gerhardy v Brown the High Court told a story of

late modernist heroism whereby the ‘linguistic entities’ of Australian law were ‘re-

order[ed]…to match what was felt to be the new order of reality’142 – a new ‘mode of

progress in the international arena’.143 The terminology of human rights was taken to be a

hallmark of that progress.

Thus, the erratic pas de deux between modernism and pragmatism, in which human rights

jurisprudence and debate in Australia remains caught up, was discernible already in the

1985 judgment of Gerhardy v Brown. Faced in that case with legislative invocation of

human rights, the High Court elected to dance this dance along a path of least disruption,

reaffirming the integrity of modern Australian law against an apparent incursion of

vagueness. Here, one might return to a question posed at the beginning of this article:

How, if at all, did rights-talk shift, open up or otherwise affect judicial attitudes towards

particular issues or claimants in Gerhardy v Brown? On one hand, the introduction of

human rights concepts was welcomed as an opportunity for the Court to link its

jurisprudence to international trends identified with progress. Hence the eclectic array of

comparative references that appear in the judgments of several members of the Court. On

the other hand, the Court seemed to recoil from this internationalist link with trepidation.

Faced with an argument for positive discrimination in favour of Pitjantjatjara land claims

(framed as an appeal to human rights), the High Court showed itself open to such appeals

only in the most constricted sense available. By seeking sanctuary in the legislative

141 Above n 61 and related text. 142 Above n 44 and related text. 143 Gerhardy v Brown, above n 12, 157.

haven of ‘special measures’, the Court seemed to veer away from a robustly pragmatic

reading of human rights in the context of the RDA (specifically, a pragmatic reading of

the concept of discrimination); that is, a reading that might have effected ‘a serious

rearrangement of…preconceptions’ in a ‘wholly plastic’ world.144

V CONCLUSION

The trail being blazed by international human rights principles through Australian law is

meandering and inconclusive, as the two selected examples of Pearce v The Queen and

Gerhardy v Brown reveal.145 I do not wish to suggest, by my reading of the foregoing

cases, that members of the High Court bench are entertaining human rights arguments

with consciously self-interested purposes. Similarly, I have no reason to believe that

scholars and practitioners of human rights law in Australia are deceptively advancing

their own interests while purporting to advance others. Rather, the foregoing analysis has

sought to show that the particular preoccupations that Australian jurisprudence on human

rights law exhibits are engendered more through the style of that jurisprudence than

through any lawyerly plot of self-aggrandisement or domination. The faith in progress to

which I have alluded throughout this article, and the fixation on Australia’s law’s

veneration and enhancement – these have become routine thanks (in part) to the

modernist, pragmatic patterns of argument through which those concerned with human

rights in Australia law continually cycle. The ‘journey of enlightenment’146 that has been

pursued in the name of human rights in Australian law has led repeatedly back to the law

itself, ending in an affirmation of that law’s currency and wisdom.

144 James, above n 61 and n 68 and related text. 145 See Williams, above n 15, 245 (‘The High Court’s interpretation of constitutional rights presents a

complex picture’).

Before embarking upon such a human right-led ‘journey of enlightenment’ in any

particular case, scholars and practitioners of Australian law should perhaps be mindful of

the solipsistic propensities of human rights law. Human rights’ associations are as much

with the darkest and most troubling aspects of humanism, as they are with its sunnier

sides.147 The words of Jean Paul Sartre are salutary in this regard:

Liberty, equality, fraternity, love, honour, patriotism and what have you. All this did not

prevent us from making anti-racial speeches about dirty niggers, dirty Jews and dirty Arabs.

High-minded people, liberal or just soft-hearted, protest that they were shocked by such

inconsistency; but…with us there is nothing more consistent than a racist humanism since

the European has only been able to become a man through creating slaves and monsters.148

The foregoing analysis suggests that, despite the rising number of instances in which

human rights law has been referenced by Australia’s High Court, the expectations of

146 Kirby, above n 9. 147 One might recall, in this regard, oft-cited links between the international human rights law regime

developed in the post-WWIII period and some of the inexorable horrors of the first half of the twentieth century. See, e.g., Universal Declaration of Human Rights, GA Res 217A, 3rd session 183rd plenary meeting, UN Doc A/180, 71 (1948), Preamble: ‘Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people’. See generally Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, 10-20, 15 (2001): ‘[I]n the century of mass slaughters, the heirs of various movements for the abolition of slavery, workers’ rights, universal suffrage, and other reformist causes joined forces in the struggle for human rights’. See also Kirsten Sellars, The Rise and Rise of Human Rights (2002), ix: ‘The modern human rights movement is often assumed to have arisen in response to the horrors of the Nazi death camps. In fact it had already begun to make itself heard before Hitler put his extermination policies into effect, and years before Auschwitz and Treblinka were revealed to the world. The movement was jolted into action at the beginning of the war by the shock being plunged into another catastrophic conflict less than a quarter of a century after the First World War…Many believed that the lesson to be drawn from the rise of fascism was self-evident…By promoting the cause of human rights, harmony would be restored, and the emergence of destabilising regimes would be prevented’.

