¹ Sir Robert Menzies, Central Power in the Australian Commonwealth: An Examination of the Growth of Commonwealth Power in the Australian Federation (1967) at 54. See to the same effect G Sawer, “Protection of Human Rights in Australia” [1946] Yearbook on Human Rights 31 at 31: “There is probably no country in the world in which human rights, whether of individuals or groups, are more extensive or better protected than they are in Australia.” Cf Justice J Toohey, “A Government of Laws, and Not of Men?” (1993) 4 PLR 158 at 163: “It cannot be said that individual liberties are as well protected in Australia as in those jurisdictions which have express constitutional guarantees of such liberties which preclude legislative or executive infringement.”

² J Dunn, “Time to lift our EC blinkers” The Bulletin July 7 1992 at 20.

³ SeeSawer, G “Government and Law” in J D B Mitchell (ed), Australians and British: Social and Political Connections (1987)Google Scholar ch 2; G Barwick, “Law and the Courts” in A F Madden and W H Morris-Jones (eds), Australia and Britain (1980) 145. See also Justice J Toohey, “Towards an Australian Common Law” (1990) 6 Australian Bar J185.

⁴ See Wilcox, M R An Australian Charter of Rights? (1993)Google Scholar; R Brazier, Constitutional Reform: Reshaping the British Political System (1991) ch 7; L Spender (ed), Human Rights – The

⁵ Australian Debate (1987);Zander, M, A Bill of Rights? (3rd ed 1985); C Campbell (ed), Do We Need a Bill of Rights? (1980)Google Scholar; S Encel, D Home and E Thompson (eds), Change the Rides! Towards a Democratic Constitution (1977); G Evans, “An Australian Bill of Rights?” (1973) 45(1) Australian Quarterly 4. See also the works cited within nn 144 and 185, below. Sir Anthony Mason, “A Bill of Rights for Australia?” (1989) 5 Australian Bar J 79 at 80. There is no doubt that this sense of isolation has been accentuated by developments in Canada (Bill of Rights 1960 and Charter of Rights and Freedoms 1982) and New Zealand (Bill of Rights Act 1990). See Sir Ninian Stephen “Time to Take Stock” Australian Financial Review Magazine April 1992,14 at 26; Sir Anthony Mason, “The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience” (1986) 16 F L Rev 1 at 8. In a way, however, these developments have served only to demonstrate the present affinity between the legal systems of Australia and Britain, and to emphasise their shared isolation from the Western mainstream: both countries having so far failed to adopt Bills of Rights. G Sturgess and P Chubb, Judging the World: Law and Politics in the Worlds' Leading Courts (1988) at 70, quote Sir Anthony Mason as having said: “The majority of countries in the western world do subscribe to a Bill of Rights on the basis that individual and minority rights often need protection, and the only effective protection is by a Bill of Rights. If we don't adopt a Bill of Rights I am inclined to think that we will stand outside the mainstream of legal developments in the western world.”

⁶ N K F O'Neill, “A never ending journey? A history of human rights in Australia” in L Spender, above n 4, 7 at 15. See also Electoral and Administrative Review Commission, Report on Review of the Preservation and Enhancement of Individuals' Rights and Freedoms (1993) at 48; Senate Standing Committee on Constitutional and Legal Affairs, A Bill of Rights for Australia? An Exposure Report for the Consideration of Senators (1985) at 16.

⁷ Gaze, B and M Jones, Law, Liberty and Australian Democracy (1990)Google Scholar at 32.

⁸ See, for example, Dietrich v The Queen (1992) 109 ALR 385 at 392-393 per Mason CJ and McHugh J.

⁹ Cf SirGibbs, Harry “The Constitutional Protection of Human Rights” (1982)Google Scholar 9 Monash U L Rev 1 at 5: “The fact that the United Kingdom adheres to the European Convention may provide a reason why that country should adopt a bill of rights founded on that Convention. As an Australian I cannot comment on that aspect of that matter. However, no such consideration applies to Australia.“ But as was stated by M Cranston, “What are Human Rights?” in W Laqueur and B Rubin (eds), The Human Rights Reader (1979) 17 at 24: “[T]he rights set forth in the European Convention are not meant to be the rights of Europeans only, but to be the rights of all men. The European Convention is just as much a universal document, in this sense, as are the Universal Declaration and the Covenants of the United Nations. The European Convention confers certain positive rights on inhabitants of member states. But it claims moral rights for everyone as well-and indeed it would make no sense as a statement of human rights if it did not do so.” (See also J Waldron (ed), Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man (1987) at 178-180 and 197.) If this is accepted, the onus is on those who would share the reservation of Sir Harry Gibbs to demonstrate that fundamental rights are as well protected in Australian law as they are under the ECHR; or to identify those rights contained therein which are unsuitable for application in Australia or (more contentiously) the protection of which Australians do not deserve. (It is submitted that it would be impossible to conclude that the rights set out in the European Convention are “enjoyed” by all Australians; cf Toohey, above n 1 at 163164. To fully resolve this argument, of course, one would need to engage in a comprehensive audit of fundamental rights in Australia.)

¹⁰ Ex parte Walsh and Johnson: Re Yeats (1925) 37 CLR 36 at 79 per Isaacs J.

¹¹ S A de Smith and R Brazier, Constitutional and Administrative Law (6th ed 1989) at 72.

¹² Starke, J G, “Durability of the Bill of Rights of 1688 as Part of Australian Law” (1991)Google Scholar 65 ALJ 695. See also Electoral and Administrative Review Commission, Report on Consolidation and Review of the Queensland Constitution (1993), chs 2 and 9.

¹³ The Electoral and Administrative Review Commission's Issues Paper No 20, Review of the Preservation and Enhancement of Individuals' Rights and Freedoms (1992) at 45, makes the point that they can be seen as “antithetical to equality and freedom because of their discriminatory preoccupation with ... enshrining the Protestant faith and the rights of feudal land owners.”

¹⁴ Sir Ninian Stephen, above n 5 at 26. Similarly, Sir Anthony Mason, “The Role of a Constitutional Court in a Federation”, above n 5 at 8: “[T]he founders accepted, in conformity with prevailing English legal thinking, that the citizen's rights are best left to the protection of the common law.

¹⁵ See, more generally, M Loughlin, Public Law and Political Theory (1992) at 139-162. For a modern conservative view, see K Minogue, “What is Wrong with Rights” in C Harlow (ed), Public Law and Politics (1986) ch 11.E Burke, Reflections on the Revolution in France (ed by J Priestley) (9thed 1791); B W Hill (ed),

¹⁶ Edmund Burke: On Government, Politics and Society (1975).

¹⁷ F P Lock, Burke's Reflections on the Revolution in France (1985) at 70.

¹⁸ A Davidson and R D Spegele (eds), Rights, Justice and Democracy in Australia (1991) at 27.

