f 704

The Role of International Standards II in Australian Courts· i Han Justice Michael Kirby AC CMG- ,"-Ie'N perspectives ;~ )1 Over the past decade, r have had the privilege of working in a nwnber of the :' 3<'enciesagencies of the United Nations. Necessarily. this work has given me a p~rspecIive paspecIive of the weaknesses and inefficiencies of the United Nations. But it 1>1' has also made clear to me its utility in furthering the grand objectives conc~ivedconceived during the Second World War and carried into effect by the UN Charter in 1945. Working for the United Nations has influenced my approach to the role of internationalintemational law both generally and in relation to Australian law. It has sharpened my perception both of the potential of to assist j the development of Australian law and of the difficulty wnichwhich that potentialpotenrial I~;;'1 1'.···J~i presents for both legal theory and practical implementation. I" In ways which I have described elsewhere, my eyes were opened to the ['\1, . methods by which internationalintemational human rightS treaties could be utilised in the r< daily work of the courts by my participation in a conference in Bangaiore. India.rndia. seven years ago. 1 The purpose of this paper is; to[0 describe the pi Bangalore Principles; to illustrate their growing acceptance in Australian ' courtsccurts and in other countries of the common law; and to demonstrate the I,~ many practical instances in which international human rights law can be of assistance in understanding and developing Australian common and stamte law. IiI.t i 11 L

Adapted. in ;:m;:m;t..... " frGm :l paper presented by t..1ew1c :luthot:luthor to th~ N~w Zealand I Judges' Conference. March 1995. "The Impact of International Human Rights :--.lorrns-Law~orrns-Law Urjd~rgoing Evolution".Evolution", President of the NSW Court of Appeal and Chainnan of the Executive i,1 Committee of the International Commission of Jurists. I.'J :-ADMD Kirby,Kirby. "The Austraiian Use of International Human Rights Nonns:Norms: From I" Bangalore to Balliol-A View from the Antipodes" (1993) 16 University of I' N~w Sourh Wales Law JoumoJ.363.JoumaJ.363. I' i:i1 ~

, ;1 II] !

r

"~ ! 7%7% 22 Treaty-,\.{aldngTreaty",\.{aking andandAustralia Australia

TheThe BangaloreBangalore PrinciplesPrinciples TheThe traditionaltraditional viewview ofof mostmost commoncommon lawlaw countriescountries hashas beenbeen thatthat intemationallawintemationallaw isis notnot partpart ofofdomestic domestic law.law. BlackstoneBlackstone inin hishis Commentaries,Commentaries, suggestedsuggested that:that: TheThe lawlaw ofofnations nations (whenever(whenever anyany questionquestion arisesarises whichwhich isis properlyproperly thethe objectobject ofof itsits jurisdiction)jurisdiction) isis herehere [in[in England]England] adoptedadopted inin itsits fullfull extentextent byby thethe commoncommon law.law. andand isis heldheld toto bebe partpart ofofthe the lawlaw ofofthe the landJand22 SaveSave forfor thethe UnitedUnited States,States, wherewhere BlackstoneBlackstone hadhad aa profoundprofound influence.influence. thisthis viewview camecame toto bebe regarded,regarded, virtuallyvirtually universally,universally, asas beingbeing "without "without foundation"}foundation"} InIn Australia,Australia, MasonMason JJ explainedexplained thethe .traditional.traditional positionposition inin 19821982 inin thesethese terms:terms: ItIt isis aa well settledsettled principleprinciple ofof thethe commoncommon lawlaw thatthat aa treatytreaty notnot tennioatingtennioating aa statesute ofof war hashas nono legallegal effecteffect uponupon thethe rightsrights andand dutiesduties ofof AustralianAustralian citizenscitizens andand isis notnot incorporatedincorporated intointo Australian lawlaw 0000 itsits ratificationratification byby Australia...... ToTo achieveachieve thisthis resultresult thethe provisionsprovisions havehave toto bebe enactedenacted asas partpart ofof ourour domesticdomestic law,law, whether byby aa Commonwealth oror StateState statute,statute, SectionSection 51(x:dx)51(xxix) [the[the externalexternal affairsaffairs power]power] armsarms thethe CommonweaJthCommonwealth ParliamentParliament."to...to legislatelegislate soso asas toto incorporateincorporate intointo ourour lawlaw thethe provisionsprovisions ofof [international[international conventions]:~conventions]:~ More recently,recently, however,however, aa newnew recognitionrecognition hashas comecome aboutabout ofof thethe useuse thatthat may be made by judgesjudges of internationalmternational humanhuman rightsrights principles andand theirtheir exposition by thethe courts, tribunalstribunals and other bodies established toto givegive themthem content and effect. This reflectsreflects both thethe growing body of internationalinternational humanhuman rightsrights lawlaw and thethe instruments,instruments. both regionalregional and international,imernational, which givegive effect toto thatthat law.law. ItIt furthennorefurthennore recognisesrecognises thethe importanceimportance ofafthethe contentcontent ofof thosethose laws.laws, An expression thatthat seems toto encapsulate thethe modern approachapproach was given inin February 1988 inin Bangalore, IndiaIndia inin thethe so-called Banga/ore Principles.Principles, The BangaloreBangaiore PrincipJes5 state, inin effect, that:that: (I)(1) International law,law, whether human rights nonns or otherwise, isis not, as such, part of domestic law in most common law countries; (2) Such law does not become partparr of domestic law until Parliament so enacts or the judges, as another source of law~making,law-making, declare thethe norms thereby established to be part of domestic law;

