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Wynter, Marie --- "Applicability of ICCPR in Australian Courts" [1994] PrivLawPRpr 18; (1994) 1(2) Privacy Law & Policy Reporter 30

Applicability of ICCPR in Australian Courts

Court of Appeal of New South Wales (Kirby P, Handley and Powell JJA)

Decision 17 November 1993

Mr Young was imprisoned for contempt for six months as a result of disobeying an order of the Supreme Court of NSW which granted the custody of his son to Mrs Carter, the boy's mother. Young sought a writ of habeas corpus and made an application pursuant to Pt 55 r14 of the Supreme Court Rules in order that he be discharged from prison. The Court of Appeal unanimously rejected his application.

A central argument in Young's appeal was the relevance of art 14.5 (guaranteeing a right of appeal to those sentenced for a crime) of the International Covenant on Civil and Political Rights (ICCPR) to Australian domestic law. International treaties are not, as such, part of Australian domestic law until incorporated (contra, for example, the position in the US). The Covenant was signed by Australia in 1972, but as of yet no Bill of Rights to introduce its provisions into domestic law have been passed by the Australian Federal Parliament. Australia's accession in 1991 to the First Optional Protocol of the Covenant has meant that Australian citizens are now able to take complaints of contraventions directly to the United Nations Human Rights Committee. The ICCPR is also contained in Sched 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

The court was unanimous that none of these developments, as such, incorporates the ICCPR into Australian domestic law, and it is therefore not of binding force in Australia. However, both Kirby P and Handley JA considered that the ICCPR was still very relevant to the appeal. International conventions, particularly those which enshrine fundamental principles of human rights, provide an important tool of reference for the exposition and development of law (Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 considered). Where there is no hint of ambiguity in the law and a direct conflict between domestic law and the international covenant occurs, domestic law prevails. However in cases where domestic law is ambiguous, international covenants should be used as a guideline for interpretation.

Kirby P held that it was ''arguable' that the domestic law and the covenant were in conflict, but the covenant can not render domestic law invalid. It does not seem to have been argued that the domestic law was ambiguous. Young's alternative argument was that, if the court found domestic law to be inconsistent with the covenant, it should utilise its powers (legislative or inherent) to discharge him. Kirby P held that, even if there was an inconsistency with the covenant, Young's conduct in relation to the contempt was such that discharge would not be warranted. He also called for Parliament to give consideration to reform of s48 of the Supreme Court Act to make it more consistent with the covenant.

Handley JA held that no contravention of the Convention had occurred. He agreed that some inconsistency may exist between Australian domestic law and the Convention, and that the proceedings may have taken a different course if Young had raised this matter at an earlier stage. However, Young's acquiescence in a trial by this court had waived any entitlements he had under art 14.5, as it is established that such rights may be waived, so his appeal failed. Further, under the international law ''margin of appreciation' doctrine ''under which national authorities are allowed a measure of discretion in the way in which human rights are defined and regulated by domestic law', the Australian provisions requiring special leave for appeals to the High Court were not in breach of Australia's international obligations.

Powell JA dismissed the appeal on other grounds, and did not express a view on whether Australian procedures would constitute a breach of art 14.5.

Comment

Young v Registrar does not of itself discuss any privacy issues. However, A17 of the ICCPR provides inter alia that ''no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence'. The decision therefore provides insight into how compelling Australian courts might consider the covenant's ''privacy right' to be in an appropriate case.

The decision gives a clear indication of the growing importance of international treaties and the influence they have on Australian domestic law. Whilst the ICCPR has not yet been translated into Australian legislation, the fundamental principles which it enshrines provide increasing guidance to the courts in their development and application of the law.

(In Young v Registrar of the Court of Appeal (No 2), unreported, NSW Court of Appeal 11 November 1993), Kirby AJC, Handley and Powell JJA took a similar approach to Mr Young's attempt to rely upon art 19.5 of the ICCPR (opportunity of ''review' of a conviction) in a bail application, holding that ''it is not part of the law which will prevail against the clear provisions of a statute'.)

Marie Wynter, post-graduate research student, University of New South Wales Faculty of Law, and Graham Greenleaf.


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