Johns, Fleur E J --- "Human Rights in the High Court of Australia, 1976-2003: The Righting of Australian Law?" [2005] FedLawRw 10; (2005) 33(2) Federal Law Review 287
[*] 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, <http://www.gtcentre.unsw.edu.au/bills-of-rights-resources.asp> 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').
[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) <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, '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/speeches/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 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] <http://www.alp.org.au /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] <http://www.democrats.org.au/policies/> 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) <http://www.pm.gov.au/news/speeches/speech514.html> 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] MonashULawRw 12; (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] SydLawRw 15; (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 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 <http://www.ahrcentre.org/content/about.htm> 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 rights developments in Australia and the Asia-Pacific region.' See <http://www.ahrcentre.org/content/research_ajhr.htm> at 23 June 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 23 June 2005.
[9] Justice Michael Kirby, 'Whither Human Rights?' [2001] UWSLawRw 3; (2001) 5 University of Western Sydney Law Review 25, 41. Cf Janet Albrechtsen who 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), 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 et al, 'Deep Anxieties: Australia and the International Legal Order' [2003] SydLawRw 21; (2003) 25 Sydney Law Review 423, 424.
[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] MelbULawRw 17; (1997) 21 Melbourne University Law Review 497; James Allan and Richard Cullen, 'A Bill of Rights Odyssey for Australia: The Sirens are Calling' [1997] UQLawJl 1; (1997) 19 University of Queensland Law Journal 171; Justice Michael Kirby, 'The Bill of Rights Debate' (1994) 29(11) 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] MelbULawRw 24; (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); Nathan Houser and Christian Kloesel (eds), The Essential Peirce: Selected Philosophical Writings (1992); Richard J Bernstein (ed), On Experience, Nature, and Freedom: Representative Selections (1960); Doris Olin (ed), William James’ Pragmatism, in Focus (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 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 Justice 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] MelbULawRw 6; (2003) 27 Melbourne University Law Review 163.
[12] Pearce v R [1998] HCA 57; (1998) 194 CLR 610 ('Pearce'). Pearce 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 to which they have become accustomed.
[13] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 ('Gerhardy'). Gerhardy was selected as a counterpoint to Pearce, 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.
[14] See Appendix.
[15] Lange v Australian Broadcasting Corporation [1997] HCA 25; (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] FCA 1192; (1999) 96 FCR 153; Soulitopoulos v LaTrobe University Liberal Club [2002] FCA 1316; (2002) 120 FCR 584; Wickham v Canberra District Rugby League Football Club Limited [1998] ACTSC 95; McBain v Victoria [2000] FCA 1009; (2000) 99 FCR 116. See generally Martin Flynn, Human Rights in Australia: Treaties, Statutes and Cases (2003).
[16] 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] MelbULawRw 4; (1994) 19 Melbourne University Law Review 581; Justice Michael Kirby, 'The Role of International Standards in Australian Courts' in Philip Alston and Madelaine Chiam (ed), Treaty-Making and Australia: Globalisation versus Sovereignty (1995) 81.
[17] See Appendix.
[18] R v Wallis [1949] HCA 30; (1949) 78 CLR 529
[19] New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 ('Seas and Submerged Lands Case').
[20] Brandy v Human Rights And Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.
[21] 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.')
[22] Charlesworth, above n 4, 38–9. Charlesworth maintains that the unmitigated sway of majority power is compounded by the Australian political system's inflection with the ideology of utilitarianism (an ideology concerned with achieving the greatest good for the greatest number). See also Williams, above n 16, 45.
[23] Nick O'Neill, Simon Rice and Roger Douglas, Retreat from Injustice: Human Rights in Australian Law (2nd ed, 2004).
[24] Contra Jane Stapleton's argument that such a shift is discernible in Australian tort law. See Stapleton, above n 3.
[25] See, eg, Breen v Williams (1996) 186 CLR 71.
[26] See, eg, Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477; Carter v The Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121.
[27] See, eg, Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 (Kirby J re: interpretation of section 167 of the Customs Act 1901 (Cth)).
[28] See, eg, Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 (Dawson J, discussing conflicts of laws doctrine prohibiting Australian courts from giving effect to certain foreign laws).
[29] Heather McRae et al, Indigenous Legal Issues: Commentary and Materials (3rd ed, 2003) 70. See also Janna Thompson, 'From Slaughter to Abduction: Coming to Terms with the Past in Australia' (Working Paper No 2003/4, Centre for Applied Philosophy and Public Ethics, 2003); Patricia Harris and Vicki Williams, 'Social Inclusion, National Identity and the Moral Imagination' (2003) 3(3) The Drawing Board: An Australian Review of Public Affairs 205, 217–8.