¹⁹ Sydney Morning Herald March 14 1974, quoted by M Sornarajah, “Bills of Rights: The Commonwealth Debate” (1976) 9 Comparative and Int'l Law Jnl of South Africa 161 at 164.

²⁰ A V Dicey, The Law of the Constitution (2nd ed 1886) at 174 and 179-80. W H Moore, The Constitution of the Commonwealth of australia (2nd ed 1910) at 398, maintained that Dicey's account of the rule of law had become “a commonplace amongst us.” For discussion of Dicey's version of the rule of law, see G de Q Walker, The Rule of Law: Foundation of Constitutional Democracy (1988) at 128-139; E Barendt, “Dicey and Civil Liberties” [1985] Public Law 596. Dicey's view of the constitution owed a debt to Burke. See G W Keeton, The Passing of Parliament (1952) at 6.

²¹ See E Barendt, Freedom of Speech (1985) at 29; M Sornarajah, above n 19 at 176. The traditional approach has been increasingly challenged of late. See E Barendt, “Libel and Freedom of Speech in English Law” [1993] Public Law 449 at 459 et seq; T R S Allan, “Constitutional Rights and Common Law” (1991) 11 Oxford J Legal Studies 453 at 453-4 (a revised version of this article has been published as Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (1993) ch 6); A Boyle, “Freedom of Expression as a Public Interest in English Law” [1982] Public Law 574.

²² [1985] AC 1054 at 1065. See also Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 178 per Sir John Donaldson MR: “The starting point of our domestic law is that every citizen has a right to do what he likes, unless restrained by the common law ... or by statute.”

²³ Final Report of the Constitutional Commission, Volume 1 (1988) at 468. See also Electoral and Administrative Review Commission, above n 6, ch 4; B Gaze and M Jones, above n 7 at 2741; C Anderson and Rowe, G C “Human Rights in Australia: National and International Legal Perspectives” (1986)Google Scholar 24 Archiv Des Volkerrechts 56 at 58-59; Sir Anthony Mason, “The Role of a Constitutional Court in a Federation”, above n 5 at 12: “[T]he common law system, supplemented as it presently is by statutes designed to protect particular rights, does not protect fundamental rights as comprehensively as do constitutional guarantees and conventions on human rights”; Senate Standing Committee on Constitutional and Legal Affairs, above n 6 at 16-18. For a more optimistic account of the potential of the common law, see T R S Allan, “Constitutional Rights and Common Law”, above n 21 esp at 453-460. One weakness of Allan's rose-tinted view of the common law is its basis in the view that “we should not mistake the deficiencies of particular judgments … or the inadequacy of their reasoning, for the inherent defects of ‘constitutional’ adjudication at common law” (at 459). Allan appears to argue that constitutional rights can exist in the form of unarticulated premises underpinning common law decisions, irrespective of whether judges are aware of their existence and (presumably) regardless of the outcome of cases. One can see why the “mistake” which Allan describes is an easy one to make. This passage has been omitted from Law, Liberty, and Justice, above n 21, but essentially the same point is made. See esp at 148-151. Has not Allan underestimated the “symbolic or inspirational power” (ibid at 154) of a Bill of Rights? An increasing number of judges, after all, are telling us that such a document would give them greater scope to provide legal protection to fundamental rights than does the common law.

²⁴ Approximately 20% of the cases taken to the European Commission (the body which hears complaints before the matter proceeds formally to the Court) have involved the United Kingdom. And 75% of these cases have resulted in a finding against the British government. See J L Murdoch, “The European Convention on Human Rights in Scots Law”[1991] Public Law 40.

²⁵ [1979] ch 344. The relevant law is now contained in the Interception of Communications Act 1985 (UK).

²⁶ [1979] ch 344 at 381.

²⁷ Malone v United Kingdom (1985) 7 EHRR14.

²⁸ Article 8. The text of this provision is to be found within n 52 below.

²⁹ (1979) 2 EHRR 245.

³⁰ Sir John Laws, “Is the High Court the Guardian of Fundamental Constitutional Rights?” [1993] Public Law 59 at 71. See also R v Advertising Standards Authority; ex parte Vernons Ltd [1992] 1 WLR 1289 at 1293 per Laws J.

³¹ Collins, H “Political Ideology in Australia: The Distinctiveness of a Benthamite Society” (1985)Google Scholar 114(1) Daedalus 147.

³² Charlesworth, H “Individual Rights and the Australian High Court” (1986)Google Scholar 4 Law in Context 52 at 53 (footnote omitted).

³³ Nickel, J W Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights (1987)Google Scholar at 92. As the Australian entrepreneur Sly Moorcock observes to himself in B Elton, Stark (1989) at 66: “It wasridiculous, how were you to supposed to run a country for the good of all if you kept worrying about people's damn rights?”

³⁴ Maher, G “Human Rights in the Criminal Process” in T Campbell (ed), Human Rights: From Rhetoric to Reality (1986)Google Scholar 197 at 214 (endnote omitted).

³⁵ J J Shestack, “The Jurisprudence of Human Rights” in T Meron (ed), Human Rights in International Law: Legal and Policy Issues (1984) ch 3 at 88. Some modern theorists (“rule utilitarians”) have argued that utilitarianism does have the potential to provide protection for individuality. See R G Frey (ed), Utility and Rights (1985); J Harsanyi, “Rule Utilitarianism, Equality, and Justice” (1985) 2 Social Philosophy and Policy 115; R M Hare, Moral Thinking: Its Methods, Levels, and Point (1981).

³⁶ M Cranston, above n 9 at 20.

³⁷ J Bentham, Anarchical Fallacies (Works of Jeremy Bentham) (ed by J Bowring), Volume II (183843) at 501. See J Waldron, above n 9 at 34-44.

³⁸ SeeCranston, MGoogle Scholar above n 9 at 18; and, more generally, J Waldron, above n 9.

³⁹ Federalism possesses a Janus-like quality in relation to legal protection for fundamental rights. There is some truth in the following observation of G Sawer, above n 1 at 32: “[Tlhe mere existence of a federal scheme of government imposes restrictions on possible government interference with the individual. The Commonwealth and the states in collaboration could impose, on an Australia-wide scale, most of the restrictions on the individual which are legally competent to a fully sovereign unitary parliament.... But this degree of collaboration … is rarely achieved ‖ ” This role of federalism as a potential protector of fundamental rights has also been stressed by B Galligan, “Parliamentary Responsible Government and the Protection of Rights” (1993) 4 PLR 100. But there is – in the absence of a Bill of Rights to secure uniform, minimum standards – considerable scope for variation from one State to another in the respect afforded to individual and minority rights. This recognition is implicit in Sawer's account, for he acknowledged “that the greater part of the law concerning ordinary civil liberties is in the domain of the states” (at 31; see also J Bryce, Modern Democracies, Volume II (1921) at 190) and that: “The states in particular could, if they wished, go far towards thedestruction of security of the person, freedom of expression and freedom of association” (at 32). See, generally, C Anderson and G C Rowe, above n 23.

