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Australian Journal of Human Rights

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Hyland, Margaret --- "Nick O'Neil, Simon Rice and Roger Douglas Retreat From Injustice Human Rights Law in Australia (2nd Edition) 2004" [2004] AUJlHRights 12; (2004) 10(1) Australian Journal of Human Rights 12

Retreat from Injustice: Human Rights Law in Australia (2nd edition)

By Nick O’Neil, Simon Rice and Roger Douglas

The Federation Press, 2004, 754 pages

This book provides a detailed description of the legal context for the implementation of human rights into Australia’s domestic laws. The first edition was published 10 years ago in 1994. In light of current world events and changes in both domestic and international law, a second edition is timely in evaluating Australia’s commitment to human rights in the 21st century.

The preliminary chapters evaluate the recognition and protection of human rights afforded by the Australian legal system. This is examined against principles such as the rule of law, the division of powers within a federated system, constitutional limitations and the common law. A brief commentary on current government policy and the executive’s reaction to international recommendations and concerns is also provided.

The latter chapters of the book focus on specific areas such as refugees; the indigenous; freedom of speech, association and assembly; detention; and the trial process. These issues are examined within the Australian legal context and against Australia’s international obligations. As a comprehensive understanding of these issues could be attained without reading the preliminary chapters, there tends to be some repetition within the book. Chapters 1–7 could stand alone as a book examining human rights within the Australian context, while Chapters 8–23 could comprise a separate book dealing with the treatment of specific human rights issues of central concern to Australia.

The introductory chapters extensively examine Australia’s legal system. The authors analyze the constitutional constraints of a federated system and the High Court’s fluctuating approach to interpreting the Constitution and legislative initiatives by both Commonwealth and state parliaments to human rights. A historical overview of the development of Natural Law Theory and its ‘revival’ in the 20th century with the development and recognition of international human rights (12–15) is also provided. The dichotomy of Natural Law Theory and Positivism is briefly examined, where the authors propose that the pendulum has swung away from Positivism and state sovereignty, to ascendance being given to Natural Law Theory, as evidenced in the Nuremberg Trials of 1945–46 (13) and the redefinition of ‘crimes of humanity’ in art 6(C) of the Charter of the International Military Tribunal. A cursory evaluation of Natural Law Theory is provided, although this could have been more thoroughly explored within the international arena.

An overview of the role of the United Nations in protecting human rights is provided, together with a brief critique of the problems of effectively implementing international covenants. References to sources offering a more detailed discussion are included in the footnotes. The major features of regional protection of human rights in Europe, America and Africa are briefly referred to, noting that currently there are no regional organisations that Australia can join.

The authors’ major criticism of Australia’s system in the human rights area is its failure, contrary to most other United Nations members, to enact either Commonwealth legislation or a constitutionally entrenched bill of rights. Despite mechanisms being presently available to affect this, they consider that both the current Federal Government’s policies and the present political climate are not conducive to such an initiative. Australia’s failure to enact a bill of rights not only constitutes a breach of our international obligations under the International Covenant on Civil and Political Rights, but further suggests Australia’s lack of real commitment to protecting human rights domestically. Instead, Australia prefers to adopt an unsatisfactory system of recognizing human rights through the piecemeal development of legislation and case law.

The authors provide a well supported discussion of the inadequacy of the common law to protect human rights, noting that only recently has the High Court attempted to advance and protect human rights in Australia (29).[1] Although they recognize that the High Court’s wide interpretation of the external affairs powers under the Constitution (s 51(xix)) has given the Commonwealth Parliament the green light to legislate on human rights recognized by international customary law or of international concern (30), they propose that apart from s 51(xxxi) of the Constitution, other constitutional human rights provisions have been insignificant in the development of human rights in Australia. They canvass the controversy surrounding the Hind Marsh Bridge and the High Court’s differing approach to construing the validity of the Racial Discrimination Act to demonstrate that the recognition of human rights and the development of remedies should not rest solely with the courts.

Although Australia’s legal system distinguishes between international and domestic law, this has become somewhat blurred due to the courts’ willingness at times to engage in judicial activism by considering international law and concerns about human rights when deciding cases. Such an approach, however, evidently generates uncertainty. Since the Optional Protocol of the International Covenant of Civil and Political Rights became operational in Australia in December 1991, the influence of international human rights norms on Australia’s common law has been evidenced by decisions such as Mabo v Queensland (No 2) (48). It would have been helpful if the authors had examined more extensively recent High Court decisions to determine whether this trend has continued[2], or whether it has reverted to its tradition of ‘strict legalism and judicial restraint’ (94).

The constitutionally guaranteed jurisdiction of the High Court under s 75(v) of the Constitution is raised in the context of recent legislative amendments which severely restrict the Federal Court’s jurisdiction in immigration matters, especially relating to refugees. These amendments raise serious concerns both domestically and internationally about Australia’s commitment to human rights.

The state and territory legislative initiatives in recognizing human rights are analysed within a federated system coupled with the High Court’s interpretation of s 109 of the Constitution. Although all jurisdictions have enacted anti-discrimination legislation, the ACT alone has enacted a bill of rights (Human Rights Act 2004). An overview is provided of the key components of this Act, together with some criticism of its shortfalls.

The Commonwealth executive appears disinclined to legislate to limit Parliament’s powers or impose behavioural standards on public servants, seeing this as ‘politically risky’. This reticence, combined with the uncertainty of the High Court’s willingness to bring ‘the common law into line with international human rights and contemporary notions of justice’, produces a system that is piecemeal, ineffective and uncertain.

