While Australia has in the past enjoyed a prominent global position as both an orchestrator and promoter of human rights, the soon-to-retire judge urged law students to become “agitators” and “question the rules and practices that most of the community accepts without question”.

Justice McHugh urged his predominantly young legal audience to take up this definition of agitator, framed by Oscar Wilde, because our failure to question what was happening in Australian society had led to a spate of human rights transgressions.

Importantly, particularly in light of John Howard’s recent urgings for Australians to place their faith in the judicial review provisions in the proposed anti-terror laws, Justice McHugh pointed to a number of failings by the High Court to prevent human rights being abused. His Honour pointed to a comparison with our Coalition of the Willing partner, the UK, where the House of Lords was able to protect the rights of a suspected terrorist.

“Thus, while the House of Lords could find the executive’s indefinite detention of a suspected terrorist was unauthorised, the High Court of Australia was not — in the Al-Kateb case — equally empowered to find the executive’s indefinite detention of an asylum seeker was a similar breach of human rights. This example clearly evidences a need to place a greater focus on human rights and freedoms within Australia, and supports the argument for the introduction of a Bill of Rights,” he said.

“What has been highlighted by such cases, he said, was “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.”

The reason His Honour urged the country’s future lawyers to “join the ranks of Victor Jara and Bob Dylan” and critique the rules of society was that the prevailing attitude of “if it ain’t broke, don’t fix it” was an argument suffering serious validity problems. He further argued that by failing to adopt a Bill of Rights, Australia is “arguably failing to meet its obligations under international law”.

“A Bill of Rights forces governments to consider the human rights consequences of the legislation they are introducing, allows the judiciary to view legislation through the prism of human rights, and provides the public with a clearer overview of the rights they are being asked to give up in the name of national security. In the area of counter-terrorism, where legislative changes are often classified as urgent and are being introduced at a rapid pace, scrutiny of this nature is particularly important.”