Nolan, Justine --- "Nick O'Neill, Simon Rice and Roger Douglas, Retreat from Injustice: Human Rights in Australian Law" [2004] UNSWLawJl 55; (2004) 27(3) UNSW Law Journal 926

BOOK REVIEW^[*]

Retreat from Injustice: Human Rights in Australian Law

By NICK O’NEILL, SIMON RICE and ROGER DOUGLAS

(Australia: The Federation Press, 2nd ed, 2004) pp 800
Recommended retail price A$85.00 (ISBN 1 862 87414 X)

It has been 10 years since the first edition of this book was published and, despite the quiet optimism evidenced by the original authors that the development and enforcement of human rights in Australia would move forward at a rapid rate, this has not been the case. Instead, the retreat from injustice originally envisioned by Deane J in Gerhardy v Brown[1] has indeed been ‘slow and halting’.[2] Australia seems generally to have adopted a one step forward, two steps back approach to protecting human rights. While in the past 10 years there has been some cause for cheer,[3] the recent decision by the High Court in considering the legality of indefinitely detaining certain refugees,[4] and more generally the Australian federal and State governments’ moves to restrict rights in the name of national security,[5] have helped set a new low water mark in the protection of human rights in Australia.

The aim of this book is to explore and explain the extent to which fundamental human rights are recognised in Australian law. If the authors had adopted a literal approach to this endeavour, it would indeed have been a very short book. There is an obvious lack of entrenched legal protection in Australia for basic human rights. The Australian Constitution was not drafted to include a bill of rights, and the rights that it does contain are scattered and offer little real human rights protection to the Australian people. The authors make a valiant and comprehensive attempt to outline the express and implied rights contained in the Constitution. However, as Sir Anthony Mason has observed, the Constitution is a ‘prosaic document expressed in lawyers’ language’[6] and virtually devoid of ‘aspirational qualities’.[7] It is a document aimed primarily at defining and delimiting the powers of government and not one to be used more broadly in defending an array of fundamental human rights.

As noted at the outset of this book, Australia is now in a unique position in relation to human rights. It is the only ‘Western’ nation that has neither a constitutionally entrenched bill of rights nor a bill of rights as part of its ordinary legislation.[8] In reviewing the first edition of Retreat from Injustice, Justice Michael Kirby noted that ‘such is the speed of change in rights jurisprudence in Australia that I suspect a second edition will be needed from the authors pretty soon. I do not expect that it will contain the news of a constitutional bill of rights adopted at a referendum’.[9] And if the views of the Prime Minister, John Howard, prevail there is unlikely to be one anytime soon. In a radio interview in March 2004, Mr Howard expressed the opinion that ‘a bill of rights is totally undesirable … I think it can end up restricting rights rather than enhancing them’.[10] This is arguably not a real danger in Australia given the current restrictive legal framework for protecting rights. The absence of a bill of rights from the Constitution and the limited role played by the common law in protecting human rights in Australia confirms the authors’ view that, until human rights are legislated for in appropriate ways in Australia, they will remain generally unprotected.[11]

Nevertheless, confronted with the shortcomings of the Australian legal system, the authors manage to derive a logical approach to the examination of human rights in Australia. They consider the explicit constitutional provisions (chapter 3) with some having a clear nexus to accepted international human rights norms, such as freedom of religion (s 116), and others, such as freedom of movement between States (s 92), showing a less obvious connection to fundamental human rights as understood by the non-lawyer. There follow chapters on implied constitutional rights (chapter 4), the way in which the common law protects human rights (chapter 5), the international mechanisms to protect human rights (chapter 6) and the statutory mechanisms and institutions established in Australia to protect and enforce such rights (chapter 7).

This last section, together with the following chapter on implementing human rights in Australia (chapter 8), reveals the distinct lack of receptiveness of the Howard Government to the views of international human rights bodies. The Australian government has not, since Toonen v Australia[12] in 1994, been receptive to adverse views expressed by the United Nations treaty bodies in considering Australia’s compliance with international human rights law.[13] The increase in communications by individual Australians to the treaty bodies in the last 10 years is perhaps indicative of the growing impatience of some with the inadequate protection of the current domestic legal framework and their willingness to use their new found rights to pursue the issue in the international arena.[14]

Following these chapters, the book is given over to a more in-depth examination of particular rights relevant to Australia including chapters on: liberty and security (chapter 8); fair trial (chapter 9); treatment of persons in custody (chapter 10); freedom of assembly (chapter 12); freedom of association (chapter 13); freedom of speech, expression and the media (chapter 14); censorship (chapter 15); contempt of court (chapter 16); defamation (chapter 17); and an extensive coverage of anti-discrimination law (chapter 17). Perhaps the one gap in the book is the lack of coverage given to economic, social and cultural rights, though they obviously run through the discussions of Indigenous rights and anti-discrimination provisions. The authors argue in the preface that ‘there are many policy makers and bureaucrats who need to be persuaded before economic, social and cultural rights receive real recognition in Australian law’.[15] This is no doubt true, but a book such as this is an ideal place to start advancing those arguments of persuasion particularly in light of Australia’s continuing failure to ensure that Australians have access to the guarantees contained in the International Covenant on Economic, Social and Cultural Rights.[16]