⁴⁰ See, generally, La Nauze, J A The Making of the Australian Constitution (1972)Google Scholar.

⁴¹ Sir Robert Menzies, above n 1 at 54. Similarly, Report from the Joint Committee on Constitutional Review (1959) at 46: “[A]s long as governments are democratically elected and there is full parliamentary responsibility to the electors, the protection of personal rights will, in practice, be secure in Australia.” For a critical analysis of this strain of Australian legal thought, see B Galligan, above n 39.

⁴² A Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed 1976) at 22. For criticism of this passage (which appeared in earlier editions) and more general discussion of the influence of Dicey in Australia, see R C L Moffat, “Philosophical Foundations of the Australian Constitutional Tradition” (1965) 5 Sydney L Rev 59 at 85-88.

⁴³ A V Dicey, above n 20 at 35. On the influence of parliamentary sovereignty on the case law of the High Court, see Sir Anthony Mason, “The Role of a Constitutional Court in a Federation”, above n 5 at 8-11.

⁴⁴ See, generally, A S Rosenbaum (ed), The Philosophy of Human Rights: International Perspectives (1980). The relevant literature is voluminous. J J Shestack, above n 35, includes a very useful bibliography at 112-113.

⁴⁵ Cmnd 8969.

⁴⁶ See further the text accompanying nn 80-87, below.

⁴⁷ G Sturgess and P Chubb, above n 5 at 111.

⁴⁸ See A Lester, “Fundamental Rights: The United Kingdom Isolated”[1984] Public Law 46. International treaties do not become a binding part of domestic law unless and until they are specifically incorporated by an Act of Parliament. See Dietrich v The Queen (1992) 109 ALR 385; Kioa v West (1985) 159 CLR 550; Koowarta v Bjelke-Petersen and Ors (1982) 153 CLR 168; Simesk v McPhee (1982) 40 ALR 61; Bradley v Commonwealth (1978) 128 CLR 557; Chow Hung Ching and Anor v The King (1948) 77 CLR 449; Walker v Baird [1892] AC 491; The Parlement Beige (1879) 4 PD 129. (For discussion of some of the earlier cases, see C A Alexandrowicz, “International Law in the Municipal Sphere According to Australian Decisions” (1964) 13 Int'l and Comparative Law Quarterly 78 at 86-95.) The provisions of an unincorporated treaty can still be of persuasive effect. See J Jaconelli, “The European Convention on Human Rights – The Text of a British Bill of Rights?” [1976] Public Law 226 at 228. For a thorough discussion of the legal significance of an unincorporated treaty, see RHiggins, “The Relationship Between International and Regional Human Rights Norms and Domestic Law”, paper presented at the Judicial Colloquium, Balliol College, Oxford, September 21-23 1992 at 9-18.

⁴⁹ See, generally,Bradley, A W, “The United Kingdom before the Strasbourg Court 1975-1990”, in Finnie, W C M G Himsworth and N Walker (eds), Edinburgh Essays in Public Law (1991)Google Scholar 185; F J Hampson, “The United Kingdom Before the European Court of Human Rights” (1990) 9 Yearbook of European Law 121; J A Andrews, “The European Jurisprudence of Human Rights” (1984) 43 Maryland L Rev 463.

⁵⁰ Lord Browne-Wilkinson, “The Infiltration of a Bill of Rights” [1992] Public Law 397 at 398. J Frowein, as quoted in G Sturgess and P Chubb, above n 5 at 526, was correct to describe this as “a sort of judicial tragedy”.

⁵¹ (1982) 4 EHRR149.

⁵² Article 8 of the Convention provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

⁵³ (1982) 4 EHRR 149 at 167.

⁵⁴ The Court has applied this decision in Modinos v Cyprus (1993) 16 EHRR 485.

⁵⁵ In the same way, implementation of the decision in Norris v Ireland (1991) 13 EHHR 186 has led to a change in the law in the Republic of Ireland. See the Criminal Law (Sexual Offences) Act 1993, which in fact introduced a more liberal law than that which exists in the United Kingdom.

⁵⁶ Homosexual Offences (Northern Ireland) Order 1982.

⁵⁷ A V Dicey, above n 20 at 236.

⁵⁸ (1989) 11 EHRR 117. See also Ireland v United Kingdom (1979-80) 1 EHRR 25 and X v United Kingdom (1982) 4 EHRR 188.

⁵⁹ Article 5(3).

⁶⁰ (1989) 11 EHRR at 135.

⁶¹ Ibid at 136.

⁶² The Government has derogated from the Convention to the extent that this case would require a change in the law. According to A Lester, “The Impact of Europe on the British Constitution” (1992) 3 PLR 228 at 229, “the very fact that the Government was driven to derogate shows the impressive power of the European guarantee of the right to liberty.” Cf K Ewing and C Gearty, Freedom Under Thatcher: Civil Liberties in Modern Britain (1990) at 224-225. The European Court has held this derogation to be justified. See Brannigan and McBride v United Kingdom [1993] The Times, May 28.

⁶³ R Higgins, above n 48 at 18.

⁶⁴ Sir John Laws, above n 30 at 67.

⁶⁵ Garland v British Rail [1983] AC 751; Attorney-General v BBC [1981] AC 303; R v Miah [1974] 1 WLR 683.

⁶⁶ R v Secretary of State for the Home Department; ex parte Brind [1991] 1 AC 696. See D Kinley, “Legislation, Discretionary Authority and the European Convention on Human Rights ” (1992) 13 Statute L Rev 63.

⁶⁷ Lord Browne-Wilkinson, above n 50 at 410.

⁶⁸ Sir John Laws, above n 30 at 64-65.

⁶⁹ [1992] 3 WLR 28 (CA); [1993] AC 534 (HL). (The judgment of Morland J at first instance is reported at [1991] 4 All ER 795.) For discussion, see E Barendt, “Libel and Freedom of Speech in English Law”, above n 21; B Bix and A Tomkins, “Local Authorities and Libel Again” (1993) 56 MLR 738; B Bix and A Tomkins, “Unconventional Use of the Convention?” (1992) 55 MLR 721.

⁷⁰ Article 10 provides:1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

⁷¹ Derbyshire County Council v Times Newspapers Ltd [1992] 3 WLR 28 at 64 per Butler-Sloss LJ. See also ibid at 45 per Balcombe LJ: “[A]rticle 10 requires a balancing exercise to be conducted: the balance to be struck in this case is between the right to freedom of expression and such restrictions as are necessary in a democratic country for the protection of the reputation of a non-trading corporation which is also a public authority.”

⁷² Bognor Regis UDC v Campion [1972] 2 QB 169; followed in Western Australia in Church of Scientology Inc v Anderson [1980] WAR 71.

⁷³ 376 US 254 (1964).

⁷⁴ [1993] AC 534 at 547.

⁷⁵ Ibid at 548 per Lord Keith (quoting Thompson CJ in City of Chicago v Tribune Co 307 111 595 at 607-608 (1929)).

