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Australian Year Book of International Law |
Shane S Monks[∗]
International law is now much more visible in Australian courts. International law, and human rights conventions in particular, have been relied upon in a variety of contexts: as an aid to statutory interpretation, for assistance in interpreting and developing the common law, and even to raise a legitimate expectation. The cause has been a shift in the predominant form and substance of international law to conventional international law dealing with subject matter that is not ‘inherently international’[1] in character. This has greatly increased the scope of international law and its relevance to municipal courts. This article seeks to counter the criticism that has arisen as a result of this change.
Some of the criticism is directed simply at the fact that Australian courts are more frequently making use of law that is international in source. The most public criticism has been in relation to international organisations reviewing Australian compliance with human rights conventions, for example the Toonen Case[2] in 1994 and more recently, mandatory sentencing laws and the treatment of indigenous Australians. Much of the criticism encompasses wider questions about the respective roles of the executive, legislature and judiciary in the Australian polity. Serious policy issues are involved, and even some of the more intemperate commentators have raised legitimate questions. In order to provide a framework for discussion, five ‘heads’ of concern will be discussed in turn: loss of sovereignty, democratic deficit, states’ rights, practicality and judicial activism. It will be argued that the criticism is largely not sustainable; rather, the increased use of international law ought to be welcomed, not just as an inevitability, but as a positive and beneficial development, and Australian lawyers and judges should continue to become more familiar with it.
The following comment, by an Emeritus Professor of Law in the University of Sydney, is representative of criticisms concerning loss of sovereignty:
when the [High] Court pursues international law for domestic purposes, the Court sells out local parliamentary sovereignty to a law ‘enacted’ outside the community and at times, interpreted by tribunals outside the community.[3]
Similar remarks have been made by other commentators and politicians. They include the following:
The present generation of Australians do not want their laws made in London or at the UN.[4]
[A]re Australians to be masters of their own affairs or are Australians to give away their sovereignty to United Nations committees? … The membership is appointed by governments that often ignore the decisions of the committee and yet Australia binds itself and feels required to obey.[5]
[S]o many contemporary Australians determined to protect us from the non-existent threat of English tyranny, fall over each other in a scramble to surrender Australian sovereignty to a rag-tag and bobtail of unrepresentative United Nations committees, accountable to nobody.[6]
These comments cannot be dismissed simply by reference to party politics. Senators Kemp (Liberal) and Walsh (Labor) come from opposite sides of the political spectrum, and Malcolm Fraser’s work against apartheid, and his opposition to mandatory sentencing[7] are not indicative of general hostility towards international human rights norms. They can however be explained as being motivated particularly by the Toonen Case.
On 4 April 1994, the United Nations Human Rights Committee (UNHRC) found that the Criminal Code of Tasmania violated article 17 of the International Covenant on Civil and Political Rights (ICCPR)[8] by criminalising homosexual acts between men and thus infringing their right to privacy.[9] The Commonwealth Parliament responded by passing the Human Rights (Sexual Conduct) Act 1994, which overrode the provision in question.[10] One aspect of the controversy over Toonen is concerned with Parliament’s decision to use the external affairs power in order to implement the decision of an international body. Another aspect of Toonen is the deference to international law.[11]
The Toonen Case was considered by way of written submissions from the author and the Commonwealth government.[12] The UNHRC’s written ‘views’ on the matter were conveyed to the Commonwealth government, which then gave them legislative effect. In this entire process, Australia’s sovereignty was never encroached upon. The UNHRC only had jurisdiction because the executive government of Australia had signed the ICCPR, ratified it, and acceded to the first Optional Protocol. True there were complaints that neither the Commonwealth Parliament nor the states had any say in those decisions, but they are distinct from the issue of sovereignty, and are considered below. The UNHRC’s views had no legal effect in Australian law anyway, as the validity of the Criminal Code of Tasmania was unaffected until the Commonwealth Parliament overrode it.[13] The only means of enforcement open to the UNHRC is publicity. Worth noting is Sir Anthony Mason’s suggestion that an Australian court should have the opportunity to consider communications before the author is forced to resort to the UNHRC. This could allow complainants to obtain redress in a wholly domestic setting, albeit guided by international human rights jurisprudence.[14]
The complaints quoted above referred to the membership of international organisations and the attitude taken towards their decisions by other countries. Although the 18 members of the UNHRC must all be citizens of one of the state parties to the ICCPR, they are elected (and serve) on the basis of their personal qualifications. Individual members ought not to be criticised because their own state’s human rights record is poor; doubtless this only reinforces their appreciation of the importance of the rule of law and respect for human rights. Individual members’ backgrounds cannot have had much impact in Toonen anyway, as the decision was unanimous. Not that the decision was surprising; the European Court of Human Rights (ECHR) has consistently given judgments to the same effect.[15]
When it comes to attitudes taken by other states to their own human rights obligations, Justice Michael Kirby provides the short answer: ‘The faults of others do not constitute a reason for ourselves not seeking to do better.’[16] Surely no-one could suggest that Australia ought to emulate those nations with human rights records that are the subject of international criticism.
In the light of Toonen, a distinct sense of déjà vu was generated by the debate surrounding the mandatory sentencing laws in Western Australia and the Northern Territory. The United Nations Committee on the Elimination of Racial Discrimination (CERD) made critical concluding observations on Australia’s report in 2000 about the mandatory sentencing laws. In the course of rejecting CERD’s comments, Commonwealth Attorney-General Daryl Williams added that they ‘intrude unreasonably into Australia’s domestic affairs’,[17] and stated that in relation to mandatory sentencing the Commonwealth government’s response would not ‘be governed by international obligations or expressed international views’.[18]
The CERD operates in a similar fashion to the UNHRC. Its conclusions should not be dismissed simply because they are critical of municipal laws or practices. That is not to say that the committee is infallible. No court or tribunal is. There may be a legitimate alternative viewpoint to that taken by CERD, especially on issues that are more questions of policy than of law, but the Committee’s comments should be given respectful and careful consideration. If Australia wishes to disagree with the opinions of an international body, the critical focus must be on the reasoning behind the decision, not on the international character of the decision-maker.[19]
Some more general points should also be made about international law and Australian sovereignty. Australia has never enjoyed absolute sovereignty, in the sense of an absolute right to do whatever it wants within Australian territory. Sovereignty must not be confused with independence. The sovereignty of all independent states has always been subject to some restrictions, and not only in their external relations with one another. Some of the longest-standing rules of international law impose restrictions on states’ treatment of diplomats and foreigners within their territory.[20] The view held by some states that they may treat their own citizens as poorly as they see fit, and that such treatment is not the business of other states, is legally unsustainable.
Australia has agreed to be bound by many international conventions across an extremely broad cross-section of law; far beyond the most common focal point for debate, human rights. They include areas as diverse as safety at sea, marine pollution, sanitary standards, radio broadcasting, foreign investment and drug trafficking. It has been estimated that at least 50,000 international conventions have been adopted in the last 50 years, and that around 2,000 international bodies have been created to make the rules and standards that are to be applied under them.[21] The restrictions are most significant in the economic policy areas covered by the World Trade Organization (WTO) and the Organisation for Economic Co-operation and Development (OECD), although it is only in the last couple of years that the impact of these organisations on Australia has become a matter of interest in the general community.[22] It would seem most unlikely that the next century will see a reversal of this trend.[23]
In one sense this is a restriction of sovereignty, in that although Australia consents to be bound by international rules and standards, people and organisations outside of Australia have an input into those rules and standards. It is, however, no more of a restriction than is accepted in other nations and so in any event there is no relative decrease in sovereignty.[24] As a member of these international organisations, Australia has an opportunity to play its part in making these rules and standards. Care must be taken that concerns about sovereignty are not being used to disguise other agendas[25] and do not degenerate into parochialism, jingoism or isolationism. Exposure to other ideas is particularly important for a small nation that is not at the centre of the world stage. Australian courts still give considerable weight to British authorities, and now make increasing reference to decisions from other common law jurisdictions. Why should Australians be reluctant to adopt beneficial rules and standards merely because they are made by organisations and people who are not Australian? Hilary Charlesworth rightly criticises the foolishness of such a ‘just say no’ mentality towards international sources.[26]
A final point about sovereignty is that international conventions, rules and standards (of which the Toonen Case is but one example) only have legal effect in Australia with the consent of either or both of the executive or legislature. If the members of federal Parliament had held the view that the Australian community honestly and with good reason believed that section 123 of the Tasmanian Criminal Code was necessary to prevent harm to Australian society, they had the power to ignore the views of the UNHRC. However, the Human Rights (Sexual Conduct) Act was passed without opposition. Complaints about loss of Australian sovereignty are understandable, but with thoughtful consideration they can be disposed of.
