There is little doubt that Indigenous Australians continue to be the most marginalised group in Australia. Social indicators tells us that Indigenous people have life expectancies that are decades shorter than they are for non-Indigenous Australians. Any other social indicator, be it health standard, education standard, level of employment or standard of housing, sees Indigenous Australians enjoying fewer opportunities, and suffering greater burdens, than the rest of the Australian population.

A recent Australian Bureau of Statistics and Australian Institute of Health and Welfare report (Pink and Allbon 2008, xxi–xxiii, 16) found that Indigenous men have an average lifespan of 59 years (against the national male average of 77 years) while for Indigenous women the average lifespan is 65 (against the national figure of 82). The health status of Indigenous people is demonstrably worse than for non-Indigenous people with Indigenous people being ‘hospitalised for potentially preventable conditions at five times the rate of non-Indigenous Australians’. While over 75 per cent of non-Indigenous students are still at school by Year 12, the figure for Indigenous students is 43 per cent. Indigenous people are more likely than non-Indigenous people to require rent and homelessness assistance, and the home buying rate for Indigenous households (34 per cent) is half that of non-Indigenous households (69 per cent). Indigenous people also have far higher incarceration rates than non-Indigenous people, with Indigenous young people being ‘under juvenile justice supervision at a rate of 44 per 1000, compared with 3 per 1000 for other Australian youth’ (Pink and Albon 2008).

The decision to write The Politics of Human Rights in Australia was made because of the absence of any comprehensive study that examines the political nature of Australia's protection of human rights. The fact that the articulation and protection of human rights are legal processes – concerning the drafting, interpretation and enforcement of international as well as domestic laws – has led human rights studies to be somewhat captured by legal academics and practitioners who have an important function to fulfil but whose brief, naturally enough, concentrates on legal rather than political analyses. Our purpose is to show and discuss the way in which the articulation and protection of human rights are not only legal processes but also intensely political ones.

These processes are political because the institutions that debate, prioritise, articulate, protect and, at times, ignore human rights are engaged in determining how power is exercised in Australian society. When the High Court invalidates a ban on prisoners voting, it is not only fulfilling a legal function (in interpreting and applying the law) but it is also generating a political effect, constraining the operation of parliament (which can no longer ban all prisoners from voting). When the media criticise the government for undue secrecy in its anti-terrorism activities, that criticism contributes to a political debate about the unchecked power of government.

Without a bill of rights, Australians are required to look to other institutions for their human rights protection. The Constitution, parliament and the courts each play a role in this process. The Constitution includes some limited rights provisions, the legislature has passed laws to protect rights in certain areas and the courts have upheld some rights under the common law. However, the idea advanced at the time of federation that these institutions would combine to provide an adequate safeguard against the infringement of human rights by government is now seriously under question. The limitations that exist within and among these institutional arenas mean that they provide, at best, a patchy net of protection through which many minorities slip. Australia's existing human rights framework has not come to terms with important developments of the past 50 years: changing community expectations about the importance of human rights, the dominance of the executive over parliament and the rise of larger and more powerful government. Attempts by each institution, especially the High Court, to interpret the Constitution and the common law to reflect these changes, has led to controversy and conflict between the different branches of Australian government. The effort to bring the international human rights regime to bear in national human rights debates has further complicated the scene and resulted in rights seekers becoming even more confused about where to look for protection.

Liberal democracies hold individual lives as ends in themselves with all people equally entitled to protection and preservation. These liberal-democratic rights and protections were fought for with much blood and toil over many centuries in order to control and limit the use of violence occurring horizontally between citizens and vertically between citizens and the state. The history of liberal democracy has been a protracted and concerted effort to dissolve political absolutism and establish in its place limited government and rule of law through an elaborate system of checks and balances. Such checks and balances not only protect citizens from arbitrary interference but also ensure open and accountable government. And yet, despite the prolonged and hard-won provenance of this fragile system, in times of perceived emergency, liberal-democratic majorities have generally proved to be less concerned with abridgements of rights (perhaps because they cause more harm to minorities) than with their own security. As a consequence, liberal-democratic states have tended to overreact and curtail freedoms too hastily (Ignatieff 2004, ix). Australia is no exception and might even be described as an emblematic case.

Among lawyers and academics, the dominant view is that the federal laws enacted to fight the war on terror, so-called, have significantly damaged Australian democracy. A common presumption is that our precious and hard-won liberal-democratic rights should, as a matter of course, trump the collective need for security (hereafter conceived of as the ‘liberal-democratic soul-protection position’, the soul of liberal-democracy being not only the rights and freedoms embodied in liberal-democratic norms, practices and laws, but also an enduring collective commitment to their defence).

Even if we are sure that liberal democracy is the best possible regime for the realisation of human flourishing – and no matter how developed a liberal democratic system is – it would be a mistake to assume that justice can be achieved in such a system purely via electoral processes. Given that public decision making in democracies relies upon the approval of a time-poor and imperfectly informed electorate as well as on the actions of representatives who are obliged to accommodate the electorate's preferences in order to retain legitimacy and power, it is unsurprising that democracy turns out to be a rather blunt instrument for the delivery of individual and minority rights. This flawed but unavoidable dynamic between the electorate and its representatives is, undoubtedly, one of the virtues of – and chief justifications for – democracy, but it is also one of its weaknesses.