2 Quoted in Chow Hung Ching v The King (1948) 77 CLR 449 at 477. J3 Note 2 above,above. at 477. 4 Koowarta v Bjelke-PetersenBjelke.Petersen and Drs (1982) 153 CLR 168 at 224f.224f, See comment [1994] NZLJ 433.at 434. See Kirby, n 1 above.above, at 373f • A

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Role a/International Standards inin Aust1'alianAustl"alian Courrs 33

(3)(3) The jUdge~judges will not do .50so auto.matic~lIy.automatically, simply because the.the nonnnonn isis Pa:tpart ofintematlOnallawofintemationallaw or ISis mentioned min a treaty,treaty, even one ratifiedratified byby theirtheir own count:ry;country; (4)(4) But ifif an issueissue of uncertainty arises, as by a lacunalacuna inin thethe commoncommon law,law, obscurityobscuriry inin itsits meaning or ambiguity inin a relevantrelevant starute. aa judgejudge may seek guidance inin thethe general principles of internationalinternational law,law, asas acceptedaccepted by thethe community ofnations; and (5)(5) From thisthis source material.material, thethe judgejudge may ascertain and declare what thethe relevantrelevant rulerule of domestic lawlaw is.is. ItIt isis thethe action ofof thethe jUdge,judge, incorporatingincorporating thethe rulerule intointo domestic law,law, which makes itit partpart ofof domestic law.Jaw. Some lawyers. and not a few judges.judges, brought up in the tradition of thethe strict divide between international and municipal law, were inclined at first toto regard the Bangalore Principles as erroneous.6 They regarded with scepticism the amount of assistance which could be derived from an international treaty,treaty, other international law or the pronouncements of international or regionalregional couns, tribunals and committees.

High judicial pronouncements In the seven years since Bangalore,Bangaiore, however, something of a sea change has come over the approach of couns in Australia,Australia. as well as in New Zealand and England. The clearest indication of the change in Australia can be foundfound inin thethe remarks of Brennan J (with the concurrence of Mason CJ and McHugh J) inin Maho v Queensland [No 2].7 In the course of explaining why a discriminatory doctrine, such as that of terra nullius (which refusedrefused toto recognise the rights and interests in land of the indigenous inhabitants of a settled colony such as Australia) could no longer be accepted as part of thethe law of Australia, Brennan J said: The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of the international remedies to individuals pursuant to Australia's accession to the Optional Pr%ealtoPr%eollo the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does notnOl necessarily confonn with international law.law, but international law is a legitimate and

See ego Samuels JA in Jagolago v District Court of New South Wales and Ors (1988) 12 NSWLR 558 (CA) at 580f. (1992) 175 CLR I.

