Chapter 4 – Implementation and Use of International Human Rights
Law in Domestic Law and Courts
Chapter 4
Implementation and Uses of International Human
Rights Law in Domestic Law and Courts
1.
EXECUTIVE SUMMARY
4
2.
RELATIONSHIP BETWEEN DOMESTIC LAW AND INTERNATIONAL
LAW 4
3.
INCORPORATING INTERNATIONAL LAW INTO DOMESTIC LAW
6
3.1
International Instruments
6
3.2
Customary International Law
7
4.
INTERNATIONAL LAW SUPPORTING THE EXERCISE OF
COMMONWEALTH LEGISLATIVE POWER
8
5.
INTERNATIONAL LAW AND STATUTORY INTERPRETATION
8
5.1
Resolving Ambiguity in Domestic Legislation
9
5.2
Presumption Against Abrogating Fundamental Rights
10
6.
INTERNATIONAL LAW AND CONSTITUTIONAL INTERPRETATION
12
7.
INTERNATIONAL LAW AND DEVELOPMENT OF THE COMMON LAW 15
8.
INTERNATIONAL LAW AND JUDICIAL REVIEW IN ADMINISTRATIVE
LAW 18
8.1
International Instruments May Give Rise to Legitimate Expectations
18
9.
INTERNATIONAL LAW AND JUDICIAL DISCRETION
21
9.1
Sentencing
21
9.2
Granting of Bail
22
1
Chapter 4 – Implementation and Use of International Human Rights
Law in Domestic Law and Courts
9.3
Excluding Confessional Evidence
22
9.4
Restraint of Trade
22
10.
INTERNATIONAL ‘SOFT LAW’ INSTRUMENTS
23
10.1
Overview of ‘Soft Law’
23
10.2
Consideration of Soft Law by Australian Courts
24
10.3
Soft Law as an Indicator of International Standards
24
10.4
Soft law as an Indicator of the Content and Application of Other Human Rights
Instruments
25
10.5
Soft Law Is Not Legally Enforceable
26
10.6
Clarifying Ambiguity
26
10.7
Soft Law and the Exercise of Discretion
27
10.8
Recent Comments regarding Soft Law
28
10.9
Conclusion on ‘Soft Law’ in Australian Courts
28
11.
DEVELOPING USES FOR HUMAN RIGHTS LAW IN AUSTRALIA
29
12.
DOMESTIC HUMAN RIGHTS LAW
29
12.1
Introduction
29
12.2
Statutes Implementing Human Rights Treaties
29
13.
DOMESTIC HUMAN RIGHTS BODIES
32
13.1
The Human Rights and Equal Opportunity Commission
32
13.2
Equal Opportunity Commission Victoria
33
13.3
Statutory Bodies in Other Jurisdictions
33
14.
DEVELOPMENT OF STATE AND TERRITORY HUMAN RIGHTS ACTS 34
14.1
Australian Capital Territory
34
14.2
Victorian Charter of Human Rights and Responsibilities
35
2
Chapter 4 – Implementation and Use of International Human Rights
Law in Domestic Law and Courts
14.3
Developments in Other States
36
3
Chapter 4 – Implementation and Use of International Human Rights
Law in Domestic Law and Courts
1.
Executive Summary
International human rights law is not generally an automatic source of individual rights and
duties in Australian law. International law, including international human rights law, must
be incorporated into domestic law by the implementation of legislation in order to have the
force of law in Australia.
However, even where international human rights law is not implemented through the
passage of legislation, it can be relevant to Australian law in the following ways:

Where the Commonwealth legislature seeks to implement treaty obligations,
international human rights law may give content to the external affairs power under s
51(xxix) of the Commonwealth Constitution.

Where legislation is ambiguous, the courts may use international human rights law (to
the extent that it does not conflict with legislation) to resolve the ambiguity in the
legislation.

When interpreting the Commonwealth Constitution, international human rights law may
indicate contemporary values and circumstances that help to elucidate the meaning of
a constitutional provision.

When developing the common law, international human rights law may provide a
source of relevant principles and jurisprudence to be considered by the court.

In judicial review of administrative decisions, international human rights law and
relevant actions by the Executive may create a ‘legitimate expectation’, enlivening a
requirement for procedural fairness to be afforded to the person affected by the
decision.

In exercising judicial discretion, courts may consider international human rights
instruments or principles to guide, or inform, the exercise of that discretion.
Some of these uses of international human rights law in a domestic legal context are more
controversial than others, and different courts will be more receptive to them than others.
Nonetheless, they are all legitimate avenues for bringing human rights jurisprudence to
bear on Australian law.
Further, where international human rights law has been incorporated into Australian law by
legislation, there are a number of statutory bodies at federal and state level that assist in
administering, monitoring and advocating in respect of human rights. In particular, the
Human Rights and Equal Opportunity Commission investigates, conciliates and reports on
complaints of human rights infringements and monitors Australia's compliance with certain
international human rights law instruments. There are also state-based institutions that
carry out similar functions.
2.
Relationship between Domestic Law and International Law
As a general rule, international law, including international human rights law, is not an
automatic source of individual rights and duties enforceable in Australian jurisdictions
4
Chapter 4 – Implementation and Use of International Human Rights
Law in Domestic Law and Courts
unless Parliament enacts specific legislation incorporating1 it into Australian law.2 The
rationale for this rule was stated in Minister for Immigration and Ethnic Affairs v Teoh
(‘Teoh’):
This principle has its foundation in the proposition that in our constitutional system
the making and ratification of treaties fall within the province of the Executive in the
exercise of its prerogative power whereas the making and the alteration of the law
fall within the province of Parliament, not the Executive. So, a treaty which has not
been incorporated into our municipal law cannot operate as a direct source of
individual rights and obligations under that law.3
In addition to the direct effects of international law that is incorporated by legislation into
Australian law, international law (whether incorporated in this way into Australian law or
otherwise) may have ancillary application, or otherwise become relevant, including:

to support the exercise of Commonwealth legislative power (see Part 4 below);

as a tool for statutory interpretation (see Part 5 below);

as a tool for constitutional interpretation (see Part 6 below);

to influence the development of the common law (see Part 7 below);

as a basis of judicial review in administrative law (see Part 8 below); and

generally in the exercise of judicial discretion (see Part 9 below).
These ancillary applications can be particularly useful in the field of international human
rights law, where many international agreements have not been directly incorporated into
Australian law.4
This chapter discusses the process of direct incorporation of international law into
Australian law (Parts 2 and 3 below), and then goes on to consider the ancillary application
of international law in Australia (Part 4 to 11 below). The remainder of the chapter (Part 12
to 14 below) outlines examples of domestic human rights bodies and human rights
legislation in Australia.
1
Although it is not used in that context in this Chapter, note that the term 'incorporation' can also be used to
describe the doctrine of domestic incorporation of international law, in contrast to the doctrine of domestic
transformation of international law (see, eg, the discussion in Nulyarimma v Thompson (1999) 96 FCR 153,
particularly Merkel J (at 178) citing Lord Denning MR in Trendtex Trading Corp v Central Bank of Nigeria
[1977] 1 QB 529, 553–4). Briefly, the doctrine of incorporation contemplates automatic incorporation of
international law (particularly customary international law) into domestic law, while the doctrine of
transformation contemplates that a positive act of transformation (eg, common law adoption by judicial
decision, or legislative adoption by statute) is required in order for international law to become domestically
enforceable. The domestic enforceability of customary international law in Australia is discussed in more
detail at Section 3.2 below.
2
In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, 447 (Sackville, North
and Kenny JJ), citing Dietrich v The Queen (1992) 177 CLR 292, 305–6, 321, 348, 359–60; Victoria v
Commonwealth (1996) 187 CLR 416, 480–2; and Sinanovic v The Queen (1998) 154 ALR 702, 707.
3
(1995) 183 CLR 273, 287 (Mason CJ and Deane J).
4
See Section 12.2, which lists various Commonwealth Acts that incorporate international human rights law.
5
Chapter 4 – Implementation and Use of International Human Rights
Law in Domestic Law and Courts
As with the Manual generally, it is the intention of this chapter to identify and briefly outline
major principles and issues of contention, as well as associated legislation and case law,
rather than to provide an exhaustive analysis of the area. Selected references have been
provided for further information.
Note that where this chapter discusses general international law principles, those principles
can be extended to specific international human rights law issues.
3.
Incorporating International Law into Domestic Law
As referred to above, international law can be specifically incorporated into domestic law by
legislation.5 Where the Commonwealth does not have express power to legislate in the
area the subject of the international law in question, the external affairs power under
section 51(xxix) of the Constitution allows the Parliament to enact such laws implementing
Australia's international obligations. 6
3.1
International Instruments
In the case of international instruments, execution and ratification (being executive acts),
are insufficient to incorporate such instruments into Australian law; legislation is required. 7
Legislation implementing an international instrument may:

state that the instrument, or selected parts of it, has the force of law in Australia; 8 or