⁷⁶ Ibid at 549.

⁷⁷ Ibid at 551. In Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 at 283-284, Lord Goff expressed the view “that in the field of freedom of speech there was no difference in principle between English law on the subject and Article 10 of the Convention.” But as Sir Thomas Bingham, “The European Convention on Human Rights: Time to Incorporate” (1993) 109 LQR 390 at 398, has pointed out: “If in truth the common law as it stands were giving the rights of United Kingdom citizens the same protection as the Convention –across the board, not only in relation to Article 10 – one might wonder why the United Kingdom's record as a Strasbourg litigant was not more favourable ” See also B Bix and A Tomkins, “Local Authorities and Libel Again”, above n 69 at 741-743.

⁷⁸ Sir John Laws, above n 30 at 67.

⁷⁹ Ibid. For a surprisingly guarded interpretation of this case, see B Bix and A Tomkins, “Local Authorities and Libel Again”, above n 69.

⁸⁰ See Grief, N “The Domestic Impact of the European Convention on Human Rights as Mediated through Community Law” [1991]Google Scholar Public Law 555; M Waelbroeck, “La Convention Europeenne des Droits de lHomme Lie-t-elle les Communautes Europeennes?”

⁸¹ [1965] Semaine de Bruges 305.European Communities Act 1972 (UK), s 2(1).

⁸² See, for example, R v Secretary of State for Transport; ex parte Factortame (No 2) [1991] AC 603.

⁸³ European Communities Act 1972 (UK), s 3.

⁸⁴ Hauer v Land Rheinland-Pfalz [1979] ECR 3727; Rutili v Minister for the Interior [1975] ECR 1219; Nold v Commission [1974] ECR 491. See S Weatherill and P Beaumont, EC Law (1993) at 220-223; J H H Weiler, “Protection of Fundamental Human Rights within the Legal Order of the European Communities” in R Bernhardt and J Jolowicz (eds), International Enforcement of Human Rights (1987) 113. See also G De Burca, “Fundamental Human Rights and the Reach of EC Law” (1993) 13 Oxford J Legal Studies 283.

⁸⁵ See, for example, R v Ministry of Agriculture, Fisheries and Food; ex parte Federation Europeenne de la Sante Animale [1991] 1 CMLR 507; Orkem v Commission [1989] ECR 3283.

⁸⁶ [1984] ECR 2689. See also Johnston v Chief Constable of the Royal Ulster Constabulary [1986]ECR 1651 (non-compliance with Articles 6 and 13 of the ECHR).

⁸⁷ N Grief, above n 80 at 562.

⁸⁸ See Merrills, J G The Development of International Law by the European Court of Human RightsGoogle Scholar(2nd ed 1993).

⁸⁹ C Gearty, “The European Court of Human Rights and the Protection of Civil Liberties: An Overview” (1993) 52 Cambridge L J 89 at 95 and 93. See also at 89 of the same article: “It is not improbable that the Court will emerge over time as a supreme court of Europe, at least so far as human rights are concerned.”

⁹⁰ A Drzemczewski, European Human Rights Convention in Domestic Law: A Comparative Study (1983) at 326.

⁹¹ Ibid. Emphasis omitted.

⁹² A Lester, above n 62 at 237.

⁹³ Sir Owen Dixon, Jesting Pilate: And Other Papers and Addresses (1965) at 101-102. Similarly, Attorney-General (Cth); ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 24 per Barwick CJ: “[U]nlike the case of the American Constitution, the Australian Constitution is built upon confidence in a system of parliamentary Government with ministerial responsibility.”

⁹⁴ W H Moore, above n 20 at 615. See also ibid at 78: “Fervid declarations of individual right, and the protection of liberty and property against the government, are conspicuously absent from the Constitution; the individual is deemed sufficiently protected by that share in the government which the Constitution ensures him.” (The same point is also made at 616.) See also Re Bolton and Another; ex parte Beane (1987) 162 CLR 514 at 523 per Brennan J. See, more generally, H Charlesworth, “The Australian Reluctance About Rights” (1993) 30 Osgoode Hall LJ 195. Section 46 of the Tasmanian Constitution does guarantee religious freedom, but it is not entrenched and can therefore be repealed or amended in the same way as any other Act of the Tasmanian legislature.

⁹⁵ PH Bailey, Human Rights: Australia in an International Context (1990) at 84. See also E Campbell, “Civil Rights and the Australian Constitutional Tradition” in C Beck, Law and Justice: Essays in Honor of Robert S Rankin (1970) 295 at 303: “The federal Constitution was not to be an instrument by which the Australian people would affirm their commitment to democratic values or to make law out of political morality. It was to be simply a basic law defining and distributing powers between a national and regional governments and regulating relationships between them.”

⁹⁶ Goldsworthy, J, “The Constitutional Protection of Rights in Australia” in G J D Craven (ed), Australian Federation: Towards the Second Century (1992)Google Scholar 151 at 154; J A La Nauze, above n 40 at 227-232; R C L Moffat, above n 42 at 86.

⁹⁷ See, generally,Hanks, P “Constitutional Guarantees” in H P Lee and G Winterton (eds), Australian Constitutional Perspectives (1992)Google Scholar ch 4; D Solomon, The Political Impact of the High Court (1992) ch 5; L Zines, The High Court and the Constitution (3rd ed 1992) at 325-330; P H Bailey, above n 95, ch 4; N K F O'Neill, “Constitutional Human Rights in Australia” (1987) 17 F L Rev 85.

⁹⁸ P H Bailey, above n 95 at 84.

⁹⁹ See, for example, Adelaide Company of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116 and Krygger v Williams (1912) 15 CLR 116 (on s 116); R v Federal Court of Bankruptcy; ex parte Lowerstein (1938) 59 CLR 556 and R v Archdall and Roskruge; ex parte Carrigan and Brown (1928) 41 CLR 128 (on s 80). For general discussion, see M Gaze and B Jones, above n 7 at 44-48; M Coper, Encounters with the Australian Constitution (1988) at 292-324; H Charlesworth, above n 32 .

¹⁰⁰ See D Solomon, above n 97 at 184-186; L Zines, above n 97 at 14, 340-348, 359, 371-374; A Davidson, The Invisible State: The Formation of the Australian State 1788-1901 (1991) at 257260; Sir Anthony Mason, “The Role of a Constitutional Court in a Federation”, above n 5 at 4-5. Lord Scarman, “The Common Law Judge and the Twentieth Century” (1980) 7 Monash U L Rev 1 at 6, observed that when he had occasion to “read some of the decisions of the High Court of Australia”, they seemed “more English than the English. In London … ‘legalism’ is currently a term of abuse.” Other British observers of the Australian legal scene will have shared this perception.

¹⁰¹ Galligan, B Politics of the High Court: A Study of the Judicial Branch of Government in Australia (1987)Google Scholar at 31-32. Cf J Goldsworthy, “Realism about the High Court” (1989) 18 F L Rev 27. According to L Zines, above n 97 at 371, “a refusal to consider the purpose of a constitutional provision or the consequences of legislation, in determining validity, is often regarded as a hallmark of legalism and formalism.” See also J N Shklar, Legalism: Law, Morals, and Political Trials (2nd ed 1986) at vii-xiv and 1-28.

¹⁰² See, for example, Street v Queensland Bar Association (1989) 168 CLR 461, overruling Henry v Boehm (1973) 128 CLR 482. See G Ebbeck, “The Future for Section 117 as a Constitutional Guarantee ” (1993) 4 PLR 89.

¹⁰³ B Galligan, above n 101 at 32. (One might now add the European influence to this comment.) According to M Atkinson, “Law Making Judges”(1981) 33 U Tas L Rev 33 at 37: “[N]o extra-judicial speech is now complete without some acknowledgment of the law making power.” For examples of such “post-Realist” discussions of the judicial role, see A Lester, “English Judges as Law Makers” [1993] Public Law 269; Mr Justice M McHugh, “The Law-making Function of the Judicial Process” (1988) 62 ALJ15 and 116; Lord Mackay, “Can Judges Change the Law?” (1987) LXXIII Proceedings of the British Academy 285; Lord Reid, “The Judge as Law Makery” (1972) 12 J Society of Public Teachers of Law 22.

¹⁰⁴ Australian Capital Television Pty Ltd v Commonwealth [No 2] (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. See H P Lee, “The Australian High Court and Implied Fundamental Guarantees” [1993] Public Law 606. A similar approach had been indicated in a number of pre-Charter cases in Canada. See Retail, Wholesale & Department Store Union, Local 580 et al v Dolphin Delivery Ltd (1986) 33 DLR (4th) 174 at 184-185 per Mclntyre J.

¹⁰⁵ Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1979) 139 CLR 54 at 88 per Murphy J.

¹⁰⁶ (1986) 7 NSWLR 372 at 405. Kirby P was speaking in the context of a State law, but the argument which he makes is one “which runs like a broad river through the decisions of the progressive judges” (A Davidson, above n 100 at 259).

¹⁰⁷ Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 581-583; Gallagher v Durack (1983) 152 CLR 238 at 249; Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 109; Sillery v R (1981) 35 ALR 227 at 234; Ubergang v Australian Wheat Board (1980) 145 CLR 266 at 311-312; McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 a 667-670;Ansett Transport Industries (Operations) Pty Ltd v Wardley (1979) 142 CLE 237 at 267; Seamen's Union of Australia v Utah Development Co (1978) 144 CLR 120 at 157; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 88; Buck v Bavone (1976) 135 CLR 110 at 137; R v Director-General of Social Welfare (Vict); ex parte Henry (1975) 133 CLR 369 at 388. In the corpus of these judgments Murphy J made reference to a number of implied freedoms (movement and communication) and prohibitions (arbitrary discrimination, slavery and serfdom, and cruel and unusual punishment). See also his judgment in Dugan v Mirror Group Newspapers (1979) 142 CLR 583 at 607-608, where some reliance was placed on the decision of the European Court of Human Rights in Golder v United Kingdom (1979-80) 1 EHRR 524. For discussion of Justice Murphy's views, see L Zines, above n 97 at 335-336; M Coper, above n 99 at 263-264 and 324-331; G Winterton, “Extra-Constitutional Notions in Australian Constitutional Law” (1986) 16 F L Rev 223 at 228-235. M Coper, above n 99 at 328, has made the important point “that the idea of implied rights is not simply a Murphy invention.” Two earlier High Court authorities cited are Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536 and R v Smithers; ex parte Benson (1912) 16 CLR 99.

¹⁰⁸ Ansett Australian Industries (Operations) Pty Ltd v Commonwealth (1979) 139 CLR 54 at 88.

¹⁰⁹ (1992) 177 CLR 106. For a critique of this decision, see D Z Cass, “Through the Looking Glass: The High Court and the Right to Speech” (1993) 4 PLR 229.

¹¹⁰ See Snell, R “Come Back Lionel” (1992)Google Scholar 17 Alternative Law J 206. The Constitutional Commission, above n 23 at 445, had observed: “Justice Murphy suggested on a number of occasions that implications … could be made from the very nature of Australian society as a free and democratic society. We are, however, inclined to think that the views of Murphy J in this regard would not be embraced by most members of the Court” (footnote omitted). In a somewhat different context, it is interesting to see that in Dietrich v The Queen (1992) 109 ALR 385 the majority of the High Court seemed prepared to voice their approval of aspects of Murphy J's dissenting judgment in Mclnnis v The Queen (1979) 143 CLR 575 concerning the necessity of legal representation for a fair trial.

¹¹¹ The legislation professed to prohibit the broadcasting on television or radio during an election period of advertisements containing political matter. It also required the provision of free time for the use of certain political parties and candidates. For a British argument that a “ban on political advertising is too hard to sustain in principle”, see E Barendt, Broadcasting Law: A Comparative Study (1993) at 153. For contrary arguments, see D Z Cass, above n 109; K D Ewing, “New Constitutional Constraints in Australia” [1993] Public Law 256; Report of the Senate Select Committee on Political Broadcasts and Political Disclosures (1991).

¹¹² McHugh J thought that the regulation enforced in the Territories was valid.

¹¹³ (1992) 177 CLR 106 at 149.

¹¹⁴ Ibid at 174. See also their joint judgment in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 74: “Inherent in the Constitution's doctrine of representative government is an implication of the freedom of the people of the Commonwealth to communicate information, opinions and ideas about all aspects of the government of the Commonwealth.

¹¹⁵ Australian Capital Television (1992) 177 CLR 106 at 186. Dawson J placed considerable emphasis upon Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 38 CLR 129, which he regarded as having laid to rest the ghost of the heresy that implied limitations having their origin outside the Constitution could be imported into it. For discussion of the significance of the Engineers' case, see L Zines, above n 97 at 7-15.

¹¹⁶ Australian Capital Television (1992) 177 CLR 106 at 184.

¹¹⁷ Ibid at 157. See also the judgment of Mason CJ at 140-144 and 149-151. Similarly, Davis v Commonwealth (1988) 166 CLR 79 at 100, per Mason CJ, Deane and Gaudron JJ: “Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power.” See also Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436.

¹¹⁸ See Jowell, J and Lester, A, “Proportionality: Neither Novel Nor Dangerous” in J Jowell and D Oliver (eds), New Directions in Judicial Review (1988)Google Scholar 51.

¹¹⁹ (1982) 4 EHRR 149. See further text accompanying n 51.

¹²⁰ (1979) 2 EHRR 245. See also Sunday Times v United Kingdom (No 2) (1992) 14 EHRR 229, where the European Court held that the House of Lords had unnecessarily interfered with freedom of expression when it restrained publication of extracts from Peter Wright's book, Spycatcher. See Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1248 for the (majority) decision of the House of Lords.

¹²¹ See text within n 70.

¹²² This decision led to the enactment of the Contempt of Court Act 1981 (UK).

¹²³ (1992) 177 CLR 106 at 159.

¹²⁴ See P van Dijk and G J H van Hoof, Theory and Practice of the European Convention on Human Rights (2nd ed 1990) at 585-606; G Cohen-Jonathan, La Convention Europeenne Des Droits De VHomme (1989) at 187-193; J G Merrills, above n 88 at ch 7; R St J MacDonald, “The Margin of Appreciation in the Jurisprudence of the European Court of Human Rights” in International Law and the Time of its Codification: Essays in Honour of Roberto Ago (1987) 187; H C Yourow, “The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence” (1987) 3 Connecticut J Int'l Law 111; T A O'Donnell, “The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights” (1982) 4 Human Rights Quarterly 474.

¹²⁵ The Observer and The Guardian v United Kingdom (1992) 14 EHRR 153; Lingens v Austria (1986) 8 EHRR 407; Barthold v Germany (1985) 7 EHRR 383.

¹²⁶ (1979-80) 1 EHRR 737. See C Feingold, “The Little Red Schoolbook and the European Convention on Human Rights” (1978) 3 Human Rights Rev 263.

¹²⁷ A W Bradley, above n 49 at 205.

¹²⁸ (1992) 177 CLR 1.

¹²⁹ Section 229(l)(d)(ii).

¹³⁰ (1992) 177 CLR 1 at 48.

¹³¹ Ibid at 68.

¹³² Justice J Toohey, above n 1 at 170.

¹³³ SeeSpeagle, D “Case Note: Australian Capital Television Pty Ltd v Commonwealth” (1992)Google Scholar 18 MULR 938 at 947.

¹³⁴ (1992) 177 CLR1Q6 at 150.

¹³⁵ This realist observation is not a novel one. It accords with the view expressed some sixty-five years ago by the minority in the Report of the Royal Commission on the Constitution (1929) at 245: “The present position is such that the Commonwealth Constitution is broad or narrow according to the way it is construed by the High Court, and the Constitution depends upon the trend of thought of the individuals who for the time being form that body.”

¹³⁶ (1992) 177 CLR 1 at 52. (Of the other judges, Gaudron J was closest in approach to Brennan J.) A parallel can be drawn with his judgment in Leeth v Commonwealth (1992) 174 CLR 455 where Brennan J, although appearing to recognise an implied constitutional guarantee of equality, was likewise unwilling to employ it to strike down the legislation under scrutiny.

¹³⁷ The way in which Brennan J made use of the concept is open to question. The doctrine of the margin of appreciation may be appropriate for an international tribunal, but it is arguable that is not applicable when an issue pertaining to the scope of a fundamental right comes before a national court. According to Y Ghai, “Derogations and Limitations in the Hong Kong Bill of Rights”, in J Chan and Y Ghai (eds), The Hong Kong Bill of Rights: A Comparative Approach (1993) ch 8 at 182, the doctrine should be confined “to the relationship between an international tribunal on the one hand and national institutions ... on the other. It cannot have a place when the issue arises in a purely national context.” See also ibid at 181.

¹³⁸ L Zines, Constitutional Change in the Commonwealth (1991) at 52.

¹³⁹ Ibid at 51-52.

¹⁴⁰ (1992) 177 CLR 1 at 44.

¹⁴¹ Some members of the High Court (apart from Murphy J) have indicated their preparedness to go further and to identify rights (for example, equality) implied by the Constitution as a whole and not derived from specific provisions. In their joint judgment in Leeth v Commonwealth(1992) 174 CLR 455 at 486, Deane and Toohey JJ observed that: “Implicit in that free agreement [that is, the Constitution] was the notion of the inherent equality of the people as the parties to the compact.” Brennan J also appeared sympathetic to this notion. In Street v Queensland Bar Association (1989) 168 CLR 461 at 554, Toohey J made reference to “the principle that Australia was to be a commonwealth in which the law was to apply equally to all its citizens ” (citation omitted). And in Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 at 247, Deane J identified an “implication of the underlying equality of the people of the Commonwealth under the law of the Constitution.”

¹⁴² Sections 7 and 24. See H P Lee, above n 104.

¹⁴³ G Winterton, above n 107 at 234. See also Building Construction Employees' and Building Labourers' Federation v Minister for Industrial Relations (1986) 7 NSWLR 372 at 406 per Kirby P: “Substituting judicial opinion about entrenched rights for the lawful powers of Parliament, unless anchored in a Bill of Rights duly enacted, inevitably runs into the difficulties of explaining what those ‘common law rights’ are and of explaining how they are so basic that they cannot be disturbed.”

¹⁴⁴ Yds is but a variant of “the political arguments against a Bill of Rights … that it is dangerous in that it transfers power to the unelected … judiciary” (S Lee, “Bicentennial Bork, Tercentennial Spycatcher: Do the British Need a Bill of Rights?” (1988) 49 U Pittsburgh L Rev 111 at 787.) For examples of literature in this vein, see K Ewing, A Bill of Rights for Britain? (1990); P Hanks, “Moving Towards the Legalisation of Politics” (1988) 6 Law in Context 80; A C Hutchinson and A Petter, “Private Rights/Public Wrongs: The Liberal Lie of the Charter” (1988) 38 U Toronto LJ 278; Lord McCluskey, Law, Justice and Democracy (1987) ch 5; H J Glasbeek and M Mandel, “The Legalisation of Politics in Advanced Capitalism: The Canadian Charter of Rights and Freedoms” (1984) 2 Socialist Studies/Etudes Socialistes 84; JAG Griffith, “The Political Constitution” (1979) 42 Modern L Rev 1. Those who advocate Parliament as the appropriate forum in which protection can be provided for fundamental rights must beware of adopting a romanticised and exaggerated view of its capacities. Although public choice theory remains controversial, its insights should make one aware of the possibilities that the legislative process can be corrupted by special interests and that its outcomes are not always motivated by public interest concerns. For a balanced discussion, see D A Farber and P A Frickey, Law and Public Choice: A Critical Introduction (1991). A failure to engage adequately with public choice theory is a major weakness of J Waldron, “A Right-Based Critique of Constitutional Rights” (1993) 13 Oxford J Legal Studies 18.

¹⁴⁵ South Australia v Commonwealth (1942) 65 CLR 373 at 429.

¹⁴⁶ H P Lee, above n 104 at 627-628.

¹⁴⁷ One might term this the “burden of proof'. See R J Gaskins, Burdens of Proof in Modern Discourse (1992) ch 2.

¹⁴⁸ See Justice M Kirby, “Human Rights: The Role of the Judge”, in J Chan and Y Ghai, above n 137, ch 10 at 234: “[T]here is a kind of compact between the courts and the ‘political’ branches of government that the courts will declare the meaning and effect of laws made by the other branches and the others will accept that declaration. In doing so, the courts will presume that those other branches did not (unless they made their intention absolutely clear) intend to derogate from ‘basic rights’, as the courts in turn declare them.” And as Kirby P has explained in his judicial capacity in Yuill and Ors v Corporate Affairs Commission of NSW (1990) 20 NSWLR 386 at 404: “[T]he asserted role of the courts is not an undemocratic usurpation of Parliament's role ... Instead, it is the performance of a role auxiliary to Parliament and defensive to basic rights.” This latter observation appeared in the context of a discussion of legislative, as opposed to constitutional, interpretation. There is a difference between frustrating Parliament's desire to legislate contrary to a fundamental right by means of restrictive statutory interpretation, rather than the application of an implied constitutional guarantee. Parliament can overcome the former more easily than the latter.

¹⁴⁹ Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 204 per Gibbs CJ (citation omitted). See, further, text accompanying n 157 below.

¹⁵⁰ Justice J Toohey, above n 1 at 170 (emphasis added). See also Seamen's Union of Australia v Utah Development Co (1978) 144 CLR 120 at 157 per Murphy J: “The Constitution is a framework for a free society.”

¹⁵¹ The defence of the notion of implied constitutional rights outlined in the preceding paragraphs could be applied to the broad view of the concept, associated particularly with Murphy J, as well as to the narrow approach taken in the Australian Capital Television and Nationwide News cases. The argument in the text focuses upon the latter, since that approach has the support of a majority of the High Court.

¹⁵² Justice M D Kirby, “The Role of the Judge in Advancing Human Rights by Reference to International Human Rights Norms” (1988) 62 ALJ 514 at 528. But cf the quotation within n 144.

¹⁵³ See Triggs, G “Australia's Ratification of the International Covenant on Civil and Political Rights: Endorsement or Repudiation?” (1981)Google Scholar 31 Int'l and Comparative Law Quarterly 278. The United Kingdom ratified the Covenant in 1976.

¹⁵⁴ This history is recounted in P H Bailey, above n 95; and also in B Galligan, “Australia's Rejection of a Bill of Rights” [1990] J Commonwealth and Comparative Politics 344 at 357-365.

¹⁵⁵ Human Rights and Equal Opportunity Commission Act 1986 (Cth). See C Caleo, “Implications of Australia's Accession to the First Optional Protocol to the International Covenant on Civil and Political Rights” (1993) 4 PLR 175 at 184-186. A contrast can be drawn with the Racial Discrimination Act 1975 (Cth), which fully implements the International Convention on the Elimination of All Forms of Racial Discrimination.

¹⁵⁶ (1992) 175 CLR 1 at 42 (Mason CJ and McHugh J concurring). See to the same effect Dietrich v The Queen (1992) 109 ALR 385 at 404 per Brennan J.

¹⁵⁷ Sir Anthony Mason, “The Relationship Between International Law and National Law, and its Application in National Courts”, paper presented to the 64th Conference of the International Law Association, Broadbeach, August 20, 1990, at 7. See also Dietrich v The Queen (1992) 109 ALR 385 at 424-427 per Dawson J.

¹⁵⁸ Australia accepted this mechanism with effect from January 1993.

¹⁵⁹ See Opsahl, T, “Human Rights Today: International Obligations and National Implementation” (1979)Google Scholar 23 Scandinavian Studies in Law 153.

¹⁶⁰ The United Kingdom has not yet done so.

¹⁶¹ See C Caleo, above n 155.

¹⁶² (1992) 175 CLR 1 at 42 (Mason CJ and McHugh J concurring). On the impact of recognition of the individual application on judicial attitudes, see R Higgins, above n 48 at 3-6 and 1415.

¹⁶³ This elementary point has been reiterated in Dietrich v The Queen (1992) 109 ALR 385 at 391 per Mason CJ and McHugh J and at 434-435 per Toohey J. As Dixon J observed in Chow~ Hung Ching and Anor v The King (1948) 77 CLR 449 at 478: “[A] treaty ... has no legal effect upon the rights and duties of subjects of the Crown and speaking generally no power resides in the Crown to compel them to obey the provisions of a treaty ” (citation omitted).

¹⁶⁴ See, for example, Jago v District Court of NSW (1988) 12 NSWLR 558 at 569 per Kirby P; Daemar v The Industrial Commission of NSW and Ors (1988) 12 NSWLR 45 at 53 per Kirby P; Mclnnis v The Queen (1979) 143 CLR 575 at 588 per Murphy J; Dowal v Murray (1978) 143 CLR 410 at 430 per Murphy J; Dugan v Mirror Group Newspapers (1978) 142 CLR 583 at 607608 per Murphy J. See also Sir Ronald Wilson, “The Domestic Impact of International Human Rights Law” (1992) 24 Australian J Forensic Science 57 at 60-63; J Dugard, “The Application of Customary International Law Affecting Human Rights By National Tribunals” (1982) 76 Proceedings of the American Society oflnt'l Law 245 at 250-251.

¹⁶⁵ See, for example, Dietrich v The Queen (1992) 109 ALR 385 at 392 per Mason CJ and McHugh J, 425-426 per Dawson J. See also Director of Public Prosecutions for the Commonwealth v Saxon (1992) 28 NSWLR 263; R v Astill (1992) 63 A Crim R148; R v Greer (1992) 62 A Crim R 442.

¹⁶⁶ H Charlesworth, “Australia's Accession to the First International Covenant on Civil and Political Rights” (1992) 18 MULR 428 at 430. See, generally, D McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1991); L Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (1981).

¹⁶⁷ A H Robertson and J G Merrills, Human Rights in the World (3rd ed 1989) at 69.

¹⁶⁸ Opsahl, “The Human Rights Committee” in P Alston (ed), The United Nations and Human Rights: A Critical Appraisal (1992) 369 at 431. See also Australian Law Reform Commission, “International Protection of Human Rights” (1992) 63 Reform 31 at 35.

¹⁶⁹ The Special Rapporteur for Follow Up is not an adequate alternative.

¹⁷⁰ Toonen v Australia, Comm No 488/1992.

¹⁷¹ Criminal Code (Tas), s 122.

¹⁷² See, “Tasmania‘s anti-gay laws Violate human rights’”, The Times 12 April 1994 at 12.

¹⁷³ See Hertzberg and Ors v Finland, Comm No R14/61, Decision of April 2, 1982, (1982) 3 Human Rights Law J 174: “It has to be noted ... that public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities.” The Committee took the view that the censorship in Finland of broadcasts dealing with homosexuality did not conflict with Article 19.

¹⁷⁴ Section 51(29). See Richardson v Forestry Commission (1988) 77 ALR 237; Commonwealth v Tasmania (1983) 158 CLR 1.

¹⁷⁵ On which see the Joint Committee on Foreign Affairs, Defence and Trade, A Review of Australia's Efforts to Promote and Protect Human Rights (1992) at xxvii and 27-30. The Joint Committee “believes that the arguments ... concerning States' rights carry less weight than those which stress the need for Australia to speak with one voice, to uphold its principles on human rights, to work to upgrade our practice and standards on human rights as a whole nation” (at 30). See also Senate Standing Committee on Constitutional and Legal Affairs, above n 6 at 60. Legislation to override a State interest would not be without precedent. See, for example, the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth).

