Alternative Law Journal
SIMONE CUSACK and CECILIA RIEBL[*]
Since the development of an Australian jurisprudence drawing on international human rights law is in its early stages, further progress will necessarily involve judges and practitioners working together to develop a common expertise.
Practitioners in Australia have under-utilised international human rights law in attempting to secure the rights and freedoms of individuals in Australian courts. Recently, in Royal Women’s Hospital v Medical Practitioners Board of Victoria (‘Royal Women’s Hospital’), Maxwell P in the Court of Appeal of the Victorian Supreme Court signalled the need for judges and practitioners to work together to develop an international human rights law jurisprudence. One way to achieve this objective is through third party intervention, specifically the amicus curiae and intervener mechanisms.
This article briefly canvasses the historical application of international human rights law in Australian courts, including by way of judicial discretion. It outlines the role and purpose of amici curiae and interveners, with a focus on their potential to advance the application of international human rights law in Australia. Finally it discusses a number of recent interventions of the Human Rights and Equal Opportunity Commission (HREOC) and the Human Rights Law Resource Centre (HRLRC) and their role in contributing to such advancement. In particular, this section will focus on how submissions by third party interveners might be used to bridge the gap between international human rights law and Australian domestic law.
Treaties are the most common source of contemporary human rights law. It is a well-settled principle of Australian law that treaties do not operate as a direct source of enforceable rights and obligations, save to the extent that they have been incorporated into domestic law by an Act of Parliament. Nonetheless, a majority of the High Court of Australia in Minister for Immigration & Ethnic Affairs v Teoh concluded that, in certain circumstances, unincorporated treaties might have an effect under Australian law. Specifically, an individual may be entitled to a ‘legitimate expectation’ that the executive will act consistently with an international treaty where the executive has ratified that treaty.
In addition to creating legitimate expectations, an unincorporated treaty can be invoked in several other ways to influence the decisions of Australian courts. First, so far as is possible and in the absence of a clear statement of intention to the contrary, courts will construe domestic legislation consistently with the provisions of international treaties ratified by Australia. International treaties have also been held to be a legitimate and important influence on the development of the common law and can be put before judicial decision-makers for this purpose. Furthermore, international treaties can provide guidance as to the value placed by Australia on the particular rights contained within a treaty.
There is also emerging commentary suggesting that international human rights law may impact on the exercise of judicial discretion. While the legal basis for this has yet to be fully considered, one commentator has noted that, ‘… there are discernible trends in the types of cases where international law is more likely to impact on a particular discretion, most notably in the field of criminal law’. One area where this is apparent is in the determination of sentences, including the length, place and type of imprisonment.
In recent years, there has been a shift in the willingness of the judiciary to receive submissions drawing on international human rights law. Nowhere is this trend more apparent than in the Victorian Court of Appeal’s decision in the Royal Women’s Hospital case.
Royal Women’s Hospital concerned a woman who underwent a late-term termination procedure at the Royal Women’s Hospital in Melbourne. Following a complaint submitted by Senator Julian McGauran, the Medical Practitioners’ Board applied to the Magistrates’ Court of Victoria for, and was granted, warrants that allowed it to access the patient’s medical records. The medical records were then seized and lodged with the Magistrates’ Court to be dealt with according to law. The Hospital applied to the Magistrates’ Court for an order that the seized documents be returned to the Hospital. This application was unsuccessful; the Magistrates’ Court ordered that the documents be produced to the Board. The Hospital lodged an appeal against this order in the Supreme Court and subsequently the Court of Appeal.
During the course of proceedings, the Court of Appeal invited the parties to make submissions on the relevance and application of international human rights law to the case. In response to this request, the Hospital relied on:
• the right to be free from arbitrary or unlawful interference with privacy in art 17 of the International Covenant of Civil and Political Rights (ICCPR)
• the right to the highest attainable standard of physical and mental health in art 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR)
• the right to equality and non-discrimination in the provision of healthcare in art 12 of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).