transform the terms of the instrument into the terms of domestic legislation by
replicating all or part of the instrument, or the substance of the instrument. 9
In Minister for Immigration & Multicultural and Indigenous Affairs v B, Callinan J noted that
even where the Explanatory Memorandum to legislation describes the object of that
legislation as being based on principles consistent with particular international human
rights law instruments, and indicates that a particular international instrument has
5
Teoh (1995) 183 CLR 273, 286–7 (Mason CJ and Deane J); Dietrich v The Queen (1992) 177 CLR 292,
305–7; Kruger v Commonwealth (1997) 190 CLR 1, 71.
6
On the external affairs power in respect of treaties, see the Commonwealth v Tasmania (1983) 158 CLR 1,
129–30 (Mason J), 170–1 (Murphy J), 218–19 (Brennan J), 258 (Deane J) (‘Tasmanian Dams Case’). In
respect of customary international law, see Polyukovich v Commonwealth (1991) 172 CLR 501, 504–5.
7
See Teoh (1995) 183 CLR 273, 286 (Mason CJ and Deane J), 370 (Toohey J); Kruger v Commonwealth
(1997) 190 CLR 1, 71; Dietrich v The Queen (1992) 177 CLR 292, 305–7; Bradley v Commonwealth (1973)
128 CLR 557, 582; Simsek v MacPhee (1982) 148 CLR 636, at 641–4; Kioa v West (1985) 159 CLR 550,
570–1.
8
See, eg, Diplomatic Privileges and Immunities Act 1967 (Cth) s 7, which implements particular provisions of
the Vienna Convention on Diplomatic Relations, opened for signature 18 April 1961, 500 UNTS 95 (entered
into force 24 April 1964).
9
See, eg, the Sex Discrimination Act 1984 (Cth), which among other things gives effect to certain provisions
of the Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18
December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (‘CEDAW’) by transforming them into
domestic legislation.
6
Chapter 4 – Implementation and Use of International Human Rights
Law in Domestic Law and Courts
influenced the drafting of the legislation, this does not amount to the implementation by
Parliament of the international law provisions, and does not enlarge or create any of the
rights conferred by the legislation in accordance with the international instrument. 10
3.2
Customary International Law
There is a divergence of views on whether incorporation by legislation is required in order
for customary international law to be enforceable in Australia. However, the prevailing
Australian position appears to be that legislation is required, unless the judiciary develops
the common law to conform with customary international law. 11
In contrast, a line of English authority, including cases such as Trendtex Trading
Corporation v Central Bank of Nigeria12 and the earlier Triquet v Bath,13 established that
customary international law (even where it changes over time), automatically constitutes
part of English law unless it conflicts with legislation.14
While Australian cases have not followed this approach,15 the dissenting judgment of
Merkel J in Nulyarimma v Thompson contains a relatively recent and detailed exposition of
competing views and concludes that, in the absence of inconsistency with domestic law,
customary international law can be adopted and received into Australian domestic law
without legislation.16 The majority in Nulyarimma recognised the international crime of
genocide, and that it attracts universal jurisdiction, but held that universal jurisdiction does
not provide, of itself (and in the absence of domestic legislation), a source of jurisdiction for
domestic courts.17
10
(2004) 219 CLR 365, 441–2 (Callinan J).
11
Chow Hung Ching v The King (1948) 77 CLR 449, 461–2 (Latham CJ), 477 (Dixon J) (considering whether
the principle of customary international law that members of a foreign military force are immune from the
jurisdiction of local courts constituted part of domestic law); Nulyarimma v Thompson (1999) 96 FCR 153, 164
(Wilcox J), 173 (Whitlam J) (considering whether the prohibition of genocide, a peremptory norm of customary
international law, formed part of Australian domestic law), the latter citing Anthony Mason, ‘International Law
as a Source of Domestic Law’ in Brian Opeskin and Donald Rothwell (eds), Australian Federalism and
International Law (1997). The use of international law in developing the common law is discussed at Part 7
below.
12
[1977] QB 529, 554 (Lord Denning MR).
13
(1764) 97 ER 936, 937–8 (Lord Mansfield).
14
Note also the express approach taken to the incorporation of customary international law by South Africa,
where the South African Constitution provides that customary international law is law in the Republic of South
Africa unless it is inconsistent with the Constitution or an Act of Parliament: see South African Constitution s
232.
15
See Chow Hung Ching v The King (1948) 77 CLR 449, 477 (Dixon J); Nulyarimma v Thompson (1999) 96
FCR 153, 161 (Wilcox J), 173 (Whitlam J).
16
Nulyarimma v Thompson (1999) 96 FCR 153, 178–91, 205 (Merkel J).
17
Nulyarimma v Thompson (1999) 96 FCR 153. Note, however, that Wilcox J appears to distinguish between
using customary international law in civil law and criminal law matters and erred on the side of not
incorporating customary international law in the context of criminal law: at 164. Whitlam J, on the other hand,
said that customary international law cannot confer jurisdiction on domestic courts: at 171–2.
7
Chapter 4 – Implementation and Use of International Human Rights
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4.
International Law Supporting the Exercise of Commonwealth
Legislative Power
Legislation implementing Australia's international obligations may be enacted pursuant to
the external affairs power under section 51(xxix) of the Constitution.
Consequently, the external affairs power can provide the Commonwealth with the power to
legislate in respect of matters for which express powers are not otherwise contained in the
Constitution. For example, although the Constitution does not expressly grant the
Commonwealth the power to legislate in the area of human rights, it is accepted that the
Parliament has the power to pass legislation implementing human rights treaties pursuant
to the external affairs power. This is because the external affairs power grants the
Commonwealth power to implement all its treaty obligations into Australian law. 18
When legislation is based solely on the external affairs power, it must not contradict the
relevant treaty and must be reasonably capable of being considered as appropriate and
adapted to giving effect to the treaty.19 The legislation does not need to give effect to the
entire treaty; partial implementation is acceptable.
5.
International Law and Statutory Interpretation
There are several principles that allow courts to have recourse to international law when
interpreting legislation.
When using any of these principles, there is a preliminary question of whether there is
conflict between international law and the legislation in question. If the legislation clearly
demonstrates an intention contrary to international law, then the legislation prevails. The
rationale for this principle is that the Commonwealth Parliament has the power to legislate
in such a way that is inconsistent with Australia's international obligations. Examples of
cases where it has been held that Parliament has used clear and unmistakable language
showing that it intended not to legislate in accordance with Australia's international
obligations include Re Woolley; Ex parte Applicants M/276/2003 20 and Polites v
Commonwealth.21
Another example is Minister for Immigration and Multicultural and Indigenous Affairs v B.22
In that case the High Court considered whether the Family Court had power to release
18
Richardson v Forestry Commission (1988) 164 CLR 261, 303–4 (Wilson J), 312 (Deane J).
19
See, eg, Tasmanian Dams Case (1983) 158 CLR 1, 130–2 (Mason J), 260 (Deane J); Richardson v
Forestry Commission (1988) 164 CLR 261, 303–4 (Wilson J), 312 (Deane J), applying Airlines of NSW Pty Ltd
v NSW [No. 2] (1965) 113 CLR 54, 86 (Barwick CJ), 141 (Menzies J).
20
210 ALR 369, 381 (McHugh J), 423 (Kirby J).
21
(1945) 70 CLR 60, 73 (Latham CJ), 75–6 (Starke J), 77–8 (Dixon J), 78–9 (McTiernan J), 80 (Williams J).
22
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365. This case and Re
Woolley (at 20 above) concerned provisions of the Migration Act 1958 (Cth) requiring mandatory detention of
unlawful non-citizens. The applicants were children in detention. In both cases, Kirby J held that Parliament
8
Chapter 4 – Implementation and Use of International Human Rights
Law in Domestic Law and Courts
children from immigration detention. Kirby J held that mandatory detention of unlawful noncitizens, including children, was the will of the Parliament.23 He characterised the
provisions of the Migration Act 1958 (Cth) that require the ‘detention of unlawful noncitizens’ as ‘intractable’, and therefore unable to be read down to avoid any conflict with
Australia's obligations under international law.24
5.1
Resolving Ambiguity in Domestic Legislation
If legislation is ambiguous, recourse may be had to international law (that does not conflict
with the legislation) in interpreting the legislation. As held by Mason CJ and Deane J in
Teoh:
Where a statute or subordinate legislation is ambiguous, the courts should favour
that construction which accords with Australia's obligations under a treaty or
international convention to which Australia is a party, at least in those cases in
which the legislation is enacted after, or in contemplation of, entry into, or
ratification of, the relevant international instrument. That is because Parliament,
prima facie, intends to give effect to Australia's obligations under international
law.25
The basis for this principle of interpretation (recognising Parliament's presumed intention to
give effect to, or not detract from, Australia's obligations under international law) lends an
importance to the timing of enactment of the legislation in question. In particular, it is
important to consider whether relevant international obligations were in existence, or were
contemplated, at the time the legislation was passed. For example, in Kruger v
Commonwealth, Dawson and Gummow JJ held that the statute in that case was not to be
read as to accord with an international instrument, that was entered into several decades
after the statute was passed, because the international obligation would not have been in
the contemplation of Parliament at the time of enactment.26
The use of international law to interpret domestic legislation in the case of ambiguity is
particularly pertinent where the purpose of the legislation in question is to implement a
treaty.27
had demonstrated a sufficiently clear meaning in the statute, so that the statute could not be read down to
conform with Australia's international obligations.
23
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365, 414 (Kirby J).
24
Ibid 422–5 (Kirby J).
25
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, at 287 (Mason CJ and Deane J).
See also Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1, at
38.
26
(1997) 190 CLR 1, 71 (Dawson J), 159 (Gummow J).
27
For example, in McBain v Victoria (2000) 99 FCR 116, 120–1 Sundberg J used CEDAW, above n 9, to
interpret the Sex Discrimination Act 1984 (Cth). See also Sands & McDougall Pty Ltd v Robinson (1917) 23
CLR 49, 53–4 (Isaacs J). Although not considering an issue of international human rights, the High Court in
that case recognised the utility of referring to an international convention in interpreting related implementation
legislation.
9
Chapter 4 – Implementation and Use of International Human Rights
Law in Domestic Law and Courts
This principle is reinforced by s 15AB of the Acts Interpretation Act 1901 (Cth), which
specifically allows recourse to ‘any material not forming part of the Act [that] is capable of
assisting the ascertainment of the meaning of a provision’, including ‘any treaty or other
international agreement that is referred to in the Act’. The circumstances in which courts
may have recourse to these extrinsic materials is limited, by s 15AB, to confirming that the
Act’s meaning is the ordinary meaning or determining its meaning where the Act’s meaning
is ambiguous or obscure or its ordinary meaning is unreasonable or absurd. However,
s 15AB does not always require express reference to the international instrument in the Act
in order for courts to consider the international instrument.28
It seems clear that some ambiguity is required in order for a court to have regard to
international law in interpreting legislation. Mason CJ and Deane J in Teoh held that
ambiguity in this context should be given a liberal meaning:
there are strong reasons for rejecting a narrow conception of ambiguity. If the
language of the legislation is susceptible of a construction which is consistent with
the terms of the international instrument and the obligations which it imposes on
Australia, then that construction should prevail. 29
However, in Minister for Immigration and Multicultural and Indigenous Affairs v Mohammad
Al Masri,30 the Full Court of the Federal Court interpreted the Migration Act 1958 (Cth) in
conformity with art 9(1) of the International Covenant on Civil and Political Rights,31 stating
the principle as being that ‘as far as its language permits, a statute should be read in
conformity with Australia’s treaty obligations.’32 It may be that the two approaches (one
recognising ambiguity in a broad sense and the other requiring permissive language) are,
in substance, not dissimilar.33 As Hayne J stated in Al Kateb v Godwin ‘the root question is
whether the language of [the provision in question] will yield the construction asserted.’34
5.2
Presumption Against Abrogating Fundamental Rights
28
Barry R Liggins Pty Ltd v Comptroller–General of Customs and Excise (1991) 103 ALR 565, 573 (Beaumont
J). See also Minister for Foreign Affairs & Trade v Magno (1992) 112 ALR 529, 534 (Gummow J).
29
(1995) 183 CLR 273, 287 (Mason CJ and Deane J).
30
(2003) 126 FCR 54.
31
Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
32
Minister for Immigration and Multicultural and Indigenous Affairs v Mohammad Al Masri (2003) 126 FCR 54,
92 (Black CJ, Sundberg and Weinberg JJ). For other decisions that lend support to the proposition that a
statute generally should be interpreted and applied, as far as its language permits, so that it is in conformity
and not in conflict with the established rules of international law, see, eg, Teoh (1995) 183 CLR 273, 287–8
(Mason CJ and Deane J); Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309,
363; Polites v Commonwealth (1945) 70 CLR 60, 68–9, 80–1 (albeit referring to international law generally); Al
Kateb v Godwin (2004) 219 CLR 562, 589–91 (McHugh J) who also stated (at 590) that the implication must
‘give way where the words of the statute are inconsistent with the implication’ and Lim v Minister for
Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38 (Brennan, Deane and Dawson JJ).
33
In Teoh (1995) 183 CLR 273, 287–8, Mason CJ and Deane J treated the two principles as complementary.
Cf Western Australia v Ward (2002) 213 CLR 1, 388 (Callinan J).
34
(2004) 219 CLR 562, 642.
10
Chapter 4 – Implementation and Use of International Human Rights
Law in Domestic Law and Courts
At common law, there is a rule of statutory interpretation that the courts will presume that
Parliament does not intend to abrogate or curtail fundamental rights and freedoms. 35 It is
well established that Parliament must use clear and unmistakable language to abrogate or
curtail fundamental common law rights.36 In Plaintiff S157/2002 v Commonwealth,
Gleeson CJ stated:
courts do not impute to the legislature an intention to abrogate or curtail
fundamental rights or freedoms unless such an intention is clearly manifested by
unmistakable and unambiguous language. General words will rarely be sufficient
for that purpose. What courts will look for is a clear indication that the legislature
has directed its attention to the rights or freedoms in question, and has consciously
decided upon abrogation or curtailment.37
Examples of fundamental rights that the courts have sought to protect under this
presumption include the right not to self-incriminate,38 the right of a person entitled to
possession of premises to exclude others from those premises,39 the right of citizens to
access the courts40 and the right to legal professional privilege.41 Similar rights can be
found in international law, including international human rights law, and these international
law rights may further elucidate or assist in the development of common law rights (see
also Part 7 below).
So it was that Gleeson CJ stated, in the later case of in Al-Kateb v Godwin, that:
courts do not impute to a legislature an intention to abrogate or curtail certain
human rights or freedoms (of which personal liberty is the most basic) unless such
an intention is clearly manifested by unambiguous language, which indicates that
the legislature has directed its attention to the rights or freedoms in question and
has consciously decided upon abrogation or curtailment.42
It is interesting to note Gleeson CJ's use of the phrase 'human rights or freedoms' in
Al-Kateb which may suggest the influence of human rights law on common law rights and
freedoms.
35
See Coco v The Queen (1994) 179 CLR 427, 436ff (Mason CJ, Brennan, Gaudron and McHugh JJ).
36
Bropho v Western Australia (1990) 171 CLR 1, 17.
37
(2003) 211 CLR 476, 492 (Gleeson CJ). See also the useful discussion of the principle and relevant
authorities by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous
Affairs v Mohammad Al Masri (2003) 126 FCR 54, 75ff (Black CJ, Sundberg and Weinberg JJ).
38
Donovan v Commissioner of Taxation (1992) 34 FCR 355, 360 (Wilcox J); Accident Insurance Mutual
Holdings Ltd v McFadden (1993) 31 NSWLR 412, 421 (Kirby J); Pyneboard Pty Ltd v Trade Practices
Commission (1983) 152 CLR 328, 337, 346.
39
Coco v The Queen (1994) 179 CLR 427, 435.
40
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492–3 (Gleeson CJ).
41
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 540 (Gaudron
J), citing Baker v Campbell (1983) 153 CLR 52, 116–17.
42
(2004) 219 CLR 562, 577 (Gleeson CJ), citing Coco v The Queen (1994) 179 CLR 427; Plaintiff S157/2002
v The Commonwealth (2003) 211 CLR 476, 492. See also Newcrest Mining (WA) Ltd v Commonwealth
(1997) 190 CLR 513, 647–58 (Kirby J).
11
Chapter 4 – Implementation and Use of International Human Rights
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6.
International Law and Constitutional Interpretation
Although historically judges have referred to international law to support the interpretation
of the Commonwealth Constitution,43 the extent to which international law can be used in
connection with constitutional interpretation is currently an area of some controversy. The
prevailing position is that the Constitution is not to be read subject to, or so as to conform
to, principles of international law.
The judgments of McHugh J and Kirby J in Al-Kateb v Godwin set out many of the policy
considerations on both sides of this debate. 44 Justice McHugh rejected the notion that
constitutional law should conform to international law, and set out his key criticisms of the
‘conforming’ approach to constitutional interpretation, including:

