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

AuthorFleur E Johns
DOI10.22145/flr.33.2.4
Published date01 June 2005
Date01 June 2005
Subject MatterArticle
ORIGINALISM IN CONSTITUTIONAL INTERPRETATION 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 commentators went on to urge 'reconsideration' of 'the training
and patterns of thought of [Australian] lawyers … so that they may be better equipped
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*
BA, LLB (Hons) (Melbourne); LLM, SJD (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, eg, 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 and Penelope J Oakes, 'Human Rights
Concepts in Australian Political Debate' in Tom Campbell, Jeffrey Goldsworthy and
Adrienne Stone (eds), Protecting Human Rights: Instruments and Institutions (2003) 75. 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,
at 4 March 2005.
3 John Doyle and 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, 71–2. Cf Jane Stapleton, 'The Golden Thread at the Heart
of Tort Law: Protection of the Vulnerable' (2003) 24 Australian Bar Review 135, 149
(remarking on 'the success the High Court has had over the past 20 years in identifying the
protection of the vulnerable as a core moral concern of tort law and the delicacy with which
that tool can be creatively deployed').

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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: 'if 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 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
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4 John Doyle and Belinda Wells, above n 3, 74. 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)
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, 'The Local Face of Global Justice Policy' (Lecture to the RMIT students of
the Department of Justice and Youth Studies, Melbourne, 16 April 2004)
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 Labor Party advocates 'constitutional reform to achieve a comprehensive
recognition of the rights enjoyed by all Australians'. See Australian Labor Party, ALP
National Platform and Constitution (2004) ch 7 [12]
/platform/chapter_07.php> at 4 March 2005. The Australian Democrats likewise support
'enacting a Bill of Rights and Responsibilities'. See Australian Democrats, Constitutional
Reform Policy (2001) [5] at 26 August 2004. See
also Australian Greens, Democracy (1998) [1.2.4(c)]
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)
at 31 May 2005 ('I belong to
that group of Australians who is resolutely opposed to [formally entrenching a bill of rights
in Australian law]').
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 ('there 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 177; Justice Michael 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 increase public awareness about human

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Righting of Australian Law? 289
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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 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
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rights procedures, standards and issues within Australia and the international community'.
During the first two decades of its existence, the Centre has organised a series of seminars,
workshops, public lectures and occasional publications. See
at 23 June 2005. 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
...

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