Because entry into international conventions is a matter for the executive,[27] the increasing importance of conventional international law has raised a separation of powers issue. The point is not a new one, being the rationale behind the decision in The Parlement Belge.[28] The executive is not permitted to change the common law by entry into a convention. But with the increased visibility of international law in municipal courts, it is argued by some that parliament ought to be supervising executive actions that, whilst not making a convention part of Australian law, will allow it to be used as an aid to interpret statutes or common law, or even to found a legitimate expectation. Conventional international law has increased in domestic importance to the point where leaving it solely in the hands of the executive creates – it is said – a ‘democratic deficit’.[29]
Although the High Court has long held that the Constitution requires a strict separation of judicial power from executive and legislative power,[30] no such rule applies to legislative and executive power. Such a complete separation is of course impossible under the Westminster system. However, a balance between the two branches still needs to be maintained.
The arrangement whereby the executive enters into conventions is useful, as it allows the government to act quickly in the international arena when urgency is required. Views as to the degree of disadvantage caused by the legislature being shut out of the treaty-making process will differ depending on attitudes about representative democracy: whether a person favours a more participatory model, or allowing governments a relatively free hand between elections.[31]
Although entry into conventions does not itself alter Australian law, because of their more frequent use by Australian courts, it cannot be denied that the executive at the very least exerts influence on Australian law by doing so. Indeed one of the reasons given by McHugh J for his dissenting judgment in the Teoh Case was that in his view, allowing entry into a convention to create a legitimate expectation amounted to allowing the executive to ‘amend the law’.[32] Adding strength to the argument for legislative supervision of treaty-making is the perception that, in general, the executive tends to dominate the legislature.
At this point it is worth noting a distinction between bilateral conventions, such as the one in issue in The Parlement Belge,[33] and multilateral conventions, particularly those that are ratified by a very large number of nations. The British executive, through its diplomatic officers, obviously played a major role in the drafting of the former. On the other hand, the executive government of Australia can have only limited influence on the drafting of the latter. Rather than being viewed as a creature of the executive, multilateral conventions ought to be equated more with customary international law[34] (indeed the two sometimes overlap).[35] Even with Australia’s apparent rejection of the automatic incorporation doctrine,[36] customary international law may still be used to interpret both common and statute law in the same way that conventions may be. It is important, therefore, not to overstate the influence of unimplemented multilateral conventions on the balance between the executive and the legislature.
What would be achieved by giving the legislature some role in the treaty-making process? After all, if the legislature is dominated by the executive, legislative approval is guaranteed, and if the legislature is in control,[37] it should be relied upon to protect its own authority. The answer is that by making the treaty-making process more transparent, people inside and outside the legislature are made aware of what is happening, and are given the opportunity to become involved.[38]
The status quo has been maintained by a persistent executive belief that treaty-making is generally unimportant, and none of the legislature’s (or anybody else’s) business.[39] The legislature, believing the former to be true, was quite happy to acquiesce in the latter.[40] The increasing visibility of international conventions in Australian law, and the issue of who controlled the treaty-making process, began to attract some attention,[41] but the executive and legislature really only took notice when confronted by the international responsibilities imposed by Toonen and the domestic responsibilities imposed by Teoh.[42]
The claim to parliamentary participation cannot be dismissed on the basis that it may pose obstacles to Australia entering into conventions. Legislative scrutiny also poses obstacles to government bills; that is what the legislature is elected to do. It is true that in the United States, the constitutional requirement to obtain the approval of the Senate before a convention may be ratified has long been a barrier to that country’s participation in international conventions. However, in the United States the consequence of ratification is immediate implementation into municipal law. The introduction of parliamentary participation in Australian treaty-making would not, of itself, displace the rule in The Parlement Belge.[43]
Although parliamentary involvement in treaty-making has become an issue in recent times, it is by no means new. Indeed many of the proposed reforms are little more than a revival of earlier practices. The British ‘Ponsonby Rule’ introduced briefly in 1924, before being reintroduced in 1929, required conventions to lie on the table of the House of Commons for 21 days between signature and ratification. The Menzies government adopted a similar procedure in 1961, imposing a 12 sitting-day tabling period. Under the Fraser and Hawke-Keating governments, this evolved into the periodic tabling of a number of conventions. By the 1990s, approximately 50 conventions a year were being tabled in bi-annual batches. Because many of these had already been ratified or acceded to, their tabling really only provided information, not an opportunity for scrutiny.[44] Tabled conventions were not distributed, and time to debate them was very limited in the Senate, and non-existent in the House of Representatives.[45]
The pressure for change came from the Senate. In June 1994, Australian Democrat Senator Vicki Bourne, introduced the first of her two private member’s bills to require the tabling of conventions in Parliament.[46] Then in December 1994 the Senate referred the issue to the Legal and Constitutional References Committee. The Committee reported in November 1995[47] and following a change of government, a package of reforms was announced in May 1996.[48] The reforms were implemented soon after and continue to be followed. They require conventions to be tabled in both Houses, along with a ‘national interest analysis’,[49] for 15 sitting days (anywhere between one and three months), unless urgent ratification is required.[50] During this time, the Parliamentary Joint Standing Committee on Treaties is able to hold hearings and prepare a report. State governments are given an opportunity to express their opinions via a Treaties Council (ministerial level) and a Standing Committee on Treaties (departmental level). Finally, the Australian Treaties Library was established on the internet at AustLII.[51]
A government review of the new procedures published in 1999[52] was enthusiastic about the new procedures. There are, however, no current proposals to enshrine them in legislation. This has avoided the need for debate over the practicalities and enforceability of such legislation.[53] Hopefully parliamentary consciousness of the importance of international conventions has been raised sufficiently so that such legislation is not necessary. The treaty-making process creates important commitments. It should be ‘public, participatory and democratic’.[54]
In a federation the problem of finding a balance between the branches of government has greater complexity. The Commonwealth executive’s power to enter into international conventions has not only attracted the attention of the Commonwealth legislature; it has also attracted the attention of the states.
State governments are in an even weaker position in relation to the Commonwealth executive than the Commonwealth legislature is, yet the potential impact of Commonwealth treaty-making on their authority is considerable. It is now clearly established that legislation implementing provisions of an international convention will be regarded as falling within the external affairs power, irrespective of whether it covers matters that would ordinarily fall within the residue of power allocated to the states.[55] There are good arguments in favour of the efficacy of this approach, although the Canadian experience indicates that the contrary position[56] is quite feasible. It cannot be denied, though, that the expanding scope of international law has created considerable potential for the erosion of ‘states’ rights’ in favour of the Commonwealth, in a way that was not foreseen at federation.[57] This is in fact only one example in a wider debate over states’ rights alleged to be threatened by an increasing centralisation of political power in the Australian federation.
Thus, in a parallel development to the renewed legislative oversight of treaty-making, pressure from state governments has resulted in more formal arrangements for consultation with them before conventions are ratified. This is not a new idea. A practice of consulting state governments before entering into conventions was established in the early years of federation;[58] given the restrictive approach to section 51(xxix) that then prevailed this was essential.[59] Formal standing procedures for consultation have existed since the Premiers’ Conference of 1977, and these have been varied from time to time.[60] The most substantial development was the creation of the Treaties Council and Standing Committee on Treaties in 1996. State governments may now also make their views known through the Parliamentary Joint Standing Committee on Treaties.
The concerns of state governments must, however, be kept in perspective. Statutory implementation must be directed at the convention obligations and whilst some latitude is allowed, the Commonwealth does not acquire unfettered power to legislate on the subject.[61] The most liberal approach merely requires the court to find that parliament had a reasonable basis for concluding that a law was required in order to discharge a treaty obligation known to exist or reasonably apprehended to exist.[62] This restriction will bite rarely, but it would seem to prohibit the Commonwealth government from legislating to require state governments to adhere to a particular rule of international law, whilst allowing itself to disobey. The discharge of Australia’s international obligations must be a shared responsibility. Rather than being seen as an example of a centralising power shift, the impact of international law on state legislative spheres ought to be seen as a part of the increasing and inevitable impact of international rules and standards in Australian law. This impact is not confined to the Commonwealth sphere alone, and there is no good reason for it to be. The legitimacy of states’ concerns is also dependent on the subject matter of the convention in question. It is quite understandable that state governments might object to, say, a convention with New Zealand dealing with the mutual recognition of professional qualifications currently regulated by state bodies, if the Commonwealth entered into that convention without any consultation with the states. But where pleas of states’ rights are no more than a bid to remain free to ignore international human rights norms (whether the issue is Toonen or mandatory sentencing), they deserve no sympathy. If state governments refuse to repeal legislation that is clearly in breach of international law, the Commonwealth must accept its responsibilities on the international law plane, and as in Toonen, pass overriding legislation.
The argument that the use of international law in Australian courts ought to be restricted for practical reasons was put by the Commonwealth in Teoh. The Commonwealth submitted that because of the number of conventions that Australia was party to (an estimate of around 900 was given),[63] it would be impractical to expect administrative decision-makers to consider whether any one of them raised a legitimate expectation of compliance with their provisions.[64]
The volume of international conventions is not just an issue for civil servants wary of the implications of Teoh. If international conventions are to be relied upon with greater regularity in municipal courts, it will be necessary for lawyers and judges to be familiar with their contents, and to be able to advise on matters in their light. Nearly a thousand conventions seems a daunting figure, but closer inspection reveals that the task is rather less difficult than it has sometimes been portrayed.