that the rule derives from a principle of statutory interpretation and is inapplicable to the
Constitution which is a source of, and not an exercise of, legislative power; 45 and

given the fluid nature of international law, the approach results in de facto amendment
of the Constitution, which is in disregard of the sole process for amendment (by
referendum) expressly set out in s 128 of the Constitution.46
Justice Kirby, on the other hand, argued for a significant role for international law. His
approach is discussed further below.
That the Constitution is not to be read in such a way that implies any conformity with
international law can also be seen in judgments such as that of Dixon J in Polites v
Commonwealth.47 In that case, the High Court was required to consider whether a
particular head of power under s 51 of the Constitution should be construed using the
implication that it does not breach customary international law. Dixon J rejected this
approach, emphasising that the purpose of the Constitution is to ‘confer upon an
autonomous government plenary legislative power over the assigned subjects’ and that in
respect of those subjects, Parliament’s power is supreme.48
43
Such use has usually been without extended discussion and without express statement of the relevance of
international law to constitutional law and interpretation: see Nationwide News Pty Ltd v Wills (1992) 177 CLR
1, at 47 (Brennan J); Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, at 140, 1545, 210 (Mason CJ, Brennan J and Gaudron J); Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR
104, at 163 and Polyukhovich v Commonwealth (1991) 172 CLR 501, at 611-612 (Deane J). See also
discussion in Kristen Walker, 'International Law as a Tool of Constitutional Interpretation' (2002) 28 Monash
University Law Review 85, at 89-91.
44
Al-Kateb v Godwin (2004) 219 CLR 562, 589–95 (McHugh J), 617–30 (Kirby J). See also Michael Kirby,
‘International Law — The Impact on National Constitutions’ (Speech delivered at the American Society of
International Law: Grotius Lecture Series, 30 March 2005), available at
http://www.highcourt.gov.au/speeches/kirbyj/kirbyj_30mar05.html.
45
Al-Kateb v Godwin (2004) 219 CLR 562, 589–91.
46
Ibid 591–4. In addition, McHugh J has criticised the principle in its statutory interpretation context, stating
that actual Parliamentary cognisance of all of the rules of international law is impossible given the now
widespread nature of its sources and volume of material from which it must be distilled: at 589–91. Despite
this criticism, McHugh J recognises the legitimacy of the use of international law as an influence on statutory
construction: at 589.
47
(1945) 70 CLR 60.
48
Ibid 78.
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More recently, in AMS v AIF, Gleeson CJ, McHugh and Gummow JJ stated simply, ‘[a]s to
the Constitution, its provisions are not to be construed as subject to an implication said to
be derived from international law’.49 In Kartinyeri v Commonwealth, Gummow and
Hayne JJ similarly rejected any argument that the Constitution was subject to any
implication derived from international law.50
This was reaffirmed in Western Australia v Ward, where Callinan J stated:
The provisions of the Constitution are not to be read in conformity with international
law. It is an anachronistic error to believe that the Constitution, which was drafted
and adopted by the people of the colonies well before international bodies such as
the United Nations came into existence, should be regarded as speaking to the
international community. The Constitution is our fundamental law, not a collection
of principles amounting to the rights of man, to be read and approved by people
and institutions elsewhere.51
While the Constitution is not to be construed so as to conform to international law, it is
nevertheless the case that international law and comparative law may be relevant to
identifying the contemporary circumstances and values that provide the context for
interpretation of the Constitution.52
For example, the High Court has referred to the law and practice in other jurisdictions,
albeit briefly, in determining the necessary incidents of the system of representative
government for which the Constitution provides. In Nationwide News Pty Ltd v Wills,
Brennan J referred to a decision of the European Court of Human Rights to support his
position that freedom of public discussion of political and economic matters is an integral
part of the system of representative democracy established by the Constitution.53 Similarly,
in Australian Capital Television Pty Ltd v Commonwealth, Mason CJ, Brennan and
Gaudron JJ observed that various foreign courts and tribunals, including the European
Court of Human Rights and European Commission of Human Rights, had recognised the
fundamental importance of free communication to a system of representative democracy.54
49
(1999) 199 CLR 160, 180 (Gleeson CJ, McHugh and Gummow JJ).
50
(1998) 195 CLR 337, 383–6.
51
Western Australia v Ward (2002) 213 CLR 1, 390–1 (Callinan J). This can be seen as a direct response to
the proposition of Kirby J in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 657–8.
52
For the High Court's consideration of the relevance of contemporary values and circumstances to
constitutional interpretation, see Singh v Commonwealth (2004) 209 ALR 355, 358, 360–1 (Gleeson CJ), 371–
4 (McHugh J), 403–4 (Gummow, Hayne and Heydon JJ), 426 (Kirby J), 436–7 (Callinan J); Grainpool of
Western Australia v Commonwealth (2000) 202 CLR 479, 495– 6 (where the High Court stated that the power
conferred upon the Parliament in s 51(xviii) is not to be construed solely by identifying the meaning of that
section in 1900); Sue v Hill (1999) 199 CLR 462, 487–8 (Gleeson CJ, Gummow and Hayne JJ), 526 (Gaudron
J), 571 (Callinan J); Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 128 (Mason CJ,
Toohey and Gaudron JJ), 143–4 (Brennan J), 171–4 (Deane J), 196–7 (McHugh J) and Cheatle v R (1993)
177 CLR 541, 560–1.
53
(1992) 177 CLR 1, 47 (Brennan J).
54
(1992) 177 CLR 106, 140 (Mason CJ), 154–5 (Brennan J), 211 (Gaudron J). See also Theophanous v
Herald and Weekly Times Ltd (1994) 182 CLR 104, 162–3 (Brennan J), Polyukhovich v Commonwealth
(1991) 172 CLR 501, 611–12 (Deane J) (albeit in the context of ex post facto criminal legislation).
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In the more recent High Court case of Al-Kateb v Godwin, McHugh J noted that the
Constitution expresses broad propositions, some of which may be deduced or interpreted
differently by later generations ‘because of political, social or economic developments
inside or outside Australia’.55 He acknowledged that the making or existence of
international conventions may constitute one of those developments, which in turn may
help to elucidate the meaning of a constitutional head of power. Justice McHugh drew an
express distinction between referring to international law to help elucidate political, social or
economic developments and using the rules of international law to control the meaning of a
constitutional head of power.56 Justice Kirby also emphasised that international law is
capable of providing a legal context in which the constitution is interpreted. 57
Most recently, in Forge v Australian Securities and Investments Commission, Gleeson CJ
referred to the right to a fair trial in art 6 of the European Convention on Human Rights and
Kirby J considered art 14 of the ICCPR and art 6 of the European Convention, both of
which enshrine the right to a fair trial, in determining what may constitute an ‘independent
and impartial tribunal’ for the purpose of Chapter III of the Constitution.58
Justice Kirby has also, however, suggested that international law should have a greater
influence on constitutional interpretation. In particular, he has propounded the use of
international law to resolve ambiguities in the Constitution.59 Justice Kirby’s approach is
discussed below, but it needs to be borne in mind that using international law in
constitutional interpretation in this manner has attracted considerable criticism from other
members of the High Court and is not the prevailing position of the current High Court.60
In Newcrest Mining (WA) Ltd v Commonwealth, Kirby J stated that, in the case of ambiguity
in the Constitution, the High Court ‘should adopt that meaning which conforms to the
principles of fundamental human rights rather than an interpretation which would involve a
departure from such rights’.61 He then stated:
To adapt what Brennan J said in Mabo v Queensland [No 2], the common law, and
constitutional law, do not necessarily conform with international law. However,
55
(2004) 219 CLR 562, 593. See also Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104,
171–4 (Deane J).
56
Al-Kateb v Godwin (2004) 219 CLR 562, 593–4.
57
Ibid 622–6.
58
Forge v Australian Securities and Investments Commission [2006] HCA 44 (5 September 2006).
59
See Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 657–8; Kartinyeri v Commonwealth
(1998) 195 CLR 337, 417–19; Austin v Commonwealth (2003) 215 CLR 185, 291–3; Al-Kateb v Godwin
(2004) 219 CLR 562, 617–30. See also Re East; Ex parte Nguyen (1998) 196 CLR 354, 380–1; Sinanovic v
The Queen (1998) 103 A Crim R 452, 458; Re Minister for Immigration and Multicultural Affairs; Ex parte
Epeabaka (2001) 206 CLR 128, 151–2.
60
Al-Kateb v Godwin (2004) 219 CLR 562, 589 (McHugh J); Polites v Commonwealth (1945) 70 CLR 60, 69,
74–81 Fishwick v Cleland (1960) 106 CLR 186, 196-7; Horta v Commonwealth (1994) 181 CLR 183, 195.
61
(1997) 190 CLR 513, at 657. The question before the High Court in that case was whether s 122 of the
Constitution, (which grants Parliament legislative power over territories), was limited by s 51(xxxi) (which
grants Parliament legislative power to acquire property, but only on just terms). Justice Kirby concluded that s
122 was so limited, using means other than international law. To reinforce his conclusion, he then invoked
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international law is a legitimate and important influence on the development of the
common law and constitutional law, especially when international law declares the
existence of universal and fundamental rights. To the full extent that its text
permits, Australia's Constitution, as the fundamental law of government in this
country, accommodates itself to international law, including in so far as that law
expresses basic rights. The reason for this is that the Constitution not only speaks
to the people of Australia who made it and accept it for their governance. It also
speaks to the international community as the basic law of the Australian nation
which is a member of that community. 62
Justice Kirby also stated in Kartinyeri v Commonwealth that where there is ambiguity in the
Constitution ‘there is a strong presumption that the Constitution, adopted and accepted by
the people of Australia for their government, is not intended to violate fundamental human
rights and human dignity’.63
However, even Kirby J’s approach requires ambiguity before it can be applied.64
Accordingly, while Kirby J considers that international law is a legitimate influence on the
development of constitutional law, it seems that such influence is largely limited to the
resolution of any ambiguities in the Constitution.65
7.
International Law and Development of the Common Law
International human rights law may influence the development of the common law, for
example by filling a gap in it or potentially by leading to its change.66
In Mabo v Queensland [No 2],67 in which the High Court first recognised indigenous
peoples’ native title to traditional lands, Brennan J noted that Australia’s accession to the
First Optional Protocol to the International Covenant on Civil and Political Rights68 ‘brings
to bear on the common law the powerful influence of the [ICCPR] and the international
standards it imports’.69 The First Optional Protocol allows a party who claims that their
provisions of the Universal Declaration of Human Rights, GA Res 217A, UN GAOR, 3rd sess, 183rd plen mtg,
UN Doc A/Res/217A (1948) concerning the right to own and to not be arbitrarily deprived of property.
62
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 657–8 (citations omitted).
63
(1998) 195 CLR 337, 418 (Kirby J).
Ibid. In that case, Kirby J stated that ‘[t]here is no doubt that, if the constitutional provision is clear and if a
