Human Rights in the High Court of Australia, 1976-2003

This paper interrogates the sense that Australian law becomes (or might become) more ‘progressive’ as and when Australian law and lawyers affirmatively assimilate principles of international human rights law. 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 express or consider arguments expressly in terms of ‘human rights’. Alongside this, the 1980s and 1990s have witnessed a commensurate proliferation in the scholarly analysis of Australian law in terms of human rights. In this context, this article raises the following question (with a view to preliminary discussion herein and to further research hereafter). Should moves towards assimilation of human rights into Australian law be regarded as a ‘journey of enlightenment’, as a member of the Australian High Court has suggested? Analysis of the incidence of references to ‘human rights’ in judgments of High Court of Australia, and of corresponding scholarly literature, supports a contention that 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. As such, these debates remain curiously distanced from the rhetorical and material impact of human rights claims in Australian courts, and the constituents whose hopes, troubles and interests are bound up with those claims