[30] Kanishka Jayasuriya, Howard, Tampa, and the Politics of Reactionary Modernisation (2003) Australian Review of Public Affairs, <http://www.econ.usyd.edu.au/drawingboard/ digest/0303/jayasuriya.html> at 4 March 2005.
[31] Cf David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (2004) 19-20, 300 ('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').
[32] 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.
[33] See, eg, Mutua, above n 32 and Kennedy, above n 31.
[34] See, eg, Megan Davis and George Williams, 'A Statutory Bill of Rights for Australia? Lessons from the United Kingdom' [2002] UQLawJl 1; (2002) 22 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.
[35] Charlesworth, above n 4, 70–71. See also Dr Sev Ozdowski, 'The Relevance of Human Rights in Contemporary Australia' (Speech delivered at the Activating Human Rights and Diversity Conference: Global and Local Voices, Byron Bay, 1–4 July 2003) <http://www.hreoc.gov.au/speeches/human_rights/byron_bay.html> at 30 May 2005.
[36] David Kinley, 'The Legal Dimensions of Human Rights' in David Kinley (ed), Human Rights in Australian Law: Principles, Practice and Potential (1998) 2, 21–3.
[37] Sarah Pritchard, 'The Jurisprudence of Human Rights: Some Critical Thought and Developments in Practice' [1995] Australian Journal of Human Rights 3, 38.
[38] See above n 2 and n 10 for further literature.
[39] See, eg, James Allan, 'Paying for the Comfort of Dogma' [2003] SydLawRw 4; (2003) 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').
[40] See, eg, 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').
[41] 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, 319–20. See also Roland Barthes, The Semiotic Challenge (Richard Howard trans, 1988 ed) 7–8 [trans of: L’aventure sémiologique] (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.
[42] Cf Nietzsche's thesis of the ‘eternal recurrence’ of the same: Friedrich Nietzsche, 'Thus Spoke Zarathustra' in Ecce Homo (1908), reprinted in Basic Writings of Nietzsche, 751–65, at 751, 762 (Walter Kaufmann trans, first published 1967, 2000 ed); Friedrich Nietzsche, 'The Birth of Tragedy' in Ecce Homo (1908), reprinted in Basic Writings of Nietzsche, 726-31, at 729-30 (Walter Kaufmann trans, first published 1967, 2000 ed). See also the cyclical account of history put forward by the 18th century Neapolitan scholar Giambattista Vico: Leon Pompa (ed), Vico: Selected Writings (Leon Pompa trans, 1982 ed). See further Enrico DeMas, Time and Idea: The Theory of History in Giambattista Vico (1953).
[43] Cf Duncan Kennedy, A Critique of Adjudication (fin de siècle) (1997), 346–8. See also Annelise Riles, 'Global Designs: The Aesthetics of International Legal Practice' (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) 1994 Utah Law Review 7.
[44] Cf Pierre Bourdieu, Distinction: A Social Critique of the Judgment of Taste (Richard Nice trans, 1984 ed), 250–52: '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, even 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'.
[45] 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": European Nationalism and the Modernist Renewal of International Law' (1993) 106 Harvard Law Review 1792; Desmond Manderson, 'Beyond the Provincial: Space, Aesthetics, and Modernist Legal Theory' [1996] MelbULawRw 18; (1996) 20 Melbourne University Law Review 1048.
[46] James McFarlane, 'The Mind of Modernism' in Malcolm Bradbury and James McFarlane (eds), Modernism. A Guide to European Literature: 1890–1930 (1991) 71, 80–81.
[47] See, eg, Charlesworth, above n 4, at 76 ('the 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').
[48] '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.
[49] See above n 11.
[50] Cf Kennedy, above n 31, 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) 18 Cardozo Law Review 21 (arguing that jurisprudential pragmatism can and should stand apart from philosophical pragmatism, notwithstanding their conceptual and genealogical linkage).
[51] Charles Sanders Peirce, 'The Essentials of Pragmatism' in Justus Buchler (ed), The Philosophical Writings of Peirce (1955) 251, 252.
[52] Ibid 253, 259.
[53] Charles Sanders Peirce, ‘Pragmatism in Retrospect: A Last Formulation’ in Justus Buchler (ed), The Philosophical Writings of Peirce (1955) 269, 271.
[54] John Dewey, The Public and its Problems: An Essay in Political Enquiry (1927), 57.
[55] Grey, above n 50, 24.
[56] Ibid.
[57] Ibid 21.
[58] Ibid 38.
[59] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
[60] Ibid 145.
[61] Ibid 160 (emphasis added).