law is clearly within power, no rule of international law, and no treaty (including one to which Australia is a
party) may override the Constitution or any law validly made under it.’
64
See the discussion of Kirby J’s approach in Kristen Walker, ‘International Law as a Tool of Constitutional
Interpretation’ (2002) 28 Monash University Law Review 85, 95.
65
66
This is consistent with the generally accepted position that international law does not form part of Australian
common law unless legislation implementing it is passed or the common law is judicially developed to conform
with it.
67
(1992) 175 CLR 1 (‘Mabo’).
Opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976) (‘First
Optional Protocol’).
68
69
Mabo (1992) 175 CLR 1, 42 (Brennan J).
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rights under the ICCPR have been infringed, and who has exhausted all domestic
remedies, to appeal to the United Nations Human Rights Committee (‘HRC’) for
consideration of their claim.70 In this context, Brennan J stated that ‘the common law does
not necessarily conform with international law, but international law is a legitimate and
important influence on the development of the common law, especially when international
law declares the existence of universal human rights’.71
In the course of his judgment in Mabo, which changed the common law through the
introduction of the concept of native title, Brennan J made the following comment about the
incongruence between the common law as it then stood and ‘human rights’ represented by
indigenous rights to traditional lands:
It is contrary both to international standards and to the fundamental values of our
common law to entrench a discriminatory rule which, because of the supposed
position on the scale of social organisation of the indigenous inhabitants of a
settled colony, denies them a right to occupy their traditional lands.72
The influence of international law on the common law was also evident in Dietrich v The
Queen.73 That case involved an accused who had been charged with and convicted of
importing a trafficable quantity of heroin. The accused was unable to obtain legal
representation and was left to represent himself at trial. He was convicted, and appealed
the decision to the High Court. The appeal concerned an accused’s common law right to a
fair trial. Although the common law did not recognise that the right to a fair trial included an
accused’s right to counsel, in Dietrich the Court held that there was a judicial power to stay
proceedings against an indigent accused facing serious charges in circumstances where
the absence of counsel would render a trial unfair.74
The judgments of the High Court in Dietrich contain many references to international
treaties, including the ICCPR75 and the European Convention for the Protection of Human
Rights and Fundamental Freedoms,76 as well as references to the law in other domestic
jurisdictions.77 However, the extent to which the judges used international human rights
law to inform their reasoning differed. Justice Brennan used the ICCPR as a ‘concrete
indication’ of contemporary Australian values and emphasised that the ICCPR is a
70
First Optional Protocol, above n 68. Examples of Australian cases communicated to the HRC for
consideration are Toonen v Australia, HRC, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992
(31 March 1994) and A v Australia, HRC, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (30
April 1997).
71
Mabo (1992) 175 CLR 1, 42.
72
Ibid.
73
(1992) 177 CLR 292.
74
Ibid.
75
Above n 31.
Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (‘European
Convention on Human Rights’).
76
77
Dietrich v The Queen (1992) 177 CLR 292, 300, 305–7 (Mason CJ and McHugh J), 337 (Deane J), 351,
359–61 (Toohey J), 373 (Gaudron J).
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‘legitimate influence on the development of the common law’.78 However, the other judges
gave little (if any) weight to the ICCPR. Chief Justice Mason and McHugh J referred to the
ICCPR in their consideration of the necessary incidents of the right to a fair trial, but did not
base their decision on its terms. Indeed, they noted that their approach differed from that
of the ICCPR. The ICCPR provides a right to have legal assistance assigned to an
indigent accused in cases where the interests of justice so require,79 whereas Mason CJ
and McHugh J recognised a more ‘qualified’ right to legal counsel which was similar to that
recognised by the European Court of Human Rights and the Supreme Court of Canada. 80
Justice Toohey stated that although international instruments may be used by the Court to
guide the development of the common law, or to resolve an ambiguity in the common law,
in the case of the common law right to a fair trial, international law had nothing more to
offer.81
A key concern expressed by the High Court in developing the common law is not to
develop the common law by reference to an international instrument that Parliament has
not chosen to bring into domestic law with legislation. Implementing an international
instrument by way of common law development has been referred to as ‘backdoor
implementation’ and may usurp the role of Parliament as lawmaker.82
However, the degree of influence that international law should have on the development of
the common law is a matter which has attracted different judicial responses.
In Dow Jones and Co, Inc v Gutnick, the High Court considered the common law
requirements for defamation arising from material published on the internet.83 In his
reasons, Kirby J cited the rights to freedom of expression and reputation in the ICCPR and
expressed the view that common law defamation in the context of internet publications
should be developed consistently with those principles.84
Conversely, in Western Australia v Ward, Callinan J rejected the proposition that the
common law was obliged to develop in accordance with international law, but stated that it
‘may occasionally, perhaps very occasionally, assist in determining the content of the
common law’.85
78
Dietrich v The Queen (1992) 177 CLR 292, 321. In the course of his reasoning, Brennan J stated that the
judiciary was responsible for ensuring that the law remains in a ‘serviceable state, a function which calls for
consideration of the contemporary values of the community’: at 319.
79
ICCPR, above n 31, art 14(3)(d).
80
Dietrich v The Queen (1992) 177 CLR 292, 306–9.
81
Ibid 360–1 (Toohey J); see also 347–9 (Dawson J).
82
Teoh (1995) 183 CLR 273, 288 (Mason CJ and Deane J).
83
(2002) 210 CLR 575.
Ibid 626–7. Note also Kirby J’s comments during the hearing of Magill v Magill [2006] HCATrans 163 (7
April 2006), where he said that the best interests of the child — a principle derived from the Convention on the
Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September
1990) — would be ‘foremost’ in his mind when determining the issues arising in a paternity suit (a claim in the
tort of deceit in relation to the true father of two children).
84
85
(2002) 213 CLR 1, 389.
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The contrasting views of Kirby and Callinan JJ indicate that different judges have different
approaches when it comes to using international law in the development of the common
law.
An interesting development, of particular note to practitioners in Victoria, is the recent
encouragement given by Maxwell P to the use of international human rights law in cases
before the Supreme Court of Victoria. In Royal Women’s Hospital v Medical Practitioners
Board of Victoria, a recent decision of the Court of Appeal of the Supreme Court of Victoria,
Maxwell P stated: ‘That there is a proper place for human rights-based arguments in
Australian law cannot be doubted’. 86 President Maxwell also emphasised three points:
1. The Court will encourage practitioners to develop human rights-based arguments
where relevant to a question in the proceeding.
2. Practitioners should be alert to the availability of such arguments, and should not be
hesitant to advance them where relevant.
3. Since the development of an Australian jurisprudence drawing on international human
rights law is in its early stages, further progress will necessarily involve judges and
practitioners working together to develop a common expertise.87
8.
International Law and Judicial Review in Administrative Law
International law may also be relevant in the context of judicial review of administrative
decisions, where Australia has entered into a treaty on relevant subject matter. However,
the use of international law for this purpose is not without controversy.
8.1
International Instruments May Give Rise to Legitimate Expectations
The leading case is that of Teoh,88 in which the High Court held that entry into a treaty by
the executive may give rise to a legitimate expectation that administrative decision makers
will conform with the principles set out in the treaty when making administrative decisions,
or will provide the affected party with an opportunity to be heard in relation to this issue.
Although Teoh is still good law, the principle it established has been substantially eroded. 89
Teoh concerned a decision whether a foreign national’s application for a permanent entry
permit to Australia should be accepted. The panel considering the application rejected it
on the grounds that, as a convicted drug trafficker, the applicant failed a policy requirement
to be of good character. The applicant had a wife and young children who would lose the
family breadwinner if the applicant was deported. Prior to this time, the Australian
Government had signed the Convention on the Rights of the Child,90 but its provisions had
86
[2006] VSCA 85, [72].
87
Ibid [71].
88
(1995) 183 CLR 273.
89
See Part 8.1(a) below.
90
Above n 84.
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not been incorporated into Australian law. This Convention requires the best interests of
the child to be taken into account. The applicant claimed before the High Court that the
panel should have considered the effect on his children in accordance with the Convention
if he was not granted the permit.
The High Court held that while the provisions of the Convention did not create any rights or
constitute relevant considerations that the panel was obliged to take into account in making
the decision, the ratification of the Convention was not inconsequential:
Rather, ratification of a convention is a positive statement by the executive
government of this country to the world and to the Australian people that the
executive government and its agencies will act in accordance with the Convention.
That positive statement is an adequate foundation for a legitimate expectation,
absent statutory or executive indications to the contrary, that administrative
decision-makers will act in conformity with the Convention.91
Whilst stressing that a legitimate expectation did not require the decision-maker to act in a
particular way, the Court held that where the decision-maker proposed to act contrary to
the expectation, certain elements of procedural fairness (natural justice) were required to
be adhered to, including giving notice to the person affected and allowing them adequate
opportunity to present a case against the proposed course.92
In Minogue v Human Rights and Equal Opportunity Commission, the Full Court of the
Federal Court explained the relevance of the Teoh doctrine:
The concept is relevant only to questions of procedural fairness. Ratification of a
treaty by Australia may give rise to a legitimate expectation that a decision-maker
will act in conformity with it. The decision-maker’s failure to act in conformity with
the treaty may in turn give rise to a denial of procedural fairness, if the person
affected by the decision is not given an opportunity to argue against that course
being taken. The notion of legitimate expectations does not make provisions of the
International Covenant on Civil and Political Rights part of Australian law.93
Accordingly, where a decision-maker has provided notice of the proposed decision and a
reasonable opportunity for submissions, the decision cannot be reviewed for procedural
fairness merely because it is inconsistent with international law.
(a)
Subsequent High Court Disapproval of Teoh
More recently, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex
Parte Lam,94 some members of the High Court expressed their reservations, in obiter, in