In respect of art 17 of the ICCPR, the Hospital argued that the disclosure of Ms X’s medical records would be ‘disproportionate to the ends sought to be achieved by the Board, unnecessary in the circumstances and an arbitrary interference with the patient’s right to privacy’. With respect to arts 12 of ICESCR and CEDAW, the Hospital asserted that:
[a]lthough a lack of respect for the confidentiality of patient medical information will be likely to affect both men and women, it may in particular deter women from seeking advice and treatment in relation to matters such as reproductive health and sexual or physical violence, and consequently adversely affect women’s health and well being.
Although none of these treaties have been fully incorporated into Australian law, the Hospital maintained that domestic legislation should, wherever possible, be construed consistently with Australia’s international treaty obligations. To this end, the Hospital advanced various authorities to demonstrate the Court’s preparedness to consider international human rights law when interpreting domestic legislation. The Hospital also contended that international human rights may be relevant to identifying the ‘public interest’ in disclosure or non-disclosure.
The Court of Appeal held that public interest immunity did not apply and that, accordingly, it was ‘… unnecessary to consider what guidance ought to have been derived from the international human rights convention’. Nevertheless, both Maxwell P and Charles JA commented in obiter on the submissions made to the Court in relation to international human rights law and, in doing so, unequivocally encouraged the development of an Australian jurisprudence in this area.
The judgment of Maxwell P is especially encouraging, emphasising that:
1. The Court will encourage practitioners to develop human rights based arguments where relevant to a question in the proceeding.
2. Practitioners should be alert to the availability of such arguments, and should not be hesitant to advance them where relevant.
3. Since the development of an Australian jurisprudence drawing on international human rights law is in its early stages, further progress will necessarily involve judges and practitioners working together to develop a common expertise.
Recognising that international human rights law has already influenced Australian courts in areas ranging from the exercise of judicial discretion to the granting of bail and the reasonableness of a restraint of trade, Maxwell P left no doubt that international human rights law has a significant role to play in the resolution of disputes under domestic law. Although Charles JA did not deal with these issues in as much detail, his judgment indicates a genuine preparedness to receive submissions canvassing relevant principles of international human rights law. It is this kind of receptiveness which will be critical as the legal profession moves forward in this area of jurisprudence.
The decision in Royal Women’s Hospital demonstrates the potential for change in attitude amongst the legal profession with respect to arguments based in international human rights law. However, as Maxwell P remarked in that case, the Australian jurisprudence drawing on international human rights law is still in its early stages. Few practitioners have availed themselves of the opportunity to rely on international human rights law in domestic proceedings, despite the fact that such reliance is now well accepted in theory. This may be due to a lack of the expertise (and perhaps also resources) that is required to locate, identify and apply relevant international law. As Maxwell P noted, there is a real need for practitioners and the judiciary to work together to develop a common expertise.
Third party intervention, which may take the form of amicus curiae or intervention as a party to a proceeding, offers the legal profession a useful tool to answer this need. Of course, third party intervention is not the only way to facilitate change; third party intervention is only one of many avenues that should be pursued as a means of ensuring the human rights and fundamental freedoms of individuals in Australian courts. Moreover, the time and place for intervention must be judged carefully, taking into consideration the potential impact on the complexity, length and cost of proceedings, together with the interests of the parties themselves. This section considers the benefits of third party intervention as an avenue for the facilitation of arguments based in international human rights law.
An amicus curiae is ‘a friend of the court, that is to say a person, whether a member of the Bar not engaged in the case or any other bystander, who calls the attention of the court to some decision, whether reported or unreported, or some point of law which would appear to have been overlooked’. Typically, amici have been involved in proceedings involving important questions of law that affect the community generally or an individual person, often disadvantaged, who is not a party to the proceedings.
In the past, Australian courts have taken a cautious approach to amici. For example, in United States Tobacco Co v Minister for Consumer Affairs, the Full Court of the Federal Court of Australia stated that ‘[t]he general principle is that the parties are entitled to carry on their litigation free from interference of persons who are strangers to the litigation’. However, the courts have been prepared to allow persons to appear as amici where the interests of justice require it: ‘[a]n amicus may be heard if good cause is shown for doing so and if the court thinks it proper. Nothing in these reasons should be understood to delimit or restrict the availability or effectiveness of this valuable tool’.
