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Abstract
The High Court's role of judicial review has often been examined for its impact on rights protection, an area of particular interest in Australia due to the historical lack of an explicit bill of rights in either statutory or constitutional form. In 2004 rights issues were presented in particularly stark relief in several key cases, demonstrating the difficulties of the role of judicial review in the Australian constitutional framework. The cases analysed here produce compelling evidence of the limitations of relying on judicial review for rights protection within the Australian system of government. They demonstrate that in the absence of a clearer framework for the protection of rights the judiciary can uphold unambiguous decisions of the legislature enshrined in statute, even where and when those provisions are considered to override the rule of law, international standards and human rights principles.
Notes
1 This was the case until the recently enacted ACT Human Rights Act 2004, which is limited in its jurisdiction to the ACT. The Charter of Responsibilities Bill 2004 introduced concurrently failed to gain parliamentary support. The Victorian government is currently exploring the option of introducing a Charter of Human Rights and Responsibilities (Attorney-General of Victoria 2004, 14). See also comments made by the Victorian Attorney-General (Hulls Citation2004) and the shadow Attorney-General (McIntosh Citation2004).
2 A third mechanism is to prevent rights cases reaching the High Court at all. In the context of reports in the media that at least two same-sex couples who had legally married in Canada were planning to launch court action to have their marriages recognised in Australia (eg Farouque Citation2004; Smith Citation2004; Dodson and Seccombe Citation2004), the government amended the Marriage Act 1961 (Cth) to restrict marriages to a union between a man and a woman.
3 See, for example, Koowarta v Bjelke-Petersen (1982) 153 CLR 168 in which Queensland legislation was held invalid to the extent that it conflicted with the Racial Discrimination Act 1975 (Cth) which was validly enacted by the Commonwealth after ratification of the International Convention on the Elimination of Racial Discrimination (ICERD); and Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dams case) in which it was held that any matter of genuine international concern which was the subject of an international treaty fell within the ambit of the external affairs power (Galligan Citation1995, 177–8).
4 Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.
5 Administrative Decisions (Effect of International Instruments) Bill 1995.
6 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1.
7 Coleman v Power (2004) 209 ALR 182 at 243–4.
8 The two landmark cases which outlined the freedom were Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, and Australian Capital Television v The Commonwealth (1992) 177 CLR 106. A later unanimous judgment in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 clarified the freedom.
9 Mabo v Queensland [No 2] (1992) 175 CLR 1.
10 Wik Peoples v Queensland (1996) 187 CLR 1.
11 See discussion on the recognition by the High Court of the doctrine of parliamentary supremacy, and some argument as to the difference between parliamentary supremacy and parliamentary sovereignty, in Taylor (Citation2004, 58–60). See also recognition of the persistence of the notion of parliamentary sovereignty in Australia in Patapan (Citation2000, 43).
12 A further example is amendments made to the Industrial Relations Act following the High Court's decision in Nationwide News (McDonald Citation2004, 9). In a related point, McDonald cites an argument made in Canada that the operation of the Charter of Rights and Freedoms has been such that the objectives of the legislature have not been ‘thwarted’ by the courts' interpretation of it (2004, 2–3, citing a study conducted by Hogg and Bushell).
13 For further examination of UN criticisms of Australia's policies towards asylum-seekers and on other grounds deemed racially discriminatory, see Kinley and Martin (Citation2002, 469–70). For more general criticism of Australia's compliance with the terms of international human rights treaties, see Evatt Citation(2001b).
14 Those who upheld the validity of detention under these circumstances were McHugh, Hayne, Callinan and Heydon JJ. Gleeson CJ, Gummow and Kirby JJ were in dissent.
15 In Prince Citation(2004) see further analysis of the findings, the subsequent ‘discomfort’ on the part of the government with their implications, and prospects for an overturning of the decisions in the future.
16 Al-Kateb v Godwin (2004) 208 ALR 124 at 128, 129.
17 Al-Kateb v Godwin (2004) 208 ALR 124 at 130, reaffirming Coco v The Queen (1994) 179 CLR 427 at 437, and other cases dating back to 1908.
18 Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 208 ALR 201 at 211.
19 Al-Kateb v Godwin (2004) 208 ALR 124 at 133–4.
20 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.
21 Al-Kateb v Godwin (2004) 208 ALR 124 at 135–6.
22 Al-Kateb v Godwin (2004) 208 ALR 124 at 161, 162.
23 Al-Kateb v Godwin (2004) 208 ALR 124 at 127, 137.
24 Al-Kateb v Godwin (2004) 208 ALR 124 at 144–5.
25 S197A which states ‘A detainee must not escape from immigration detention’ was added to the Migration Act 1958 (Cth) with effect from July 2001.