, .... ' ..... 7'17

4 Treaty-Making and Australia

important influence on the development of the common law.law, especially when international law declares the existence of universal human rights. 8 To similar effect were the remarks of the English Coun of Appeal in Derbyshire County Council v Times Newspapers Limited,9 a decision later substantially affrnnedaffmned by the House of Lords.Lords.!OlO In a sense, it paved the way for the reasoning of Brennan J in Mabo and was referred to by him. In the course of his reasoning on a libel question. Balcombe LJL1 referred to article 10 of the European Convention on Hwnan Rights to which the United Kingdom is a party. That article relates to freedom of expression. His Lordship observed: Article 10 has not been incorporated into English domestic law. Nevertheless itil mavmay be resorted to in order to help resolve some uncertainty or ambiguity in municipalmuni~ipaJ law: per Lord Ackner in Reg v Secretary of State for the Home Department: &£. parte Brind [1991J I AC 696. 761. Thus (I) Article 10 may be used for the purpose of the resolution of an ambiguity on EnglishEngJish ... legislation ... (3) Article 10 may be used when the common law ... is uncertain. 1III A similar question was presented to the New South Wales Coun of Appeal in Ballina Shire Council v Ringland. 12 A majority (Gleeson CJ and Kirby P; Mahoney JA dissenting) followed Derbyshire. In coming to our respective conclusions, both Mahoney JA 13 and 111414 referred to the provisions of article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) which Australia has ratified. Following as it did Mabo, nobody questioned in Ringland the relevance of a consideration by the court of applicable international hwnan rights principles in assisting it to come to its conclusions about the content aflocalof local common law. In New Zealand. the same trend has emerged. There, the position is somewhat different from that in Australia and England, by reason of the enactment of the New Zealand BillBil! ofRights Act 1990./990. 15

Note 7 above, at 42. See also Dietrich v The Queen (1992) 177 CLR 292 at 330. 337. 361, 365. Compare, G Triggs. "Customary 100ernationalIOiemational Law and Australian Law" in AJ Bradbrooke and.AJand.A1 Duggan (eds), The Emergence of Australian Law,Law. Buaerworths, Sydney, 1989. PPpp 376, 381: BF Fitzgerald, "International Human Rights and the " (1994) 1 James Cook UniversityUniversify Law Review 78. 9 [1992J[1992) QSOB 770 (CA). 10iO [1993J[1993) AC 534 (HL). II Note 9 above. at 812. 12 (1994)33 NSWLR 680 (CA). 1JlJ NoteNote!12 2 above.abovl!. at 721. 14 Note 12 above. at 699. 15 Compare. M Mulgan. "Implementing International Human Rights Norms in the Domestic Context: The Role of a National Institution" (1993) 5 Canterbury

"~ . 7'18

Role a/Internationalo/International Standards in Australian Courts 5

In Minister a/Transport v Noort; Police v Curran,l6 the New Zealand Court of Appeal concluded that in interpreting the Bill of Rights Act it was of "cardinal importance" to consider and to give effect to the Act's "antecedents". Cooke regarded the ICCPRlCCPR as one of the Act's most important "antecedents". The extent of a possible obligation on the part of New Zealand ministers to have regard to international human rights nonnsnanns was considered by the Court of Appeal in Tavita v Minister ofImmigration. 17 Delivering the interim judgment of the New Zealand Court of Appeal.Appeal, Cooke P stopped short of deciding that international obligations must be considered in the perfonnance of the administrative decision·making process.process.! ~ S His Honour described the position in New Zealand: . Since New Zealand's accession to the Optional Protocol the United Nations Human Rights Committee is in a sense pat! of the country'scounoy's judicial structure, in that individuals subject to New Zealand jurisdiction have direct rights of recourse to it. A failure to give practical effect to internationalinternatiOnal instrumentS to which New Zealand is a party may attract criticism. Legitimate criticism could extend to the New Zealand Courts. if they were to accept the argument that, because a domestic statute giving discretionary powers in general terms does not mention international human rights nOnTIS or obligations, the Executive is necessarily free to ignore them. 19

Cases applying the Bangalore Principles In an earlier essay,20essay,20 I collected a number of decisions of the High Court and of the New South Wales Court of Appeal in which reference had been made to international human rights principles in the development of the understanding of localJocal law. As well as appearing in these two courts,21 such

Law Review 235: J Craig, "The 'Bill of Rights' Debates in Australia and New Zealand-A Comparative Analysis" (1994) 8 Legal SludiesStudies 67. See also R v Goodwin [1993]2[1993] 2 NZLR 153 (CA) at 168. 16 Jl992J[1992J J NZLR 260 (CA). 17 11994J(1994J 2 NZLR 257 (CA). 18 Note 17 above.above, See B O'Callaghan, "Case Note: Tavita v Minister for Immigration" (1994)(\994) 7 Auckland University Law Review 762 at 764. 19 Tavita.Tavita, n 17 above, at 266. 20 See Kirby. n 1 I above.above, 21 See ego Daemar v InduSlrial Commission of New South Wales (1988) 12 NSWLR 45; 79 ALR 59159\ (CA); S & M MolorMolar Repairs Pty Limited v Calle:t Oil (Australia)(Aust,.afia) Pry Limited and Anor (1988) 12 NSWLR 358 (CA); Jagolago v District Court a/New Soulh Wales.(1988) 12 NSWLR 558 (CAl(CA) at 569: see now (1989) x 168 CLR 23, .

