Law & Culture

Abstract

I do not think of myself as a cynical person, but I have lost count of the number of times I have told my students that Australian law does not adequately protect human rights. Unlike every other democratic nation in the world, Australia does not possess a national human rights Act or constitutional Bill of Rights. Nevertheless, while this may be a disappointment to me andmany other Australians, it is not the whole story. As Lucy Geddes and Hamish McLachlan, two practising human rights lawyers, ably demonstrate, the inhospitable climate of human rights protection in Australian law has not prevented important green shoots. In 50 Human Rights Cases that Changed Australia, Geddes and McLachlan identify, extract, and summarise some of the most significant human rights cases in Australia. Their outline and analysis are clear and simple to follow. The breadth of cases and areas of law covered is comprehensive, including (among others) decisions on the rights of First Nations peoples, women, children, asylum seekers, prisoners, and democracy more broadly. Although largely focused on civil and political rights, Geddes and McLachlan do include two cases on the right to a clean, healthy and sustainable environment. As the authors note, the increasing manifestation of climate change impacts means that this area of law is ripe for further attention. The book joins a growing series of student-focused titles from Federation Press, like Leading Cases in Australian Law and Leading Cases in Contract Law, which provide short and sharp summaries of key decisions with some accompanying analysis. While aimed at law students, these books offer much to legal professionals. I must admit (with some embarrassment) that several of the human rights cases that ‘changed Australia’, collected by Geddes and McLachlan, had faded from my memory (or perhaps had passed me by in the first place). It was pleasing to be reacquainted with them and reminded of the capacity of Australian law to realise positive outcomes for individuals and communities. Even so, it is striking that many of the cases considered do not engage with or consider international human rights law or, indeed, the human rights that do exist within Australian law. The barren nature of rights protection in this country has required litigants seeking a remedy to dress their claims in a different outfit, such as administrative law or the common law. The cases collected in this book reveal that this strategy can and does work. However, it is not sufficient for systemic and widespread protection.While common law principles, such as the principle of legality, play an important role in rights protection, they can only stretch so far. Clear statutory language can displace and abrogate common law rights and patch up pyrrhic administrative law victories. Several of the cases identified in the book reveal this tension. John Koowarta may have secured a groundbreaking win against the Bjelke-Petersen government in 1982, but it took another 30 years before the Winychanam People saw Australian law recognise their land rights. Similarly, while the High Court tossed out the Gillard government’s ‘Malaysia Solution’ in 2011, it did so on narrow statutory grounds. A minor legislative amendment the following year removed the requirement that the receiving country needed to protect refugee rights, facilitating the designation of Papua NewGuinea and Nauru as regional processing countries. Was this a win? The authors acknowledge these complications. Individual successes, like those rightfully celebrated in this book, should not paint over the reality, nor dampen our hopes and expectations for future victories. And there is indeed much more to be done.