148 Jean Paul Sartre, ‘Preface’ in Frantz Fanon, The Wretched of the Earth (Constance Farrington

trans, 2nd ed 1968) 7-26.

many commentators that this signifies a ‘retreat from injustice’ have largely not been

borne out.149 When one turns the High Court’s diluted pragmatism upon itself, one

observes in the ‘fruits’150 of the Court’s work little to evidence its members’ openness to

pragmatic experimentation, nor much evidence of Australian law’s increasing

responsiveness to human rights claimants. Rather, one observes a judicial and a legal

community preoccupied with worries over Australian law’s obsolescence and isolation.

And it is in part through appeals to human rights law and its sweeping narratives of

human progress that this professional community works to assuage these worries.

Yet the pre-eminent version of human rights law to which High Court jurisprudence and

Australian legal scholarship have given shape over the past three decades is not the only

style in which this law might be written. The capacity of even a modernist, pragmatic

human rights law to shock, to disrupt, to put at risk the established order of legal thought

in Australia remains an opportunity not to be squandered. Recalling all that modernism

and pragmatism have been, scholars and practitioners of human rights law in Australia

might yet set down the wheelbarrows of legislative incorporation or judicial education to

probe further the dynamics between international human rights law and Australian law.151

Those scholars and practitioners might experiment with thinking and writing human

149 Above n 21. 150 Above n 51and related text. 151 Compare, for instance, Alan Watson, Legal Transplants: An Approach to Comparative Law (2nd

ed. 1993); Karen Knop, ‘Here and There: International Law in Domestic Courts’ (2000) 32 N.Y.U. Journal of International Law & Politics 501; Thomas Risse & Kathryn Sikkink, ‘The Socialization of International Human Rights Norms into Domestic Practices: Introduction’ in Thomas Risse, Stephen C. Ropp & Kathryn Sikkink (eds.), The Power of Human Rights: International Norms and Domestic Changes 1, 11-37 (1999); Yves Dezalay & Bryant G. Garth, The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (2002); Jonathan M. Miller, ‘A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process’ (2003) 51 American Journal of Comparative Law 839; and Ugo Mattei, ‘A Theory of Imperial Law: A Study of U.S. Hegemony and the Latin Resistance’ (2003) 10 Indiana Journal of Global Legal Studies 383.

rights law in a number of different styles, rather than endlessly reproducing the aesthetic

of late modernist progressivism that prevails in this area of Australian jurisprudence.152 It

may be that such experiments lead ultimately to a renewed commitment to human rights

law. Alternatively, they might provoke the exhilarating, agonising vertigo of a loss of

faith in rights. This sensation too is a powerful, albeit little told part of the story of

human rights law in Australia.153

To date, rights-talk, as anticipated in Australian legal scholarship and expressed in

Australian case law, has oriented its speakers and listeners towards a future of comfort,

light and momentousness. Arguments for human rights’ further enforcement have aspired

to elevate Australian law above parochialism, to connect it with something broader,

cleaner, and more honourable. These are rousing aspirations. Throughout history, much

has been championed in such terms, from temperance to colonialism.154 Before we

accept this route, however, and hurry along a right-lit path towards ‘enlightenment’, there

is time and occasion to turn back and fumble into the dark. ‘Progressive’ Australian legal

scholars and practitioners may encounter the faces of the slaves and monsters there. And

they may be our own.

152 What, for instance, would a Dada or a Surrealist human rights jurisprudence be like? See Nathaniel

Berman ‘Against the Wrong and the Dead: A Genealogy of Left/MPM’ (2000-2001) 22 Cardozo Law Review 1005. How would a contemporary stylist such as Matthew Barney do human rights? See Nancy Spector (ed.), Matthew Barney: The Cremaster Cycle (2002).

153 Cf. David Trubek & Marc Galanter, ‘Scholars in Self-Estrangement: Some Reflections on the

Crisis in Law and Development Studies in the United States’ (1974) Wisconsin Law Review 1062; David Kennedy, ‘Autumn Weekends: An Essay on Law and Everyday Life’ in Law and Everyday Life (Austin Sarat and Thomas R. Kearns (eds), 1993), 191.

154 Christopher John Carr, The Temperance Movement 1870-1890 in New South Wales: Social and

Political Perspectives (1977); Alice L. Conklin, A Mission to Civilize: The Republican Idea of Empire in France and West Africa, 1895-1930 (1997).