relation to the Teoh legitimate expectation doctrine.
Justices McHugh and Gummow expressed concern that the ratification of an instrument,
drafted in general terms, could give rise to a legitimate expectation.95
91
Teoh (1995) 183 CLR 273, 291.
92
Ibid 291–2.
93
(1999) 84 FCR 438, 448 (Sackville, North and Kenny JJ).
94
(2003) 214 CLR 1 (‘Lam’).
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Justice Callinan expressed reservations about whether a legitimate expectation had been
created where a person affected did not know the international instrument existed,
indicating a preference for a requirement of actual expectation on the part of the affected
person, or that it be reasonable to infer that the person would have such an expectation if
his or her mind were turned to the matter in the circumstances.96
Another concern was the apparently anomalous requirement that a decision-maker
consider a legitimate expectation in the context of procedural fairness, but not as a
mandatory relevant consideration attracting judicial review for jurisdictional error. Justices
McHugh, Gummow and Callinan expressed concern that the application of Teoh could
disrupt the separation of powers. This is so because it is for the executive to execute and
maintain statute laws that confer discretionary power on administrative decision makers,
whereas it is for the judiciary to declare and enforce those powers conferred, by statute,
upon administrative decision makers. Where the judiciary in any way supplements the
criteria set out in the statute for the exercise of administrative discretion, requiring
reference to, for example, treaties, the judiciary risks encroaching upon executive power.97
(b)
Attempts by Executive to Neutralise Teoh
Teoh excited concern at a bureaucratic and political level. In an effort to negate the basis
on which a person affected could assert a legitimate expectation, the Attorney-General and
the Minister for Foreign Affairs and Trade issued joint statements to the effect that
international instruments entered into by Australia did not give rise to any legitimate
expectation that the executive would conform to them when making administrative
decisions.98
However, the effectiveness of the joint statements was doubted by Hill J in Department of
Immigration and Ethnic Affairs v Ram.99 Justice Goldberg subsequently confirmed their
ineffectiveness in Tien v Minister for Immigration and Multicultural Affairs.100
The reason for their ineffectiveness was that the joint statements lacked the required
specificity to reverse the position adopted by the High Court in Teoh. Conversely, in
Baldini v Minister for Immigration and Multicultural Affairs,101 Drummond J considered an
executive direction that set out in detail, among other things, how the right of a child was to
be considered when making a decision under s 499 of the Migration Act 1958 (Cth) to
95
Ibid 31–2.
96
Ibid 47. This stems from a broader concern about the doctrine of legitimate expectation, even outside
executive acts.
97
Ibid 33–4 (McHugh and Gummow JJ), 47–8 (Callinan J).
98
Senator Gareth Evans, Minister for Foreign Affairs and Trade, and Michael Lavarch, Attorney-General,
‘International Treaties and the High Court Decision in Teoh’ (Joint Statement, 10 May 1995). A second
statement was later issued as a result of a change in government: Alexander Downer, Minister for Foreign
Affairs and Trade, and Darryl Williams, Attorney General, ‘The Effect of Treaties in Administrative Decision
Making’, (Joint Statement 25 February 1997).
99
(1996) 69 FCR 431, 437–8.
100
(1998) 89 FCR 80, 105.
101
(2000) 115 A Crim R 307 (‘Baldini’).
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deport a non-citizen. In that case, Drummond J held that the executive direction was
sufficiently specific to override any legitimate expectation.102
The Federal Government has, on a number of occasions, introduced legislation to ‘provide
that the executive act of entering into a treaty does not give rise to legitimate expectations
in administrative law’. However, attempts to pass this legislation — the Administrative
Decisions (Effect of International Instruments) Bill — were unsuccessful in 1995, 1997 and
1999.
(c)
Current Status of the Teoh Principle of Legitimate Expectation
While the Teoh principle remains intact, the decision in Lam103 suggests that, were the
High Court to consider the matter in the future, it may overturn Teoh.104 Further, the
decision in Baldini105 demonstrates that the executive can reverse legitimate expectations
raised under the Teoh principle.
9.
International Law and Judicial Discretion
There are several ways that international human rights have been considered in the
exercise of judicial discretion. Some examples are outlined below.
9.1
Sentencing
In R v Togias, Grove J and Einfeld AJ both considered the Convention on the Rights of the
Child,106 and other international pronouncements on the rights of children, to inform their
consideration of the probable effects of a sentence on the family and dependents of a
person, as required under s 16A(2)(p) of the Crimes Act 1914 (Cth).107
102
Ibid 316.
103
(2003) 214 CLR 1.
104
Note that in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs
(2004) 221 CLR 1 the High Court was asked to consider the extent to which the broader legitimate expectation
doctrine, not only those legitimate expectations arising from executive acts, plays a part in resolving
procedural unfairness, particularly given the High Court’s decision in Lam. Justice Kirby stated that ‘[t]here is
nothing in this Court’s decision in Lam that obliges abandonment of reference to “legitimate expectations” as a
tool of judicial reasoning. However, given the expanded notion of procedural fairness in Australia I accept that
the utility of this particular fiction is now somewhat limited’: at 22 (citations omitted).
105
(2000) 115 A Crim R 307.
106
Above n 84.
107
R v Togias (2001) 127 A Crim R 23, [85], [179]. The case involved a review of a custodial sentence of a
mother with a young child. A key argument was that the imprisonment would separate the child and mother.
In the course of this argument reference was made to international instruments entered into by Australia
including rights of children not to be separated from their mother other than in exceptional circumstances, and
the value of breastfeeding babies.
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In R v Hollingshed,108 Miles CJ considered whether imprisonment in the circumstances (the
defendant was considered susceptible to sexual assault in prison) would constitute a
violation of rights under the ICCPR.
However, in Smith v R, Bleby J expressed the view that sentencing ‘is an important judicial
function to be exercised only in accordance with law’ (and that did not include considering
international instruments).109
9.2
Granting of Bail
In Schoenmakers v DPP, French J used parts of the Magna Carta and those parts of the
ICCPR concerning rights to liberty and to trial within a reasonable time, to identify ‘broad
community standards’ to determine if special circumstances existed to grant bail in the
context of extradition proceedings. 110 The applicant had been detained for a period of 11
months.
In Re Rigoli, Maxwell P and Charles JA recognised that international human rights
guarantees in relation to the treatment of prisoners may be a relevant consideration in
determining whether to grant bail in a case involving a bail applicant requiring specific
care.111
9.3
Excluding Confessional Evidence
Section 138(3)(f) of the Evidence Act 1995 (Cth) confers a judicial discretion to exclude
evidence in a trial that is improperly or illegally obtained. In determining whether evidence
has been improperly obtained, one of the factors the Act requires the court to consider is
‘whether the impropriety or contravention [of Australian law] was contrary to or inconsistent
with a right of a person recognised by the International Covenant on Civil and Political
Rights’.112
The ICCPR and the Declaration of the Rights of the Child113 were also identified as
potentially relevant to the admissibility of evidence in McKellar v Smith, in which Miles J
considered whether to exclude confessions of two children to police. 114
9.4
Restraint of Trade
In Wickham v Canberra District Rugby League Football Club Ltd, Miles CJ was required to
consider the reasonableness, and therefore the validity, of a club rule that restrained
108
(1993) 112 FLR 109, 114.
109
(1998) 98 A Crim R 442, 448.
110
(1991) 30 FCR 70, 74–5.
111
[2005] VSCA 325, [5].
112
Evidence Act 1995 (Cth) s 138(3)(f).
113
GA Res 1386 (XIV), GAOR, 14th sess, 841st plen mtg, UN Doc A/RES/1386 (XIV) (20 November 1959).
114
[1982] 2 NSWLR 950.
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members of a rugby league club from playing for other teams.115 In addition to precedent,
Miles CJ also referred to the right to work enshrined in the International Covenant on
Economic, Social and Cultural Rights.116
10.
International ‘Soft Law’ Instruments
10.1
Overview of ‘Soft Law’
In addition to instruments such as conventions that are legally binding at international law,
a range of ‘soft law’ instruments exist, including UN General Assembly resolutions and
other international documents, whose legal status is unclear. ‘Soft law’ encompasses
declarations of principles emanating from international conferences, directive
recommendations issued by international organisations, and model rules or voluntary
codes of conduct produced by international and regional organisations. 117
Soft law is not legally binding and cannot be enforced in a court.118 However, soft law may
eventually ‘harden’ into custom. The Universal Declaration of Human Rights 119 is an
example of soft law (in that case, a UN General Assembly resolution) which is now
considered to form part of customary international law. 120 Although not giving rise to legally
enforceable obligations, soft law is generally regarded as being an important source of
international law.121
Given the extent of material that falls within the definition of soft law, it is likely that some
soft law may be regarded as a more reliable source of international law than others. It
seems likely that soft law arising from UN General Assembly resolutions or which has been
the subject of comment by treaty bodies is more likely to be given weight by a domestic
115
(1998) ATPR ¶41-664.
116
Ibid [67]–[68] (Miles CJ):
administrative decision makers are required to take into account relevant provisions of a treaty to
which Australia is a party, notwithstanding that those provisions are not part of Australian domestic
law … It is difficult to see why judicial decision makers are not similarly obliged when called upon to
exercise discretion or to decide a question of reasonableness.
117
DJ Harris, Cases and Materials on International Law (5th ed, 1998) 65; Christine Chinkin, 'The Challenge of
Soft Law: Development and Change in International Law' (1989) 38 International and Comparative Law
Quarterly 850, 851; Richard Marlin, 'The External Affairs Power and Environmental Protection in Australia'
(1996) 24 Federal Law Review 71. Some commentators have also suggested that treaties, or parts of
treaties, may be classified as soft law if, even though they are in treaty form, they do not give rise to 'hard'
obligations: see, eg, Chinkin, above n 115, 851.
118
Harris, above n 117, 65.
119
Above n 61.
120
Harris, above n 117, 65; Chinkin, above n 115, 860.
121
Marlin, above n 117, 77–8. In the refugee law context, Conclusions of the Executive Committee of the UN
High Commissioner for Refugees (UNHCR), regarded as soft law, have been used to inform the scope and
content of customary international law: see, eg, E Lauterpacht and D Bethlehem, ‘The Scope and Content of
the Principle of Non-refoulement: Opinion,’ in E Feller, V Türk and F Nicholson (eds), Refugee Protection in
International Law (2003), 87-177.
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Chapter 4 – Implementation and Use of International Human Rights
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court than, for example, a voluntary code of conduct that has not been the subject of formal
consideration by the UN General Assembly or treaty bodies.
10.2
Consideration of Soft Law by Australian Courts
There are a number of cases in which domestic courts have considered or referred to soft
law. The cases indicate that:

courts may have regard to soft law as an indicator of international standards;

courts may have regard to soft law for the purpose of clarifying the content and
application of other human rights instruments;

soft law does not give rise to enforceable rights;

soft law forms part of the body of international law to which regard may be had to
clarify an ambiguity in statute;

soft law (particularly soft law relating to human rights) may be relevant when
considering whether to consider those human rights in the exercise of a discretion.
These points are discussed in more detail below.
10.3
Soft Law as an Indicator of International Standards
In Koowarta v Bjelke-Petersen,122 Stephen J, in determining whether racial discrimination
was an issue that fell within the external affairs power, reviewed the extensive international
literature on the subject and made reference to a number of international standards. His
Honour noted that matters of human rights have,
by virtue of the Charter of the United Nations, become at international law a proper
subject for international action, there followed, in 1948 the Universal Declaration of
Human Rights and thereafter many General Assembly resolutions on human rights
and racial discrimination.123
His Honour referred to the ‘full catalogue of the various international instruments’ set out in
a United Nations publication entitled Human Rights: A Compilation of International
Instruments (1978). He concluded that ‘even were Australia not a party to the [Convention
on the Elimination of All Forms of Racial Discrimination], this would not necessarily exclude
the topic as a part of its external affairs.’124 This suggests that Stephen J was prepared to
afford significant weight to ‘soft law’ when determining whether racial discrimination was an
issue of international concern and within the scope of the external affairs power.
Similarly in the Tasmanian Dams Case,125 Murphy J concluded that the protection of world
natural heritage may be a matter of international concern even if the relevant convention126
122
(1982) 153 CLR 168.
123
Ibid 219.
124
Ibid 220.
125
(1983) 158 CLR 1.
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did not exist. 127 In his discussion of the relevant international law jurisprudence, as well as
referring to a number of other Conventions and Agreements, Murphy J referred to a
relevant General Assembly resolution,128 the Declaration of Principles Covering the SeaBed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National
Jurisdiction.129
More recently, in Vance v State Rail Authority,130 the applicant sought a declaration from
the court that the respondent had indirectly discriminated against her on the ground of her
disability in the manner in which it provided public transport services. The respondent
submitted that the absence of ‘international concern’ as to disability discrimination in the
area of public transport meant that the applicant’s claim did not fall within the scope of
s 12(8)(e) of the Disability Discrimination Act 1992 (Cth) and that the Court accordingly
lacked jurisdiction. The respondent argued that the fact that the Declaration on the Rights
of Disabled Persons131 was silent on the question of public transport services indicated that
those services are not of international concern. Federal Magistrate Raphael rejected this
argument and pointed to the United Nations Standard Rules on the Equalization of
Opportunities for Persons with Disabilities,132 in support of the contrary view.133
10.4
Soft law as an Indicator of the Content and Application of Other Human Rights
Instruments
There is some jurisprudence to suggest that courts may have regard to soft law for the
purpose of clarifying the content and application of other human rights instruments.
In Wu Yu Fang v Minister for Immigration and Ethnic Affairs (‘Wu v MIEA’), the applicants
were 118 ethnic Chinese men, women and children who arrived in Australian waters on a
boat code-named Albatross and were subsequently detained in the Immigration Reception
and Processing Centre at Port Hedland.134 The applicants’ claim was based on a number
of grounds, including that they had been denied procedural fairness.
In his dissenting judgment, Carr J referred to the Standard Minimum Rules for the
Treatment of Prisoners135 as providing an interpretative guide to the meaning of art 10 of
the ICCPR. His Honour cited the Standard Minimum Rules, as well as the Body of
126
Convention for the Protection of the World Cultural and Natural Heritage, opened for signature 16
November 1962, 1037 UNTS 151, entered into force 17 December 1975.
127
Tasmanian Dams Case (1983) 158 CLR 1, 174-7. This point is discussed in Marlin, above n 117.
128
Tasmanian Dams Case (1983) 158 CLR 1, 175.
129
GA Res 2749 (XXV), UN GAOR, 25th sess, 1933rd plen mtg, UN Doc A/RES/2749 (XXV) (17 December
1970).
130
[2004] FMCA 240.
131
GA Res 3447 (XXX), GAOR, 30th sess, 2433rd plen mtg, UN Doc A/RES/3447 (XXX) (9 December 1975).
132
GA Res 48/96, GAOR, 48th sess, 85th plen mtg, UN Doc A/RES/48/96 (20 December 1993).
133
Vance v State Rail Authority [2004] FMCA 240, [49].
134
(1996) 64 FCR 245. Note that the case is sometimes referred to as the Albatross case.
135
Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders,
Geneva, Switzerland (1955), available at http://www.ohchr.org/english/law/treatmentprisoners.htm (‘Standard
Minimum Rules’).
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Chapter 4 – Implementation and Use of International Human Rights
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Principles for the Protection of all Persons under Any Form of Detention or Imprisonment136
and concluded that if art 10 of the ICCPR had been ‘observed in accordance with the
interpretative guidance of the Standard Minimum Rules and the Body of Principles then the
appellants would have been given reasonable access to legal advice’. 137
It has been argued that Carr J's conclusion in this case is authority for the proposition that
the Standard Minimum Rules and Body of Principles are binding on states parties to the
ICCPR by way of ICCPR art 10(1).138
10.5
Soft Law Is Not Legally Enforceable
In Collins v State of South Australia (‘Collins’),139 Millhouse J in the Supreme Court of
South Australia held that the Standard Minimum Rules are not legally enforceable.
In Collins, the plaintiff brought proceedings against the State of South Australia alleging
breaches of the Standard Minimum Rules and seeking a declaration that the State be
bound by the Standard Minimum Rules. In particular, the plaintiff was concerned with
practices of ‘doubling up’, which require inmates to share a prison cell.
The plaintiff argued that as a signatory to the United Nations Charter, Australia was bound
by the Standard Minimum Rules. Justice Millhouse, however, found that the Standard
Minimum Rules had not been enacted into domestic legislation. His Honour examined the
Standard Guidelines for Corrections in Australia (1996) (‘the Guidelines’),140 which were
based on the Standard Minimum Rules. His Honour noted that the Guidelines are qualified
by its preface, which states:
These guidelines are not intended to be law or to be treated as absolute; they are
for guidance. Whilst ultimately the desirable level of implementation is a political
decision based on legislative provisions, government policies and the availability of
resources, the guidelines do provide a base for protecting human rights in
Corrections in Australia.
Justice Millhouse found that neither the Guidelines nor the Standard Minimum Rules on
which they are based have the force of law.
10.6
Clarifying Ambiguity
136
Adopted by the UN General Assembly in GA Res 43/173, GAOR, 43 rd sess, 76th plen mtg, UN Doc
A/RES/43/173 (9 December 1988), available at http://www.ohchr.org/english/law/bodyprinciples.htm (‘Body of
Principles’).
137
Wu v MIEA (1996) 64 FCR 245, 265.
See Nick Poynder, ‘The Incommunicado Detention of Boat People: A Recent Development in Australia's
Refugee Policy’ (1997) Australian Journal of Human Rights 2.
138
139
[1999] SASC 257.
140
These have now been superseded by the Standard Guidelines for Corrections in Australia (2004). Both
documents are available from http://www.aic.gov.au/research/corrections/standards/aust-stand.html.
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Chapter 4 – Implementation and Use of International Human Rights
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In Binse v Williams,141 the Court of Appeal of the Victorian Supreme Court considered an
appeal by a prisoner who had attempted to escape from the Acacia high security unit. The
appellant was subsequently placed on a strict security regime, being confined to his cell for
23 hours per day, and only permitted to leave when wearing handcuffs, a body belt and
ankle bracelets. The appellant sought a declaration that the restraints which had been
applied to him were unlawful having regard to art 7 of the ICCPR, art 1 of the Declaration
on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment142 and the Standard Minimum Rules.
Charles JA, with whom Tadgell and Callaway JJ agreed, noted that reference was made to
the international instruments not for the purpose of submitting that they bound the
Parliament of Victoria, but that, to the extent that the common law was uncertain or
disputable, or the statutory language ambiguous, scope remained for judicial reference to
international conventions.143
Their Honours did not find any ambiguity in the legislation in question (namely the
Corrections Act 1986 (Vic) and the regulations made under that Act). Therefore, they did
not find it appropriate to consider the international instruments further. However, they did
not rule out having regard to soft law (in that case, either the Declaration on Torture or the
Standard Minimum Rules) when having regard to international law for the purposes of
clarifying ambiguity.144
10.7
Soft Law and the Exercise of Discretion
In R v Smith,145 Bleby J in the Supreme Court of South Australia considered an application
to amend the grounds on which the notice of appeal had been filed by adding the following
ground of appeal:
The sentence and non-parole period are manifestly excessive having regard to the
conditions under which the appellant has commenced serving his sentence, which
the appellant submits contravened relevant international instruments such as the
Standard Minimum Guidelines for the Treatment of Prisoners and the International
Covenant of Civil and Political Rights.146
Justice Bleby held that the rights of prisoners were governed by the Correctional Services
Act 1982 (SA). While international treaties may have a bearing on how prison institutions
are to be administered under that Act and how the provisions of the Act should be
interpreted, there were no submissions in the proceedings that allowed Bleby J to find that
the Correctional Services Act 1982 (SA) had been breached. As such his Honour refused
leave to amend the notice of appeal. He noted, though, that his comments
141
[1998] 1 VR 381
142
GA Res 3452 (XXX), GAOR, 30th sess, 2433rd plen mtg, UN Doc A/RES/3452 (XXX) (9 December 1975).
143
[1998] 1 VR 381, 389.
See discussion of this case in Matthew Groves, ‘International Law and Australian Prisoners’ (2001) 24 New
South Wales Law Journal 17, 55.
144
145
(1998) 98 A Crim R 442.
146
Ibid 443.
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Chapter 4 – Implementation and Use of International Human Rights
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should not be taken as reflecting any view as to whether the various articles of the
International Covenant of Civil and Political Rights or the Standard Minimum
Guidelines for the Treatment of Prisoners have been complied with or whether, as
a matter of policy, they should be complied with or, indeed, whether any noncompliance should in general terms have the effect of reducing sentence. 147
This statement suggests that the issue of whether soft law, such as the Standard Minimum
Rules, may be taken into consideration as a relevant factor when exercising the sentencing
discretion is a matter yet to be fully determined by the courts.
10.8
Recent Comments regarding Soft Law
In Re Rigoli,148 which concerned whether the standard of medical care in custody
warranted a grant of bail, Maxwell P noted that:
This Court must be mindful of the international human rights guarantees in relation
to the treatment of prisoners. I will not elaborate them now. Suffice it to say that
there is an obligation to ensure adequate and appropriate medical care for any
person in the custody of the State.149
The footnote to this statement reads as follows:
See, for example, Article 10 of the International Covenant on Civil and Political
Rights; United Nations Committee on Economic, Social and Cultural Rights,
General Comment No 14 of the Right to the Highest Attainable Standard of Health
at [34]; The Standard Minimum Rules for the Treatment of Prisoners (Adopted by
the First United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, held at Geneva in 1955, and approved by the Economic and Social
Council by its resolution 663C (XXIV) of 31 July 1957 and 2076 of 13 May 1977) at
[22]-[26]; The Basic Principles for the Treatment of Prisoners (Adopted and
proclaimed by General Assembly Resolution 44/111 of 15 December [1990]) at [9].
10.9
Conclusion on ‘Soft Law’ in Australian Courts
The case law indicates that the courts are not averse to having regard to ‘soft’ sources of
international law for the purposes of assessing relevant international standards. Further, it
seems that the courts have not ruled out having regard to soft law as part of the broader
body of international law relevant to the interpretation of statutes (where an ambiguity
arises) and, perhaps, when exercising the sentencing discretion.
Interestingly, the soft law relating to prisoners’ rights, and in particular the Standard
Minimum Rules, appears to have been given particular attention in Australian courts. It
may be that the extensive consideration of those principles by the Economic and Social
147
Ibid 448-9.
148
[2005] VSCA 325 (16 December 2005).
149
[2005] VSCA 325 (16 December 2005) [5].
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Chapter 4 – Implementation and Use of International Human Rights
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Council (‘ECOSOC’), the General Assembly and the HRC in its General Comment 21150
lends weight to an argument that the Standard Minimum Rules are a relevant and useful
source of international law in their own right. Alternatively, a court may be prepared to
consider them as an interpretive tool of assistance when considering relevant provisions of
the ICCPR.
11.
Developing Uses for Human Rights Law in Australia
As this chapter demonstrates, the areas of Australian law in which international human
rights law may be used are diverse and are not limited to areas that might, at first, appear
to share similar objectives to human rights law. In fact, often the subject matter of the legal
dispute will not lend itself to an obvious correlation with international human rights law at
all. For this reason it is necessary for lawyers to think creatively about the matter on which
they are working and to consider whether human rights law may inform any aspect of their
case.
Among other things, lawyers should keep in mind that:

Judicial discretion is an area in which there is significant potential scope for the use of
international human rights law, and it opens up a wide range of possibilities for
introducing human rights-related arguments.

International law may also be considered by judges where they are applying existing
(and ostensibly established) legal tests. For example, when considering the
reasonableness of a person’s actions in tort, could international human rights law
assist in establishing a standard of reasonableness, in a similar manner to its use in
establishing a political and social context in constitutional law? This might also apply to
the concept of Wednesbury unreasonableness151 in administrative law.
12.
Domestic Human Rights Law
12.1
Introduction
Statutory bodies exist at both federal and state level to help administer, monitor, and
advocate in respect of human rights in Australia. At the federal level this is undertaken by
the Human Rights and Equal Opportunity Commission (‘HREOC’) and at the state level by
entities such as the Victorian Equal Opportunity Commission. Similar entities exist in other
states and are briefly referred to below.
12.2
Statutes Implementing Human Rights Treaties
Although very few treaties ratified by Australia have been directly transformed into
domestic law, a number of instruments exist in Australian jurisdictions which reflect
150
HRC, General Comment No 21: Replaces General Comment 9 Concerning Humane Treatment of Persons
Deprived of Liberty (1992), http://www.ohchr.org/english/bodies/hrc/comments.htm.
151
See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680.
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Chapter 4 – Implementation and Use of International Human Rights
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international human rights law by drawing on provisions from certain international human
rights instruments. Those instruments are most commonly manifested in antidiscrimination based laws.
The following table lists a selection of Australian Commonwealth Acts incorporating
international human rights law.
Domestic legislation (Cth)
International instrument(s) incorporated
Comments
Human Rights and Equal Opportunity

ICCPR;
This statute is the most
Commission Act 1986

Convention on the Rights of the Child;

Declaration of the Rights of the Child;

Declaration on the Rights of Mentally
Retarded Persons;

Declaration on the Rights of Disabled
significant and
comprehensive piece of
Australian legislation giving
protection to human rights. It
is discussed further at Part
13.1 below.
Persons;

Declaration on the Elimination of all forms
of Intolerance and on Discrimination
based on Religion or Belief; and

ILO Convention Concerning
Discrimination in Respect of Employment
and Occupation.
Racial Discrimination Act 1975

Racial Hatred Act 1995
Sex Discrimination Act 1984

International Convention on the
Similar legislation exists at
Elimination of all forms of Racial
Discrimination
State level.
Convention on the Elimination of
Discrimination against Women
Privacy Act 1988

ICCPR;

Organisation for Economic Cooperation
and Development: Guidelines on the
Protection of Privacy and Transborder
Flows of Personal Data
Crimes (Torture) Act 1988

Convention Against Torture
Disability Discrimination Act 1992

ICCPR;

International Covenant on Economic,
Social & Cultural Rights;

Discrimination in Employment and
Prior to the implementation
of this Act, the HREOC Act
was the only federal
legislation pertaining to
disability issues.
Occupation Convention 1958

ICCPR
Evidence Act 1995

ICCPR
Workplace Relations Act 1996

Universal Declaration of Human Rights
These are particularly
(arts 20(1) and 23(4));
relevant to freedom of
association which is dealt
with in Part XA of the
Human Rights (Sexual Conduct) Act
1994

ICCPR;
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Chapter 4 – Implementation and Use of International Human Rights
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Domestic legislation (Cth)
International instrument(s) incorporated
Comments

Workplace Relations Act.
International Covenant on Economic,
Social & Cultural Rights;

The Philadelphia Declaration adopted by
the International Labour Organisation in
1944.
Age Discrimination Act 2004

ICCPR;

International Covenant on Economic,
Social & Cultural Rights;

Conventions on the Rights of the Child;

Political Declaration adopted in Madrid,
Spain on 12 April 2002 by the second
World Assembly on Ageing; and

Discrimination (Employment and
Occupation) Convention 1958
Similar laws exist at the state level, generally mirroring many of the same international
instruments but not necessarily explicitly. The first such law passed in Victoria was the
Equal Opportunity Act 1977 (Vic) (now the Equal Opportunity Act 1995 (Vic)) which now
provides for the protection of human rights particularly in the areas of age, breastfeeding,
gender identity, impairment, industrial activity, lawful sexual activity, marital status, parental
status or status as a carer, physical features, political belief or activity, pregnancy, race,
religious belief or activity and sexual orientation. 152
The Racial and Religious Tolerance Act 2001 (Vic) (‘RRT Act’) aims to promote racial and
religious tolerance by prohibiting certain conduct involving the vilification of persons on the
ground of race or religious belief or activity. The RRT Act makes it unlawful to engage, on
the grounds of the race or religious belief of another person, in conduct that incites hatred
against, serious contempt for, or revulsion or severe ridicule of, that other person or class
of persons.153 In the event of a contravention, the RRT Act provides for a complaint and
conciliation process with the Equal Opportunity Commission. 154 Exceptions to liability
under the RRT Act exist where the relevant conduct was engaged in with good faith, in the
public interest or for genuine academic, artistic, religious or scientific purposes.155
152
Similar laws in other states include: Equal Opportunity Act 1984 (WA); Discrimination Act 1991 (ACT);
Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1992 (NT);
Anti-Discrimination Act 1991 (Qld); Anti-Discrimination Act 1998 (Tas).
153
RRT Act (Vic) ss 7, 8.
154
RRT Act (Vic) Part 3.
155
RRT Act (Vic) s 11. The Equal Opportunity and Tolerance Bill 2006 (Vic), currently before Parliament,
proposes some amendments to the RRT Act, including, among other things, amending the definition of
‘religious purpose’ in s 11. On 20 July 2005, a private member’s Bill to repeal the RRT Act was tabled for first
reading and is still before Parliament (the Racial and Religious Tolerance Act (Repeal) Bill 2005 (Vic)).
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Chapter 4 – Implementation and Use of International Human Rights
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13.
Domestic Human Rights Bodies
13.1
The Human Rights and Equal Opportunity Commission
HREOC is Australia’s primary body or mechanism for the protection of human rights.
HREOC was established by the Human Rights and Equal Opportunity Commission Act
1986 (Cth) (‘HREOC Act’) and replaced the former Human Rights Commission.
HREOC sits within the federal system of commissions and tribunals, and has a number of
specific functions. In particular, it administers the following laws:

HREOC Act;

