Which of the following was influenced by the ambiguity in article iii?

Table of Contents Show

The influence of human rights on judicial decision-making
1 Introduction
2 General observations about human rights and the work of courts
3 The influence of human rights on the development of Australian law in the courts
4 Using human rights to inform the exercise of discretion
5 Impact of the enactment of a Human Rights Act
6 Conclusion

The influence of human rights on judicial decision-making

The Hon Catherine Branson QC

Federal Magistrates Court 2009 Plenary

29 September 2009

1 Introduction

May I acknowledge the Gadigal people of the Eora nation, the traditional owners of the land upon which we meet, and pay my respect to their elders past

and present.

I would like to thank Chief Federal Magistrate John Pascoe for inviting me to
speak with you today.

It is almost a year since I left the Federal Court to become President of the Australian Human Rights Commission. The first year of my term has been an exciting and an enlightening one. I have met with an extremely diverse range of people and have had the opportunity to speak to many audiences about human rights protections in Australia. Many of the things that I have been able to do

are not things that I could have done as a Federal Court judge.

As you will be aware, this year we have had a National Consultation on Human Rights which asked Australians what human rights are important to them and whether and how they think human rights could be better protected in

Australia.

Consequently, human rights have been a hot topic, with the consultation reigniting debate about whether Australia needs to have a federal law protecting human rights. You may be relieved to know that I do not propose today to rehearse the arguments in favour of an Australian Human Rights Act. But questions about how human rights impact on the law and what role courts and

tribunals should play in enforcing human rights have been fiercely debated.

Today, I would like to illustrate the present relevance of human rights to judicial decision-making, including the work of the Federal Magistrates Court. That is, to explore how, even without a Human Rights Act, it is legitimate and appropriate for judicial decisions to be influenced by the jurisprudence of

human rights.

2 General observations about human rights and the work of courts

I would like to begin, however, by sharing some general observations on human
rights and their relationship with the work of courts generally.

(a) Introduction to human rights

Respect for human right underpins every well-functioning democracy, including our own. Absent respect for human rights, the rule of law will break-down. Absent respect for human rights there will be members of our community whose voices are not heard on issues of importance to us all or whose contributions to

public debate are not received with appropriate respect.

So what do we mean by ‘human rights’? International law recognises human rights falling into two broad categories – civil and political rights and economic, social and cultural rights. Civil and political rights include such rights as the right not to be arbitrarily detained, the right to a fair hearing, the right to vote, respect for privacy, freedom of speech and freedom of religion and belief. These rights are often described as requiring the state to refrain from interfering with individual liberty. Economic, social and cultural rights include rights such as the right to an adequate standard of living, the right to education, the right to health care, the right to social security, and the right to take part in cultural life. These rights are commonly understood as obligations on the state to take positive steps to provide for individuals. Of course, international law recognises that it is not possible for all economic, social and cultural rights to be instantly realised. The obligation on states with respect to these rights is to take steps

towards achieving their full realisation progressively.

One important right that does not really belong to either category is the
right to be able to exercise all human rights without discrimination.

In practice, the distinction between civil and political rights on the one hand, and economic, social and cultural rights on the other, is somewhat artificial. The realisation of all human rights is necessary for an individual to live with dignity and to enjoy equality. Many civil and political rights cannot be realised unless economic, social and cultural rights are also secured. For example, if a person does not enjoy their economic right to adequate housing, they might have difficulty enjoying various civil and political rights

including the right to privacy and the right to vote.

It is important to remember that very few human rights are absolute. Some human rights should not be infringed in any circumstances, such as the right not to be tortured or held in slavery. But most human rights can be subject to

reasonable limitations.

Circumstances often require that different rights be balanced. This might involve the competing rights of individuals. The right to freedom of speech, for example, is subject to the right of others to privacy and not to be defamed or to be the subject of racial or religious vilification. In other cases the rights of individuals might need to be balanced against the rights of the community. An individual’s right of freedom of movement might need to be balanced against the right of community members to health (think of the early days of swine flu); an individual’s right not to be detained might need to be balanced against the right of members of the community to live free from violence (think of national security laws). Where rights must be balanced the test of proportionality is critical - is the restriction a proportionate

response to a pressing social need?[1] In extraordinary circumstances, it may even be permissible to suspend or

restrict certain rights provided that the limitations are reasonable and justifiable in a free and democratic

society.[2] In short, human rights

jurisprudence is much more nuanced than is often suggested.