As a general rule, a court will allow a person to appear as an amicus where it is of the opinion that it will be significantly assisted, provided that any cost or consequent delay in proceedings is not disproportionate to the assistance. While the circumstances in which a court is permitted to hear an amicus are not prescribed, courts generally allow a person to appear as amicus if it can be shown that:
• the matter to be heard is of public importance
• the person can prove that it has some expertise, knowledge, information or insight which is not available from the parties
• the potential cost of amicus is not disproportionate to the potential assistance it may render the court
• it is assisting the court in a way that the court would not otherwise have been assisted.
Unlike an amicus, an intervener is a person who becomes a party to the proceedings with all the benefits and burdens of a party. Such a person can appeal, tender evidence and participate fully in all respects of the argument before a court. An intervening party will also be bound by the decision, so far as it applies to them, and may be liable for costs. In some cases, an intervening party may be restricted to making submissions relevant to a particular issue.
As with amici, allowing intervention as a party is entirely in the court’s discretion. In exercising its discretion, the court must be satisfied that it will be significantly assisted by the intervention. The person must show that it will provide legal argument not otherwise canvassed by the parties to the proceedings, and will assist the court in reaching a correct determination. If the intervening party’s submission is merely repetitive of the submissions of one or other of the parties, efficiency requires that intervention be denied.
There is also a standing issue for potential interveners. A person wishing to apply to a court to intervene as a party must also establish that it has a ‘special interest’ in the proceedings. While this term has not been defined, it appears that the special interest should be more than ‘mere intellectual or emotional concern’.
Australian courts have traditionally been reluctant to permit intervention in common law proceedings. If anything, Australian courts are more likely to accept an application by a person to appear as amicus curiae, as demonstrated in Commonwealth v Tasmania. In this case, counsel acting for the Tasmanian Wilderness Society sought leave to intervene as a party; however, the High Court declined to rule on whether the Society should be permitted to intervene, but allowed counsel to make oral submissions as amicus. This position reflects the attitude of the Court that the potential advantages of a third party intervention must be tempered by the need to protect litigating parties from interference by unrelated third parties.
Nonetheless, in recent times the courts have been increasingly willing to admit ‘special interest’ interveners. Commentators have suggested that this may be a consequence of the limited role of the Attorney General in this regard. While the Attorney General is traditionally considered to be the primary representative of the public interest, there is no accepted practice which permits the Attorney General to intervene as of right in ordinary non-constitutional litigation on a matter of public policy.
An example of an independent body that commonly intervenes in court proceedings as a party or as amicus curiae is HREOC. HREOC is a statutory authority responsible for ensuring the observance of human rights in Australia. It has the power to intervene, with the leave of the court, in proceedings that involve issues of race, sex, marital status, pregnancy and disability discrimination, human rights issues and equal opportunity in employment. While legislative authority is not required to enable an application to intervene, HREOC often looks to various Commonwealth Acts for the power to seek such leave.
A recent example of court proceedings in which HREOC intervened as a party is the Tampa litigation. The case, both at trial and on appeal, concerned the lawfulness of the actions of the Commonwealth government in relation to the 433 asylum seekers who were rescued by the MV Tampa from their sinking boat in August 2001. The Commonwealth government sought to prevent the asylum seekers from entering the Australian migration zone on the grounds that they did not possess the necessary documentation to do so. HREOC’s submission in this case turned on the applicability of, amongst other things, art 9 of the ICCPR and art 37(b) of the Convention on the Rights of the Child (the right to be free from arbitrary detention); art 19 of the ICCPR (the right to freedom of expression) and arts 2(1) and 26 of the ICCPR (the right to equality).