APPENDIX: HIGH COURT CASES CONTAINING REFERENCES TO ‘HUMAN RIGHTS’ Human Rights Instruments, Jurisprudence, Institutions and/or Scholarship as a Point of Reference in Constitutional Interpretation: NSW v The Commonwealth ; Victoria v The Commonwealth ; Queensland v The Commonwealth ; South

Australia v The Commonwealth ; Western Australia v The Commonwealth; Tasmania v The Commonwealth (1975) 135 CLR 337 [the Seas and Submerged Lands Act 1973 (Cth) case] (per Stephen and Murphy JJ re: divided legislative competence in a federal system and the external affairs power);

Dowal v Murray (1978) 143 CLR 410 (per Murphy J re: the external affairs power); Mcgraw-Hinds (Aust.) Pty. Ltd. v Smith (1979) 144 CLR 633 (per Murphy J re: implied freedom of

communication); R v Sweeney; Ex Parte Northwest Exports Pty. Ltd. (1981) 147 CLR 259 (per Stephen J re: the external

affairs power); Koowarta v Bjelke-Petersen (1982) 153 CLR 168 (per Stephen, Mason and Murphy JJ re: the external

affairs power; contra Gibbs CJ); Commonwealth v Australia (1983) 158 CLR 1 (per Murphy and Dawson JJ re: the external affairs power); Richardson v Forestry Commission (1988) 164 CLR 261 (per Deane J re: the external affairs power); Street v Queensland Bar Association (1989) 168 CLR 461 (per Mason CJ and Gaudron J re: section 117,

including making comparative reference to U.S. and Canadian jurisprudence; contra McHugh J); Australian Capital Television Pty. Limited and the State of New South Wales v The Commonwealth (1992)

177 CLR 106 (per Mason CJ and Brennan J re: implied freedom of political communication); Nationwide News Pty. Limited v Wills (1992) 177 CLR 1 (per Brennan J re: implied freedom of political

communication); Cunliffe v The Commonwealth (1994) 182 CLR 272 (per Brennan J re: implied freedom of political

communication); Theophanous v The Herald and Weekly Times Limited (1994) 182 CLR 104 (per Mason CJ and Toohey,

Gaudron and Brennan JJ re: implied freedom of political communication); Brandy v Human Rights And Equal Opportunity Commission and Ors (1995) 127 ALR 1 (per Deane,

Dawson, Gaudron and McHugh JJ re: Racial Discrimination Act 1975 (Cth) and Chapter III of the Constitution);

Victoria, South Australia & Western Australia v Commonwealth [1995] 9 Leg Rep 6b (per Brennan CJ and Toohey, Gaudron, McHugh and Gummow JJ re: validity of Industrial Relations Act 1988 (Cth) pursuant to the external affairs power);

Leask v The Commonwealth (1996) 187 CLR 579 (per Brennan CJ and Toohey J re: comparative references to European Convention on Human Rights and Fundamental Freedoms concerning doctrine of proportionality, when assessing constitutional validity, under sections 51(ii) and (xii), of the Financial Transactions Reports Act 1988 (Cth));

Newcrest Mining (WA) Limited v The Commonwealth of Australia (1997) 190 CLR 513 (per Kirby J re: section 51(xxxi) of the Constitution);

Kruger v The Commonwealth; Bray v The Commonwealth (1997) 190 CLR 1 (per Gaudron J re: section 122 of the Constitution and implied rights and guarantees alleged to comprise part of the Constitution);

Levy v State of Victoria (1997) 189 CLR 579 (per Kirby J re: Hunting Season Regulations 1994 (Vic) and implied freedom of political communication);

Nicholas v R [1998] HCA 9 (per Toohey J re: Crimes Act 1914 (Cth), section 15X and constitutional permissibility of exercise of judicial power thereunder to disregard (when deciding on evidence’s admissibility) the fact that a law enforcement officer committed a narcotics offence, if officer was acting in the line of duty as part of a controlled operation)

Gould v Brown [1998] HCA 6 (per Gaudron J re: whether examination orders and summons issued pursuant to the Corporations Law amounted to an unconstitutional exercise of State jurisdiction and judicial power by the Federal Court);

Kartinyeri v The Commonwealth [1998] HCA 22 (per Gaudron, Gummow, Hayne and Kirby JJ re: section 51(xxvi) of the Constitution);

Commonwealth of Australia v State of Western Australia [1999] HCA 5 (per Kirby J re: constitutional requirements for the acquisition of land on just terms);

Smith v ANL Limited [2000] HCA 58 (per Kirby J re: section 51(xxxi) of the Constitution); Cheung v R [2001] HCA 67 (per Kirby J re: section 80 of the Constitution);

Cabal v United Mexican States [2001] HCA 42 (per Kirby J re: constitutional power of the High Court to grant bail);

Austin v the Commonwealth of Australia [2003] HCA 3 (per Kirby J re: constitutional constraints upon legislative encroachment on judicial independence).