...... '.' '('13 t 66 Treaty-MakingTreaty-Making andandAustralia Australia !I casescases havehave comecome beforebefore thethe FederalFederal Court.Court,2222 thethe FamilyFamily CowtCourt2J23 andand inin thethe 2424 I CourtCourt ofofCriminal Criminal AppealAppeal ofofNew New SouthSouth Wales.Wales. InIn manymany ofofthe the decisions,decisions, aa i featurefeature ofofthe the reasoningreasoning isis thethe referencereference byby thethe judges,judges, notnot onlyonly toto thethe texttext ofofa a ! relevantrelevant internationalinternational insmunent.insmunent. butbut alsoalso toto thethe developmentdevelopment ofof thethe I jurisprudence by courts, tribunals and committees. particularly by the jurisprudence by courts, tribunals and committees. particularly by the I: EuropeanEuropean CourtCourt ofofHuman Human Rights.Rights. AustraliaAustralia lackslacks anan establishedestablished frameworkframework forfor referencereference toto jurisprudencejurisprudence Ii developeddeveloped aroundaround humanhuman rightsrights provisionsprovisions expressedexpressed inin internationalinternational law.law. I ThisThis hashas notnot howeverhowever stoppedstopped thethe couns,couns, inin thethe mannermanner suggestedsuggested inin thethe Ii BangalBangaloreore Principles.Principles, fromfrom utilisingutilising internationalinternational lawlaw wherewhere aa relevantrelevant gapgap Ii appearsappears inin thethe commoncommon lawlaw oror aa starutestarute fallsfalls toto bebe construedconstrued whichwhich isis ambiguousambiguous oror uncertainuncertain ofof meaning. Increasingly,Increasingly, judgesjudges ofof ourour tradition,tradition, facedfaced with suchsuch aa problem,problem, areare turningruming notnot simplysimply toto thethe analogousanalogous reasoningreasoning which theythey cancan derivederive fromfrom pastpast judgments.judgments. written oftenoften inin aa differentdifferent worldworld forfor differentdifferent socialsocial conditions.conditions. Now, increasingly,increasingly. theythey areare looking,looking. where where relevantrelevant andand applicable,applicable, toto internationalinternational humanhuman rightsrights jurisprudence.jurisprudence. InIn mymy view,view, thisthis isis bothboth aa naturalnatural andand desirabledesirable development,development, andand oneone thatthat isis particularlyparticularly aptapt inin thisthis timetime ofofglobalisation. globaiisation.

Cautionary taiestales Critics of thethe developments which I have outlined would listlist a number ofof considerations which certainly need toto be takentaken intointo account as thethe judgesjudges venture upon thisthis new source of law-making.law-making. A primary concern often stemsstems fromfrom thethe factfact thatthat treatiestreaties are typicallytypically negotiated by thethe executiveexecutive government, as thethe modem manifestation of thethe Crown, with littlelittle oror nono parliamentary participation. The executive, when making treatytreaty decisions,decisions. thusthus mayor may not reflectreflect thethe will of thethe people as expressed inin Parliament. Processes of ratificationratification are often defective. For example, thethe FederalFederal Government's accession toto thethe First Optional Protocol toto thethe ICCPR,ICCPR. beforebefore the instrument was even tabled in Parliament,Par liament, has been describeddesc6bed by one

22 See eg. Minister for Foreign Affairs v Magno (1992) 37 FCR 298 (FFC): 112 ALR 529 at 534f: Teoh v Minister for Immigration and Ethnic Affairs (1994)(1994) 121 ALR 436 (FFC) at 443 (Black J). 23 See ego Re Marion (1990) 14 Fam LR 427 at 449:449; contrast Re Jane (1988)(\988) 12 Fam LR 662. 24 See eg, R v Greer (1992) 62 A Crim R 442 (NSWCCA); R v Astill (1992) 63 A Crim R 148 (NSWCCA); R v Sandford (1994) 33 NSWLR 172 (CCA) at 177f. 185t:185f. See also. Director of Public Prosecutions for the Commonwealth v Saxon (1992) 28 NSWLR 263 (CA); CanellisCane/lis vy Slattery (1993) 33 NSWLR 104 (CA) (reversed HC).