Although the substance and form of international law has shifted, many international conventions are still concerned with inherently international subject matter, and most are directed at specific circumstances (or states) and drafted accordingly. Australia is a party to only a few dozen significant, multilateral, non-regional conventions.[65] International human rights conventions, with their broad general norms, are the most important from the municipal law perspective, but such conventions are only a handful in number.[66] Even then, the entire convention will not be relevant. Individual provisions will tend to attract certain types of cases. For example, free speech provisions would tend to be referred to in defamation litigation, whilst those protecting family life could be relevant to an immigration appeal.[67]
Compared to the total volume of Australian legislation, the conventional international law relevant to the municipal lawyer is really quite small. Accessing conventions is no longer difficult. The human rights conventions of greatest relevance are scheduled to the Human Rights and Equal Opportunity Commission Act 1986 (Cth), and the internet now allows easy access to international conventions from anywhere in Australia.[68] It is interesting to speculate about how greater accessibility may encourage greater usage.
It is true that many Australian lawyers and judges have little familiarity with international law, however the reality of its increasing importance and municipal visibility cannot be ignored. They must follow their colleagues in Britain, Canada and New Zealand and become more familiar with international law.[69] This does add some complexity to municipal law, but that too is an unavoidable reality. Many areas of municipal law have become more complex in recent years. It is difficult to see that international law has introduced a more onerous intellectual burden than that which has been imposed as a result of developments in other branches of the law. Along with practicality, the issue of complexity was also raised in Teoh.[70] However, in a number of areas, Parliament had already imposed on public decision-makers a similar obligation: namely, to take into account relevant conventions where there is an intersection between the subject in question, and provisions of the convention.[71]
One final practical difficulty must be mentioned: how to take an international law norm and formulate it in a suitable way for application in municipal law. The broad general nature of human rights norms can be a particular problem,[72] although this must not be overstated.[73] Sir John Laws makes the important point that often the norm, and what it requires, is really quite obvious.[74] In the context of administrative decision-making, Toohey J concluded that ‘often no great practical difficulties will arise in giving effect to the principles’.[75] There is a growing body of international jurisprudence to call upon, and one suspects that as international law becomes more familiar, it will be considered less of a problem.
An unusually productive period of common law growth in both public and private law aroused a debate over alleged judicial activism by the High Court. It was particularly a response to the decisions implying certain rights of free speech into the Constitution,[76] and to the native title cases Mabo and Wik. [77] Because these cases involved human rights issues, international law was acknowledged by the Court. This has prompted the complaint that international law is being used as a tool for improper judicial activism. Whether this allegation is justified, the increased use of international law by Australian courts has been in law-making contexts (either as an aid to statutory interpretation or in interpreting and developing the common law), and this has been a matter of judicial choice rather than legislative compulsion. Thus a rebuttal of criticism directed at the increased use of international law in Australian courts is necessarily connected to and interdependent with a defence of the legitimacy of the judicial law-making role.[78]
Despite the fact that over a century ago, John Austin wrote of:
the childish fiction, employed by our judges, that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges …[79]
the traditional (and widely accepted) Australian position has been a cautious one. The orthodox benchmark[80] was Sir Owen Dixon’s extra-curial pronouncement on adjudication in constitutional matters that ‘there is no safer guide to judicial decisions in great conflict than a strict and complete legalism’.[81] That reluctance to engage in judicial law-making is well illustrated by SGIC v Trigwell,[82] in which the High Court acknowledged the difficulties surrounding the rule in Searle v Wallbank[83] but was unwilling to discard it:
[T]his Court, if it agrees that [a previous] declaration was correct when made, cannot alter the common law because the Court may think that changes in the society make or tend to make that declaration of the common law inappropriate to the times.[84]
The approach of Mason J was less conservative, but still cautious:
[A]n ultimate court of appeal can and should vary ... a settled rule ... on the ground that it is ill-adapted to modern circumstances. ... But there are very powerful reasons why the court should be reluctant to engage in such an exercise. The court is neither a legislature nor a law reform agency.[85]
However, in more recent years, the High Court has clearly taken up the spirit of the dissenting judgment of Murphy J with its candid appreciation of the legitimacy and necessity of the judicial law-making role.[86]
The legislatures have traditionally left the evolution of large areas in tort, contract and other branches of the law to the judiciary on the assumption that judges will discharge their responsibility by adapting the law to social conditions. It is when judges fail to do this that Parliament has to intervene. The extreme case is where the judiciary recognizes that a rule adopted by its predecessors was either unjust or has become so and yet still maintains it, suggesting that the legislature should correct it. This is the nadir of the judicial process.[87]
In Dietrich, Brennan CJ made the pragmatic point that:
Legislatures have disappointed the theorists and the courts have been left with a substantial part of the responsibility for keeping the law in a serviceable state, a function which calls for the consideration of the contemporary values of the community.[88]
Clearly, the common law today is not the same as it was in the time of Bracton or Blackstone, and its usefulness would be greatly impaired if it were. The instruments of that change were judges, performing an essential part of the judicial process in common law jurisdictions.[89] Julius Stone neatly encapsulates this role with his reference to judicial ‘leeways for choice’.[90] He considers it fallacious to assert that common law decision-making contains no element of ‘creative choice’[91] and is always dictated solely by logic.[92]
Furthermore, when it comes to statute law, the judicial process is not a mechanical one of applying a rule to established facts. There are occasions when judges will have to choose between interpretations and outcomes. These choices are as legitimate as they are made inevitable by the great many permutations in individual cases.[93] Judicial law-making has only affected the validity of statutes when they have been held to breach an implied constitutional right.[94] The High Court has refused to consider whether, apart from the Constitution, it may impugn a statute for breaching some fundamental common law rights beyond the reach of parliament.[95] Conventional wisdom is that such power,[96] with its roots in natural law theory,[97] fell into desuetude with the constitutional reforms of the Glorious Revolution, and the later rise of positivist jurisprudence. It is an idea, however, that continues to attract academic[98] and judicial[99] discussion, and changing notions about democracy and human rights could conceivably see its revival in the future.[100]
Where judicial law-making arouses controversy, it will often go no further than academic law journals. Judicial law-making in tort and contract is not usually a matter of public interest. Waltons Stores v Maher[101] and the abolition of the rule in Rylands v Fletcher[102] did not attract newspaper headlines or speeches in parliament. The most controversial cases tend to be those that involve issues that the general public finds to be controversial; those that are prominent on the political agenda. Judges must not cross the Rubicon that divides the judicial and legislative functions.[103] But there will always be scope for argument as to where the division actually lies, as it can never be a ‘bright line’.[104] However, as the purely legal content of a problem decreases and its social policy content increases, it must eventually become clear that it is not appropriate for judges to intervene, no matter how sincerely they believe that a particular policy would be beneficial. Lord Reid put the matter simply: ‘Parliament is the right place to settle issues which the ordinary man regards as controversial.’[105] Yet individual views on where the division lies – including Lord Reid’s succinct guideline – are a product of underlying conceptions of democratic theory.
The radical (or direct) democracy of ancient Greece is impractical[106] in modern democracies, which rely on some form of representative democracy. There is much room for argument over which model best represents the views of the electors, and the extent to which, once elected, the legislature’s powers ought to be restricted. Australia falls somewhere in between Britain, with its unwritten constitution and Dicey’s doctrine of parliamentary sovereignty,[107] and the United States with its entrenched Bill of Rights. Australian parliaments have always been subject to constitutional restrictions. The Communist Party Case[108] and the Bank Nationalisation Case[109] show that there is no novelty in politically controversial statutes being struck down as unconstitutional.
But what about when the High Court makes law on a politically contentious issue, either by developing the common law, or implying a new constitutional right? What if that law protects the interests of individuals or minority groups at the expense of majority views, perhaps even majority views expressed by the legislature in a statute? Is that ‘undemocratic’?[110] The answer is that our conception of democracy is, or should be, more complex than mere majoritarianism. The view that individuals and minorities ought to enjoy some protection from the power of the majority is gaining support.[111] Sir Anthony Mason has referred to the ‘evolving concept of a modern democracy’ which ‘goes beyond simple majoritarian government and parliamentary sovereignty’.[112] Both Sir Anthony Mason and Sir Gerard Brennan have made extra-curial statements advocating a judicial role in protecting minorities and individuals from parliament, with Sir Anthony stating his belief that judges are better protectors of rights than politicians.[113] This broader view of democracy legitimises greater scope for judicial law-making, but there must be some issues on which the majoritarian principle cannot be displaced completely;[114] the boundary between judicial and legislative law-making is moved but not removed. However, if judicial law-making is to extend on some occasions to the protection of minority rights, it will inevitably involve judges in matters of public controversy. Having said that, judges are already regularly involved in publicly controversial issues as a result of jurisdiction under anti-discrimination and related legislation. A fortiori if Australia were to acquire a bill of rights.[115] Whilst liberties are largely well enjoyed in Australia, they are not well protected,[116] and overseas experience indicates that a bill of rights would undoubtedly see more controversial political questions brought before the courts than ever before.