26 For example by being harsh or inhumane. Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 271 at 276.
27 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 established that the statutory framework for mandatory detention is a valid exercise of the Commonwealth's power under s51(xix) of the Constitution, and the citizen/non-citizen differentiation at 25–6.
28 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 271 at 277 per Gleeson CJ, and 308, 313 per Hayne J, and 327 per Callinan J.
29 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 271 at 284 per McHugh, Gummow, Heydon JJ, 288, 305.
30 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 271 at 294.
31 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 271 at 287, 290, 299.
32 R v Governor of Durham Prison, Exp Hardial Singh 1984 1 WLR 704; cited in Al-Kateb v Godwin (2004) 208 ALR 124 at 128.
33 Tan Te Lam v Superintendent of Tai A Chau Detention Centre 1997 AC 97 cited in Al-Kateb v Godwin (2004) 208 ALR 124 at 128.
34 Zadvydas v Davis 533 US 678 (2001), cited in Al-Kateb v Godwin (2004) 208 ALR 124 at 142.
35 Singh v Commonwealth (2004) 209 ALR 355.
36 Re Woolley; Ex parte Applicants M276/2003 by their next friend GS (2004) 210 ALR 369.
37 Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 206 ALR 130.
38 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, which found the Community Protection Act 1994 (NSW) invalid.
39 Fardon v Attorney-General (Queensland) (2004) 210 ALR 50 at 56 per Gleeson CJ, 87 per Kirby J, 65 per McHugh J.
40 In a separate case, Baker, s13A of the Sentencing Act 1989 (NSW) was upheld. This requires offenders sentenced to a life term in which the judge had made a non-release recommendation to have a ‘special reason’ to apply to the Supreme Court for a determination of their sentence. Where no special reason exists, no determination can be made, thus ensuring the prisoner remains incarcerated for life. The argument that this legislation, like Kable, jeopardised the independence of the judiciary, failed. Kirby J dissented, arguing that the provisions were ‘incompatible with the fundamental rules of universal human rights forbidding retroactive criminal punishment’ (Baker v The Queen (2004) 210 ALR 1 at 26, 28, 30–1).
41 Dangerous Prisoners (Sexual Offenders) Act 2003 (Q).
42 Fardon v Attorney-General (Queensland) (2004) 210 ALR 50, eg McHugh J at 60–1.
43 Fardon v Attorney-General (Queensland) (2004) 210 ALR 50 at 53, 72.
44 Fardon v Attorney-General (Queensland) (2004) 210 ALR 50 at 83, 96, 102–3.
45 But rather on the technical question of the role of the Supreme Court: Fardon v Attorney-General (Queensland) (2004) 210 ALR 50 at 52.
46 Fardon v Attorney-General (Queensland) (2004) 210 ALR 50 at 55–6, 57.
47 Fardon v Attorney-General (Queensland) (2004) 210 ALR 50 at 83–4.
48 Coleman v Sellars (2001) 181 ALR 120.
49 Coleman v Power (2004) 209 ALR 182, esp. 231, 250.
50 Coleman v Power (2004) 209 ALR 182 at 187.
51 Coleman v Power (2004) 209 ALR 182 at 190–1.
52 Coleman v Power (2004) 209 ALR 182 at 193.
53 Coleman v Power (2004) 209 ALR 182 at 229, 238.
54 Coleman v Power (2004) 209 ALR 182 at 194.
55 Coleman v Power (2004) 209 ALR 182 at 204 per McHugh and 241 per Kirby J.
56 Bennett v President, Human Rights and Equal Opportunity Commission (2004) 204 ALR 119, dealing with Regulation 7(13) under the Public Service Act 1922 (Cth), known as the ‘official secrecy provision’.
57 Mulholland v Australian Electoral Commission (2004) 209 ALR 582 at 585, 590, 644.
58 Mulholland v Australian Electoral Commission (2004) 209 ALR 582 at 592, 652. Not all the justices agreed that the provisions did burden the freedom, but, for example, Callinan J argued that even if they did they would still be considered reasonably appropriate and adapted and thus not an infringement of the freedom (at 679).
59 Mulholland v Australian Electoral Commission (2004) 209 ALR 582 at 588, 589, 595, 603.
60 Mulholland v Australian Electoral Commission (2004) 209 ALR 582 at 593 per Gleeson CJ.
61 Al-Kateb v Godwin (2004) 208 ALR 124 at 145.