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RoleRole ofofInternational International StandardsStandards inin AustralianAustralian CourtsCourts 77

observerbserver asas ·'extraordinary·'extraordinary ...... withoutwithout anyany publicpublic debatedebate oror eveneven publicpublic ~warenessawareness ofof itsits existence.existence. letlet alonealone itsits scopescope andand significance".25significance".25 InIn federalfederal countries.countries. suchsuch asas Australia.Australia. thethe ratificationratification ofof internationalintemational treatiestreaties andand theirtheir useuse byby courtscourts maymay bebe aa meansmeans toto undermineundermine thethe distributiondistribution ofof powerspowers berweenberween thethe federalfederal andand SlateSlate legislatureslegislatures inin aa wayway nevernever contemplatedcontemplated byby thethe draftersdrafters ofof thethe Constirution.Constirution.2626 OneOne reasonreason advancedadvanced forfor usingusing kgislationkgislation toto introduceintroduce anan aspectaspect ofof intemationallawintemationallaw intointo domesticdomestic lawlaw inin aa federation.federation. andand toto refrainrefrain fromfrom introducingintroducing suchsuch principlesprinciples byby judicialjudicial decision.decision. isis thatthat thisthis coursecourse willwill permitpermit thethe constitutionalconstitutional validityvalidity ofof thethe statutorystatutory introductionintroduction toto bebe testedtested inin thethe courtS.courtS. JudicialJudicial introductioninrroduction ofof hwnanhwnan rightsrights normsnorms maymay divertdivert thethe communitycommunity fromfrom thethe moremore open,open, principledprincipled andand democraticdemocratic adoptionadoption ofof suchsuch normsnorms inin constitutionalconstitutional oror stJ.tutorystatutory amendmentsamendments whichwhich thenthen havehave thethe legitimacylegitimacy ofof popularpopular endorsement.endorsement. ItIt isis uponupon thisthis groundground thatthat somesome criticismcriticism hashas beenbeen voicedvoiced ofof thethe recentrecent discoverydiscovery byby thethe HighHigh CourtCourt ofof fundamentalfundamental rightsrights toto bebe impliedimplied fromfrom thethe naturenature andand purposespurposes ofof thethe ConstitutionConstitution althoughalthough notnot expressedexpressed therePthereP ThoseThose whowho holdhold toto thisthis viewview urgeurge thatthat itit would bebe !~ preferablepreferable toto engageengage inin aa nationalnational debatedebate andand openlyopenly toto embraceembrace anan enactedenacted , Bill ofof Rights thanthan toto acceptaccept suchsuch aa developmentdevelopment fromfrom aa well-meaningwen-meaning judiciary.judiciary. introducing introducing itit "by"by stealth".stealth". SomeSome commentatorscommentators havehave alsoalso expressedexpressed sceptiCismscepticism about thethe internationalinternational courts.courts. tribunalstribunals andand committeescommittees which pronouncepronounce uponupon human rights.28rights. 28 These commentatorscommentators argueargue thatthat thethe variousvarious armsarms ofof governmentgovernment shouldshould bebe wary ofof making decisionsdecisions thatthat may denydeny theirtheir ownown legallegal and social history,history. forfor thethe sake of internationalinternational conformity. To similar effect. critics have pointed toto thethe generality of thethe expression of thethe provisions contained inin internationalinternational hwnan rightsrights instruments.instruments. Of necessity, thethe charters are expressed inin languagelanguage which lackslacks precision. This means thatthat thosethose who use themthem may be temptedtempted toto readread intointo the broad languagelanguage what theythey hope, expect or want to10 see. Whilst thethe judgejudge of the 1·, common law tradition has an indisputably creative role.role, such creativity must r ,!' ~5 A Twomey. Procedure and Practice of Implementing International Treaties, r Parliamentary Research Background Paper No 27 (1995), pP 9. !; 26 See ego MD Kirby. "Human Rights-The International Dimension~', address. ! Parliament House. Canberra. 17 FebruarvFebruary 1995 in Australian Parliament. i~ Senate. Occasional Papers (forthcoming). . 'I 27 See eg. 0 Rose. "Judicial Reasonings and Responsibilities in Constitutional Cases" (1994) 20 Monash University Law Review 195; A Fraser. "False Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution" (1994)(1994) 16 Sydney Law Review 213; L Zines,Zines. "A Judiciallyjudicially Created Bill of Rights?" (1994) 16 Sydney Law Review 166. ~g~8 See ego R v JejJries [1994] 1 NZLR 290 (CA) at 299. I I !