For human rights to be treated ‘seriously’, a bill of rights should be entrenched within the Constitution. This would promote the rule of law, provide protection against the misuse of power by both the executive and the legislature, and promote fundamental rights.

Chapter 6 provides a comprehensive account of international protection of human rights and Australia’s involvement in such treaties and conventions and its signature of protocols. The authors critique the rationale behind the recent development of allowing individuals to petition certain international agencies alleging that a state has violated its international obligations and they also examine the weaknesses of the current system. Chapter 7 provides a precis of Australia’s attempts to implement international human rights covenants, such as the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), and Convention on the Rights of the Child (CRoC), domestically. A brief discussion focuses on Australia’s reporting obligations to the various international committees and their responses to such. Australia’s treatment of refugees, including deportation and prolonged detention, is highlighted as an example of the Australian Government’s response, or lack thereof, to recommendations and criticism by international agencies in this area. A comparison of similar Western democracies’ responses to such agencies would have been useful. The authors examine domestic measures, such as scrutiny committees and the role of the HREOC, the Ombudsman and the Federal Privacy Commission, but suggest that without adopting a bill of rights into the Constitution or under Commonwealth legislation, the current situation of no ‘comprehensive guarantee of human rights’ within Australia will continue.

Chapters 8–23 focus on specific human rights issues, such as migration, the indigenous, freedom of speech, fair trial and treatment of persons in custody, and examine these against Australia’s international obligations and within the existing legislative framework. A more detailed focus on the treatment of the indigenous and refugees while in custody and in relation to liberty, given the high current profile of such issues, would have been beneficial. Significantly, the authors make no reference to the controversy surrounding the detainment of David Hicks, although some discussion would have been expected, particularly in the chapters on counter-terrorism laws, fair trial and treatment of people in detention. Nor is there any comparative discussion of other Western democracies, such as England and America, as to their approach to these issues.

The chapters on the indigenous (Chapters 19–23) provide a detailed discussion of land rights, criminal law and detention, with the authors exploring the states’, territories’ and Commonwealth’s initiatives in this area. A comparison with countries such as the United States, Canada or New Zealand in meeting their international obligations with respect to their indigenous populations would have been welcome. Also, a closer examination of international reaction to amendments to the Native Title Act and a more conservative High Court in the years after Wik (647–8, 650, 657–8, 660, 675) and Mabo (112–3, 564–5 and elsewhere) would have assisted those seeking a deeper analysis of these issues.

The chapters on migrants, refugees and asylum seekers provide a critical evaluation of Australia’s domestic law as measured against our international obligations, an approach that perhaps should have been adopted with respect to the treatment of the indigenous. Particularly pertinent in the current climate and political debate is the discussion of the Pacific Solution and the Tampa case (Vadarlis; 714–7) and Plaintiff S157 v Commonwealth (737–9). Again, Australia’s record is not exemplary. The authors note that in 2002, the HREOC held that changes to the Asylum Seekers Assistance Scheme violated art 3 and art 24(2)(d) of CRoC and breached art 26 of the ICCPR. As the Department of Immigration ignored international recommendations, the policy remains unchanged.

This book provides a very informative and extensive critical examination of human rights within the Australian context. As an introductory text on human rights, it provides detailed descriptions of the legal mechanisms and operations of key institutions and agencies, with valuable references to primary source materials. For a reader already familiar with fundamental principles of the Australian and international context, the book explores specific areas of human rights implementation with references to case law, legislation and international law. In these later chapters, a comparison with how key players in the international arena attempt to implement internationally recognized human rights domestically, particularly in relation to their indigenous populations, terrorism, asylum seekers, migration and mandatory sentencing, would have provided the reader with a deeper insight. Although some overseas comparisons are provided, this is more an ad hoc approach rather than a consistent pattern. In terms of Australia’s criticism by international agencies and the government’s reaction to such, a comparison with how other member states respond to such agencies could have provided a useful analysis. Greater emphasis on critically evaluating the international bodies’ ability, or rather inability, to enforce effectively their recommendations could have assisted in evaluating the pragmatic effect of such international bodies. Reference is made to the European Convention, pointing out its powers to enforce its determinations. Perhaps a comparative analysis of this body with the UN may have helped in evaluating the UN’s role in the 21st century.

Although the book is titled Retreat from Injustice, perhaps in the light of the commentary provided by the authors, a more apt subtitle would have been ‘An Ad Hoc and Piecemeal Retreat from Injustice’. Evidently, while Australia ignores its international obligations and continues its demonstrated reluctance to commit itself to embracing human rights, Australians will continue to be subjected to a system that at best is second rate and ineffective.

Margaret Hyland

University of Western Sydney


Australian cases

Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106

Mabo v Queensland (No 2) (1992) 175 CLR 1

Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1

Plaintiff S157 v Commonwealth [2003] HCA 2; 211 CLR 476

Vadarlis and Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; 182 ALR 617

Wik Peoples v Queensland (1996) 187 CLR 1

Australian legislation

Human Rights Act 2004 (ACT)

Native Title Act 1993 (Cth)

1This issue is further developed in Chapters 2–4 of the book and also in relation to the specific areas of human rights addressed in Chapters 8–23.
2Australian Capital Television Pty Ltd v Commonwealth; Nationwide News Pty Ltd v Wills (94).

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