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

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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 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 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 change.^[11] Scholarly efforts to 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 R^[12] and Gerhardy v Brown.^[13]

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'.^[14] 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 political theory have had, and continue to have, on Australian law.^[15] 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.^[16] 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 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.^[17] 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.

The graph above indicates the number of High Court judgments including references to 'human rights' in each two-year period from 1976-77 to 2002-03, the 1949 case of R v Wallis^[18] and the 1975 Seas and Submerged Lands Case having been excluded.^[19] 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.^[20]

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 1975 case and the 25 cases containing incidental references, identified in the Appendix) may be categorised (in 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'.^[21] The second concerns rights' supposed capacity to protect vulnerable or disadvantaged minority groups from domination perpetrated or tolerated by the democratic majority.^[22] These assumptions might 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'.^[23]

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 between traditional institutions of government. Far from signalling a progressive shift towards concern for the vulnerable,^[24] 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 Court of Human Rights).^[25] 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).^[26] 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.^[27] 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.^[28]

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'.^[29] Kanishka Jayasuriya has characterised the political orthodoxy currently 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.'^[30]

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.

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.^[31]

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, 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.^[32] 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.^[33] 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.

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).^[34] Some contend that statutory entrenchment should ideally segue into constitutional entrenchment.^[35] Some favour bolstering pre-enactment scrutiny of legislation for compliance with international human rights conventions to which Australia is a party.^[36] 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.'^[37] 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.^[38]

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 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 Australian 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.^[39] 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.^[40] 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 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" …'^[41] The following chart is informed by the latter approach.

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.
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 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.^[42] How, then, might we understand the persistent perception of, and orientation towards, progress in 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.^[43] 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 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'.^[44]

Scrutinised for style, then, the preoccupations of jurisprudence concerning human rights' place in Australian law (as I have characterised them) are redolent of the cultural phenomenon known as Modernism.^[45] 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:

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.^[47]

In these ways, jurisprudence surrounding the place or impact of human rights in Australian law could be read as characteristically late modernist in style.^[48] 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.^[49] Nevertheless, a particular, rather weak version of legal pragmatism (an irregular corollary to the philosophical tradition of Pragmatism) has exercised particular purchase upon the writing and practice of human rights, not least in Australian law.^[50]

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.^[51] 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'.^[52] 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:

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

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.'^[55] Grey continued: 'The contribution of the American legal pragmatists, from [Oliver Wendell] Holmes 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.'^[56] In this regard, legal pragmatism emulates the 'encompassing orientation towards inquiry … the interaction of impulse, habit, and reflection'^[57] 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 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.'^[58]

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 Australian Capital Television Pty Ltd v Commonwealth.^[59] 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':

So too, in the 2002 case of Roberts v Bass,^[62] 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:

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:

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.^[66] 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 of the ways in which existing realities may be changed'.^[67] 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'.^[68]

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'.^[69] 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'.^[70] 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'.^[71]

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 narrative of continuous (albeit incremental) development.^[72] 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.

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?^[73] 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'?^[74] What of pragmatists' observation that '[n]othing outside of the flux secures the issue of it'?^[75] 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.^[76] Their principal objections lie 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.^[77]

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.^[78] 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'.^[79] In addition, considerable effort has been made to trace the doctrinal plight of human rights in Australian constitutional law.^[80] 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'.^[81]

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

Of the many cases cited in the Appendix to this article, Pearce represents a relatively peripheral, humdrum instance of human rights at work in Australian law.^[82] 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 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 on the ground that they were oppressive or an abuse of process because 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.^[83]

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.^[84] 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.^[85] 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.^[86]

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'.^[87] 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.^[88] Nevertheless, Kirby J concluded that the total sentence imposed was not, 'in the brutal circumstances of the offences', a sentence made in error.^[89] Whilst the reasoning of the primary judge was 'defective', Kirby J maintained that the orders were 'right' and should therefore be left undisturbed.^[90]

Kirby J's dissenting judgment in Pearce, 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'.^[91] 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 the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 8(4) of the American Convention on Human Rights.^[92]

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.^[93] 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.^[94]

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.^[95]