:_C~ i_e: i·c;· :',- to. '~'1 ':'1

8 Treary-Making and A.ustralia nevertheless proceed in a judicial way. It must not undennineundermine the primacy of democratic law-making by the organs of government, directly or indirectly accountable to the people.29 Finally, some critics caution against undue. premamre undennining of the sovereignty of a country by judicial fiat and the authority of every country's law-makers to develop human rights in their own way, at least when they are democratically elected and accountable. Itrt would be ironic if the advance of international human rights principles were to undermine the variety of human legal systems and the democratic accountability which must itself be respected by the courts.

Support for the Bangalore Principles Against the foregoing considerations.considerations, the supporterssuppoJ1ers of the Bangalore Principles rely on a number of~. ~ The Bangalore Principles do not threaten the sovereignty of national law­ making institutions. They acknowledge that if those institutions have made, by constitutional, statutory or common law decision, a rolerule which is unambiguous and binding, no international human rights principle can undermine or overrule the applicable domestic law. To introduce such a principle requires the opportunity of a gap in the common law or an ambiguity of a local statute. Then, by direct legislation or indirect introduction by the judicial branch of government, the principle can be imported into the law of the sovereign country. Far from being a negation of sovereignty, this is an application of it. The process which the Bangalore Principles endorse is, in a sense, as Brennan J described it in Mabo,Mobo, an inevitable one. As countries like Australia, by subscription to the First Optional Protocol, submit themselves to the external scrutiny and criticism of their laws by the United Nations Human Rights Committee.Committee, the result must be addressed. If a domestic law is measured and found wanting, a country is then obliged to bring its law into conformity with the treaty. to withdraw from the treaty if it may, or to be revealed as nothing more than a practitioner of human rights "window­ dressing". Modem notions of democracy are more sophisticated than they formerly were. They involve more than simply the reflection in law-making of the will of the majority, intermittently expressed upon a broad range of issues. It is now increasingly accepted that the legitimacy of democratic governance depends upon the respect by the majority for the fundamental rights of

29 See eg,eg. Brennan J in Dietrich v The Queen (1992) 177 CLR 292 at 323. I"" ...... , ~-...... :; Role olIn/ernationalo/International Standards inin A.ustralian Courts 99 minorities.30minorities.JO Therefore. inin so farfar as courts give effect at leastleast toto fundamentalfundamental rights.rights. theythey are assisting inin thethe discharge of theirtheir governmental functionsfunctions toto advance thethe complex notion of democracy as itit isis understood today.today. The view has been expressed thatthat a federalfederal Parliament and governmentgovernment isis a tnlSteetruStee inin a federalfederal country forfor thethe internationalinternational standards ofof thethe world community and itit isis thethe responsibilityresponsibility of thethe federalfederal polity toto bebe thethe nation'snation's voice.31voice. J 1 The power of a federalfederal Supreme Court toto strike down excessiveexcessive lawslaws and toto measure all lawslaws against thethe standards of thethe Constitution, ensureensure thatthat such lawslaws meet thethe requirementsrequirements of constitutionality. FederaJ constitutionsconstitutions must themselvesthemselves adapt toto thethe world inin which thethe federationfederation findsfinds itself.itself. This. indisputably,indisputably, isis a world of increasingincreasing interrelationshipsinterrelationships inin matters ofof economics and of human rights. Judges, no less than legislatureslegislatures and governments, can afford to ignore this r~ality. Giving effect to intemationallaw,international law, where a country has formallyformally ratifiedratified a relevant treaty. does no more than give substance to the act which thethe executive government has taken. The knowledge that the judicialjudicial use of intemationallaw in this way is now becoming' more frequentJmayfrequent,may have thethe 1$:.-t$:. beneticial consequence of discouraging ratification where there isis no serious '' intention to accept for the nation the principles contained in thethe rreaty.rreaty. The international development of local law is already happening outside the judiciary. For example. international human 'rights principles are being introduced into domestic law by express legislation.32 Sometimes thatthat legislation follows detenninations of a relevant international body. This was the case in the recent Human Rights (Sexual Conduct) Act 1994 (Cth),(Cth), which followed the decision of the United Nations Human Rights Committee inin determining the communication by Nicholas ToonenTooneo concerning Tasmanian laws on homosexual offences.333J Given that other branches of government are giving effect to international human rights law, it is scarcely surprising thatthat