HREOC has also appeared as amicus curiae. In such cases, a HREOC Commissioner (for example, the Human Rights Commissioner, or the Sex Discrimination Commissioner) will put to the court arguments it considers to have public policy or human rights implications, and that have potential repercussions for the administration of legislation administered by the Commission. For example, in Ferneley v Boxing Authority of NSW, the applicant, a female kick boxer, was prevented from competing under the Boxing and Wrestling Control Act 1986 (NSW) because she was a woman. The Sex Discrimination Commissioner was granted leave to appear as amicus in order to put to the court arguments relating to the interpretation of the Sex Discrimination Act (Cth).
The HRLRC is another public body that is using its particular expertise to intervene in court proceedings. For example, it recently filed an application to appear as amicus in an appeal against the conviction and sentence of Jack Thomas for terrorist-related offences. Its written submission to the Victorian Court of Appeal on the relevance and applicability of international human rights law, focused in particular on:
• The right of all persons, including prisoners, to be free from cruel, inhuman or degrading treatment in accordance with arts 7 and 10(1) of the ICCPR. The HRLRC submitted that the appellant had the right to the protection of his physical and mental integrity and that the appellant’s harsh treatment in detention, both in Pakistan and Australia, may have amounted to a breach of these rights.
• The right to legal representation in accordance with arts 9, 10 and 14 of the ICCPR. The appellant sought to challenge the admissibility of an interview conducted in Pakistan, during which he was not provided access to a lawyer. The HRLRC submitted that a failure by the authorities to provide the appellant with legal representation amounted
to a breach of his rights at international law.
• The right to health in accordance with art 10(1) of the ICCPR and art 12 of ICESCR. On appeal, it was argued that the appellant’s high-security incarceration in a Victorian prison, in combination with his treatment while detained in Pakistan, resulted in the significant deterioration of his mental health. The HRLRC submitted that the denial of adequate and regular medical care by prison authorities may have amounted to a breach of art 10(1) of the ICCPR and art 12 of ICESCR.
The HRLRC is also proposing to seek leave to intervene as amicus in several other cases that raise issues concerning the protection of human rights.
• the rights of people in detention to judicial review of an administrative decision to place them in solitary confinement while on remand for terrorism-related offences
• the rights of people in detention to have their right to life and health respected, and to be treated humanely. In particular, the HRLRC is seeking to emphasise the relevance of international human rights law relating to mentally ill people to the exercise of the sentencing discretion.
While not exhaustive, the above examples provide some insight into the various creative ways in which international human rights can be involved in domestic litigation and advocacy. Given practitioners’ reluctance in the past, these examples will hopefully encourage them to draw on international human rights law and consider third party intervention as a means of developing this area of jurisprudence in Australian courts.
While international human rights law has direct relevance to proceedings before domestic courts, its breadth and scope can be daunting to the uninitiated. Arguments relying on international human rights law necessitate knowledge of its existence and of where to locate relevant commentary and jurisprudence. As practitioners and the judiciary set about the task of developing their knowledge and skills in this area, it is critical that those able to assist in this regard help their colleagues to identify and formulate appropriate rights-based arguments. To this end, there is a clear role for third party intervention.
Third party interveners with specialist knowledge of international human rights law instruments have an opportunity to draw on this knowledge in order to inform the court. In cases where courts are dealing with complex matters having far-reaching implications for the administration of justice, or where parties are ill resourced and/or ill equipped to properly deal with these kinds of arguments, this role takes on an added importance. It is also critical where the submissions of the other parties appear not to deal with relevant international human rights law instruments and standards.
Whilst some people might be alarmed by potential increases in the number of people seeking to intervene, it should be remembered that appropriate safeguards are already in place. First and foremost, intervention in legal proceedings is not a right; the courts must grant a person leave to intervene. This is not an easy test to satisfy. Furthermore, in the case of amici, the courts have the ability to guard against unnecessary interference in the running of a case by imposing restrictions on the scope of a third party’s intervention. A court may determine at what stage of the proceedings an amicus may intervene. It may also limit the length of oral submissions (if any) and it can impose conditions and award costs against the amicus if its appearance is abused or unnecessarily protracted. While an intervener is not as constrained as an amicus, a court may still restrict an intervener’s ability to make submissions on a particular issue, or award costs against them.