Human Rights Instruments, Jurisprudence, Institutions and/or Scholarship as a Point of Reference in Legislative Interpretation: R v Wallis (1949) 78 CLR 529 (per Latham CJ re: Conciliation and Arbitration Act 1904 (Cth)); R v Wilson, Ex Parte Witness T (1976) 135 CLR 179 (per Murphy J re: Extradition (Foreign States) Act

1966 (Cth)); Salemi v Mackellar (No. 2) (1977) 137 CLR 396 (per Murphy J re: Migration Act 1958 (Cth)); Western Australian Turf Club v Federal Commissioner Of Taxation (1978) 139 CLR 288 (per Murphy J re:

Income Tax Assessment Act 1936 (Cth) and discussion of permissibility of club by-laws); Johanson v Dixon (1979) 143 CLR 376 (per Murphy J re: Vagrancy Act 1966 (Vic)); Pyneboard Pty. Ltd. v Trade Practices Commission (1983) 152 CLR 328 (per Murphy J re: privilege

against self-incrimination and section 155 of the Trade Practices Act 1974 (Cth)); Viskauskas v Niland (1983) 153 CLR 280 (per Gibbs CJ re: section 109 of the Constitution and its effect on

the Anti-Discrimination Act 1977 (NSW)); In the Matter of an Application to the Family Court of Australia in the Marriage of Bernard Anthony

Cormick and Janice Brenda Cormick, Amanda Jayn Salmon (1984) 156 CLR 170 (per Murphy J re: jurisdiction of the Family Court of Australia);

Gerhardy v Brown (1985) 159 CLR 70 (per Gibbs CJ, Mason J, Brennan J and Deane J re: validity of the Pitjantjatjara Land Rights Act 1981 (S.A.) in view of the Racial Discrimination Act 1975 (Cth));

Dao v Australian Postal Commission (1987) 162 CLR 317 (per Mason CJ re: section 109 of the Constitution and its effect on the Anti-Discrimination Act 1977 (NSW));

Davis v The Commonwealth (1988) 166 CLR 79 (per Brennan J re: Australian Bicentennial Authority Act 1980 (Cth));

Mabo v The State Of Queensland (1989) 166 CLR 186 (per Wilson, Brennan, Toohey, Gaudron and Deane JJ re: the Queensland Coast Islands Declaratory Act 1985 (QLD) and the Racial Discrimination Act 1975 (Cth));

Australian Iron and Steel Pty. Ltd. v Banovic (1989) 168 CLR 165 (per Deane and Gaudron JJ re: Anti-Discrimination Act 1977 (NSW));

Chan v Minister For Immigration And Ethnic Affairs (1989) 169 CLR 379 (per Dawson and McHugh JJ re: Migration Act 1958 (Cth);

Polyukhovich v The Commonwealth (1991) 172 CLR 501 (per Mason CJ and Deane and Toohey JJ re: War Crimes Amendment Act 1988 (Cth) and the principle of non-retrospectivity);

Waters v Public Transport Corporation (1992) 173 CLR 349 (per Mason CJ and Gaudron J re: Equal Opportunity Act 1984 (Vic));

Western Australia v The Commonwealth, The Wororra Peoples v Western Australia, Biljabu v Western Australia (1995) 183 CLR 373 (per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ re: Land (Titles and Traditional Usage) Act 1993 (W.A.) and Racial Discrimination Act 1975 (Cth);

Grollo v Palmer (1995) 184 CLR 348 (per Brennan CJ, Deane, Dawson and Toohey JJ re: citation of European Court of Human Rights jurisprudence re: validity of judicial powers under Telecommunications (Interception) Act 1979 (Cth));

De L v Director-General, N S W Department of Community Services (1996) 139 ALR 417 (per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ re: Family Law (Child Abduction Convention) Regulations (Cth));

Rodney Croome v Tasmania (1997) 191 CLR 119 (per Brennan CJ, Dawson, Toohey Gaudron, McHugh and Gummow JJ re: Human Rights (Sexual Conduct) Act 1994 (Cth) and section 109 of the Constitution);

Re East & Ors; I W v City of Perth (1997) 191 CLR 1 (per Brennan CJ and McHugh, Gummow and Kirby JJ re: Equal Opportunity Act 1984 (Cth);

‘Applicant A’ v Minister of Immigration and Multicultural Affairs (1997) 142 ALR 331 (per Brennan CJ, Dawson, McHugh, Gummow and Kirby JJ re: Migration Act 1958 (Cth));

Attorney-General for the Commonwealth v Tse Chu-Fai [1998] HCA 25 (per Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ re: validity of the Extradition Agreement between Australian and Hong Kong and status of Hong Kong under the Extradition Act 1988 (Cth));

Qantas Airways Limited v Christie [1998] HCA 18 (per Gaudron J re: Workplace Relations Act 1996 (Cth));

Ex parte Abebe [1998] HCA 10 (per Kirby J re: allowance for further proceedings before the Refugee Review Tribunal under the Migration Act 1958 (Cth));