One of the particularly valuable aspects of this second edition is the coverage given to Australia’s recent counter-terrorism laws (chapter 11). Ten years ago, there was simply no need to canvass this issue as it was largely not on the radar of the courts or the government. Three years post 11 September 2001 and the scenario has changed, with Australian governments at both federal and State levels introducing a raft of measures to combat terrorism. Such is the pace of legislative change in this area that aspects of the chapter could be rewritten quarterly and still be out of date. The law in this area is in a state of flux but this chapter provides a succinct summary of the principal rights at stake and the difficulty of balancing national security concerns with human rights. The impulse of governments tends to be to view national security and human rights as natural combatants rather than pursuing national security initiatives within a rights framework.

The next four chapters of the book consider the human rights issues confronting Indigenous Australians (chapters 19–22). The short historical survey (chapter 19) which considers early government policy through to recent attempts to seek redress for the ‘stolen generations’ is succinct and insightful and should be a compulsory inclusion on the reading list for high school and tertiary students in any Australian history or introductory legal course.

The final chapter on migrants, refugees and asylum seekers (chapter 23) is another chapter that reveals the fluctuations of human rights law in Australia. While an entire text could easily be devoted to this complex issue, this chapter will be an invaluable tool for those looking for an overview of the principal issues. As with each chapter there is a description of the relevant international human rights principles, a summary of applicable domestic law and multiple references for further research. The High Court’s recent 4–3 decision in Al-Kateb

v Godwin[17] (when contrasted with the Full Federal Court’s decision in Minister for Immigration and Multicultural and Indigenous Afairs v Al Masri)[18] illustrates the one step forward, two steps back approach to the protection of human rights in Australia. Hopefully, the next edition will reveal a fresh approach by a majority of the High Court that is not so reliant on a literal interpretation of the law. As was argued by Richard Ackland, ‘how can it possibly be right in a sunny democracy like ours that the government has the authority and the power to keep an alien in detention forever – or in temporal terms, until the poor wretch dies in captivity?’.[19]

Retreat from Injustice offers an incisive analysis of the effectiveness (or perhaps ineffectiveness) of the mechanisms to protect human rights in Australia. It raises the fundamental question of how rights can best be protected in Australia and reveals, at least to this reader, the stark inadequacy of the current methods. It seems strange that, 12 years after Mabo,[20] we still have limited traction with respect to the rights and aspirations of Indigenous Australians; that we have affirmed the right to indefinitely detain refugees; that we have in place anti-terrorism legislation that curtails basic freedoms; and that we are no further down the path to a national bill of rights. Let’s hope the next edition will be able to bring some good news on all these fronts.

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[*] Justine Nolan, Lecturer in International Human Rights Law, University of New South Wales.

[1] [1985] HCA 11; (1985) 159 CLR 70, 149.

[2] Nick O’Neill, Simon Rice and Roger Douglas, Retreat from Injustice: Human Rights in Australian Law (2^nd ed, 2004) vii.

[3] The recent enactment by the Australian Capital Territory of the Human Rights Act 2004 (ACT), although with serious limitations, can be viewed as one example of a positive development.

[4] Al-Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124.

[5] See generally O’Neill, Rice and Douglas, above n 2, ch 11. On counter-terrorism laws, see 250.

[6] Sir Anthony Mason, ‘The Australian Constitution in Retrospect and Prospect’ in Robert French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution (2003) 7, 8.

[7] Ibid 9.

[8] O’Neill, Rice and Douglas, above n 2, 1. The Human Rights Act 2004 (ACT) is an exception to this at State and Territory level.

[9] Justice Michael Kirby, ‘Retreat from Injustice: Human Rights Law in Australia by N O’Neill and R Handley’ [1994] AUJlHRights 29; (1994) 1(1) Australian Journal of Human Rights 431, 436.

[10] John Laws, Interview with John Howard, Prime Minister of Australia (Radio interview, 8 March 2004).

[11] O’Neill, Rice and Douglas, above n 2, 49.

[12] UN Doc CCPR/C/50/D/488/1 992 (1994).

[13] See Devika Hovell, ‘The Sovereignty Stratagem: Australia’s Response to UN Human Rights Treaty Bodies’ (2003) 28 Alternative Law Journal 297.

[14] Australia ratified the First Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 3 (entered into force 3 January 1976) on 25 December 1991 which, for the first time, gave Australians a right to bring complaints of human rights violations to an international body. Article 14 of the Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1969, 660 UNTS 211 (entered into force on 4 January 1969), which allows individual communications, came into force for Australia in January 1993.

[15] O’Neill, Rice and Douglas, above n 2, viii.

[16] Opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976).

[17] [2004] HCA 37; (2004) 208 ALR 124.

[18] [2003] FCAFC 70; (2003) 126 FCR 54.

[19] Richard Ackland, ‘Four to Three They’ve Thrown Away the Key’, Sydney Morning Herald (Sydney), 17 September 2004, 15.

[20] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.