Accepting the legitimacy of the judicial law-making role does not automatically resolve all difficulties. Are courts the most suitable institution for law-making on matters of public controversy? Judges do not receive the background briefings available to politicians or participate in public debate, and few are professionally qualified in an academic discipline other than law.[117] It is more difficult for judges to be aware of the wider consequences of decisions dealing with controversial policy questions,[118] as the litigation process does not provide for wide-ranging submissions on social, political or economic implications.
It has been suggested that even if courts are not the most suitable institution for dealing with controversial social questions, they have no choice but to do so because politicians have deliberately left such questions to be dealt with by the courts;[119] presumably so that critical responses will be directed at the courts, rather than themselves. If such tactics have been employed, they are at best irresponsible, risking damage to the institution of the judiciary[120] and amounting to a neglect of duty, and at worst, simply craven. Although it could be argued that concerns over the division between legislative and judicial functions are satisfied by what amounts to a delegation of political authority, problems remain. If courts take on difficult social questions left to them by politicians, this may well encourage politicians to make such delegation common, risking the ‘atrophy of genuine politics’.[121] Moreover, how are courts to distinguish between controversial social questions that have been deliberately left to them to answer, and those for which there is no answer because the political situation is genuinely not yet ready for resolution. To what extent ought courts be driving the political debate? Might judicial intervention only polarise debate and make political compromise much more difficult? As an illustration of the difficulties, compare Kirby J’s comment that judges should not be ‘active initiators of politicised human rights campaigns through the courts’[122] with his justification of the decision in the Mabo Case as a ‘judicial stimulus to action’.[123] John Gava argues that whilst a political resolution of controversial social issues may take more time, in the long run it may be more widely accepted in the general community than one that is judicially imposed.[124]
Furthermore, whether a controversial social question has been deliberately left to the courts or not, judicial law-making in politically controversial areas has the potential to damage the courts as an institution. Decisions will attract criticism not for their legal reasoning, but because those being critical disagree with the outcome. Much of the comment, both approving and critical, directed at the Mabo and Wik decisions has little to do with the reasons for judgment, and really only reflects the commentators’ views of the result and its implications.[125] Yet the more a decision on a controversial issue is a matter of policy, and the less a matter of legal reasoning, the harder it is to argue that outcome-based criticism is unjustified.
The focus on outcomes, and the attention given to policy decisions can also threaten the appearance of judicial impartiality. If judges are perceived to be pursuing a political agenda, public confidence in, and respect for, the judiciary may be diminished,[126] especially if the perceived agenda is that of one of the major political parties.[127] Some of the language directed at the High Court and its decisions has been most intemperate,[128] much of it from people who should know better. It has been the strong language of the political arena; an unfortunate consequence of judicial involvement in political controversy.
Complaints of improper judicial activism have already led to pressure for changes in judicial appointment procedures, especially for High Court judges. Hopefully United States-style confirmation hearings will never be introduced in Australia. If judges’ political beliefs, religion, or sexuality were to become the subject of public debate, this loss of privacy would be a serious deterrent to accepting judicial appointment, pose an even greater danger to the appearance of impartiality, and degrade the institution of the judiciary. After the decision in Wik, senior state politicians (from conservative parties)[129] demanded greater consultation on appointments to the High Court, and also proposed the creation of a constitutional court in which the judges would hold limited tenure. Although the proposal for separate constitutional and appellate courts is not ridiculous – such is the position in both France and Germany – it is readily identifiable in this context as an attack on judicial independence.
The problem of certainty must also be addressed. Judicial law-making, unlike parliamentary law-making, is always retrospective.[130] If the law changes too often, it becomes very difficult to advise clients, as no possible change becomes ‘out of the question’. Yet a single-minded approach to certainty will conflict with the need for the law to be just and keep up with changes in society. Certainty and relevance are important objectives, and both must be balanced.[131]
Clearly, there will always be room for disagreement over the circumstances in which judicial law-making is appropriate. The use of international law to assist judicial law-making should not, however, be seen as expanding the scope for argument. Having dealt above with the criticism directed at international law, it is now appropriate to turn to the positive case in favour; one which views reference to international law as adding credibility rather than controversy to the judicial law-making role. A change of perspective may be helpful. For underlying the criticism that the municipal use of international law infringes Australia’s sovereignty, or the authority of parliament and the states, is a dualist perspective that sees international law as a different legal order that operates in its own sphere. From such a perspective, it therefore follows that to allow its rules to operate in municipal law unjustifiably concedes that international law is superior to municipal law and improperly detracts from the authority of municipal law. It is helpful to take a different, more monist perspective that sees international law as simply another branch of the discipline of legal science rather than as an externally superior legal system, and thus view references to international law as more of an exercise in comparative law.[132]
Australian courts have always made reference to case law from other common law jurisdictions, including the United States (with which Australia has never shared membership of a hierarchy of courts). There is no logical reason why international law should be a less acceptable source of comparative law than any other municipal jurisdiction. On the contrary, its acceptance by many different jurisdictions should make it a more acceptable source of comparison. Yet there is no question of incorporation ‘by the back door’;[133] courts referring to international law in the course of interpreting statutes or the common law are no more bound to follow international law than they are to follow decisions of foreign courts. By emphasising the comparative aspect when dealing with controversial cases, referring to international law could assist in distancing the judicial law-making role from domestic controversy and party-politics and, as an objective source of law, from any suggestion that judges are simply imposing their own personal political views.
A comparative viewpoint exposes further weaknesses in the criticisms considered earlier. For instance, Australian legislators may not have had any input into whether Australia ratified the ICCPR, but then they enjoy no connection whatsoever to judgments of the United States Supreme Court. If reference to French droit administratif would raise no concerns about Australian sovereignty, how can reference to an international convention do so? If comparative reference to foreign law is acceptable, surely it is equally acceptable to make comparative reference to international law that Australia is not a party to, such as the ECHR. If all this is so, how could it be objectionable to refer to the ICCPR (or any other convention) to which Australia is a party?
Admittedly there does appear to be tension between, on the one hand, viewing international law as simply a comparative (albeit highly persuasive) source of law, and on the other hand, arguing that international law ought to be followed because of its international (and thus by implication, superior) status. The tension dissipates, however, when it is appreciated that the first view reflects the position on the municipal law plane, where unimplemented international law may be referred to by courts but has no binding effect, and that the second reflects the international law plane, on which Australia is bound by international law whether implemented in municipal law or not. The two conceptions are not entirely consistent, yet are simultaneously correct. This is complex but it is not illogical; rather it is the consequence of a legal system that takes a dualist approach to international law.
The comparative approach is entirely consistent with the rejection by Sir Gerald Fitzmaurice of the notion of conflict between municipal and international law, on the basis that each legal order operated in its own independent field. International law did not direct a municipal judge to apply it; what a municipal judge did depended solely on municipal law.[134] What a municipal judge should attempt to do, however, was – within the judicial leeways for choice – to harmonise international and municipal law so as to enable their state to comply with its obligations on the international law plane.[135]
International human rights norms have also been used more indirectly in common law development, with courts declaring a new principle of common law and then noting (with satisfaction) that it happens to be consistent with international law.[136] The High Court has given the technique an Australian twist, in which the decision is justified by reference to ‘community values’ or ‘contemporary values’,[137] notions that are fine sounding, but lacking clear definition.
The work of a practising lawyer, and later that of a judge, does not leave a person in an ivory tower, remote from the community,[138] although whether that means judges have any particular expertise in determining what are community values is difficult to say.[139] Community values must be a more sophisticated notion than mere popular (or majority) sentiment. In some instances, judges must reject popular sentiment in order to protect the rights of those who are unpopular with the majority, and to maintain the independence and impartiality of the courts.[140] One possible methodology for doing so is the distinction between attitudes and values.[141] A simple example is capital punishment. John Braithwaite argues that the views of those people who support capital punishment ought to be characterised as a mere attitude, which if those people had the time and willingness to thoughtfully compare with the community value of respect for life,[142] they would realise to be inconsistent with it.[143]
On reflection, ‘community values’ or ‘contemporary values’ have a lot in common with an older, more familiar concept: public policy.[144] Not that public policy is the only general, rather than strictly legal, principle with which courts have long had to deal. Consider concepts such as good faith, unconscionability, the reasonable person, an unreasonable decision, or a fair trial. However, there has been surprisingly little guidance from the High Court as to what community values are, and how they are determined.[145] It is thus useful and desirable for courts to be able to note that a common law rule made under the influence of ‘community’ or ‘contemporary’ values is consistent with international law. It adds credibility, helping to dispel any suggestion that community values are simply a cloak under which judges may impose their own personal political views about contentious social issues. There is a subtle difference between referring to international law in the course of determining community values, and using international law as a comparative law source, for in the former instance, international law is really being employed in a moral rather than a legal context, for a task that may be expected to require reference to a great variety of non-legal sources.