Despite his enthusiastic advocacy of representative government, British philosopher John Stuart Mill was acutely alert to this reality. Mill endorsed representative democracy because of its tendency to put power into the hands of the majority or, in his words, to admit ‘all to a share in the sovereign power of the state’ (Mill 1991 [1863], 256). And yet, while democracy might ameliorate the problem of tyranny by a select elite, it still held the potential for oppression by the democratic majority over minorities (via ‘the acts of the public authorities’) (Mill 1991 [1863], 8–9; Wolff 1996, 115).

When he announced during the 2001 federal election campaign that ‘We will decide who comes to this country and the circumstances in which they come’ (Australian Politics 2001), former Prime Minister John Howard signalled that asylum seekers had become a central part of national political debate. Against a background of increased terrorist activity directed towards Western nations, the prime minister's words suggested that Australia needed to prioritise the protection of its own borders, even if that meant turning its back on those fleeing persecution. The contrary view – that Australia had international obligations to assist refugees, regardless of how they arrived in Australia – had, with bipartisan support, held sway in Australia for decades. This chapter examines how the dramatic change in policy priorities came about in 2001, and considers the major policy changes that were introduced at that time. It also examines how those changes have been altered, and in some cases tempered, in the years since. Particular attention is paid to the debates that were waged in 2001 and subsequently about the consistency of Australia's policies with international law, as well as the extent to which national political priorities were able to override concerns about Australia meeting its international obligations.

More than just exploring the changes to refugee policy, this chapter will show that the treatment of asylum seekers – those people seeking recognition as refugees – in some ways exemplifies the limitations of Australia's system of rights protection.

Democracy is based on – even defined by – the political participation of citizens. The possession of suffrage rights is the key indicator of citizenship and is virtually synonymous with the concept of citizenship; from it flows all the other rights and freedoms enjoyed by inhabitants of democratic orders. Universal suffrage and the principle of one vote, one value are the key mechanisms by which legitimacy is conferred upon democratic states, therefore the right to vote for democratic representation, without discrimination, is rightly seen as a fundamental civil liberty in all systems that purport to be democratic and legitimate.

Political scientist Marian Sawer has described Australia as ‘the first nation created through the ballot box’, noting that ‘[m]uch of Australia's early identity as a nation revolved around its democratic experiments and the belief that while it was a young nation, it was a relatively old democracy’. Australia emerged as a nation not by revolution, ‘but at the ballot box through an exhausting round of referenda’. Throughout our electoral history ‘idealists have been at work’ creating not only a generally fair and accessible electoral system but also ‘a profession of dedicated professionals in electoral administration, at arms length from politicians and parties’ who are now in a position to provide democratic assistance to other nations, particularly those in democratic transition (Sawer 2001, 1, 26; Maley 2001).

Australia is the only Western democracy without a bill of rights. Whereas similar countries such as the USA, Canada, the Netherlands, France, Italy, the United Kingdom and New Zealand have each enacted either a constitutionally entrenched or statutory bill of rights, Australia has remained steadfastly opposed to developing a bill of rights. Some commentators fear that, without one, Australian human rights will suffer because our system will be out of step with more advanced rights jurisprudence in those countries that do have a bill of rights (see Brennan 2007). However, being out of step with practice elsewhere is not, in itself, a reason for change; it needs to be determined whether Australia needs such an instrument (see Campbell 2006, 325; Allan 2003, 176).

Currently, rights are not adequately protected in Australia; while certain majority rights are quite well protected through parliamentary mechanisms, minority rights are vulnerable. The consequences of this pattern for certain Australians, including many women, homosexuals, refugees and prisoners have been detrimental, and for Aboriginal Australians, they have been nothing short of devastating.

But despite having found the Australian rights framework wanting, we still need to consider whether a bill of rights is the answer to the problem. Bills of rights in and of themselves do not provide better government services or guarantee equality of outcomes but if taken seriously and carried into law and practice in the settings where they operate, they demonstrably make rights more secure.

The presumption that men and women enjoy equal rights in Australia does not stand up to close scrutiny. Historically – and up to the present day – Australian women have suffered disadvantage and discrimination due to gender-based stereotypes, and as a result, they continue to be underrepresented in public office and within the senior ranks of the business community. Australian women persistently experience a higher incidence of domestic violence and sexual assault than do men, and are discriminated against in the workplace in terms of pay and conditions, including access to maternity leave. Particular groups of women, including those in Indigenous communities and lesbians, have not only been overrepresented in some of these areas of discrimination, but also experience unique forms of disadvantage due to the intersection of their gender, race and/or sexuality.

Although Australia is a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the key international women's rights convention, and has codified some of its articles in the Sex Discrimination Act, the seriousness with which Australia takes its obligations under the Convention has been questioned. Developments throughout the 1990s effectively dismantled crucial women's policy machinery. Moreover, the unwillingness of the former Howard government to strengthen Australian women's rights provisions by not signing on to the CEDAW Optional Protocol (see below) coupled with the limited resources given to addressing specific gender-based disadvantage represent a further erosion of the already fragile framework that exists to protect women's rights.