In his keynote address at the Australian Lawyers Alliance National Conference last month, the former Chief Justice of the High Court appraised Australia’s recent human rights track record in the context of counter terrorism legislation, border protection and migration policy.

“Human rights adjudication is, to a large extent, a balancing exercise. This proposition has a particular application to terrorist cases where tension between security interests and the rule of law is acute,” he said.

“The limited nature of the protection given by the common law is the natural consequence of the principle of legislative supremacy; subject to such limitations and constraints as arise from the Australian Constitution or for that matter the State Constitutions.”

Sir Mason delineated the limitations of current protection for human rights revealed by the majority decision in Al-Kateb v Godwin. Al-Kateb, a stateless Palestinian, applied for a protection visa to enable him to remain in Australia in 2000. His request was denied, and subsequently, as all other countries refused to receive him, and he was detained for an indefinite period.

“Al-Kateb provokes the question: would a Bill of Rights have enabled the High Court to answer the question which arose in Al-Kateb in a way that would have protected the liberty of the individual. My inclination would be to that question ‘yes’, because a Bill of Rights usually offers protection against arbitrary arrest and detention,” he said.

Sir Mason cast his eye internationally to foreshadow the significant challenges Australian judiciary faces, without the assistance of a bill of rights, particularly in matters of state security.

In the landmark British case A v Secretary of State for the Home Department, the House of Lords staunchly declared the British’s government’s detention policy an unlawful violation of human rights. In Zadrydas v Davis, the Supreme Court of the United States concluded that the post-removal-period detention statute, read in the light of the Constitution, only granted detention for the period reasonably necessary to secure the alien’s removal. In contrast, Al-Kateb saw the High Court majority apply a strict interpretation of the statutory provision authorizing indefinite detention.

“Although the unqualified exercise of executive power may well result in abuse of human rights, the cases show that entrenched or statutory protection of human rights and fundamental freedoms is more effective in ensuring protection of those rights and freedoms, including compliance with the rule of law, even in the face of the need to take adequate account of security interests. On the other hand, as Al-Kateb indicates, those rights and freedoms are at risk of being sacrificed absent statutory or entrenched protection of the kind discussed,” Sir Mason said.

The former Chief Justice spoke of other hurdles in Australia’s path towards a dedicated commitment to human rights. A general lack of concern in the wider community, the media’s symbiotic relationship with the government, and its sensationalist approach to human rights cases such as the detention of David Hicks were all identified as obstacles. He also emphasised the wider social and political benefits of public and open court proceedings, and warned of the “inherent risks” of granting wide powers to agencies to detain, interrogate and trial suspects.

“There is a deeper question than the absence of an Australian Bill of Rights. The deeper question is: are we, as a nation, committed to the preservation of human rights and the rule of law? Unless we are so committed [to human rights], there is not much point in relying on a Bill of Rights, at least a statutory Bill, which is all that we are likely to succeed in getting. “