Criticism of the use of international law to assist in determining community values raises the question: what international human rights norms are so objectionable that they ought not to be taken into account by a court trying to decide what Australian community values are? Perhaps here is found the strongest (and simplest) justification for Australian courts referring to international law whenever it is relevant to the decision-making process, and the best answer to all of the criticisms that this article has considered.
It has been argued that the use of public international law by Australian courts is thoroughly defensible. Given that international law is most often being employed in the pursuit of better protection for human rights, it is a defence that ought to be mounted strongly. Australian sovereignty is not being infringed. International law only takes effect in Australian law because of the consent of Australian law-makers (executive, legislature or judiciary). International law is not imposed from abroad. Globalisation will have an ongoing impact, but it is an historical inevitability and our response needs to be thoughtful openmindedness, not resentful resignation.
Treaty-making is important and should be transparent. The inherent self-correcting nature of democracy is already operating to eliminate whatever democratic deficit did exist. Likewise the democratic process will ensure that appropriate procedures are used to accommodate legitimate concerns about states’ rights. What remains is to firmly rebuff attempts to use states’ rights as a cover for the abuse of human rights. A rebuff seems unlikely to be needed for the practicality concerns that were raised in (and about) the Teoh Case, as time and experience will dissolve them.
Some allegations of improper judicial activism will hopefully always be with us, for they are indicative of a healthy, developing legal system. International law is an ideal guide for the law-making judge. It imports a comparative perspective that provides distance from domestic politics and personal opinion. International law provides a source of best practice from jurisdictions and jurists worldwide and its use in Australian courts ought not to be merely defended; it should be welcomed and encouraged wholeheartedly.
[∗] SJD (Syd), MSt (Oxon), BA, LLB (Qld), Barrister (NSW), Solicitor (Eng & Qld). Lecturer in Law, New College, Oxford, UK.
[1] The phrase is taken from N Stephen, ‘The Expansion of International Law – Sovereignty and External Affairs’ (1995) XXXIX Quadrant 20.
[2] Toonen v Australia (1994) 1 IHRR 97, reprinted in (1995) 69 Australian Law Journal 600.
[3] P H Lane, ‘The Changing Role of the High Court’ (1996) 70 Australian Law Journal 246, 250.
[4] Senator R Kemp, ‘Let’s make our own laws’ Herald Sun (30 August 1994) 15.
[5] M Fraser, ‘UN poses biggest threat to our sovereignty’ The Australian (17 August 1994) 13.
[6] P Walsh (formerly Senator Walsh), quoted in Fraser, above n 5.
[7] ‘Mandatory sentences must go: Fraser’ The Sydney Morning Herald (21 February 2000).
[8] (16 December 1966), 999 UNTS 171.
[9] Above n 2. By acceding to the First Optional Protocol on 25 September 1991 Australia allowed individuals to take complaints to the UNHRC, the supervisory body established by the ICCPR. See also C Caleo, ‘Implications of Australia’s Accession to the First Optional Protocol to the International Covenant on Civil and Political Rights’ (1993) 4 Public Law Review 175; and H Charlesworth, ‘Australia’s Accession to the First Optional Protocol to the International Covenant on Civil and Political Rights’ [1991] MelbULawRw 25; (1991) 18 Melbourne University Law Review 428.
[10] Section 123 was subsequently repealed by the Tasmanian Parliament: see s 5 of the Criminal Code Amendment Act 1997 (Tas).
[11] For detailed discussion of the Toonen Case, see W Morgan, ‘Sexuality and Human Rights: The First Communication by an Australian to the Human Rights Committee Under the Optional Protocol to the International Covenant on Civil and Political Rights’ [1992] AUYrBkIntLaw 7; (1993) 14 Aust YBIL 277, which was written after the UNHRC had found the communication to be admissible but before it had considered the merits. The same author reviews the decision and its implications in ‘Identifying Evil for What It Is: Tasmania, Sexual Perversity and the United Nations’ (1994) 19 Melbourne University Law Review 740.
[12] The state of Tasmania has no standing in international law. On the international law plane, Australia must answer for the states and territories: ‘The colonies never were and the States are not international persons.’ New South Wales v Commonwealth (the Seas and Submerged Lands Case) [1975] HCA 58; (1975) 135 CLR 337, 373 (Barwick CJ). The Australian submissions to the Committee included (but disagreed with) submissions from the Tasmanian government: see (1995) 69 Australian Law Journal 600, 604-605.
[13] As a consequence of the doctrine of parliamentary sovereignty, courts must apply a statute even if it contravenes international law. Where there is ambiguity, however, courts will presume that parliament intended to comply with international law and interpret the statute accordingly: Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183, 195 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron, and McHugh JJ); Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 71 (Dawson J), 87-88 (Toohey J); and Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 384 (Gummow and Hayne JJ). Should there have been a prosecution under s 123, its unambiguous nature would have left no room for the application of this interpretative presumption.
[14] A Mason, ‘The Influence of International and Transnational Law on Australian Municipal Law’ (1996) 7 Public Law Review 20, 28.
[15] See Dudgeon v United Kingdom (1981) 3 EHRR 40; Monnell & Norris v Ireland [1987] ECHR 2; (1988) 10 EHRR 205; Modinos v Cyprus [1993] ECHR 19; (1993) 16 EHRR 485.
[16] M D Kirby, ‘The Role of the Judge in Advancing Human Rights by Reference to International Human Rights Norms’ (1988) 62 Australian Law Journal 514, 523.
[17] ‘UN’s credibility at stake: Williams’ The Sydney Morning Herald (27 March 2000).
[18] ‘A-G condemns mandatory jailing laws’ The Sydney Morning Herald (23 March 2000).
[19] P Alston, ‘Reform of the Treaty-Making Process: Form Over Substance?’ in P Alston and M Chiam (eds), Treaty-Making and Australia: Globalisation Versus Sovereignty? (1995) 7.
[20] H Burmester, ‘National Sovereignty, Independence and the Impact of Treaties and International Standards’ [1995] SydLawRw 13; (1995) 17 Sydney Law Review 127, 131.
[21] Stephen, above n 1, 20. Compare J G Starke’s comment that the entry into force of 257 international conventions between 1864 and 1914 represented a ‘rapid expansion’ in conventional international law: see his An Introduction to International Law (2nd ed, 1950) 35.
[22] This has primarily been a result of high-profile violent protests at several international economic summit meetings. Often the business groups that support international trade law are prominent critics of conventions dealing with human rights, industrial relations, or the environment. In turn, the social activists who support the latter tend to oppose the former. This is illogical. What is needed is a critical analysis of international standards on an individual basis, before Australia becomes committed to them: Alston, above n 19, 7-8.
[23] Much of the impact of globalisation upon Australia is not through international law at all. Many non-binding standards and rules have been taken up, often at the insistence of Australian interest groups, eg OECD and World Health Organization (WHO) guidelines, and the credit ratings issued by Moody’s or Standard and Poor’s (Alston, above n 19, 12). Extra-legal factors such as prices in financial and commodities markets will continue to be critically important.
[24] N MacCormick, ‘Beyond the Sovereign State’ (1993) 56 Modern Law Review 1, 16, rejects the notion of sovereignty as a ‘zero sum game’, using the European Union (EU) as an example of how individual states can give up a degree of sovereignty to the advantage of all states involved, yet without any single state ‘gaining’ an advantage that is ‘lost’ by another.
[25] P Mathew, ‘International Law and the Protection of Human Rights in Australia: Recent Trends’ [1995] SydLawRw 15; (1995) 17 Sydney Law Review 177.
[26] H Charlesworth, ‘Dangerous Liaisons: Globalisation and Australian Public Law’ [1998] AdelLawRw 6; (1998) 20 Adelaide Law Review 57.
[27] Australian Constitution s 61.
[29] The phrase is used by Sir Ninian Stephen, above n 1, 22, and in relation to the EU, by Lord Lester, ‘The Impact of Europe on the British Constitution’ (1992) 3 Public Law Review 228, 228.
[30] Judicial functions may only be exercised by a s 71 court (New South Wales v Commonwealth (the Wheat Case) [1915] HCA 17; (1915) 20 CLR 54) which in turn may not exercise non-judicial functions (R v Kirby; Ex parte Boilermakers’ Society of Australia (the Boilermakers’ Case) [1956] HCA 10; (1956) 94 CLR 254). State courts are part of a single Australian judicial system, and are similarly restricted: Kable v New South Wales DPP [1996] HCA 24; (1996) 189 CLR 51.
[31] C Saunders, ‘Articles of Faith or Lucky Breaks?: The Constitutional Law of International Agreements in Australia’ [1995] SydLawRw 14; (1995) 17 Sydney Law Review 150, 174.
[32] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 316 (McHugh J).
[33] The Convention between Her Majesty and the King of the Belgians, regulating the Communications by Post between the British and Belgian Dominions, ratified at London on 24 March 1876.
[34] See A Brudner, ‘The Domestic Enforcement of International Covenants on Human Rights: A Theoretical Framework’ (1985) 35 University of Toronto Law Journal 219, 253: ‘their domestic applicability constitutes no more an offence to the sovereignty of the general will than does the adoption of rules of international custom’.
[35] The relationship was considered by the International Court of Justice in the North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) [1969] ICJ Rep 3 and Nicaragua v United States (Merits) [1986] ICJ Rep 14.
[36] Clearly established self-executing rules of customary international law are automatically incorporated into British common law: Trendtex Trading v Central Bank of Nigeria [1977] 1 QB 529 (CA); R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3) [1999] UKHL 17; [1999] 2 WLR 827. In Australia, the transformation doctrine was established by Dixon J in Chow Hung Ching v R [1948] HCA 37; (1948) 77 CLR 449, 477, and thus customary rules are treated as a mere source of municipal law. See I A Shearer, ‘The Relationship Between International Law and Domestic Law’ in B Opeskin and D Rothwell (eds), International Law and Australian Federalism (1997) 48-51 and Nulyarimma v Thompson [1999] FCA 1192; (1999) 96 FCR 153, 163 (Wilcox J), 172 (Whitlam J) and 189 (Merkel J). Merkel J gives a detailed review of the position in various common law countries at 178-191.
[37] Or at least able to pressure the executive, for instance, by an opposition majority in the Senate refusing to pass government bills.
[38] Two striking examples of non-transparent treaty-making are when in 1965 Britain’s Wilson government allowed individuals to petition the ECHR, the decision was not deemed important enough to need to be taken by a Cabinet Committee, let alone the Cabinet itself (see Lester, above n 29, 23), and when in 1991, Australia’s Hawke government acceded to the First Optional Protocol to the ICCPR without informing parliament or the public (M D Kirby, ‘Occasional Lecture to the Senate Department of the Australian Parliament’ in I A Shearer, ‘International Legal Notes’ (1995) 69 Australian Law Journal 404, 406).
[39] In a Senate Estimates Committee, the then Minister for Foreign Affairs, Senator Gareth Evans replied ‘No way, José’ to Senator Rod Kemp’s rhetoric ‘We could not have the people at all involved in this’: Senate Debates 29 November 1994, 157. (Referred to by Kirby, above n 38, 406.) In May 1994, a Senate Estimates Committee was told that since 1990, 49 conventions were approved by the Cabinet, but 186 were approved only by the relevant Minister: Saunders, above n 31, 168 fn 128.
[40] This was hardly surprising, as few of the cases involving international law were controversial in the general community. Although international law was relied upon in Mabo v Queensland (No 2) (1992) 175 CLR 1, it was not at the forefront of the reasons for judgment.
[41] Cheryl Saunders notes (above n 31, 152) that it was considered by the Constitutional Convention in 1988 (Final Report, Vol 2, 745-759) and in a January 1994 submission to government by 11 industry groups (see (1994) 109 Business Council Bulletin 6).
[42] Although both Labor and Conservative governments have at times expressed a desire to nullify Teoh, the Administrative Decisions (Effect of International Instruments) Bill 1995 (Cth) and its 1997 and 1999 successors in title have fortunately failed to become law. On the Teoh decision itself, see M Allars ‘One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh’s Case and the Internationalisation of Administrative Law’ [1995] SydLawRw 16; (1995) 17 Sydney Law Review 204.
[43] The clear distinction in Australia between ratification and implementation into municipal law could, it is submitted, be abolished only by a statute indicating parliament’s intention that approval of ratification amounted to implementation into municipal law. The dualistic approach towards conventional international law is so long standing that no court would be entitled to presume that parliament had rejected it, merely by assuming supervision of the treaty-making process.
[44] B Galligan and B Rimmer, ‘The Political Dimensions of International Law in Australia’ in Opeskin and Rothwell (eds), above n 36, 310-11.
[45] A Twomey, ‘International Law and the Executive’ in Opeskin and Rothwell (eds), above n 36, 88.
[46] Parliamentary Approval of Treaties Bill 1994 (Cth) and the Parliamentary Approval of Treaties Bill 1995 (Cth). Both Bills lapsed without being passed.
[47] Senate Legal and Constitutional References Committee, Trick or Treaty?: Commonwealth Power to Make and Implement Treaties (1995). The report is available on the Treaties and International Agreements page at AustLII: <http://www.austlii.edu.au/links/2355.html> .
[48] The joint statement made on 2 May 1996 by the Attorney-General, Daryl Williams and the Minister for Foreign Affairs, Alexander Downer, is included in the Department of Foreign Affairs and Trade’s Australia and International Treaty Making Information Kit, which is available on the Treaties and International Agreements page at AustLII (see above n 47). Also note D Williams, ‘Treaties and the Parliamentary Process’ (1996) 7 Public Law Review 199.
[49] An echo of the ‘treaty impact statement’ that would have been mandated by cl 5 of Senator Bourne’s 1995 bill.
[50] This exception was relied upon in respect of the Bougainville Peace Monitoring Agreement and the 1996 Agreement with Japan concerning Tuna Long-Line Fishing: see [2.4] of the August 1999 report Review of the Treaty-Making Process, which is available on the Treaties and International Agreements page at AustLII (see above n 47).
[51] The Australasian Legal Information Institute: <http://www.austlii.edu.au> . The national interest analyses are available on the Treaties and International Agreements page at AustLII (see above n 47) and for the Joint Standing Committee on Treaties, see <http://www.aph.gov.au/index.htm> .
[52] Released in August 1999, see above n 50.
[53] For a discussion of these issues, see above n 47, ch 16.
[54] K Keith, ‘The Application of International Human Rights Law in New Zealand’ (1997) 32 Texas International Law Journal 401, 419.
[55] On the history of s 51(xxix) see amongst others, D P O’Connell and J Crawford, ‘The Evolution of Australia’s International Personality’ in K W Ryan (ed), International Law in Australia, (2nd ed, 1984); D Rothwell, ‘International Law and Legislative Power’ in Opeskin and Rothwell (eds), above n 36; Saunders, above n 31.
[56] That is, requiring provincial legislation where the subject matter of the convention falls within the heads of power allocated to the provinces: Attorney-General for Canada v Attorney-General for Ontario (the Labour Conventions Case) [1937] AC 326 (PC), 347 (Lord Atkin).
[57] Stephen, above n 1, 24; and M D Kirby, ‘The Australian Use of International Human Rights Norms: From Bangalore to Balliol – A View From the Antipodes’ [1993] UNSWLawJl 15; (1993) 16 University of New South Wales Law Journal 363, 370 (updated from (1992) 18 Commonwealth Law Bulletin 1306).
[58] H Charlesworth, ‘The Australian Reluctance About Rights’ in P Alston (ed), Towards an Australian Bill of Rights (1994) 41-43. This chapter is a reprint of the author’s article bearing the same title in (1993) Osgoode Hall Law Journal 195. Also see Saunders, above n 31, 162-64.
[59] Before the decisions in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 and Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1.
[60] Twomey, above n 44, 82. Note the Treaties Commission Act 1974 (Qld), which established an advisory body to facilitate cooperation with the Commonwealth government on convention implementation. The Commission was short lived, however, functioning only until 1977.
[61] See P J Hanks, Constitutional Law in Australia (2nd ed, 1996) 426-28. These views are consistent with both the majority and minority opinions in Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261.
[62] Mason CJ and Brennan J in Richardson v Forestry Commission, above n 61, 295-96.
[63] An estimate of 920 was given in the Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General Michael Lavarch, ‘International Treaties and the High Court Decision in Teoh’, Canberra, 10 May 1995, M44. Philip Alston gives the figures from the Australian Treaty List: At the end of 1994, Australia had been a party to 2289 conventions, but only 854 of them were still in force and had any practical effect: Alston, above n 19, 9.
[64] Above n 32, 316 (McHugh J).
[65] Alston, above n 19, 10; and Saunders, above n 31, 150 fn 2, each give a figure of 59.
[66] Nearly all of the Australian cases involve one of the following: the ICCPR; the Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948) 78 UNTS 277; the Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965), 660 UNTS 195; the Convention on the Elimination of All Forms of Discrimination Against Women (18 December 1979), 1249 UNTS 13; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 39/46 (17 December 1984); and the Convention on the Rights of the Child, GA Res 44/25 (20 November 1989). The Universal Declaration of Human Rights, GA Res 217A (10 December 1948) is a resolution of the UN General Assembly, not an international convention, although it has been argued that some of its provisions have attained the status of customary international law. The ECHR has also been cited on some occasions.
[67] Note Toohey J in Teoh (above n 32, 301-2): ‘But particular conventions will generally have an impact on particular decision-makers ...’