(b) The application of human rights

It is often said that human rights are ‘universal’. But does this claim to universality mean that human rights are to be applied in an identical manner in every part of the world, irrespective of the specific social context

in which they are realised?

I agree with Lord Hoffman who, in a recent lecture, answered this question in the negative. He pointed out that while human rights may be universal at the level of abstraction (for example, everyone is entitled to a fair trial), they are, at the level of application, national in character (for example, in one jurisdiction the prevalent police culture may call for an absolute ban on the admissibility of illegally obtained evidence while in another jurisdiction a judicial discretion to admit such evidence if

strongly probative will be justifiable).[3] As this example makes clear, the application of human rights, through the enactment and interpretation

of legislative provisions giving rise to enforceable rights, does not take place in a social and legal vacuum. As I have already mentioned, and as you as judicial officers will appreciate intuitively, individual rights are recognised, denied or qualified by courts by reference to a balancing exercise against other

rights and ‘the public aspects...of the public

interest’[4]. These aspects include functional efficiency, resource allocation and other pragmatic considerations relevant to the particular decision. Such an exercise, as Lord Hoffman pointed out, is best carried out ‘in the context of a given

society and its legal system’[5] by an arbiter with an appreciation of the culture in which those rights operate.

I am unable to refrain from pointing out that an Australian Human Rights Act

would enable Australian courts to do just that.

The final general observation which I wish to make is that, as judicial officers, you are in a position to demonstrate respect for human rights not only through your decisions but also through the manner in which you exercise the power vested in you. It perhaps goes without saying, but is worth remembering, that simple things like treating courteously and respectfully those who come before you can do much to help create a culture in which human rights are respected as a matter of course. I note that your court’s Service Charter for the provision of administrative services is a positive initiative in this

regard.

3 The influence of human rights on the development of Australian law in the courts

As you all know, in Australia, as in many countries, international human rights instruments do not become part of our domestic law without the passage of appropriate legislation. Our Federal Parliament has enacted a number of statutes which recognise particular human rights but we are unique amongst Western democracies in not having any over-arching protection of human rights -

either a constitutional Bill of Rights or a form of Human Rights Act.

However, even without a Human Rights Act there is considerable scope for Australian decision-makers, including judicial officers, to take human rights principles into account. Decisions which are informed by human rights principles are likely, for the reasons that I will expand upon shortly, to be better decisions leading to better outcomes for individuals while nonetheless being based on sound legal principle. Human rights principles can legitimately

influence judicial decisions in three principal ways:

first, through statutory interpretation
secondly, as a guide to the development of the common law, and
thirdly, by informing the exercise of discretions.

3.1 The use of human rights in statutory
interpretation

Statutory interpretation is a core function of modern courts and tribunals so
let me turn first to the influence of human rights on statutory interpretation.

(a) Interpretation of laws incorporating
international human rights instruments

As I have mentioned, there are a number of federal and state laws which have incorporated into domestic law aspects of major human rights instruments. For

example:

federal and state anti-discrimination laws implement aspects of the right to
non-discrimination and equality
privacy laws protect aspects of the right to privacy
employment laws protect various employment-related rights such as the rights to fair wages and conditions of work and not to be discriminated against on a
number of specific grounds; and
laws governing civil and criminal procedure protect important procedural
rights such as the right to a fair hearing.

The High Court and the Federal Court have identified several principles for the interpretation of

statutes such as these which enact treaty obligations.

The first principle is that where the provision of a treaty is transposed into the statute, the assumption is that the language of the statute should carry the same meaning as in the

treaty.[6] For example, this principle

has been applied to the interpretation of the term ‘refugee’ under the Migration Act which has the same definition as under the Convention on

Refugees.[7]

The principles which govern the construction of a treaty are not identical to
those that govern the construction of a statute. Articles 31 and 32 of the Vienna Convention on the Law of
Treaties[8] set out the international rules for treaty interpretation. The High Court has recognised the applicability of these rules in Australia and made it plain that treaties should be given a broad, contextual interpretation ‘unconstrained by technical rules of [domestic] law, or by [domestic] legal precedent’, considering the objects and purpose of the

treaty.[9] It is legitimate to seek

assistance from the jurisprudence of specialist international courts, tribunals and specialist UN Committees when interpreting

treaties.[10]