)0JO See H Charlesworth, "Protecting Human Rights" (1994) 68 Law Institute Journal 462 at 463; C Caleo.Caleo, "implications"!mplications of Australia's Accession to the First Optional Protocol to the ImcmationalImemational Covenant on Civil .andand Political Rights (1993) 4 Public Law Review 175. JI31 See H Charlesworth,Charlesworth. "The Australian Reluctance About Rights" in P Alston (cd).(ed). Towards an AustralianAuslralian 8mBill of Rights Human Rights and Equal Opportunity Commission and the Centre for International and Public Law. Canberra. 1994,1994. p 53. J232 See egoel!.. Privacy Act 1988 (Cth). ..----,.---- [-#"If:f""'f: ))JJ Toonen v Australia. UN Doc. CCPRJCI50fDI488!1992CCPR/CI50fDI48811992 (4 April 1994j.(For1994).(For (/'i'pv 61 AL7/ discussion see A Funder.Funder, ''The Toonen Case" (1994) 5 Public Law Review 156; "v() G Selvaner. "Gays in Private. The Problems with the Privacy Analysis in Furthering Human Rights" (1994) 16 Adelaide Law Review 331: W Morgan. "Protecting Rights or Just Passing the Buck?" (1994) 1I AustralianAUSlralian Journal 010/ Human Rights 409. '~ 7 J . .J

1010 Treaty-MakingTreary-Making andand Australia thethe courts.courts. asas aa branch of government.government, areare alsoalso takingtaking suchsuch lawlaw intointo accountaccount inin appropriateappropriate casescases andand inin permissible circwnstances.circwnstances. The developments justjust described areare hardly surprisingsurprising or threatening.threatening. atat leastleast theythey shouldshould not be soso toto judgesjudges andand lawyerslawyers of our tradition.tradition. The internationalinternational human rightsrights instrumentsinstruments were,were. forfor thethe most part,parr. drawn up by Anglo-American lawyers.lawyers. InIn countriescountries suchsuch asas Australia. theirtheir conceptsconcepts areare often alreadyalready enshrinedenshrined inin constitutional,constitutional. starutorystatutory or commoncommon la:wla:w principles. ItIt isis thethe jurisprudencejurisprudence which isis now collectingcollecting aroundaround thesethese broad conceptsconcepts thatthat isis often helpful inin facingfacing thethe kinds of problems which societiessocieties must addressaddress wday.wday, That isis why itit isis appropriateappropriate andand useful forfor thethe commoncommon lawlaw now toto modify itsits earlierearlier principle of strictstrict separationseparation of internationalinternational andand domestic Jaw.law. It is timely that a rapprochement between these systems of law should be developed. As we enter a new millennium where there will be increasing international law of every kind,kind. it is part of the genius of our legal system that our courts have found a way to take cognisance of international human rights jurisprudence in appropriate circumstances and by appropriate and familiar techniques of reasoning.

An amber light? In a paper delivered before his retirement as Chief Justice of Australia,Australia. Sir referred to the idea behind the 8angaloreBangalore Principles. Sir Anthony stated that the High Court did not hold the view that any gap in the common law should be filled through the use of international conventions.34 Lest it should be thought that the High Court in Teoh has rejected the Bangalore idea,idea. it is important to reflect upon what the judgesjUdges actually stated. The judges' comments on the point are peripheral to the main subject matter of the case. It concerned a challenge to a fmding of a delegate of the Minister for Immigration and Ethnic Affairs. In the Full Federal Court.COllIt. a majority held that Australia's ratification of the Convention on the Rights Of The Child created a "legitimate expectation" for the purposes of the rules of natural justice in administrative law,law. Thus parents and children had a legitimate expectation that any action or decision by the Commonwealth would be conducted.conducted, or made, in accordance with the principles of the convention.35 The High Court upheld the Federal Court ruling and it was this issue which led the High Court into a consideration of the relevance of the

34 A Mason, "Towards 2001-Minimalism. Monarchism or Metamorphism?", The Third Lucinda Lecture.Lecture, Monash University. II April 1995J995 in Monash Univtrsiry Law Rtvitw (forthcoming). 35 Teoh v MinisterMinisler for Immigration. Local Government and Ethnic Affairs (1994) 121 ALR 436 (FFC).