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. 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-angle view of the crime. Kirby J referred to Mr Pearce as 'a 33 year old Aboriginal Australian of disadvantaged background'.^[96] The victim of Mr Pearce's crime was likewise identified as 'Mr William Rixon, then aged seventy-two years'.^[97] 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'.^[98] 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'.^[99] One learns too, from Kirby J's judgment, that the crime yielded a mere $45, taken from Mr Rixon's wallet.^[100] 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'.^[101] Gummow J declined to elaborate, referring the reader to the facts 'detailed in the judgments of the other members of the Court'.^[102]

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 justified this reading in part on the basis that the former rule would be inconsistent with terms of Article 14(7) of the International Covenant on Civil and Political Rights.^[103]

Furthermore, one might read Kirby J's judgment in Pearce 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'.^[104] 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.^[105] 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.^[106] 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):

Yet the impulses of societal out-reach and reflexive problematisation that one might attribute to Kirby J in Pearce 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:

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 '[t]hose who represent accused … be alert to [the judicial] facility when they scrutinise the indictment containing the charges which the prosecution brings'.^[109] The appeal to rights seemed to translate into an appeal for faith in the expertise and 'alert[ness]' of a technocratic legal elite. Kirby J's incidental references to human rights in Pearce 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.^[110] 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.^[111]

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 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.^[112] 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, 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'.^[113] Human rights law instruments and principles were presented here, above all, as a response to the perceived needs of the law.

B A Second Case Study: Gerhardy

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. The second of the case studies considered here, Gerhardy, was handed down in 1985. It concerned the validity of the Pitjantjatjara Land Rights Act 1981 (SA) ('PLRA').^[114]

The main purpose of the PLRA was, as Gibbs CJ observed at the outset of his decision in Gerhardy, to provide for title to a large tract of land, traditionally 'owne[d]' (in the words of s 4 of the PLRA) by three distinct yet associated indigenous groups (collectively referred to as 'the Pitjantjatjara'), to be vested in a body corporate of which all the Pitjantjatjara were members (Anangu Pitjantjatjaraku).^[115] The lands in question comprised just over one tenth of the total land area of South Australia.^[116] 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, Robert John Brown, had entered the lands owned by the 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.^[117] 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) ('RDA').^[118] 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 ('CERD'),^[119] CERD appearing as a schedule to the RDA. Gerhardy appealed that decision to the Full Court of the South Australian Supreme Court which 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 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 Commonwealth 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.^[120]

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.^[121] This hinged initially on the question of 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.^[122] In this context, 'right' in s 10(1) of the RDA was given the same meaning as in Art 1(1) of CERD because, as an exercise of the external affairs power pursuant to Australia's signing of CERD, the provisions of the RDA would be valid only if they carried into effect its provisions.^[123] 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 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.^[124] Accordingly, absent the saving effect of s 8(1) of the RDA and Art 1(4) of CERD,^[125] 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 protection to ensure their enjoyment or exercise of human rights.^[126] 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 PLRA 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 taken at the 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 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, 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.^[127] Thus, notwithstanding the Court's extensive handling of terms as vague and elastic as the 'reasonable person',^[128] or 'due notice',^[129] 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:

Likewise, Mason J cast human rights as an exotic and rather troubling jurisprudential import:

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.^[132]

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 human rights,^[133]

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.^[134]

Irrespective of this guardedness, Gerhardy does permit readers to observe 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 Mason J, possible 'to distil common values readily or perhaps at all'.^[135] 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. He deduced these connections from comparative law examples and by 'taking account of matters of general public knowledge concerning Aboriginals'.^[136] 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';^[137] and a pragmatic impulse whereby meaning is deciphered through observation of a proposition's 'bearing upon the conduct of life'.^[138]

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 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'.^[139] In Mason J's judgment, as in all the judgments in Gerhardy, the rights enshrined in the PLRA 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'.^[140] 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.^[141]

Brennan J's handling of human rights law in Gerhardy 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.^[142] '[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'.^[143] Brennan J quickly concluded, however, that 'an attempt to define human rights … is bound to fail' because of the 'differing contents' that 'the respective religious, cultural and political systems of the world' attribute to such notions.^[144] Rebuffing 'attempt[s] to determine any truth of things' in pragmatic terms reminiscent of Peirce,^[145] Brennan J instead looked to a progress-oriented view of history to generate interpretive momentum, relating a story of progressive, albeit convulsive modern development:

