In defence of human rights

In defence of human rights

Address
by President John von Doussa to the University of New South Wales Law
Society’s Speakers’ Forum

24
August 2006

---

I
would like to acknowledge that we are meeting on the traditional country of the
Gadigal people of the Eora nation and pay my respects to their elders past and
present.

In
defence of human rights

Human
rights suffer from what the professionals’ term a PR problem. Human rights
are sometimes seen as anti-democratic, a sop to minorities. In debates about
national security, human rights are often cast as irrational indulgences that
jeopardise our security, preserving high principle at the expense of common
sense and safety.

Little
wonder that, at a time when the threat of terrorism is terrifyingly real, people
may be tempted to view human rights as expendable.  After all, as the
United Nations Secretary-General Kofi Annan observed, ‘terrorism has a
nasty habit of causing the whole spectrum of opinion in society to lurch in a
repressive
direction’.[1]

What
I want to do today is explain why human rights matter and why now –
perhaps more than any other time – we need to defend human rights.
 There are three propositions in that sentence:

• human
  rights matter;
• they
  matter more than ever now; and
• we
  need to defend human rights.

Let
me start with the first proposition. Why do human rights matter? Perhaps the
first thing to say is that human rights are not luxuries. Human rights are the
basic minimum standards we must uphold in order to respect the inherent dignity
and value of human life.  

These
rights – the right to a fair trial, the right not to be subject to
torture, the right to life – are objective legal standards that form
‘the bedrock of dignity and democracy that make our societies worth
protecting’.[2]

Yet
human rights can not simply be described as technical legal creatures. Human
rights simultaneously articulate the basic minimum legal standards that all
societies must meet and reflect a deeply moral vision of the type of world we
want to live in. The concept of human rights is based on a common recognition of
the importance of fair treatment for all and the belief that people should be
able to live free of violence, discrimination, vilification and hatred.

This
vision is articulated in the Universal
Declaration of Human Rights which states that the
‘recognition of the inherent dignity and of the equal and unalienable
rights of all members of the human family is the foundation of freedom, peace
and justice in the world’.

While
some might suggest that human rights have much to do with international law but
little relevance to life in Australia, the reality is human rights lie at the
heart of our liberal democratic traditions. Not only, has Australia ratified
important international human rights standards, it has played a crucial role in
developing human rights standards and promoting human rights in other
countries.[3] Our federal discrimination
laws[4] are designed to give effect to Australia's international human rights
obligations.

So
it is impossible to talk about Australia’s protection of human rights
without talking about the system of international human rights.  Contrary
to the cult of cultural relativism, I believe one of the chief virtues of human
rights is their universal character.

In
an increasingly global society human rights offer us a unifying vision of
respect for life and liberty – common values with the potential to
traverse national, cultural and social divides.

Of
course, the true test of our commitment to human rights does not lie in our
aspirations but in our actions. It lies in the everyday detail of our laws.
Sometimes it is the words of the laws that are the problem. More often it is
simply what is left out.  

And
so I arrive at my second proposition: human rights matter – especially
now.

The
Australian Government has consistently maintained that Australia has a strong
human rights record.  But the fact we are proud of our foundations should
not mean we avert our eyes from the cracks in the pavement.

Elizabeth
Evatt has observed that ‘that even in a generally just and fair society
the broad brush of legislation and the extensive power of the executive may rise
rough shod over an individual or a
minority’.[5]  

In
recent years a series of events, including the introduction of extraordinary new
counter-terrorism powers, and a High Court decision upholding the legality of
indefinite detention of asylum seekers, have revealed the weaknesses in our
human rights armoury.  

Today,
I want to reflect on the adequacy of human rights protection in Australia by
talking about three pressing human rights issues:

• balancing
  national security and human rights principles;
• Australia’s
  treatment of asylum seekers; and
• the
  problems being uncovered by HREOC’s inquiry into discrimination against
  same-sex couples.
   

At
first glance it may appear that these three subjects share little common ground.
But these issues all raise important questions.

• Do
  existing processes adequately integrate human rights principles into the policy
  and law making process?
• Do
  we have adequate mechanisms to test the human rights compatibility of our
  laws?

These
questions lead to my third proposition – we must defend human rights. The
best way to defend human rights is to make sure they are adequately protected.
In a new century, with new challenges, I believe we need to think about new ways
to defend and preserve human rights.  This might involve a charter of
rights.  Or it might not. As Professor David Feldman recently
observed:

The
beneficial effect of human rights on public decision-making does not depend on
judges. Using human rights is something that politicians, parliaments and public
servants can and should do for themselves, for their own benefit and that of the
democratic process, regardless of anything the judges may be doing in parallel
to
them.[6]

If
we are serious about providing effective protection for human rights we
shouldn’t just talk about the role of the judiciary in checking of the
human rights compatibility of government action we should talk about the role of
parliament in creating human rights compatible legislation.

Defending
human rights in the age of terrorism

I
will return to the question of providing effective protection for human rights
later in my speech.

First,
I would like to talk about the need to strike the right balance between
protecting national security and preserving human rights.  This topic
isn’t much of crowd pleaser at the moment. The images of the senseless
destruction wrought by terrorist attacks have been hardwired into our collective
consciousness. The recent plot to blow up ten US bound planes over the Atlantic
was another front-page reminder of how serious, how devastatingly devoid of
humanity, the terrorist threat is.  

Last
week the decision of the Victorian Court of Appeal to quash the convictions
against Jack Thomas for receiving funds from a terrorist organisation and
possessing a falsified Australian passport provoked fierce debate about whether
the decision was a moral miscarriage or an act of fidelity to well worn legal
principles.[7]

Before
I return to the Jack Thomas case, I think it is important to explain that I am
not one of those who argue that counter-terrorism legislation is unnecessary.

Concerns
about terrorism are patently legitimate. Every person has a fundamental right to
be kept safe from violence and the Government has both the right and the duty to
take action to guard against the worst case scenario.

However, I am
concerned that in the age of terrorism there is a tendency to treat human rights
principles as optional extras or worse, moveable obstacles on the road to a
safer, more secure society.  

In
debates about the human rights compatibility of counter-terrorism legislation
one often encounters the argument – often expressed in florid and
emotionally charged language -  that bad men have forfeited their rights.
 It is easy to have some sympathy for this view.

Yet
we live in a society where the presumption of innocence, the right to a fair
trial, the right not to be tortured and the rule of law are the foundation
stones of our democracy.  These rights apply to alleged murderers,
paedophiles and, yes, even terrorists. To abandon our belief in these rights is
to throw away the prize possessions of democracy and a free society.  To
quote from the 2006 Secretary General’s Uniting Against Terrorism
Report:

Only
by placing counter-terrorism within a rule of law framework can we safeguard the
internationally valued standard that outlaws terrorism, reduce conditions that
may generate cycles of terrorist violence, and address grievances and resentment
that may be conducive to terrorist recruitment. To compromise on the protection
of human rights would be to hand terrorists a victory they can not achieve on
their own. [8]

Located
just outside the territorial jurisdiction of the United States Courts,
Guantanamo Bay sends the wrong message to the world about what we in the West
mean when we talk about justice. Guantanamo Bay is truly a legal black hole and,
irrespective of the guilt or innocence of those detained there, it should offend
all those who believe in rule of law and right to a fair trial.  

The
ongoing detention of David Hicks – who has been held by the US at
Guantanamo Bay since January 2002 -  is now widely acknowledged to be
grossly unfair.

In
my view, commentators’ who protest Hick’s innocence, or make the
case that he is now a changed man, have missed the point. What is important is
that his guilt or innocence is determined in accordance with the law and
consistent with that bed rock of a civilised society – the right to a fair
trial.

Article
9 of the ICCPR clearly sets out the minimum standards of a fair
trial:

• No
  one shall be subject to arbitrary detention;
• A
  person who is arrested should be promptly  informed of the charges laid
  against him;
• A
  person arrested or detained on a criminal charge should promptly be brought
  before a judge or a person empowered by law to exercise judicial
  power.
• Anyone
  deprived of his liberty should be able to challenge his detention in a court of
  law.

The
plight of David Hicks clearly violates these basic
principles.
 

Recently, the
US Supreme Court held that military Commissioners established by the
President to try Guantanamo Bay detainees were not of the type
authorised to be set up by
Congress[9]. 
Congress has only authorised the establishment of military
commissions that comply with the common law of war and
common article 3 to the Geneva Conventions.  Quite simply, Guantanamo Bay
did not comply.

Significantly,
in the course of its findings, the Court expressed its view that the right
of an accused to “be present for his trial and privy to the evidence
against him, absent disruptive conduct or consent” is “indisputably
part of customary international law”.  

There
is popular misconception that international human rights laws are inflexible,
esoteric principles which hamstring government efforts to effectively respond to
changes in Australia’s threat level.

This
misconception is just that – a misconception. International human rights
law permits protective actions to be taken by states but demands that those
actions be necessary and proportionate to meet the gravity of the threat.  
 This approach was adopted by the Government-appointed Sheller Inquiry, who
accepted HREOC’s submission, that counter-terrorism laws must be
proportionate to the aim of achieving national security.  

In
Australia we have now seen three major packages of new counter-terrorism powers.
Most recently, in the aftermath of the home-grown terrorist attacks on London,
the Government introduced the Anti-Terrorism
Bill (No.2)) 2005. The
Bill included provisions for preventative detention orders, control orders, and
special police powers to stop, search and question people.

HREOC’s
main concern about the Bill was the absence of adequate remedies for review of
the new extraordinary powers the Bill was to give to the Executive.  As a
result of the public discussion and media attention, the government announced
amendments allowing greater judicial involvement and merits review of the most
invasive measures.

However,
finding the balance between human rights and national security is an ongoing
challenge.  Most recently, the decision in the Jack Thomas
case[10] has been cast as a setback in the war on terror. This case warrants comment.
Behind the hyperbole, this case involves a routine application of long
established principles relating to the admissibility of unfair confessions in a
criminal trial.

During
the debate over the Anti-Terrorism
Bill (no.2) (2005) it
was taken for granted that if an alleged terrorist was ultimately charged with a
terrorist offence, the charge would be determined according to the
well-established processes of the criminal law. If a consequence of the Thomas
prosecution is a proposal to challenge the law of evidence governing criminal
trials, we will be moving into an entirely new arena of debate, one that so far
has been treated as part of the fundamental requirements of a fair trial
according to law.

One
other observation I would like to make is that while I understand that the
public have a keen interest in those accused of counter-terrorism offences, it
is for the courts – not the media – to determine the guilt or
innocence of those on trial.     While media can speculate endlessly
about what Jack Thomas – or for that matter David Hicks – may or may
not have done – ultimately, as the Prime Minister said yesterday,
“it is for courts to decide guilt, it is for courts to hand down the
verdicts, and it is for courts to deal with appeals”. [11]

Ultimately,
the best way to reconcile the human rights and counter-terrorism laws is to make
sure there are adequate checks and balances to guard against error and
illegality.  Some of these checks and balances are woven into the
established principles that govern the admission of evidence in criminal trials.

As
I observed earlier, so far new counter-terrorism laws have not dramatically
changed the way courts conduct criminal proceedings.  However,  one of
the disturbing trends of counter-terrorism laws has been the expansion of
executive decision-making without corresponding checks
and balances – for example, the power to proscribe terrorist organisations
is not subject to merits review or judicial oversight. In a recent speech Chief
Justice Gleeson observed:

the
development in the Australia community of a cultural expectation that those in
authority are able and willing to justify the exercise of power is one of the
most important aspects of modern public
life.[12]  

His
Honour added that ‘decisions affecting human rights, and above all
personal liberty, are quintessential examples of cases where fairness of process
is itself part of the outcome to be expected from good
government’.[13]

When
we are investing extraordinary new powers in the executive – power that
have the potential to infringe fundamental human rights – it is vital that
we insist that these powers are accompanied by review mechanisms to act as
safeguards against error and abuse. This means not just recognising the need for
judicial review – to check that the decision is not infected by legal
error – but merits review to check if the facts on which the decision was
made were right. The reason why we need these checks and balances is simple
–    ‘mistakes and human errors inevitably
occur’.[14]

Australia’s
treatment of asylum seekers

I
would now like to turn away from debates about counter-terrorism, to another
headline issue– Australia’s treatment of asylum seekers.
 

In light of
recent reforms to the treatment of asylum seekers – including the removal
of children from immigration
detention[15] -  it was disappointing to see the Government introduce the Migration Amendment
(Designated Unauthorised Arrivals) Bill 2006 to process all unauthorised boat arrivals
offshore.

The Bill was
basically an extension of the ‘Pacific Solution laws’ that were
passed in the wake of the HMV Tampa arrival in 2001.  Under this regime
unauthorised boat arrivals arriving in an ‘excised offshore place’
were defined as ‘offshore entry persons’ and removed to
‘declared countries’ where their asylum claims were processed. For
this purpose Off-shore Processing Centres (OPCs) were established in Nauru and
Papua New Guinea.

During the
public debate about the bill there was much discussion about what safeguards
should apply to offshore processing of asylum seekers.

But ultimately,
the problem with processing asylum seekers offshore is Australia’s ability
to guarantee certain safeguards – for example, independent scrutiny,
access to lawyers – is fundamentally compromised by the fact that
ultimately the asylum seekers are in the territory of another sovereign state.
 

This problem
was acknowledged by the Prime Minister himself when he observed that legislating
access for the Commonwealth Ombudsman in order to provide independent oversight
of offshore processing centres is not possible because it would infringe on the
sovereignty of the host
country.[16]  

As
you know the Bill was withdrawn after it became clear that did not have the
support of the Senate majority. The Bill’s withdrawal was undoubtedly a
win for human rights. Yet it is important to remember that the legal framework
that established the original Pacific Solution is still in place. We still have
a situation where people who arrive on excised Australian territory can be taken
to Nauru and left there indefinitely.  The human rights concerns we had
with this recent Bill still apply to those people. These problems
include:

• no
  access to independent merits review or judicial review under Australian
  Law;
• no
  time limits on the processing of asylum seekers;
• no
  independent scrutiny of offshore processing centres.

This
is the stark reality facing the eight Burmese asylum seekers located on Ashmore
Reef on the same day the Migration Bill was withdrawn. Because Ashmore Reef is
an ‘excised offshore place’ under the original Pacific Solution laws
these asylum seekers will be processed in Nauru.

They
don’t have much to look forward to. Some of the asylum seekers held in
Nauru under the original Pacific Solution have been detained for more than four
years. The UNHCR has said it had ‘a bad experience with the arrangements
set in place in Nauru in 2001’ where asylum seekers were kept ‘in
detention like conditions for a long period of time with no timely solutions for
the refugees, who suffered considerable mental
hardship’.[17]

In October
2005, the Australian Government announced that almost all remaining detainees
held in offshore processing centres would be transferred to mainland Australia
after an independent expert report warned their mental health was deteriorating.
 Last week The
Age reported that a mentally ill Iraqi
refugee, who has been detained on Nauru for five years is expected to be flown
to Australia after mental health workers expressed grave concerns about his
condition.[18]

The
withdrawal of the migration bill marks an important step forward in
Australia’s treatment of asylum seekers. What I would like to see now is
the dismantling of the original Pacific Solution.  

It’s
also worth observing that the Bill was withdrawn as a result of what was the
political equivalent of a blue moon. We should not have to rely on political
anomalies to preserve human rights.  Instead, proposed legislation should
be measured against clearly articulated human rights standards.

Of
course, the problem is that while Australia’s Constitution does contain
some important rights, others – like the right to vote – are notably
absent.  Instead, human rights ‘have been granted statutory
protection in a piecemeal and incomplete
fashion’.[19]  

This
problem was brought home by the High Court’s decision in Al-Kateb
v
Goodwin[20] where the majority of the High Court held that the Migration
Act permitted the
indefinite detention of a failed asylum seeker who wanted to leave Australia but
could not find another country to accept him. Shortly after the decision in Al
Kateb the High Court unanimously rejected a challenge to the validity of
legislation that authorised the detention of
children[21].

These
cases highlighted what former High Court Justice McHugh has described
as:

the
inability of Australian judges to prevent unjust human rights outcomes in the
face of federal legislation that is unambiguous in its intent and that falls
within a constitutional head of
power.[22]

Last
month the United Nations Human Rights Committee (HRC) found that the detention
of an Iranian family  in Curtin Immigration detention centre for over three
years was in breach of one of the most fundamental of all human rights
obligations – article 9(1) of the ICCPR – the right to be protected
from arbitrary
imprisonment.[23]  

This
was the fifth time since 1997 that the HRC has found that Australia’s
immigration detention regime does not comply with this basic
standard.[24]

In
submissions the Australian Government challenged the HRC’s jurisdiction to
hear the complaint arguing that the family had not exhausted domestic avenues.
 However, the HRC found that, because Australia’s High Court had held
the policy of mandatory detention was constitutional, this remedy was not
effective.

In
concluding that the family’s detention was in breach article 9(1) the HRC
found that ‘whatever justification there may have been for an initial
detention’ Australia had failed to demonstrate:

• ‘that
  their that their detention was justified for such an extended period’ or
• that
  compliance with Australia’s immigration policies could not have been
  achieved by less intrusive measures.

Under
article 2 of the ICCPR Australia has agreed to make sure that individuals who
allege that their rights have been violatted have access to ‘effective and
enforceable remedies’.

In an ideal world, the HRC would never hear complaints against Australia,
because an effective remedy would be available here in Australia.

Discrimination
against same-sex couples

Yet
the reality is that asylum seekers are not only group that struggle to find an
effective way to defend their rights in Australia.

Larry
Cairns was an Australian World War II veteran. In the early 1960s he met and
fell in love with Edward Young, the man who he would spend his life with. When
Larry died in 1998 Edward was told that, as the partner of a war veteran, he was
entitled to certain benefits. But when Edward inquired he found that these
benefits were not available to him. The Veterans Entitlement Act 1986 only
provided entitlements to a person who had "living with a person of the opposite
sex".

Edward
took his complaint to the HRC.  The HRC found Australia’s laws
regarding veteran’s benefits violates article 26 of the ICCPR – the
right to non-discrimination. [25]

Although
the HRC handed down its decision in 2003, the Veterans Entitlement Act is still
in force in Australia.  Nor is the discriminatory character of this law
unusual. Many of Australia’s laws exclude same-sex couples from financial
and work-related entitlements and benefits that are enjoyed by heterosexual
couples.

This
is why earlier this year HREOC launched a national inquiry into the
discrimination faced by same sex couples in relation to financial and
work-related entitlements.

The
inquiry will effectively audit the discriminatory effects of Australian laws on
gay and lesbian couples’ access to financial and work-related benefits.
 

While
the word audit is the verbal equivalent of a sleeping pill – especially
nearing the end of a lengthy lecture -  I would ask you to think instead of
the hundreds of people who have made submissions to this inquiry.

For
these people and those they love this inquiry is not simply about tax and
welfare payments. It is about redressing financial discrimination and respecting
relationships

For
example, many submissions describe how a gay man, unlike a heterosexual man, is
denied access to his partner’s superannuation benefits if his partner
worked for the Commonwealth public service.

Other
submissions tell us that a lesbian woman, unlike a heterosexual woman, cannot
claim tax rebates for child care.

The
submissions illustrate how laws treat gay and lesbian couples as second class
citizens, not deserving of the same rights as heterosexual couples. As one
person put it:

The
inequalities embedded in current legislation are obvious and are inexcusable.
 "Understanding, tolerance and inclusion" are said to be values of the
Australian community.  Current legislation tells another
story.[26]

The
right to non-discrimination and the right to equality before the law are
fundamental principles of international human rights law.  

Making
Rights Matter

One
of the important questions that the same sex inquiry raises is how did laws
which have a clearly discriminatory effect on the day to day lives of many
Australians get passed in the first place?  

The
fact that a raft of discriminatory legislation has travelled through
parliamentary processes without any discussion of how it might discriminate
against same-sex couples tells us that we need to find a better way to test the
human rights compatibility of proposed legislation.

In
Victoria the new Charter of Rights and Responsibilities ensures that Parliament
can no longer overlook the question of whether legislation is compatible with
human rights. Under the Charter:

• Where
  decisions need to be made about new laws or major policies, submissions to
  Cabinet must be accompanied by a Human
  Rights Impact
  Statement.
• an
  MP or the Attorney must present a statement of human rights compatibility to
  parliament on the introduction of a Bill;
• a
  parliamentary scrutiny committee must independently assess the compatibility of
  the Bill with human rights; and
• Perhaps
  most importantly, parliament must publicly explain its actions in the event that
  it decides to enact or maintain legislation that is inconsistent with human
  rights principles.

In
my view these provisions represent an important step forward for human rights
because they explicitly recognise that parliament has a responsibility to uphold
human rights standards.

This
new provisions are in sharp contrast to federal arrangements. While no one can
seriously question the value of parliamentary committees scrutinising new Bills
the process is also subject to fundamental limitations.

The
extent to which federal Committees do or do not consider the human rights
implications of proposed legislation is a matter of chance, not a matter of
procedure.

Crucially,
the federal Senate Committee process occurs after the legislation has been
drafted, the policy objectives formulated and, more often than not, after
politicians have publicly committed to the Bill’s implementation.
 There is no obligation on the government to listen to or act on the
Committee’s recommendations.

Towards
a Bill of Rights?

It
is often observed that Australia is the only Western Nation without a Bill of
Rights. Personally, I have never found this in itself a persuasive argument to
jump on the Bill of Rights bandwagon.

But
the argument that we live in a robust democracy where strong parliamentary
processes will safeguard our rights and freedoms is wearing thin.

Equally
troubling is that too often the human rights impact of proposed legislation is
not fully examined and legislation is passed without requiring Parliament to
explain why the legislation is compatible with human rights and – if
it’s not –why Parliament believes that the abrogation of rights are
justified in the particular circumstance.

We
could – and should – do better than this. Plainly it is time to
begin considering new ways to better protect human rights. Integrating human
rights principles into the pre-legislative process seems like a logical first
step.

---

[1]United
Nations Press Release SG/SM/8518, ‘Terrorism is Global Threat, says
Secretary General, But measures against it must not be used to justify human
rights violations, 21/11/2002. Available at  http://www.un.org/News/Press/docs/2002/SGSM8518.doc.htm  

[2] Professor David Feldman, ‘The roles of Parliament in Protecting Human
Rights: A view from the UK”, address given at the Human Rights and
Legislatures Conference, Melbourne University, 20-22 July 2006.

[3] See further Australia’s National Framework for Human Rights, National
Action Plan Commonwealth of Australia 2005.

[4] See the Human Rights and Equal Opportunity Act
1986, the Racial Discrimination Act
1975, the Sex Discrimination Act
1984, the Disability Discrimination Act
1992 and the Age Discrimination Act
2004.

[5] Evatt E, ‘Bill of Rights and International Standards’ in proceedings
at 2002 Bill of Rights Conference, 21 June 2002, Sydney.

[6] Professor David Feldman, ‘The roles of Parliament
in Protecting Human Rights: A view from the UK”, address given at the
Human Rights and Legislatures Conference, Melbourne University, 20-22 July
2006

[7] See for example Editorial, ‘It’s protection of the Innocent’, The Canberra Times, 21 August 2006;
Editorial, ‘A battle lost in the War on Terror’, The Australian, 21 August 2006.

[8] Report of the Secretary-General, ‘Uniting Against Terrorism:
Recommendations for a Global Counter-Terrorism Strategy, 27 April 2006 available
online at http://www.un.org/unitingagainstterrorism/contents.htm

[9] Salim Ahmed
Hamdan v Donald H Rumsfeld, Secretary of
State 546 U.S. (2006)

[10] R v Thomas [2006] VSCA 165 (18 August
2006)

[11] ABC News Online, ‘Lodhi gets 20 years for terrorism plot’, 23 August
2006.

[12] Chief Justice Murray Gleeson AC, "Outcome, Process and the Rule of Law", Address
delivered to the Administrative Appeals Tribunal's 30th Anniversary Function,
Canberra 2 August 2006

[13] Ibid

[14] See the Hon. Justice Michael Kirby AC, ‘Judicial Review in a Time of
Terrorism’, Address to the University of the Witwatersrand School of Law
& South African Journal of Human Rights in Johannesburg, South Africa, 25
November 2005.

[15] Other reforms included the imposition of strict time limits on the processing of
asylum claims and new powers for the Commonwealth Ombudsman to review cases of
long-term immigration detention. These reforms followed increasing public
awareness of the plight of children in immigration detention and two damning
reports into the wrongful removal of Vivan Alveraz and the wrongful detention of
Cornelia Rau.

[16] Prime Minister the Hon. John Howard, Media Release, ‘Offshore Processing,
21 June 2006, available online at http://www.pm.gov.au/News/media_releases/media_Release1988.html

[17] UN News Services, ‘UN agency will ask Australia to change offshore refuge
processing legislation’, 12 May 2006,
http://www.un.org/apps/news/story.asp?NewsID=18450&Cr=australia&Cr1=

[18] Jewel Topsfield, Michael Gordon, ‘Mentally Ill
refugee may leave Nauru after 5 years’, The Age, 17 August 2006

[19] The Hon. Justice McHugh, ‘The Need for Agitators – the Risk of
Stagnation’, address delivered to Sydney University Law Society Public
Forum, 12 October 2005.

[20] (2004) 219 CLR
562

[21] Re Woolley; Ex parte Applicants M276/2003 by
their next friend GS [2004] HCA 49

[22] The Hon. Justice McHugh, ‘The Need for Agitators
– the Risk of Stagnation’, address delivered to Sydney University
Law Society Public Forum, 12 October 2005.

[23] D & E v Australia, Communication No
1050/2002 UN Doc CCPR/C/87/2D/1050/2002 (25 July 2006).

[24] D & E v Australia, Communication No 1050/2002 UN Doc CCPR/C/87/2D/1050/2002
(25 July 2006).; Baban
v. Australia, Communication No. 1014/2001, U.N. Doc. CCPR/C/78/D/1014/2001
(2003); Bakhtiyari v Australia,
Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002, 6 November 2003;
 C. v. Australia, Communication No. 900/1999, U.N. Doc.
CCPR/C/76/D/900/1999 (2002); A
v. Australia, Communication No. 560/1993, U.N. Doc. CCPR/C/59/D/560/1993
(1997).

[25] Young v Australia (941/00), at [10.4]

[26] HREOC, Same Sex: Same Entitlements Inquiry, Submission 288, James Duncan.