AMS v AIF and AIF v AMS [1999] HCA 26 (per Kirby J re: validity of judicial order made under the Family Law Act 1975 (WA); contra Gleeson CJ, McHugh and Gummow JJ);

X v The Commonwealth [1999] HCA 63 (per McHugh, Gummow, Hayne and Kirby JJ re: comparative jurisprudence relevant to interpretation of the Disability Discrimination Act 1977 (Cth));

Northern Territory of Australia v GPAO [1999] HCA 8 (per Kirby J re: interpretation of Family Law Act 1975 (Cth) in relation to the Community Welfare Act (NT));

Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 (per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ re: intepretation of the Migration Act 1958 (Cth) and the validity of a decision of the Refugee Review Tribunal);

R v Hughes [2000] HCA 22 (per Kirby J re: interpretation of the Corporations Act 1989 (Cth) and the Corporations (Western Australia) Act 1990 (WA));

Cabal v United Mexican States [No 2] [2001] HCA 43 (per Kirby J re: interpretation of section 53 of the Extradition Act 1988 (Cth));

DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services [2001] HCA 39 (per Gummow, Hayne and Kirby JJ re: interpretation, in passing, of regulation 16(3)(d) of the Family Law (Child Abduction Convention) Regulations (Cth), a provision which was not centrally at issue in the case);

Malika Holdings Pty Ltd v Stretton [2001] HCA 14 (per Kirby J re: interpretation of section 167 of the Customs Act 1901 (Cth));

Western Australia v Ward; Attorney-General (NT) v Ward; Ningarmara v Northern Territory [2002] HCA 28 (per Kirby J re: interpretation of the Native Title Act 1993 (Cth) and the Racial Discrimination Act 1975 (Cth); per Callinan J in rejecting the contention that international human rights law was relevant to the cases);

Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 (per Kirby J re: intepretation of the Migration Act 1958 (Cth) – specifically, those provisions incorporating sections of the 1951 Refugee Convention – and the validity of a decision of the Refugee Review Tribunal);

U v U [2002] HCA 36 (per Gummow, Callinan and Kirby JJ re: interpretation of the Family Law Act 1975 (Cth);

Wilson v Anderson [2002] HCA 29 (per Kirby J re: interpretation of the Western Lands Act 1901 (WA) in relation to the Native Title Act 1993 (Cth));

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (per Gleeson CJ and Callinan J re: interpretation the Migration Act 1958 (Cth));

Re Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 1 (per Gleeson CJ and McHugh, Gummow, Hayne and Callinan JJ re: interpretation the Migration Act 1958 (Cth));

Human Rights Instruments, Jurisprudence, Institutions and/or Scholarship as a Point of Reference in the Interpretation of Common Law Principles: Dugan v Mirror Newspapers Ltd. (1978) 142 CLR 583 (per Murphy J re: the doctrine of ‘civil death’

preventing a convicted felon who has been sentenced to death from bringing civil suit); McInnis v R (1979) 143 CLR 575 (per Murphy J re: whether miscarriage of justice arose from non-

adjournment to permit securing of counsel); Uebergang v Australian Wheat Board (1980) 145 CLR 266 (per Murphy J re: judicial development of

public policy tests); R v Darby (1982) 148 CLR 668 (per Murphy J re: effect of acquittal on the conviction of a co-offender); Rochfort v Trade Practices Commission (1982) 153 CLR 134 (per Murphy J re: privilege against self-

incrimination); Perry v R (1982) 150 CLR 580 (per Murphy J re: admission of evidence in a criminal trial); Neal v R (1982) 149 CLR 305 (per Murphy J re: material error in conviction of aboriginal man for spitting); Hammond v The Commonwealth (1982) 152 CLR 188 (per Murphy J re: privilege against self-

incrimination); Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152

CLR (per Mason J re: contempt of court and extent to which publicity may be suppressed to protect the integrity of judicial proceedings);

Sorby v The Commonwealth (1983) 152 CLR 281 (per Murphy J re: privilege against self-incrimination); Baker v Campbell (1983) 153 CLR 52 (per Murphy J re: legal professional privilege);

The Police Service Board v Russell John Morris/Robert Colin Martin (1985) 156 CLR 397 (per Murphy J re: privilege against self-incrimination);

Controlled Consultants Pty. Ltd. v Commissioner for Corporate Affairs (1985) 156 CLR 385 (per Murphy J re: privilege against self-incrimination);

Attorney-General (N.T.) v Maurice (1986) 161 CLR 475 (per Deane J re: legal professional privilege); J. v Lieschke (1987) 162 CLR 447 (per Wilson J re: common law doctrine of natural justice); Secretary, Department of Health and Community Services v J.W.B. and S.M.B. (Marion's Case) (1992) 175

CLR (per Mason CJ and Brennan and McHugh JJ re: Family Court of Australia powers and/or parental powers to consent to the sterilization of a mentally disabled child);