In light of these safeguards, third party intervention offers a viable means for advancing human rights–based arguments at the domestic level. Several currently proposed interventions of the HRLRC provide clear examples of how the amicus mechanism might be used to develop the law in this area.
Maxwell P has a point: ‘[t]hat there is a proper place for human rights–based arguments in Australian law cannot be doubted’. In light of this valid critique, it is time that legal practitioners in Australia harnessed the evolving international jurisprudence of human rights. In order to bring the experience and expertise of legal practitioners around the globe into the Australian courtroom and ensure that Australian law gains the full benefit of the international commitments made by the executive arm of government, the mechanisms of intervention are a vital tool. Whether as a party to proceedings or as a friendly assistant of the court, an intervener can place before judicial decision-makers international doctrines they may use to interpret legislation, exercise their various discretions and influence the development of the common law. The work of public bodies such as HREOC and the HRLRC illustrates how this is more than a mere intellectual possibility and is already practically affecting the rights and freedoms of individual Australians.
On 24 July 2006, the applications of the HRLRC and Amnesty International to appear as amicus curiae in the Jack Thomas appeal were refused. The Court of Appeal’s written reasons for refusing the application have not yet been published. In its brief oral reasons, the Court indicated that there was no reason why the international law submissions proposed by the HRLRC and Amnesty International could not be brought by the appellant. The Court of Appeal gave leave for the appellant to file further written submissions on the relevant international law principles. The further written submissions filed by the appellant were based on the proposed submissions of the HRLRC and Amnesty International.
*The authors would like to thank Philip Lynch, Steven Amendola and Beth Midgley for their assistance in preparing this article. This article was written while the authors assisted the HRLRC with several of the amicus curiae applications described above.
[*] SIMONE CUSACK is a Lawyer with Blake Dawson Waldron. She is currently on a leave of absence completing her LLM at the University of Toronto.
CECILIA RIEBL is an Articled Clerk with
Blake Dawson Waldron.*
© 2006 Simone Cusack and Cecilia Riebl
 Royal Women’s Hospital v Medical Practitioners Board of Victoria  VSCA 85 (Unreported, Warren CJ, Maxwell P and Charles JA, 20 April 2006) .
 See, eg, Philip Lynch, ‘The Establishment and Role of the Human Rights Law Resource Centre’ (2006) 31(1) Alternative Law Journal 42, 43.
 See, eg, Minister for Immigration & Ethnic Affairs v Teoh  HCA 20; (1995) 183 CLR 273, 287 (Mason CJ and Deane J, Gaudron J concurring) (‘Teoh’).
  HCA 20; (1995) 183 CLR 273.
 Although Teoh has been criticised (see, eg, Re Minister for Immigration & Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1), it has not been overturned and continues to apply.
 Teoh  HCA 20; (1995) 183 CLR 273 287 (Mason CJ and Deane J); Kartinyeri v The Commonwealth  HCA 22; (1998) 195 CLR 337, 384 (Gummow and Hayne JJ); Royal Women’s Hospital  VSCA 85 (Unreported, Warren CJ, Maxwell P and Charles JA, 20 April 2006)  (Maxwell P).
 Mabo v Queensland (No 2) (1992) 175 CLR 1, 42 (Brennan J, with whom Mason CJ and McHugh J agreed); Dietrich v The Queen  HCA 57; (1992) 177 CLR 292, 321 (Brennan J), 360 (Toohey J); Teoh  HCA 20; (1995) 183 CLR 273, 288 (Mason CJ and Deane J); Royal Women’s Hospital  VSCA 85 (Unreported, Warren CJ, Maxwell P and Charles JA, 20 April 2006)  (Maxwell P).
 Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70, 75; Dietrich v The Queen  HCA 57; (1992) 177 CLR 292, 321 (Brennan J); Royal Women’s Hospital  VSCA 85 (Unreported, Warren CJ, Maxwell P and Charles JA, 20 April 2006)  (Maxwell P).