.,. ...:' :...... -...,. '' ....'.';',' -.';'.' ,.,. ., ,. ! 't

Role of International Standards in AuStralian Courts II! I

":cJnve:1tion to Australian law.law, givengiv~n that,~at. as such, it had not been incorporated in(Qinw AllstralianAustralian law by federalfederalleglslauon. legislation. In the course of their judgment dismissing the appeal, Mason CJ and D.::meD.::mc J said this: W11.:r.: J starutest::uute or subordinate kgislationkgisJation is ambiguous,ambiguous. the courts should IJ,VllurIJ,vllur thatthaI ccnstructionccnstruclion which accords with Australia's obligations under a ~r..:~[" 1)rO( intern;}!io:'!:!lintemmio:'l:ll .;onvent!on,;onventlon to which Australia is a par-y,par-yo at leastleasl in ;ho:'~ ":J.S':S":,lses :n \.,hlCh\.. hJch the :cg,isi;ltion:cg,isiation )sis enacted after,after. or in contemplation or: ':;j{;-'C;j{;-'.. ;1:,) 0r r:uiricationr::uiri..:alion 0( the relevant international ;nsrl11mcnt.;nstrument. That is ,~.:~~;,,~.:,~c..:~;,,~.: p;u-i1:unenLp;u-il:unenL primJ.prima facie. intends to give effect to Australia's ,1bhgJ.ti,)ns,1bhgali,)ns tmeertWeeT InternationalInlernational law . .. . If the(he ianguJ.gelanguage of ,he legislation is susceptible ofof:l a construction which is consish:nt.;onsisl.::nt with the terms of the international instrumentins01.lm.::nt JIldand the obligations which it imposes on Australia. then that construction should prevail. So express.:d,expressed. the principle is no more than a canonc~on. of constructioncons01.lcti~n. and does not importimoort theth.:: tennstcnns of the treaty or convention intolOtO our municipalmUOlclpal law as a so~rce ofindividuaJof individual rights

36 ~'v!i~ISt(!rA1imSIt:r for Immigral:on.Immigral:on, and Ethnic Affairs \I Teoh (1995) 128 ALR 353 at ~6_. ~ 362. 7~S

12 Treaty-Making and Australia

rules of customary international law. International conventions may also play 37 a part in the development ofafthethe common law.]7law. For the last statement, his Honour referred to the crucial passage in the judgment-udgment of Brennan J in Mabo (above) and to Dielricf138 as well as to two J -,.'9d-R-ld4040 opinions of my own 10in "ago-JagQJ9 anand illin Ringland.mg an . Therefore. far from rejecting the BangaloreBangaJore idea, the decision in Teoh endorses the basic concept. It cautions against a rude invention of the common law by judges, using unincorporated conventions as a "back-door" means of incroducing creatytreaty law where Parliament has held back. With that caution I am in entire, respectful agreement. I believe that such caution is expressed, in terms, in the BangaJoreBangalore Principles themselves.

Conclusion The influence of treaty law upon Australian law is growing. The powerful influence of international standards will have an increasing impact on the development of the common law and statute law in Australia. The full evolution of the technique described in the Bangalore Principles has not yet been achieved. But the idea is now amongst us. It is a powerful idea. It is one appropriate to the times in which we live. It is one which promises a gradual harmonisation between internationally accepted principles and the mWlicipaimWlicipal law ofa country such as Australia. From a subject of esoteric interest to a few lawyers advising states and international agencies, international law is increasingly becoming of relevance to Australian law. If then we look to the United Nations and law· making for the 21 st century, we can scarcely overlook the way in which treaty law, adopted under the United Nations,Nations. is coming to influence Australian law, directly and indirectly. It is the privilege of lawyers of this generation to contribute to this inevitable and naturalnarural historical development. But first they must realise that it is happening, and why.

]7)7 Note 36 above, at 384. 38 Dietrich v The Queen (1992) 177 CLR at 321 at 360. ]9)9 logoJogo v District Court a/New South Wales (1988) 12 NSWLR 558 (CA) at 569. 40 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 {CAl(CA) at 709f.