High Court Review 2010: The Resurgence of Rights?

Abstract

In 2010 the High Court delivered several judgments with potentially significant implications for the protection of human rights in Australia. It invoked the doctrine of the implied constitutional freedom of communication in Aid/Watch; found that offshore processing of asylum seekers must comply with procedural fairness and natural justice; invalidated elements of the SA government's control order scheme as it encroached on the independence of the judiciary; and invalidated amendments to electoral laws that shortened the period for enrolment. In this review we evaluate the implications of these decisions in the wider context of the protection of human rights in Australia. We argue that while these decisions have made an important contribution to restating the boundaries of rights protection, there are significant limitations in relying on judicial review as a mechanism of rights protection within the Australian constitutional framework.

Keywords:

• Australian politics
• High Court
• human rights

Acknowledgements

We would like to thank Ariadne Vromen, as well as this Journal's anonymous reviewers, for helpful discussions and comments on this year's Review.

Notes

¹ Aid/Watch Inc. v Commissioner of Taxation (2010) 272 ALR 417.

² South Australia v Totani [2010] HCA 39.

³ Kirk v Industrial Court of NSW (2010) 239 CLR 531.

⁴ Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14.

⁵ Dickson v The Queen (2010) 241 CLR 491.

⁶ Electoral Reform and Referendum Amendment (Electoral Integrity and Other Measures) Act (2006) (Cth).

⁷ Rowe & Anor v Electoral Commissioner & Anor (2010) 273 ALR 1. There were also two cases relating to water rights (Arnold v Minister Administering the Water Management Act (2010) 240 CLR 242; Spencer v Commonwealth of Australia (2010) 269 ALR 233), but there is no room to analyse these here.

⁸ Charter of Human Rights and Responsibilities Act 2006 (VIC).

⁹ Human Rights Act 2004 (ACT).

¹⁰ Aid/Watch Inc. v Commissioner of Taxation (2010) 272 ALR 417 at 534.

¹¹ Aid/Watch Inc. v Commissioner of Taxation (2010) 272 ALR 417 at 422–23.

¹² Aid/Watch Inc. v Commissioner of Taxation (2010) 272 ALR 417 at 428–29.

¹³ Aid/Watch Inc. v Commissioner of Taxation (2010) 272 ALR 417 at 429.

¹⁴ Aid/Watch Inc. v Commissioner of Taxation (2010) 272 ALR 417 at 429.

¹⁵ Aid/Watch Inc. v Commissioner of Taxation (2010) 272 ALR 417 at 430.

¹⁶See for example, Aid/Watch Inc. v Commissioner of Taxation (2010) 272 ALR 417, per Kiefel J at 436.

¹⁷ Aid/Watch Inc. v Commissioner of Taxation (2010) 272 ALR 417, per Heydon J at 433, see also Kiefel J at 439.

¹⁸ Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

¹⁹ Kirk v Industrial Court of NSW (2010) 239 CLR 531.

²⁰A privative clause is one which seeks to prevent a decision being ‘appealed against, reviewed, quashed or called into question by any court or tribunal’, and appears in s 179(1) of the Industrial Relations Act 1996 (NSW).

²¹ South Australia v Totani [2010] HCA 39. The case was brought by two members of the Finks Motorcycle Club in South Australia, Donald Hudson and Sandro Totani. Hudson had been subjected to a control order in May 2009.

²² South Australia v Totani [2010] HCA 39 at [4].

²³ South Australia v Totani [2010] HCA 39 at [1].

²⁴ Crimes (Criminal Organisations Control) Act 2009 (NSW).

²⁵ Wainohu v State of New South Wales (2011) 278 ALR 1 at 1.

²⁶ Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

²⁷ Wainohu v State of New South Wales (2011) 278 ALR 1 at 2.

²⁸In the Anti-Terrorism Act (No 2) 2005 (Cth).

²⁹ Thomas v Mowbray (2007) 233 CLR 307.

³⁰ Serious Crime Control Act 2009 (NT).

³¹ Criminal Organisational Act 2009 (Qld).

³² Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14.

³³ Migration Amendment (Excision from Migration Zone) Act 2001 (Cth).

³⁴ Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 at 13–14.

³⁵There was another claim to the denial of procedural fairness; namely that a second set of claims that were made by one of the plaintiffs had not been taken into account by the reviewer. This is not germane to the argument here, and will not be elaborated (see Plaintiff M61 at 34).

³⁶ Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 at 35.

³⁷Under §61 of the Constitution.

³⁸ Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 at 19.

³⁹ Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 at 32, 33. Indeed, just prior to the Plaintiff M61 decision, in Saeed, the High Court had stated the presumption that statutes do not override the fundamental common law right to natural justice, unless the parliament clearly expresses its intention that it does (Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 253).

⁴⁰ Dickson v The Queen (2010) 241 CLR 49 at 505–06.

⁴¹ Roach v Electoral Commissioner (2007) 233 CLR 162 (hereinafter Roach). See Gauja (2009) and Orr (2010, 50–2).

⁴² Roach, per Gummow, Kirby and Crennan JJ at [24], per Gleeson CJ at [7].

⁴³GetUp! also successfully ran another case against the Electoral Commissioner in the Federal Court: GetUp Ltd v Electoral Commissioner [2010] FCA 869. In this case, the Federal Court declared that an application for enrolment, generated with an electronic signature, was valid and ‘in order’ for the purposes of the Commonwealth Electoral Act 1918 (Cth) – potentially clearing the way for online enrolments.

⁴⁴ Electoral Reform and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth); Commonwealth Electoral Act 1918 (Cth) ss 102, 155.

⁴⁵ Rowe, per French CJ at 4–5.

⁴⁶ Rowe, per French CJ at 22.

⁴⁷ Rowe, per Heydon CJ at 22.

⁴⁸ Rowe, per Heydon J at 69.

⁴⁹ Rowe, per Gummow and Bell JJ at 42; French CJ at 26 and Crennan J at 94.

⁵⁰Joint Standing Committee on Electoral Matters (2005, para. 2.123).

⁵¹ Rowe, per Gummow and Bell JJ at 45; per Crennan J at 94–5.

⁵² Rowe, per Gummow and Bell JJ at 45.

⁵³ Rowe, per French CJ at 26.

⁵⁴Sections 8 and 30, read in conjunction with s 51(xxxvi).

⁵⁵ Rowe, per French CJ at 9.

⁵⁶ Rowe, per Crennan J at 88.

⁵⁷ Rowe, per Gummow and Bell JJ at 42.

⁵⁸ Rowe, per Hayne J at 57; per Kiefel J at 102.

⁵⁹ Rowe, per Heydon J at 70–1; per Kiefel J at 103.

⁶⁰ Rowe, per Kiefel J at 101; per Hayne J at 49, 56.

⁶¹ Rowe per Kiefel J at 117. See also the reasons of Heydon J at 80 and Hayne J at 65–6.

⁶² Rowe, per Heydon J at 73–4.

Additional information

Notes on contributors

Anika Gauja

Dr Anika Gauja is a Lecturer in the Department of Government and International Relations at Sydney University.

Katharine Gelber

Katharine Gelber is Associate Professor of Public Policy in the School of Political Science and International Studies at the University of Queensland.