Dietrich v R (1992) 177 CLR 292 (per Mason CJ and McHugh, Deane and Dawson JJ re: right to a fair trial);

Mabo v The State Of Queensland (No.2) 175 CLR 1 (per Brennan and Toohey JJ re: native title’s endurance despite annexation);

Sykes v Cleary (1992) 176 CLR 77 (per Dawson J re: conflict of laws principles concerning giving effect to foreign citizenship laws);

Environment Protection Authority v Caltex Refining Co. Pty. Limited (1993) 178 CLR 477 (per Mason CJ and Toohey and McHugh JJ citing Murphy J re: privilege against self-incrimination);

Louis James Carter v The Managing Partner, Northmore Hale Davy and Leake 129 ALR 593 (1995) (per Brennan, McHugh and Toohey JJ re: legal professional privilege);

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 (per Mason CJ and Deane and Toohey JJ re: effect in administrative law of ratification of the Convention on the Rights of the Child);

Walsh v Tattersall (1996) 188 CLR 77 (per Dawson and Toohey JJ re: historical development of the common law doctrine against duplicity);

Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1 (per Kirby J re: principle of separation of the judicature from other branches of government);

Breen v Williams (1996) 186 CLR 71 (per Dawson and Toohey JJ re: comparative assessment, by reference to European Convention for the Protection of Human Rights and Fundamental Freedoms and UK legislation, of patients’ right of access to medical records);

Thorpe v Commonwealth of Australia (No3) (1997) 144 ALR 677 (per Kirby J re: jurisdiction of the High Court to hear statement of claim alleging a breach of fiduciary obligation owed to indigenous peoples of Australia);

Australian Federal Police, Commissioner of v Propend Finance Pty Ltd (1997) 188 CLR 501 (per McHugh, Gummow and Kirby JJ re: legal professional privilege);

Ousley v R (1997) 192 CLR 69 (per Kirby and Gaudron JJ re: exercise of judicial discretion under the Listening Devices Act 1969 (Vic));

BRS v R (1997) 191 CLR 275 (per Kirby J re: fairness in criminal trials); Mann v O'Neill (1997) 191 CLR 204 (per Kirby J re: privileges against defamation proceedings); Ex parte Nguyen [1998] HCA 73 (per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ re:

alleged miscarriage of justice, violation of natural justice or procedural fairness and contravention of the Racial Discrimination Act 1975 (Cth) in criminal proceedings in the Magistrates’ Court and County Court of Victoria);

Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 (per Brennan CH and McHugh J re: defamation law);

Sinanovic v R [1998] HCA 40 (per Kirby J re: fairness in criminal trials); Director of Public Prosecutions v B [1998] HCA 45 (per Gaudron, Gummow and Hayne JJ re: comparative

jurisprudence before the UN Human Rights Committee concerning judicial power to refuse to accept prosecution’s entry of a nolle prosequi);

Pearce v R [1998] HCA 57 (per Kirby J re: principle of double jeopardy); R v Swaffield; Pavic v R [1998] HCA 1 (per Kirby J re: law of evidence, fairness in criminal trials and

admissibility of criminal confessions); H A Bachrach Pty Ltd v The State of Queensland [1998] HCA 54 (per Gleeson CJ, Gaudron, Gummow,

Kirby and Hayne JJ re: matters appertaining exclusively to judicial power); Gray v Motor Accident Commission [1998] HCA 70 (per Kirby J re: principle of double jeopardy and its

relevance in the award of damages); Boland v Yates Property Corporation Pty Limited; Webster v Yates Property Corporation [1999] HCA 64

(per Kirby J re: scope of legal practitioners’ immunity from suit); Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 (per Gleeson CJ, McHugh,

Callinan, Gaudron and Kirby JJ re: allegation of unreasonableness in decision of Refugee Review Tribunal after extensive evidence presented about human rights violations in Ethiopia);

Sue v Hill [1999] HCA 30 (per Gaudron J re: conflict of laws principles concerning giving effect to foreign citizenship laws and re: definition of judicial power when assessing whether Div 1 of Pt XXII of the Commonwealth Electoral Act 1918 (Cth) confers non-judicial power.);

Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67 (per Kirby J re: legal professional privilege);

Allesch v Maunz [2000] HCA 40 (per Kirby J re: exercise of judicial discretion to set aside cost orders and principles of natural justice or procedural fairness);

Johnson v Johnson [2000] HCA 48 (per Kirby J re: allegation of judicial bias and importance of judicial impartiality);

Ebner v The Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63 (per Kirby J re: failure of judges to recuse themselves and importance of judicial impartiality);

Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 (per Kirby J re: allegation of judicial bias and importance of judicial impartiality);

The Commonwealth v Yarmirr; Yarmirr v Northern Territory [2001] HCA 56 (per Kirby J re: scope of native title rights to the sea and sea-bed under common law authorities recognising native title and under Native Title Act 1993 (Cth));