 See, eg, Wendy Lacey, ‘Judicial Discretion and Human Rights: Expanding the Role of International Law in the Domestic Sphere’  MelbJlIntLaw 4; (2004) 5 Melbourne Journal of International Law 108.
 Ibid 115.
 See, eg, R v Walsh  SASC 5795; (1996) 67 SASR 143; R v Hollingshed (1993) 112 FLR 109; Sillery v R  HCA 34; (1981) 180 CLR 353; R v Togias  NSWCCA 522; (2001) 127 A Crim R 23.
 Submissions of the Appellant in Royal Women’s Hospital .
 Submissions of the Appellant in Royal Women’s Hospital . See also Royal Women’s Hospital  VSCA 85 (Unreported, Warren CJ, Maxwell P and Charles JA, 20 April 2006)  (Charles JA).
 Submissions of the Appellant in Royal Women’s Hospital –. See also Royal Women’s Hospital  VSCA 85 (Unreported, Warren CJ, Maxwell P and Charles JA, 20 April 2006)  (Charles JA).
 Public interest immunity protects a certain class of documents or information from compulsory production. In Sankey v Whitlam  HCA 43; (1978) 142 CLR 1, 39, Gibbs ACJ stated that, ‘[t]he general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose’. The Court of Appeal in Royal Women’s Hospital held, however, that public interest immunity is restricted to highly sensitive areas of government and was, therefore, not capable of applying to Ms X’s medical record.
 Royal Women’s Hospital  VSCA 85 (Unreported, Warren CJ, Maxwell P and Charles JA, 20 April 2006)  (Maxwell P).
 Royal Women’s Hospital  VSCA 85 (Unreported, Warren CJ, Maxwell P and Charles JA, 20 April 2006) .
 Royal Women's Hospital  VSCA 85 (Unreported, Warren CJ, Maxwell P and Charles JA, 20 April 2006) .
 Royal Women's Hospital  VSCA 85 (Unreported, Warren CJ, Maxwell P and Charles JA, 20 April 2006) –.
 Corporate Affairs Commission v Bradley  1 NSWLR 391, 400.
  FCA 213; (1988) 20 FCR 520.
 Ibid .
 Levy v State of Victoria  HCA 31; (1997) 189 CLR 579, 604–5 (Brennan CJ) (‘Levy’).
 See Levy  HCA 31; (1997) 189 CLR 579, 600–05 (Brennan CJ), 650–1 (Kirby J); Project Blue Sky & Ors v Australian Broadcasting Authority  HCA 28; (1998) 194 CLR 355, 359; Garcia v National Australia Bank Ltd  HCA 48; (1998) 194 CLR 395, 398–9; and Justice Susan Kenny, ‘Interveners and Amici Curiae in the High Court’  AdelLawRw 14; (1998) 20 Adelaide Law Review 159.
 Australian Conservation Foundation v South Australia (1988) 53 SASR 349, 352 (King CJ). See also Onus v Alcoa  HCA 50; (1981) 149 CLR 27, 37 (Gibbs CJ); Davis v Commonwealth  HCA 66; (1986) 68 ALR 18, 23 (Gibbs CJ).
 (1983) 158 CLR 1.
 Susan Kenny, ‘Interveners and Amici Curiae in the High Court’  AdelLawRw 14; (1998) 20 Adelaide Law Review 159.
 For example, Racial Discrimination Act 1975 (Cth) s 20(1)(e); Sex Discrimination Act 1984 (Cth) s 48(1)(gb); Disability Discrimination Act 1992 (Cth) s 67(1)(l); and Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 11(1)(o), 31(j) and (for amicus applications specifically) s 46PV.
 Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs  FCA 1297; (2001) 110 FCR 452, which overturned Ruddock v Vadarlis  FCA 1297; (2001) 110 FCR 452.
 Pursuant to s 46PV of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
  FCA 1740; (2001) 115 FCR 306.
 Breen v Williams  35 NSWLR 522, 533 (Kirby P).
 Royal Women’s Hospital  VSCA 85 (Unreported, Warren CJ, Maxwell P and Charles JA, 20 April 2006) .