Racial Discrimination Act 1975 (Cth);

Sex Discrimination Act 1984 (Cth);

Disability Discrimination Act 1992 (Cth); and

Age Discrimination Act 2004 (Cth).156
The HREOC Act also gives HREOC responsibility in relation to a number of human rights
instruments ratified by Australia. That responsibility primarily involves monitoring
compliance with the relevant instruments (see the instruments outlined in the table at 12.2
above).
One of HREOC’s primary functions is to investigate, conciliate and report on complaints
made to it in respect of human rights infringements — particularly those related to
discrimination.157 It investigates complaints of human rights infringements, conciliates
between the parties where possible and also reports on human rights in Australia to other
agencies. Any decisions arising from the conciliation process are enforceable only in so far
as the parties agree that they will be. In the case of a complaint based in the HREOC Act
which fails to be resolved through conciliation, HREOC must present a report to Federal
Parliament outlining the key issues and recommendations to resolve the complaint. In its
recommendations, HREOC may recommend compensatory payment or other appropriate
action. Neither the complaint nor the report give rise to any enforceable legal rights in the
complainant.
HREOC also has the capacity to do, among other things, the following:

intervene in court proceedings by acting as amicus curiae in cases which raise issues
of human rights;158

author and publish guidelines relating to discrimination;159
156
HREOC also has specific responsibilities under the Native Title Act 1993 (Cth), to report on human rights
issues in relation to native title of Indigenous Australians, and also under the Workplace Relations Act 1996
(Cth), in relation to federal awards and equal pay.
157
HREOC Act (Cth) ss 11(1)(aa), (f).
158
HREOC Act (Cth) s 11(1)(o). HREOC has used this right numerous times: see, eg, Re Jane (1989) 85
ALR 409; Kartinyeri v Commonwealth (1998) 195 CLR 337; Qantas Airways v Christie (1998) 193 CLR 280;
Teoh (1995) 183 CLR 273.
159
HREOC Act (Cth) s 11(1)(n).
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Chapter 4 – Implementation and Use of International Human Rights
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
research and develop educational programs to promote human rights; 160 and

examine statutes or proposed statutes for inconsistencies with any human rights and
duties, and report back to the responsible Minister subsequent to such examination.161
13.2
Equal Opportunity Commission Victoria
As an example of the various state-based bodies, the Equal Opportunity Commission
Victoria (‘EOC’) is the primary human rights body at the Victorian state level. It was
established under the Equal Opportunity Act 1995 (Vic).
The main function of the EOC is to promote recognition and acceptance of everyone’s right
to equality of opportunity while acting to eliminate discrimination. As a result, the foremost
activity of the EOC is the resolution of complaints arising from discrimination, for example
on the basis of gender, race or sexuality.
Among other things, the EOC provides a conciliation process to the public, 162 performs an
educative role in the community, serves as a general advocate for equal opportunity issues
and provides legal and policy advice. A particularly relevant example of the EOC providing
policy advice is its recent submission to the Victorian Government regarding the recently
enacted Victorian Charter of Human Rights and Responsibilities.163
13.3
Statutory Bodies in Other Jurisdictions
In addition to HREOC and EOC, the following state and territory statutory bodies exist for
the promotion and advocacy of human rights:

Equal Opportunity Commission Western Australia; 164

The Office of the Commissioner for Equal Opportunity South Australia;165

Human Rights Commission Australian Capital Territory;166

Anti-Discrimination Board of New South Wales;167

Northern Territory Anti-Discrimination Commission;168

Anti-Discrimination Commission Queensland; 169 and
160
HREOC Act (Cth) s 11(1)(h).
161
HREOC Act (Cth) s 11(1)(e).
162
This service, while remaining impartial, does not in any way usurp the role of a court or tribunal. It serves
as another avenue of dispute resolution with the added advantages of being both confidential and without
financial cost to the complainant.
163
See Chapter 5 and Section 14.2 below for further discussion of the Charter.
164
See further Equal Opportunity Act 1984 (WA), http://www.equalopportunity.wa.gov.au.
165
See further Equal Opportunity Act 1984 (SA), http://www.eoc.sa.gov.au.
166
Established under the Human Rights Commission Act 2005 (ACT), http://www.hro.act.gov.au/.
167
See further Anti-Discrimination Act 1977 (NSW), http://www.lawlink.nsw.gov.au/adb.
168
See further Anti-Discrimination Act 1992 (NT).
169
See further Anti-Discrimination Act 1991 (Qld), http://www.adcq.qld.gov.au.
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Chapter 4 – Implementation and Use of International Human Rights
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
Anti-Discrimination Commission Tasmania.170
These bodies function in a similar manner to EOC, and serve to administer the respective
state or territory legislation under their jurisdiction.
14.
Development of State and Territory Human Rights Acts
14.1
Australian Capital Territory
The Human Rights Act 2004 (ACT) (‘HRA’) was Australia’s first statutory human rights
instrument to comprehensively enshrine civil and political rights.
The HRA is based on the ICCPR. Its primary purpose is to enable recognition and
enforcement of internationally recognised political and civil rights within ACT law. Those
rights include:

recognition and equality before the law;

right to life;

protection from torture;

privacy;

various freedoms including that of movement, thought and religion, association and
expression; and

fair trial and rights in a criminal proceedings both generally and for children.171
The HRA does not create a source of individual rights, but operates as a check on
legislative, executive and judicial power by:

requiring all ACT laws to be interpreted consistently with human rights set out in the
HRA as far as possible;172

allowing the ACT Supreme Court to make a declaration that an ACT law is inconsistent
with a human right.173 This does not affect the validity of a law, but triggers a
requirement for a response from the Attorney-General;174 and

requiring each bill presented to the ACT Legislative Assembly to be accompanied by a
statement as to whether the bill is consistent with human rights and, if not, how it is not
consistent.175
In interpreting human rights, the judgment of foreign and international courts and tribunals
may be considered.176 This may empower ACT courts to consider the rulings of, for
170
See further Anti-Discrimination Act 1998 (Tas), http://www.antidiscrimination.tas.gov.au.
171
See HRA ss 8–20.
172
HRA s 30.
173
HRA s 32.
174
HRA s 33.
175
HRA s 37.
176
HRA s 31.
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Chapter 4 – Implementation and Use of International Human Rights
Law in Domestic Law and Courts
example, the HRC or the European Court of Human Rights, but it does not place them
under any obligation to follow the decisions of international tribunals.
Since the enactment of the HRA almost two years ago, over 50 per cent of the civil and
political rights provisions in Part 3 of the Act have in some way been judicially
considered.177 The sections most widely drawn upon are the right to a fair trial and rights in
criminal proceedings.178
The human rights contained in the HRA are not absolute rights and are subject only ‘to
reasonable limits set by [ACT] laws that can be demonstrably justified in a free and
democratic society’.179
Under the HRA, the ACT Attorney-General is compelled to review the operation of the Act
after the first year of its operation.
For further information about the operation and review of the HRA, see the ACT Human
Rights Act Monitoring Project at http://acthra.anu.edu.au.
14.2
Victorian Charter of Human Rights and Responsibilities
The Victorian Charter of Human Rights and Responsibilities (‘the Charter’) received royal
assent on 25 July 2006. The commencement date for the Charter is 1 January 2007.180
The Charter operates similarly to the HRA and is similarly limited to civil and political rights.
Like the HRA, the Charter operates as a limit on the exercise of legislative, executive and
judicial power and is not a source of individual causes of action. 181
The rights protected by the Charter include:

recognition and equality before the law;

right to life;

protection from torture;
177
This calculation is based on an analysis of the cases concerning the HRA from the date of its assent to 25
May 2006. The figure represents the proportion of rights provisions in Part 3 of the Act that have been
judicially considered.
178
Some decisions include: SI bhnf CC v KS bhnf IS [2005] ACTSC 125; IF v Commissioner for Housing
(ACT) [2005] ACTSC 80; R v Upton [2005] ACTSC 52; Fletcher v Harris (2005) 190 FLR 59; [2005] ACTSC
27; Szuty v Smyth [2004] ACTSC 77; R v O'Neill [2004] ACTSC 64.
179
HRA s 28
180
With the exception of Divisions 3 and 4 of Part 3 of the Bill, which will commence one year later on 1
January 2008.
181
A proposed Human Rights Scrutiny Committee will have the role of considering any Bill introduced in to the
Victorian Parliament and reporting to Parliament on the consistency of that Bill with the human rights protected
in the Charter (s 30). The Victorian Attorney-General must also submit a statement of compatibility for every
Bill, similar to the system under the HRA. Under s 34, the Attorney-General has the power to intervene in or
be joined as a party to any proceedings involving the application of the Charter. The Victorian Equal
Opportunity and Human Rights Commission (the proposed new title EOC under the Charter) has the same
rights under s 40.
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Chapter 4 – Implementation and Use of International Human Rights
Law in Domestic Law and Courts

various freedoms including that of movement, of thought and religion, of expression, of
association and of freedom from forced work;

privacy;

cultural rights; and

fair hearing and rights in criminal proceedings both generally (s 24) and for children.182
The rights contained in the Charter are not absolute. Section 7 of the Charter contains a
general limitation stipulating that those rights are ‘subject under law only to such
reasonable limits as can be demonstrably justified in a free and democratic society based
on human dignity, equality and freedom, and taking into account all relevant factors’
including the nature of the right, the importance and the purpose of the limitation, the
nature and extent of the limitation, the relationship between the limitation and its purpose,
and any less restrictive means reasonably available to achieve the purpose that the
limitation seeks to achieve.
Under the Charter, the Attorney-General is compelled to review the operation of the
Charter after the first four years of operation (s 44).
The Charter is discussed in more detail in Chapter 5 of this Manual.
14.3
Developments in Other States
On 20 March 2006, New South Wales Attorney-General Bob Debus announced his
intention to seek Cabinet approval for the instigation of public consultation regarding a
state Bill of Rights.183
In South Australia, Democrat MP Sandra Kanck introduced a private member’s Bill, the
Human Rights Bill 2004 (SA), into the lower house of the South Australian Parliament.184
The Bill was substantially the same as the HRA. That Bill has since lapsed after failing to
receive support from either the South Australian Government or a principal opposition
party.
Most recently, in August 2006, the Tasmanian Government has instructed the Tasmanian
Law Reform Institute to conduct community consultations and make recommendations
regarding the need for, and content and form of, a legislative human rights instrument in
Tasmania. 185
At a national level, the online magazine NewMatilda.com is leading a push for a federal bill
of rights.
182
See ss 7–24 of the Charter.
Jonathan Pearlman, ‘Charter of Rights Plan to be Put to Cabinet’, The Sydney Morning Herald (Sydney,
Australia), 20 March 2006, 5.
183
184
South Australia, Hansard, Legislative Council, 15 September 2004.
185
Tasmanian Law Reform Institute, A Charter of Rights for Tasmania? (2006) at
http://www.law.utas.edu.au/reform/Projects/Human%20Rights.htm.
36