¹⁷⁶ Similarly, H Charlesworth, above n 166 at 431.

¹⁷⁷ R B Lillich, International Human Rights: Problems of Law, Policy, and Practice (2nd ed 1991) at 646.

¹⁷⁸ T Opsahl, above n 168 at 440.

¹⁷⁹ B H Weston, R A Lukes and K H Hnatt, “Regional Human Rights Regimes: A Comparison and Appraisal” (1987) 20 Vanderbilt} Transnational Law 585 at 589 (footnote omitted).

¹⁸⁰ Ibid.

¹⁸¹ Similarly, C M Tucker, “Regional Human Rights Models in Europe and Africa: A Comparison” (1983) 10 Syracuse J Int'l Law and Commerce 135 at 139-40, 168; T Buergenthal, “The American and European Conventions on Human Rights: Similarities and Differences” (1981) 30 American Univ Law Rev 155 at 155-156.

¹⁸² Cf Joint Committee on Foreign Affairs, Defence and Trade, above n 175 at 57-58.

¹⁸³ Yamane, “Asia and Human Rights” in K Vasak and P Alston (eds), The International Dimensions of Human Rights, Volume 2 (1982) 651 at 663 (endnote omitted).

¹⁸⁴ See R Little and W Reed, The Confucian Renaissance (1989) at 83-84 and 88-89. See also the Bangkok Declaration issued by a number of Asian states in April 1993, reported at (1993)2(2) Bill of Rights Bulletin 78. Australia was not a party to this statement of “the aspirations and commitments of the Asian region” (ibid). Asia has done little to develop a regional approach to the protection of fundamental rights. See H Yamane, “Approaches to Human Rights in Asia” in R Bernhardt and J Jolowicz (eds), above n 84 at 99; H Yamane, above n 183. (It is interesting to note that the definition of Asia adopted at 666-667 of this latter work is such as to exclude Australia.)

¹⁸⁵ Compare, for example, R Dworkin, A Bill of Rights for Britain (1990) with J Waldron, above n 144. See also J Goldsworthy, above n 96 at 160-176; R Blackburn, “Legal and Political Arguments for a United Kingdom Bill of Rights” in R Blackburn and J Taylor (eds), Human Rights for the 1990s (1991) 108; J Finnis, “A Bill of Rights for Britain? The Moral of Contemporary Jurisprudence” (1985) LXXI Proceedings of the British Academy 303.

¹⁸⁶ This observation is based on the assumption that the rights will be enforced satisfactorily. On the issue of incorporation, see J Jaconelli, “Incorporation of the European Human Rights Convention: Arguments and Misconceptions” (1988) 59 Political Quarterly 343; R Kerridge, “Incorporation of the European Convention on Human Rights into United Kingdom Domestic Law” in M P Furmston, R Kerridge and B E Sufrin (eds), The Effect on English Domestic Law of Membership of the European Communities and of Ratification of the European Convention on Human Rights (1983) 247; J Jaconelli, above n 48. Amongst those in favour of a Bill of Rights for Britain, there is a debate between those who advocate incorporation of the European Convention, and those who favour a tailor-made document. The latter group tend to the view that the Convention is somewhat out-dated, since it is based on the prevailing view of fundamental rights in the immediate post-war years. But the political reality seems to be that it is either an incorporated Convention or nothing, despite the contrary example provided by Canada and New Zealand. See further the British works cited in n 4.

¹⁸⁸ Electoral and Administrative Review Commission, above n 6 at 55.

¹⁸⁹ Justice G Samuels, “A bill of rights for Australia?” (1979) 51(4) Australian Quarterly 91 at 9697.

¹⁹⁰ Including the Chief Justice (see Sir Anthony Mason, “A Bill of Rights for Australia?”, above n 5), even if not “enthusiastically” (ibid at 79).

¹⁹¹ Including the Lord Chief Justice (see Lord Taylor, The Judiciary in the Nineties (1992) at 1314) and the Master of the Rolls (see Sir Thomas Bingham, above n 77). A particularly influential voice has been that of Lord Scarman. See, for example, his English Law-The New Dimension (1974) and “Human Rights in an Unwritten Constitution” [1987] Denning L J129.

¹⁹² Sir Ninian Stephen, above n 5 at 26.

¹⁹³ Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 43 per Brennan J.

¹⁹⁴ Or a settled common law rule which is a binding authority upon the court concerned, subject to the willingness of a higher court to allow an appeal and overrule the obstructive precedent.

¹⁹⁵ Unless the measure is contrary to European Community law.

¹⁹⁶ (1992) 177 CLR 1 at 48-49.

¹⁹⁷ Justice M Kirby, “The New World Order and Human Rights” (1991) 18 MULR 209 at 213. The point can be put more strongly. Sir Thomas Bingham, above n 77 at 19, has spoken in relation to Britain of “the insidious and damaging belief that it is necessary to go abroad to obtain justice.”If this is true in the European setting, then the implications for Australia in the international context are disquieting. See also J Dugard, “Human Rights, Apartheid and Lawyers. Are there any Lessons for Lawyers from Common Law Countries?”(1992) 15 UNSWLJ 439 at 446-447.

¹⁹⁹ See the Constitutional Commission, above n 23 at 20-24 and ch 9. See also Electoral and Administrative Review Commission, above n 6 .

²⁰⁰ See Justice Kirby, M “Human Rights: The Role of the Judge”, above n 148 at 236-239; Justice Kirby, M, “The Australian Use of International Human Rights Norms: From Bangalore to Balliol – A View from the Antipodes” (1993)Google Scholar 16 UNSWLJ 363; Justice M Kirby, “The Bangalore Principles of Human Rights Law” (1989) 106 South African LJ 484 and (1989) 58 Nordic J Int'l Law 206; Justice M Kirby, above n 152; Justice M Kirby, “Domestic application of international human rights standards”, Australian Foreign Affairs Record, May 1988 at 186188. (The same material is reproduced in a number of these publications.)

²⁰¹ The 1988 attempt to effect amendments to the Constitution to implement some of these latter proposals was notably unsuccessful. See H P Lee, “Reforming the Australian Constitution: The Frozen Continent Refuses to Thaw” [1988] Public Law 535.

²⁰² (1992) 177 CLR 106. See also Dietrich v The Queen (1992) 109 ALR 385.

²⁰³ por an eaijy discussion of this possibility, see C Anderson and G C Rowe, above n 23 at 100-103.

²⁰⁴ See the text accompanying above nn 21-22.

²⁰⁵ As evidenced, for example, by the judgments of Neill LJ in Middlebrook Mushrooms v TGWU [1993] IRLR 232 and Rantzen v Mirror Group Newspapers [1993] 3 WLR 953.