[62] [2002] HCA 57; (2002) 212 CLR 1.
[63] Ibid 26.
[64] Ibid 40 (per Gaudron, McHugh and Gummow JJ).
[65] Ibid 44.
[66] See, eg, Christine Parker, 'Public Rights in Private Government: Corporate Compliance with Sexual Harassment Legislation' [1999] AUJlHRights 7; (1999) 5(1) Australian Journal of Human Rights 159 ('The test of legal reform is whether social change occurs as a result').
[67] William James in Fredson Bowers and Ignas K. Skrupskelis (eds), Pragmatism (1975), 31-2 (emphasis in original).
[68] Robert McCorquodale, 'Implementing Human Rights in Australia' [1999] AUJlHRights 32; (1999) 5(2) Australian Journal of Human Rights 1, 3.
[69] James, above n 67, 35.
[70] Ibid; Peter Bailey, 'Implementing Human Rights — The Way Forward' [1999] AUJlHRights 31; (1999) 5(2) Australian Journal of Human Rights 167.
[71] Richard Rorty, 'Remarks on Deconstruction and Pragmatism', in Critchley et al (Chantal Mouffe (ed)), Deconstruction and Pragmatism (1996) 13, 17.
[72] Harvey, above n 48, 53 (quoting Frederic Jameson 'Postmodernism, or the cultural logic of capitalism' (1984) 146 New Left Review 53).
[73] See, eg, Harvey, above n 48, 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 the 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 43, 7–8. For a 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.
[74] James, above n 67, 116-17.
[75] Ibid 125.
[76] See, eg, Keith D Ewing, 'The Unbalanced Constitution' in Tom Campbell, K D Ewing and Adam Tomkins (eds), Sceptical Essays on Human Rights (2001) 103–17, 116: 'Through legislation it 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).
[77] See, eg, Allan, above n 39.
[78] See, eg, Dianne Otto, 'From "Reluctance" to "Exceptionalism": The Australian Approach to Domestic Implementation of Human Rights' (2001) 26 Alternative Law Journal 219.
[79] Charlesworth, above n 4, 73.
[80] The leading text in this regard is Williams, above n 16.
[81] Ibid 245.
[82] Pearce [1998] HCA 57; (1998) 194 CLR 610.
[83] Ibid 612–613 (McHugh, Hayne and Callinan JJ).
[84] Ibid 623.
[85] Ibid 624.
[86] Ibid 629.
[87] Ibid 636 (quoting Green v United States [1804] USSC 11; 355 US 184, 187–188 (1957)).
[88] Ibid 654–5.
[89] Ibid 655.
[90] Ibid.
[91] Ibid 631.
[92] Ibid 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).
[93] Pearce [1998] HCA 57; (1998) 194 CLR 610, 645 n 178 (citing UN Human Rights Committee, AP v Italy, UN Doc CCPR/C/Op/2 (1990)).
[94] Ibid 645.
[95] Ibid 652 (emphasis in original).
[96] Ibid 632.
[97] Ibid.
[98] Ibid.
[99] Ibid.
[100] Ibid.
[101] Ibid 612.
[102] Ibid 625.
[103] Ibid 636–7.
[104] Williams, above n 16, 246.
[105] Pearce [1998] HCA 57; (1998) 194 CLR 610, 654 .
[106] Ibid 654-5.
[107] Ibid 622 (quoting Sir John Barry, The Courts and Criminal Punishments (1969) 14–15).
[108] Ibid 638.
[109] Ibid 653.
[110] 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).
[111] See, eg, 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. Rather, 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 79 and related text.
[112] Pearce [1998] HCA 57; (1998) 194 CLR 610, 630–1, 643, 644.
[113] Ibid 632.
[114] Gerhardy [1985] HCA 11; (1985) 159 CLR 70.
[115] Ibid 75.
[116] Ibid 75, 86 (Gibbs CJ), 89 (Mason J), 107 (Murphy J), 145 (Brennan J), 151 (Deane J).
[117] Section 19(1) of 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 (plus $500 for each day during which the convicted person remained on the land after unlawful entry) where the offence was committed intentionally or, in any other case, a $200 fine.
[118] Section 9(1) of the RDA provided 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.'
[119] CERD, 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). Art 5(d)(i) of 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'.
[120] Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 82 (Gibbs CJ), 121–2 (Brennan J), 146 (Deane J).
[121] Section 10(1) of the RDA provided 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.'
[122] Section 18 of the PLRA read: 'All Pitjantjatjaras have unrestricted right of access to the lands'.
[123] Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 85 (Gibbs CJ), 101 (Mason J). Art 1(1) of 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'.