From here, Brennan J traced a grand, cosmopolitan route through international and common law texts. He travelled from the 1935 Advisory Opinion on Minority Schools in Albania of the Permanent Court of International Justice,^[147] via the 1945 writings of Sir Hersch Lauterpacht^[148] and the International Court of Justice's 1966 findings in the South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase),^[149] to the 1976 judgment of the Supreme Court of India in State of Kerala v N.M. Thomas^[150] and the 1978 decision of the U.S. Supreme Court in University of California Regents v Bakke.^[151] 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'.^[152] 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.^[153] Rather it was, Brennan J suggested, the result of decades of judicial struggle — rational, intellectual struggle — against 'an engine of oppression destructive of human dignity'.^[154]

Yet, for all its grandeur and sweep, the outcome of this jurisprudential endeavour in Gerhardy was measly in the extreme. All differential treatment on racial grounds that 'den[ied] 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'.^[155] As Wojciech Sadurski has observed of the High Court's judgment in Gerhardy, '[t]he mountain … brought forth a mouse'.^[156] At the end of a circuitous jurisprudential itinerary, the Pitjantjatjara were left with 'particular supports' intended 'to secure [their] "adequate advancement"', to be kept perpetually 'under review' by the State in question — South Australia.^[157] This precarious assemblage was to afford the Pitjantjatjara 'hearth, home, the source and locus of life, and everlastingness of spirit'.^[158]

'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'.^[159] Yet ultimately, the story of Gerhardy was not a story of the Pitjantjatjara's experiences and political preferences. For all its pragmatic overtures, the High Court's decision in Gerhardy did not set the PLRA 'at work within the stream of … experience' in an open-ended, experimental spirit.^[160] Rather, in Gerhardy 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'^[161] — a new 'mode of progress in the international arena'.^[162] 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. 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? 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 haven of 'special measures', the Court veered 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.^[163]

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 and Gerhardy reveal.^[164] 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 Australian law's veneration and enhancement 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'^[165] 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.

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.^[166] The words of Jean Paul Sartre are salutary in this regard:

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 many commentators that this signifies a 'retreat from injustice' have largely not been borne out.^[168] When one turns the High Court's diluted pragmatism upon itself, one observes in the 'fruits'^[169] 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. 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.^[170] Those scholars and practitioners might experiment with thinking and writing human 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.^[171] 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.^[172]

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.^[173] 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 slaves and monsters there. And they may be our own.

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:

New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 (‘Seas and Submerged Lands Case’) (Stephen and Murphy JJ re: divided legislative competence in a federal system and the external affairs power);

Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 (Mason CJ and Gaudron J re: s 117, including making comparative reference to U.S. and Canadian jurisprudence; contra McHugh J);

Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 (Mason CJ and Brennan J re: implied freedom of political communication);

Theophanous v The Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 (Mason CJ and Toohey, Gaudron and Brennan JJ re: implied freedom of political communication);

Victoria v Commonwealth (1996) 187 CLR 416 (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 Commonwealth [1996] HCA 29; (1996) 187 CLR 579 (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 ss 51(ii) and (xii), of the Financial Transactions Reports Act 1988 (Cth));

Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 (Kirby J re: Wildlife (Game) (Hunting Season) Regulations 1994 (Vic) and implied freedom of political communication);

Nicholas v R (1998) 193 CLR 143 (Toohey J re: Crimes Act 1914 (Cth), s 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) 193 CLR 346 (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);

Commonwealth v Western Australia (1999) 196 CLR 392 (Kirby J re: constitutional requirements for the acquisition of land on just terms);

Austin v Commonwealth (2003) 215 CLR 185 (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:

In the Marriage of Cormick [1984] HCA 79; (1984) 156 CLR 170 (per Murphy J re: jurisdiction of the Family Court of Australia);

'Applicant A' v Minister of Immigration and Multicultural Affairs (1997) 190 CLR 225 (Brennan CJ, Dawson, McHugh, Gummow and Kirby JJ re: Migration Act 1958 (Cth));

Attorney-General (Cth) v Tse Chu-Fai (1998) 193 CLR 128 (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));

Northern Territory of Australia v Gpao (1999) 196 CLR 553 (Kirby J re: interpretation of Family Law Act 1975 (Cth) in relation to the Community Welfare Act 1983 (NT));

Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55; (2000) 204 CLR 1 (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ re: interpretation of the Migration Act 1958 (Cth) and the validity of a decision of the Refugee Review Tribunal);

Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1 (Kirby J re: interpretation of the Migration Act 1958 (Cth) — specifically, those provisions incorporating sections of the 1951 Refugees Convention — and the validity of a decision of the Refugee Review Tribunal);

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 (Murphy J re: the doctrine of 'civil death' preventing a convicted felon who has been sentenced to death from bringing civil suit);

Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 (Mason J re: contempt of court and extent to which publicity may be suppressed to protect the integrity of judicial proceedings);

Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 (Murphy J re: privilege against self-incrimination);

Secretary, Department of Health and Community Services v JWB and SMB. (1992) 175 CLR (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);

Mabo v Queensland [No 2] 175 CLR 1 (Brennan and Toohey JJ re: endurance of native title despite annexation);

Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 (Mason CJ and Toohey and McHugh JJ citing Murphy J re: privilege against self-incrimination);

Carter v The Managing Partner, Northmore Hale Davy and Leake (1995)183 CLR 121 (Brennan, McHugh and Toohey JJ re: legal professional privilege);

Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 (Mason CJ and Deane and Toohey JJ re: effect in administrative law of ratification of the Convention on the Rights of the Child);

Wilson v Minister for Aboriginal & Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 (Kirby J re: separation of the judicature from other branches of government);

Breen v Williams (1996) 186 CLR 71 (Dawson and Toohey JJ re: comparative assessment of patients' right of access to medical records, by reference to European Convention for the Protection of Human Rights and Fundamental Freedoms and UK legislation);

Thorpe v Commonwealth [No 3] [1997] HCA 21; (1997) 144 ALR 677 (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);

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (McHugh, Gummow and Kirby JJ re: legal professional privilege);

Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 (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 Ltd (1998) 193 CLR 519 (Brennan CJ and McHugh J re: defamation law);

DPP (SA) v B (1998) 194 CLR 566 (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);

R v Swaffield; Pavic v R (1998) 192 CLR 159 (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; (1998) 195 CLR 547 (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ re: matters appertaining exclusively to judicial power);

Gray v Motor Accident Commission (1998) 196 CLR 1 (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; (1999) 167 ALR 575 (Kirby J re: scope of legal practitioners' immunity from suit);

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (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);

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (Kirby J re: exercise of judicial discretion to set aside cost orders and principles of natural justice or procedural fairness);

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (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 10; (2001) 206 CLR 128 (Kirby J re: allegation of judicial bias and importance of judicial impartiality);

Commonwealth of Australia v Yarmirr (2001) 208 CLR 1 (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));

KRM v R [2001] HCA 11; (2001) 206 CLR 221 (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; (2001) 205 CLR 434 (Kirby J re: standard of care required in obtaining patient's informed consent to invasive surgery);

Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (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; (2002) 210 CLR 491 (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) 210 CLR 575 (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 Commission [2002] HCA 49; (2002) 213 CLR 543 (Kirby J re: legal professional privilege);

Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1 (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) 214 CLR 1 (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 (Vic); Ex Rel. Black v The Commonwealth [1981] HCA 2; (1981) 146 CLR 559 (Gibbs CJ re: s 116 of the Commonwealth Constitution not being for the purpose of protecting a fundamental human right);

Snowdon v Dondas (No.2) [1996] HCA 27; (1996) 188 CLR 48 (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);

Joosse v Australian Securities and Investment Commission [1998] HCA 77; (1998) 159 ALR 260 (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);

Durham Holdings Pty Ltd v State of New South Wales (2001) 205 CLR 399 (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 [2001] HCA 30; (2001) 206 CLR 323 (Kirby and Callinan JJ, making passing references to human rights-based arguments that could potentially be mounted in relation to 'draft dodgers' and to an 'order' 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; (2002) 214 CLR 422 (dismissal of arguments presented by the Human Rights and Equal Opportunity Commission as an intervenor);

De Sales v Ingrilli (2002) 212 CLR 338 (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] HCA 54; (1989) 167 CLR 637 (Mason CJ re: the fact that the appellant had applied to the Human Rights and Equal Opportunity Commission);

Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 (Toohey and Gummow JJ passing reference re: Extradition Act 1988 (Cth));

Re Social Security Appeals Tribunal Registrar; Ex parte Townsend [1995] HCA 32; (1995) 130 ALR 163 (Toohey J, citing Brandy v Human Rights And Equal Opportunity Commission);

North Ganalanja Aboriginal Corporation and the Waanyi People v State of Queensland (1996) 185 CLR 595 (footnoted citations of Brandy v Human Rights And Equal Opportunity Commission);

Lindon v Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 136 ALR 251 (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);

Re Residential Tenancies Tribunal of New South Wales & Henderson (1997) 190 CLR 410 (footnoted citation of Brandy v Human Rights And Equal Opportunity Commission);

Attorney-General v Breckler (1999) 197 CLR 83 (Gleeson CJ and Gaudron, McHugh, Gummow, Hayne and Callinan JJ, citing Brandy v Human Rights And Equal Opportunity Commission and related jurisprudence and writing);

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Li (2000) 200 CLR 591 (Gaudron J citing Brandy v Human Rights And Equal Opportunity Commission);

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 (Kirby J re: reference to literature discussing forum-shopping in the context of human rights litigation);

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (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 PT [2001] HCA 20; (2001) 178 ALR 497 (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 (2002) 209 CLR 392 (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 16; (2002) 209 CLR 372 (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; (2002) 209 CLR 597 (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);

Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 (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; (2002) 210 CLR 438 (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 [2002] HCA 30; (2002) 190 ALR 601 (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) 209 CLR 246 (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) 197 ALR 389 (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) 215 CLR 518 (Kirby J re: passing reference to Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission)

Heron v R [2003] HCA 17; (2003) 197 ALR 81 (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) 214 CLR 318 (Heydon J, citing Brandy v Human Rights and Equal Opportunity Commission);

^[*] 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.

^[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 (2^nd 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.

^[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.

^[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 (2^nd ed, 2004).

^[24] Contra Jane Stapleton's argument that such a shift is discernible in Australian tort law. See Stapleton, above n 3.

^[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.

^[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 (3^rd 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.

^[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.

^[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.

^[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 19^th 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 18^th 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).

^[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'.

^[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.

^[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.

^[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.

^[67] William James in Fredson Bowers and Ignas K. Skrupskelis (eds), Pragmatism (1975), 31-2 (emphasis in original).

^[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.

^[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).

^[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).

^[107] Ibid 622 (quoting Sir John Barry, The Courts and Criminal Punishments (1969) 14–15).

^[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.

^[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'.

^[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.'

^[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'.

^[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 …').

^[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'.

^[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.

^[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), 2^nd edition; Nicolas Peterson and Marcia Langton (eds), Aborigines, Land and Land Rights (1983).

^[164] See Williams, above n 16, 245 ('The High Court's interpretation of constitutional rights presents a complex picture').

^[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, 3^rd session 183^rd 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), 1^st 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.

^[170] Compare, for instance, Alan Watson, Legal Transplants: An Approach to Comparative Law (1993), 2^nd 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).

Federal Law Review

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

HUMAN RIGHTS IN THE HIGH COURT OF AUSTRALIA, 1976-2003: THE RIGHTING OF AUSTRALIAN LAW?

I INTRODUCTION

II RIGHTS ON THE RISE

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

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

A Typology of Recurrent Propositions in Debate Concerning the Role of Human Rights in Australian Law

B The Late Modernism of Australian Jurisprudence Concerning Human Rights

C The Pragmatism of Australian Jurisprudence Concerning Human Rights

IV ASKING THE PRAGMATIC QUESTION: WHAT ARE HUMAN RIGHTS' EFFECTS IN AUSTRALIAN LAW?

A A Case Study: Pearce

B A Second Case Study: Gerhardy

V CONCLUSION

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:

Human Rights Instruments, Jurisprudence, Institutions and/or Scholarship as a Point of Reference in Legislative Interpretation:

Human Rights Instruments, Jurisprudence, Institutions and/or Scholarship as a Point of Reference in the Interpretation of Common Law Principles:

Dismissive References to Human Rights Instruments, Jurisprudence, Institutions and/or Scholarship:

Extremely Slight or Desultory References to Human Rights Instruments, Jurisprudence, Institutions and/or Scholarship: