A week before Christmas, Justice Michael Kirby was in the national capital receiving an honorary doctorate. Before his university audience, he recited a litany of Australia’s shortcomings in human rights. He said:
In the past year more than half a million British assisted migrants (who enjoyed common nationality when they came to Australia in the 1960s and 1970s) were revealed as vulnerable to ministerial deportation. If such laws are valid, the courts must uphold them. Earlier, the High Court unanimously upheld a law providing for detention of children behind razor wire in remote parts of this continent. That law is unchanged although parliament was thrice told that it is contrary to the international law of human rights.
There were many other decisions of the High Court during the past year in which the court was divided on matters of deep principle ... (including) the right under federal law to hold a stateless person in detention indefinitely, despite the lack of any court order to punish him for any offence.
The list goes on. Of course many Australians, perhaps most, do not care. But for me, I confess that it makes depressing reading. Most judges of our tradition—per-haps most lawyers—like to think that in Australia we are always working towards just laws and court decisions that uphold fundamental human rights. Alas, in many things in the law, we seem to fall short. And there is not much that the courts can do about it.
Though there is nothing novel in Kirby’s protest against our national shortcomings in the protection of human rights, his note of despair is new. He now sits on a court whose decisions make ‘depressing reading’ for at least one of its members. And what is more disturbing, he has concluded that ‘there is not much that the courts can do about it’. Just a few hours earlier on the other side of the globe, unknown to those in the Canberra graduation hall, the House of Lords delivered its opinion in a case which was a damning condemnation of the Blair Government’s encroachment of civil liberties in the name of national security post-September 11. While the Australian courts were powerless to order the release of children from behind the razor wire, the law lords by a majority of eight to one were striking down a law which permitted the UK government to keep suspected international terrorists in detention. While