[124] Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 87 (Gibbs CJ), 104 (Mason J), 107 (Murphy J), 123 (Brennan J), 147. Contra Wilson and Dawson JJ (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.
[125] Section 8(1) of the RDA provided 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.'
[126] See ibid.
[127] Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 86. See also 102 (Mason J), 126 (Brennan J), 148 (Deane J), 157 (Dawson J).
[128] See, eg, Chester v The Council of the Municipality of Waverley [1939] HCA 25; (1939) 62 CLR 1.
[129] See, eg, Landale v Menzies [1909] HCA 48; (1909) 9 CLR 89.
[130] Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 157.
[131] Ibid 102.
[132] See State of Victoria and Commonwealth of Australia v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1; Cormack v Cope (1974) 131 CLR 432.
[133] See, eg, Migration Act 1958 (Cth), ss 91D (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 198A(3)(iv) (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 of 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 …').
[134] See, eg, the recent case of Al Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124, 145 Gleeson CJ: 'It is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights'.
[135] Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 102.
[136] Ibid 104–5 ('[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 …').
[137] McFarlane, above n 46 and related text.
[138] Peirce, above n 53 and related text. A further illustration of this approach can be found in the judgment of Gibbs CJ in Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 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'.
[139] Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 105.
[140] Ibid 105–6.
[141] Cf Wojciech Sadurski's critique of the High Court's decision in Gerhardy 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] SydLawRw 2; (1986) 11 Sydney Law Review 5.
[142] Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 124.
[143] Ibid 126.
[144] Ibid.
[145] Peirce, above n 53 and related text.
[146] Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 124.
[147] [1935] PCIJ Rep 1, Series A/B, No. 64, Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 128.
[148] Hersch Lauterpacht, An International Bill of the Rights of Man (1945), Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 128.
[149] [1966] ICJ Rep 6, Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 129.
[150] [1975] INSC 224; [1976] 1 SCR 906, Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 128.
[151] [1978] USSC 145; 438 US 265 (1978), Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 131.
[152] Ibid 129.
[153] See Richard Bradshaw and Andrew Collett, 'Aboriginal Land Rights in South Australia' (1991) 2/52 Aboriginal Law Bulletin 20; Max Charlesworth, The Aboriginal Land Rights Movement (1984), 2nd edition; Nicolas Peterson and Marcia Langton (eds), Aborigines, Land and Land Rights (1983).
[154] Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 129.
[155] Ibid 131-2.
[156] Sadurski, above n 141, 31.
[157] Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 136, 137, 140.
[158] Ibid 136 (quoting Professor Stanner).
[159] Ibid 135.
[160] James, above n 67 and related text.
[161] McFarlane, above n 46 and related text.
[162] Gerhardy [1985] HCA 11; (1985) 159 CLR 70, 157.
[163] James, above n 69 and n 74 and related text.
[164] See Williams, above n 16, 245 ('The High Court's interpretation of constitutional rights presents a complex picture').
[165] Kirby, above n 9.
[166] One might recall, in this regard, oft-cited links between the international human rights law regime developed in the post-WWII period and some of the inexorable horrors of the first half of the twentieth century. See, eg, 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, 15 (2001), 1st edition: '[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 of 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'.
[167] Jean Paul Sartre, 'Preface' in Frantz Fanon, The Wretched of the Earth (1968), 7, 22.
[168] O’Neill, Rice and Douglas, above n 23.
[169] Peirce, above n 53 and related text.
[170] Compare, for instance, Alan Watson, Legal Transplants: An Approach to Comparative Law (1993), 2nd edition; Karen Knop, 'Here and There: International Law in Domestic Courts' (2000) 32 New York University Journal of International Law & Politics 501; Thomas Risse and Kathryn Sikkink, 'The Socialization of International Human Rights Norms into Domestic Practices: Introduction' in Thomas Risse, Stephen C. Ropp and Kathryn Sikkink (eds), The Power of Human Rights: International Norms and Domestic Changes (1999), 11; Yves Dezalay and 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, 'Symposium: Globalisation and Governance: The Prospects of Democracy: Part III: Globalisation and Empire: A Theory of Imperial Law: A Study of U.S. Hegemony and the Latin Resistance' (2003) 10 Indiana Journal of Global Legal Studies 383.
[171] 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' (2001) 22 Cardozo Law Review 1005. How would a contemporary stylist such as Matthew Barney do human rights? See Nancy Spector (curator), Matthew Barney: The Cremaster Cycle (2002).
[172] Cf David M. Trubek and 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 Austin Sarat and Thomas R Kearns (eds), Law and Everyday Life (1993), 191.
[173] 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).