[68] The Australian Treaties Library, discussed above in the text to n 51.
[69] The inevitability of this has been clear for a number of years: eg, see Keith, above n 54, 418; Kirby, above n 57, 393. Also note Lord Lester’s prediction (above n 29, 232) that the ICCPR ‘may yet prove to be a sleeping giant in Australia’.
[70] Above n 32, 316-17 (McHugh J) and 301-2 (Toohey J).
[71] Eg, see the ‘Report of the Australian Branch to the International Law Association Committee on International Law in National Courts’ [1994] AUYrBkIntLaw 8; (1994) 15 Aust YBIL 231, 249-250.
[72] Eg, Lord Denning MR’s comments on applying art 8 of the ECHR in R v Chief Immigration Officer, Heathrow Airport; Ex parte Salamat Bibi [1976] 1 WLR 979, 985 (CA): ‘The convention is drafted in a style very different from the way which we are used to in legislation. … It is so wide as to be incapable of practical application. So it is much better for us to stick to our own statutes and principles, and only look to the convention for guidance in case of doubt.’
[73] Mr Justice R P Meagher expresses the concern that human rights ‘may mean whatever each proponent wants them to mean’: see ‘Civil Rights: Some Reflections’ (1998) 72 Australian Law Journal 47, 47. Whilst it is true that there is scope for competing definitions to be argued, this does not mean that they are incapable of being defined with sufficient certainty to be legally (as well as morally) useful. Compare the potential for argument over the meaning of ‘unconscionable’ or over the guarantee contained in s 92 of the Constitution that interstate trade, commerce and intercourse shall ‘be free’.
[74] J Laws, ‘Is the High Court the Guardian of Fundamental Constitutional Rights?’ [1993] Public Law 59, 63-64. Lord Scarman has also made the point that the ECHR is no less certain than the common law, and has an historical link with it: see Kirby, above n 16, 517-18.
[75] In the Teoh Case, above n 32, 302.
[76] Nationwide News Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211; Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272.
[77] The Mabo Case, above n 40; The Wik Peoples v Queensland (1996) 187 CLR 1. Other notable decisions include Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 and the Teoh Case, above n 32.
[78] The phrase ‘judicial activism’ for many people carries the implication of impropriety, and at the very least it has become a political slogan. In the interests of neutrality, the phrase ‘judicial law-making’ will be preferred, as a general rule.
[79] J Austin, Lectures on Jurisprudence: or, The Philosophy of Positive Law (5th ed (rev & ed R Campbell), 1885) vol 2, 634 (original italics). The work was first published in 1863.
[80] B Horrigan, ‘Is the High Court Crossing the Rubicon? – A Framework for Balanced Debate’ (1995) 6 Public Law Review 284, 294.
[81] At his swearing in as Chief Justice, reported (1952) 85 CLR xi, xiv. The address is reprinted (with minor differences) in O Dixon, Jesting Pilate (1965) 247.
[82] [1979] HCA 40; (1978) 142 CLR 617.
[84] Above n 81, 623 (Barwick CJ). See also 627 (Gibbs J), 628 (Stephen J) and 653 (Aickin J).
[86] This development has been the subject of contributions to the academic literature from a number of senior judges, including: G Barwick, ‘Parliamentary Democracy in Australia’ [1995] UWALawRw 2; (1995) 25 University of Western Australia Law Review 21; G Brennan, ‘Commercial Law and Morality’ [1989] MelbULawRw 6; (1989) 17 Melbourne University Law Review 100; G L Davies, ‘The Judiciary – Maintaining the Balance’ in P D Finn (ed), Essays on Law and Government (vol 1, 1995); D Dawson, ‘Intention and the Constitution – Whose Intent?’ (1990) 6 Australian Bar Review 93; J J Doyle, ‘Judicial Law Making – Is Honesty the Best Policy?’ [1995] AdelLawRw 5; (1995) 17 Adelaide Law Review 161 and ‘Implications of Judicial Law-Making’ in C Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996); M D Kirby, ‘Judicial Activism’ [1997] UWALawRw 1; (1997) 27 University of Western Australia Law Review 1 and above n 16; A Mason, ‘Future Directions in Australian Law’ (1987) 13 Monash Law Review 149; M McHugh, ‘The Law-Making Function of the Judicial Process’ (1988) 62 Australian Law Journal 15-31 and 116-27 and ‘The Judicial Method’ (1999) 73 Australian Law Journal 37; Meagher, above n 72 above; J Toohey, ‘A Government of Laws, and Not of Men’ (1993) 4 Public Law Review 158.
[87] Above n 81, 651. See also Murphy J in Dugan v Mirror Newspapers Limited [1978] HCA 54; (1979) 142 CLR 583, 609: ‘The present condition of the common law is the responsibility of the present judges. If this were not so, we would still be deciding cases by following the decisions of medieval judges.’
[89] Of course, judges at first instance are more circumscribed than appellate judges, and as the single national appellate and constitutional court, the High Court has a special role to play.
[90] Stone employed this phraseology throughout his Legal System and Lawyers’ Reasonings (1964), particularly 267-78 and 304ff, although in his Precedent and Law: Dynamics of Common Law Growth (1985), Stone referred to ‘leeways of choice’.
[91] J Stone, The Province and Function of Law (1946). Stone then quotes Lord Wright: ‘notwithstanding all the apparatus of authority, the judge has nearly always some degree of choice’.
[92] But note the ongoing debate between Ronald Dworkin and his critics over Dworkin’s insistence that there is only ever one most correct interpretation of the law (‘one right answer’): B Horrigan, ‘Towards a Jurisprudence of High Court Overruling’ (1992) 66 Australian Law Journal 199, 201.
[93] Stone (above n 90, 193) recognises that here, too, there is reluctance to acknowledge the existence of judicial choice. ‘The frequently illusory character of the compulsive force of precedent, is also found in the interpretation of statutes by common law courts.’
[94] It is arguable of course that whenever the High Court holds that a statute is unconstitutional – whether it be determining that a law interferes with the freedom of interstate trade, commerce and intercourse (s 92) or finding an impermissible blending of judicial and executive or legislative power (on the separation of powers see above n 30) – the court is engaging in judicial law-making.
[95] In Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, 9, the court unanimously rejected the individual opinion expressed by Street CJ in Building Construction Employees and Builders’ Labourers Federation v Minister for Industrial Relations (NSW) (1986) 7 NSWLR 372, 387, and approved British Railways Board v Pickin [1974] UKHL 1; [1974] AC 765, 782 (HL). See also the Kable Case, above n 30, 66 (Brennan CJ), 71-76 (Dawson J) and 109 (McHugh J).
[96] See for instance, Dr Bonham’s Case [1572] EngR 106; (1610) 8 Co Rep 1136; 77 ER 638; R v Love (1651) 5 St Tr 43; and Thomas v Sorrell (1674) Vaughan 330; 124 ER 1098.
[97] ‘[F]or when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul [sic] it, and adjudge such Act to be void.’ Dr Bonham’s Case, above n 95, 118a; 652 (Coke CJ).
[98] Lord Cooke, ‘Fundamentals’ [1988] New Zealand Law Journal 158; O Dixon, ‘The Common Law as an Ultimate Constitutional Foundation’ (1957) 31 Australian Law Journal 240 (reprinted in Jesting Pilate, above n 80); Philip Joseph, Constitutional and Administrative Law in New Zealand (1993) 419ff; Toohey, above n 85; G de Q Walker, ‘Dicey’s Dubious Dogma of Parliamentary Sovereignty: A Recent Fray with Freedom of Religion’ (1985) 59 Australian Law Journal 276; G Winterton, ‘Extra-Constitutional Notions’ (1986) 16 Federal Law Review 263.
[99] Note Murphy J’s obiter dictum doubting that parliament has the power to authorise cruelty: Pochi v Minister for Immigration and Ethnic Affairs [1982] HCA 60; (1982) 43 ALR 261, 270, and see a number of New Zealand cases: New Zealand Drivers’ Association v New Zealand Road Carriers [1982] 1 NZLR 374, 390 (Cooke, McMullin and Ongley JJ); Fraser v State Services Commission [1984] 1 NZLR 116, 121 (Cooke J); Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 398 (Cooke J); and Mangawaro Enterprises Ltd v Attorney-General [1994] 2 NZLR 451, 458 (Gallen J).
[100] Such an argument could be easier to sustain if a bill of rights (or even just a preamble acknowledging the importance of human rights) were added to the Constitution. The distinction between the High Court striking down statutes for breaching implied constitutional rights declared by the court, and striking down statutes for breaching fundamental common law rights declared by the court is not really all that great.
[101] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387.
[102] (1866) LR 1 Ex 265; affd [1868] UKHL 1; (1868) LR 3 HL 330, abolished in Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520.
[103] Lord Devlin in ‘Judges and Lawmakers’ (1976) 39 Modern Law Review 1, 11 (reprinted in Lord Devlin, The Judge (1979) 12) made the classical allusion to Julius Caesar illegally taking his army across the Rubicon River, the boundary between his province of Cisalpine Gaul and Italy, in 49BC.
[104] McHugh, above n 85, 120.
[105] Lord Reid, ‘The Judge as Law Maker’ (1972-73) 12 Journal of the Society of Public Teachers of Law (New Series) 22, 23.
[106] It has echoes in practices at the local government level in New England, USA, and Switzerland, and also in those who advocate citizens’ initiated referenda and the ‘recall’ of politicians between elections. For academic consideration of the latter, see G de Q Walker, Initiative and Referendum: The People’s Law (1987).
[107] Britain’s membership of the EU and the introduction of the Human Rights Act 1998 have however shifted the traditional British constitutional paradigm.
[108] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1.
[109] Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1.
[110] The traditional argument is that any derogation from the principle of parliamentary sovereignty is undemocratic: see eg, Meagher, above n 72, 51.
[111] Kirby, above n 16, 528; Toohey, above n 85, 171-72; and M Wilcox, An Australian Charter of Rights? (1993) 231ff.
[112] In his opening address to the NSW Supreme Court Judges’ Conference, 30 April 1993; quoted by P D Finn, ‘A Sovereign People, A Public Trust’ in Finn (ed), above n 85, 7.
[113] Sir Anthony Mason in an interview for ABC Television, quoted in ‘Judges best guardians of rights: Mason’ The Australian (4 April 1995) 6 and Sir Gerard Brennan, ‘The Impact of a Bill of Rights on the Role of the Judiciary: An Australian Response’ in Alston (ed), above n 58, 179 and ‘Justice resides in the courts’, The Australian (8 November 1996) 15. Kristen Walker argues that the High Court in general has adopted this view: ‘Who’s the Boss? The Judiciary, the Executive, the Parliament and the Protection of Human Rights’ (1995) 25 University of Western Australia Law Review 238, 251-52.
[114] Note the identical exceptions in art 1 of the Canadian Charter of Rights and Freedoms and s 5 of the New Zealand Bill of Rights Act 1990 for ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. The text of the Charter may be found at (1983) 61 Canadian Yearbook of International Law 4-11, or in Wilcox, above n 110, 269 (Appendix B). The text of the Bill of Rights may be found in Joseph, above n 97, 921 (Appendix H).
[115] Whether Australia ought to have a bill of rights is an issue that is beyond the scope of this article. The issue has attracted considerable academic attention and starting points include Alston (ed), above n 58; Wilcox, above n 110, and Michael Zander, A Bill of Rights? (3rd ed, 1985). For a history of attempts to introduce a bill of rights in Australia, see Charlesworth, above n 58, 22-32.
[116] Toohey, above n 85, 163.
[117] Judges are very well equipped to argue the merits of competing obiter dicta, but what if the competition is between the views of Geoffrey Blainey and Manning Clark?
[118] See J Gava, ‘The rise of the hero judge’ Australian Financial Review (14 November 1996) 21 and ‘The Rise of the Hero Judge’ [2001] UNSWLawJl 60; (2001) 24 University of New South Wales Law Journal 747, 754; Kirby, above n 16, 522. Note Mason J’s reference to these issues in SGIC v Trigwell to justify his unwillingness to develop tort law in an area that was not the subject of political controversy, and compare the concern about the economic implications of expanding legal aid that influenced the dissents of Brennan CJ and Dawson J in the Dietrich Case with the decisions reached in the Mabo and Wik Cases.
[119] Sir Anthony Mason believes that this has been the case, see above n 112, and Barrie Virtue’s interview with him, ‘The High Court is Planning New Rules’ (1993) 28 (July) Australian Lawyer 18, 23.
[120] Justice Kirby has suggested that the criticism directed at the High Court in recent times has damaged its standing, and is a threat to judicial independence: see his speech to the American Bar Association conference in Maui, Hawaii on 5 January 1998, ‘Attacks on Judges – A Universal Phenomenon’ text is available at <http://www.hcourt.gov.au> .
[121] Gava, Australian Financial Review, above n 117, 21.
[123] M D Kirby, ‘In Defence of Mabo’ in M Groot and T Rowse (eds), Make a Better Offer: The Politics of Mabo (1994) 78. In a similar vein is the comment of the former Commonwealth Attorney-General, Michael Lavarch, that Mabo was an illustration of parliamentary inactivity that required an ‘impetus’ from the High Court: see ‘The Court, the Parliament and the Executive’ in Saunders (ed), above n 85, 19.
[124] Gava, University of New South Wales Law Journal, above n 117, 755.
[125] This has happened in the US for many years, with progressive and conservative groups taking turns to complain about ‘improper judicial activism’ whenever the outcome of Supreme Court decisions has adversely affected their interests: Horrigan, above n 79, 291-92.
[126] See Kirby, above n 16, 529 and in ‘Kirby calls for guidelines on judicial activism’ The Australian (8 January 1997) 3. The importance of judicial impartiality is emphasised by art 14 of the ICCPR which Kirby J relied upon in S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358 (CA) and Jago v District Court of New South Wales (1988) 12 NSWLR 558 (CA).
[127] This applies equally to extra-curial remarks as to judgments. Eg, on controversial public remarks made by Nicholson CJ and Sackville J on indigenous affairs, see the editorial ‘Injudicious public speaking’ The Weekend Australian (14-15 June 1997) 6.
[128] Descriptions applied to the court and its decisions include: ‘rantings and ravings’, ‘intellectual dishonesty’, ‘bogus’, ‘unfaithful servant of the Constitution’, ‘feral judges’ and ‘a professional Labor cartel’: see Kirby, above n 119, 4.
[129] The then Premiers of Queensland (Rob Borbidge) and Victoria (Jeff Kennett), and the then Attorney-General for Western Australia, Peter Foss. See The Sydney Morning Herald (20 February 1997) 1 and 16, and The Australian (20 February 1997) 4.
[130] Lord Reid, above n 104, 23.
[131] Ibid 26.
[132] Admittedly for some (eg, Sir Hersch Lauterpacht) a monist approach to the relationship between international and municipal law is a way of entrenching the superiority of international law over municipal law. See I Brownlie, Principles of Public International Law (5th ed, 1998) 32.
[133] A metaphor employed by Mason CJ and Deane J in Teoh, above n 32, 288 and 291, and by Lord Ackner in R v Secretary of State for the Home Department; Ex parte Brind [1991] UKHL 4; [1991] 1 AC 696, 762 (CA & HL).
[134] G Fitzmaurice, ‘The General Principles of International Law Considered From the Standpoint of the Rule of Law’ (1957-II) 92 Recueil des Cours 5, 70-74, 79-80.
[135] D P O’Connell, International Law (2nd ed, 1970) vol 1, 43-46.
[136] This technique of developing the common law in parallel with international law is best seen in the House of Lords’ decision in Derbyshire CC v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534, and also in the Mabo Case, above n 40, and the Dietrich Case, above n 76.
[137] Eg, Brennan J in Mabo: ‘the contemporary values of the Australian people’ (above n 40) 42, with Mason CJ and McHugh J concurring at 15), and in Dietrich: ‘the contemporary values of society’ (above n 76, 319) and ‘the contemporary values of the community’ (324); Deane J in Dietrich: ‘standards and circumstances of our community’ (above n 76, 336-37); and Gaudron J in Teoh: ‘community values and expectations’ (above n 32, 305).
[138] (Justice) L J Priestley, ‘Influences on Judicial Law-Making’ in Saunders (ed), above n 85, 105.
[139] Many politicians would maintain that this is their role alone, eg, see the current federal Treasurer, Peter Costello, ‘A law unto themselves’ Herald Sun (3 July 1993) 19.
[140] J Cripps (formerly Mr Justice Cripps), ‘Keeping a Judicial Distance’ Australian Financial Review (23 December 1996) 10.
[141] The distinction is discussed by J Braithwaite, ‘Community Values and Australian Jurisprudence’ [1995] SydLawRw 21; (1995) 17 Sydney Law Review 351, and is taken up by Doyle, ‘Judicial Law-Making’, above n 85, 203.
[142] Including consideration of the evidence that capital punishment does not reduce homicide rates, and inevitably leads to the execution of some people later found to be innocent.
[143] Braithwaite, above n 140, 352-53.
[144] In fact, such values may well provide considerable assistance to the rider of that ‘very unruly horse’. (See Richardson v Mellish [1824] EngR 715; (1824) 2 Bing 229, 252; [1824] EngR 715; 130 ER 294, 303 (Burrough J). Other metaphors are collected by Windeyer J in The Trustees of Church Property of the Diocese of Newcastle v Ebbeck [1960] HCA 88; (1960) 104 CLR 394, 415.)
[145] Doyle, ‘Implications of Judicial Law-Making’, above n 85, 96; K Walker, ‘Treaties and the Internationalisation of Australian Law’ in Saunders (ed), above n 85, 213.
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