Azzopardi v R [2001] HCA 25 (per Gaudron, Gummow, Kirby, Hayne and McHugh JJ re: requirements of a fair trial);

Brodie v Singleton Shire Council [2001] HCA 29 (per Kirby J re: immunity of public authorities); KRM v R [2001] HCA 11 (per Kirby J re: requirements of a fair trial and principle of nullem crimen sine

lege, nullem poena sine lege); Rosenberg v Percival [2001] HCA 18 (per Kirby J re: standard of care required re: obtaining patient’s

informed consent to invasive surgery); Ryan v R [2001] HCA 21 (per Kirby J re: principles of criminal sentencing); Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 (per Gleeson CJ,

Gummow, Hayne, Kirby and Callinan JJ re: potential development of a tort of privacy in the context of human rights developments in other jurisdictions);

Regie National des Usines Renault SA v Zhang [2002] HCA 10 (per Kirby J re: forum non conveniens arguments, loyalty owed to local law absent an intervening human rights norm and consequent connection between subject matter of a case and jurisdiction invoked);

Dow Jones & Company Inc. v Gutnick [2002] HCA 56 (per Kirby J re: interpretation of the law of defamation with reference to its jurisdictional dimensions);

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer C [2002] HCA 49 (per Kirby J re: legal professional privilege);

TKWJ v R [2002] HCA 46 (per Gleeson CJ re: fairness in criminal trials); Cattanach v Melchior [2003] HCA 38 (per Kirby J re: discussion of notion of damages being recoverable

for failure to warn resulting in unwanted birth); Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 (per McHugh and

Gummow JJ re: effect upon administrative law of the ratification of an international human rights convention);

Dismissive References to Human Rights Instruments, Jurisprudence, Institutions and/or Scholarship: Attorney-General (Vict.); Ex Rel. Black v The Commonwealth (1981) 146 CLR 559 (per Gibbs CJ re: s.116

of the Commonwealth Constitution not being for the purpose of protecting a fundamental human right);

Kioa v West (1985) 159 CLR 550 (per Gibbs CJ and Mason and Brennan JJ re: common law doctrine of natural justice);

Chu Kheng Lim v The Minister For Immigration, Local Government And Ethnic Affairs (1992) 176 CLR 1 (per Toohey, Gaudron and McHugh JJ re: Migration Act 1958 (Cth));

Snowdon v Dondas (No.2) (1996) 188 CLR 48 (per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ re: rejecting attempt to rely on the International Covenant on Civil and Political Rights to contest exclusion of votes in election to the House of Representatives);

Re Minister for Immigration and Multicultural Affairs & Anor; Ex Parte SE [1998] HCA 72 (per Hayne J re: Migration Act 1958 (Cth);

Joosse v Australian Securities and Investment Commission [1998] HCA 77 (per Hayne J re: whether certain legislation invalid due to an historical ‘break in sovereignty’, due to Royal assent not being validly given, or due to treaties pursuant to which legislation was enacted not being registered);

Byrnes v R; Hopwood v R [1999] HCA 38 (per Gaudron, McHugh, Gummow and Callinan JJ re: Criminal Law Consolidation Act 1935 (SA), distinguishing approach adopted in Canadian jurisprudence concerning ‘gaps’ in statutory grants of jurisdiction);

Durham Holdings Pty Ltd v The State of New South Wales [2001] HCA 7 (per Kirby J rejecting an argument that the Coal Acquisition Act 1981 (NSW) and arrangements thereunder should be interpreted in accordance with property-related due process rights allegedly enshrined in customary international law, as the legislation in question was clear and unambiguous);

Minister for Immigration and Multicultural Affairs v Yusuf; Re Minister for Immigration [2001] HCA 30 (per Kirby and Callinan JJ, making passing references to human rights-based arguments that could potentially be mounted in relation to ‘draft dodgers’ and to a finding of the UN High Commissioner for Refugees by which the Refugee Review Tribunal was held not to be bound);

Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (dismissal of arguments presented by the Human Rights and Equal Opportunity Commission as an intervenor);

De Sales v Ingrilli [2002] HCA 52 (per Kirby J considering, but ultimately rejecting, the possible relevance of European Court of Human Rights jurisprudence re: interpretation of the Fatal Accidents Act 1959 (WA);

Extremely Slight or Desultory References to Human Rights Instruments, Jurisprudence, Institutions and/or Scholarship: Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 (per Mason CJ re: the fact

that the appellant had applied to the Human Rights and Equal Opportunity Commission); DPP (Cth) v Kainhofer (1995) 185 CLR 528 (per Toohey and Gummow JJ passing reference re:

Extradition Act 1988 (Cth)); Re Registrar, Social Security Appeals Tribunal (1995) 130 ALR 163 (per Toohey J, citing Brandy v Human

