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

Abstract

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'. Alongside this, the 1980s and 1990s have witnessed a proliferation in the scholarly analysis of Australian law in terms of human rights. 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? Taking issue with the expectation that Australian law is likely to be made more progressive through its greater internalisation of international human rights law, this article scrutinises those cases in which international human rights law has featured in the jurisprudence of the High Court of Australia. It studies the impact of appeals to 'the international' in these settings and, in view of this study, puts forward the following thesis: 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. Indeed, in specific cases, human rights' invocation in the High Court of Australia may be shown to have had demobilising or otherwise disadvantageous effects for those pursuing a human rights claim before that Court. Moreover, these tendencies are engendered by the prevailing jurisprudential style of Australian case law and scholarship: specifically, its particular combination of late modernism and legal pragmatism.