Rights And Equal Opportunity Commission); North Ganalanja Aboriginal Corp and the Waanyi People v Queensland (1996) 185 CLR 595 (footnoted

citations of Brandy v Human Rights And Equal Opportunity Commission); Lindon v Commonwealth (No 2) (1996) 136 ALR 251 (per Murphy J re: outlining terms of a statement of

claim found defective which included reference to Mr. Lindon’s application to the UN Human Rights Committee);

Residential Tenancies Tribunal of New South Wales & Henderson, Re (1997) 190 CLR 410 (footnoted citation of Brandy v Human Rights And Equal Opportunity Commission);

Re Colina; Ex parte Torney [1999] HCA 57 (per Kirby J re: reference to scholarship on human rights in constitutional law when discussing section 117 of the Constitution);

Attorney-General of the Commonwealth v Breckler [1999] HCA 28 (per Gleeson CJ and Gaudron, McHugh, Gummow, Hayne and Callinan JJ, citing Brandy v Human Rights And Equal Opportunity Commission and related jurisprudence and writing);

Abebe v The Commonwealth; Re Minister for Immigration and Multicultural Affairs [1999] HCA 14 (per Gaudron J citing Brandy v Human Rights And Equal Opportunity Commission);

Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Li [2000] HCA 11 (per Gaudron J citing Brandy v Human Rights And Equal Opportunity Commission);

John Pfeiffer Pty Limited v Rogerson [2000] HCA 36 (per Kirby J re: reference to literature discussing forum-shopping in the context of human rights litigation);

Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 (per Gaudron and McHugh JJ, making passing references to human rights reports to which the Refugee Review Tribunal had regard);

Re Minister for Immigration and Multicultural Affairs; Ex parte P T [2001] HCA 20 (per Kirby J, making passing reference to human rights reports to which the Minister’s delegate had regard);

Re McBain; Ex parte Australian Catholic Bishops Conference; Re McBain; Ex parte Attor [2002] HCA 16 (per McHugh J, making passing reference to the arguments put forward by the Human Rights and Equal Opportunity Commission (as intervenor in the case) in the course of deciding that no ‘matter’ had arisen for the court to decide);

Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7 (per Callinan J, making passing reference to human rights reports raised before the Refugee Review Tribunal);

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (per Gaudron and Gummow JJ, making passing reference to Canadian jurisprudence concerning the Canadian Human Rights Commission when determining the powers of the Immigration Review Tribunal);

Luton v Lessels [2002] HCA 13 (per Kirby and Callinan JJ, discussing Brandy v Human Rights And Equal Opportunity Commission);

Roberts v Bass [2002] HCA 57 (per Kirby J, distinguishing English case law on the grounds of its having being affected by the European Convention for the Protection of Human Rights and Fundamental Freedoms);

Hot Holdings Pty Ltd v Creasy [2002] HCA 51 (per Kirby J, discussing the due process conditions attendant upon the delegation of power to an administrative decision-maker by the legislature, distinguishing English case law on the grounds of its having being affected by the European Convention for the Protection of Human Rights and Fundamental Freedoms);

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (per Callinan J, making passing reference to human rights reports to which the Refugee Review Tribunal would have had regard);

Pasini v United Mexican States [2002] HCA 3 (per Gleeson CJ, Gaudron, McHugh and Gummow JJ citing Brandy v Human Rights And Equal Opportunity Commission);

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (per Kirby J re: factual basis for the appellant’s application for refugee status being his advocacy of human rights);

Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 (per Kirby J re: passing reference to Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission)

Heron v R [2003] HCA 17 (per Kirby J re: passing reference to human rights literature in discussion of the risk of wrongful conviction);

Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 (per Heydon J, citing Bandy v Human Rights and Equal Opportunity Commission);

Human Rights in the High Court of Australia, 1976-2003: The Righting of Australian Law? (2005)

Documents

Transcript of Human Rights in the High Court of Australia, 1976-2003: The Righting of Australian Law? (2005)

Cronologia delle attività dal 1976 - CCB

10-14-1976.pdf - Index of

Australian School Libraries Research Project: Australian teacher librarians

Vol. 2, No. 5 May, 1976 - Ulukau

Véronique Bigo L'Ivre de pierres 1976/1986

WMU Board of Trustee Minutes 1976

Trade, Production, and Protection Database, 1976-2004

1976 - the moral necessity of austerity

Newcastle College of Advanced Education Calendar, 1976

Yearbook 1976 - Spotswood College Alumni Trust

September 24 1976

16-apr-1976.pdf - Zaminryot

FY 1976 Technical Progress Report - Institute for ...

Belém-Pará 2003 Belém-Pará 2003

Radio Bulletin 1976-12-OCR.pdf - Index of

Лазарев В.Н. - Новгородская иконопись - 1976

vestern australian echinoderms

Friday, March 26, 1976 - Daily Titan

TUESDAY, APRIL 6, 1976 - Govinfo.gov

IRC: 66-1976