Furthermore, courts have supported the principle that statutes that are intended to give effect to an international human rights treaty should be beneficially

construed.[11] For example, in IW
v City of Perth, the High Court considered whether a local council which

refused to grant planning approval for a drop-in centre for people with AIDS had breached anti-discrimination laws. The Court was required to decide whether the giving of planning approvals by the Council was a ‘service’ for the purposes of anti-discrimination legislation. The majority said that because the anti-discrimination law is designed to give effect to human rights, the term ‘service’ should be construed broadly. However, in the end, the court did not form a majority view about whether this case fell within the

definition.

Unfortunately, the number of statutes which expressly implement human rights obligations, or which transcribe treaty provisions, is relatively small.

Legislative protection of human rights in Australia is ad hoc, with the

law protecting only a limited number of human rights and usually only limited aspects of those rights. As a result, the utility of these particular

interpretive principles is somewhat limited.

(b) Use of international
human rights instruments as interpretive aids

Australia also has well-established principles relating to the use of international agreements as aids to the interpretation of statutes, even when those agreements are not referred to in the statute. For example, you would be familiar with the interpretive principle that where legislation is ambiguous, courts should favour an interpretation that accords with Australia’s

international obligations.[12] And

also the related principle that courts should not interpret legislation as intending to interfere with fundamental rights and freedoms, unless such an intention is clearly manifested in unambiguous

language.[13]

Although both these principles have been regularly applied by the courts, the manner in which they been applied has varied. As it appears to me, this variation commonly arises from differences in opinion about when a statute is to be considered ambiguous. Some judges have commented that ambiguity should not be

narrowly construed.[14] Others have

adopted a narrow and strict approach to the notion of

ambiguity.[15]

This divergence of opinion was clearly illustrated in the majority and
minority judgments of the High Court in Al-Kateb v
Godwin.[16] In Al-Kateb v
Godwin the High Court was asked to decide whether the Migration
Act[17] authorised the indefinite detention of an unlawful non-citizen when there is no real prospect of his removal from Australia. By the slimmest of majorities (four judges in

favour; three against), the High Court said that it did.

Mr Al-Kateb argued that the High Court should interpret the Migration Act in
a way which was consistent with Australia’s obligations under the International Covenant of Civil and Political Rights which protects the right to liberty and prohibits arbitrary detention. One of the clearest indicators that detention is arbitrary is that the person being detained has no

idea when they will be free again.

Mr Al-Kateb’s legal submissions relied on those two principles of statutory construction that I mentioned earlier: that courts should only assume Parliament intends to interfere with fundamental rights if it does so in unambiguous language; and that where the meaning of a law is ambiguous, the Court should interpret the law consistently with Australia’s international

treaty obligations.

The majority of the High Court found that the plain words of the Migration Act required Mr Al-Kateb to be detained until he could be removed from Australia notwithstanding that there was no reasonable prospect of his removal in the foreseeable future. Because the majority decided the words were unambiguous, they did not consider the human rights of Mr

Al-Kateb.[18] Justice McHugh

observed that it is ‘not for the courts ... to determine whether the course taken by Parliament is... contrary to human

rights’.[19]

In contrast, the minority - Gleeson CJ, Kirby J and Gummow J - did not believe the words of the Migration Act provided an unambiguous authorisation for indefinite detention of Mr Al-Kateb. Instead, they interpreted the Migration Act in a way which protected the right of Mr Al-Kateb not to be

arbitrarily detained.[20] They

concluded that the power to detain was intended to be ancillary to the power to remove from Australia with the consequence that the law did not require his ongoing detention in circumstances where there was no real prospect of his

removal from Australia.

As most of you will know, Mr Al-Kateb, who is now lawfully resident in Australia, was kept in immigration detention for years without any idea of when or whether he would be free again. It was, no doubt, small comfort to him that his case led to a re-examination of the need for mandatory detention in cases

such as his.

The principle that Parliament should be presumed to legislate in accordance with, not contrary to, fundamental rights is based on a recognition of the long-standing and central place which fundamental rights hold within the common

law.

There is a passage from the judgment of Lord Hoffman in the case of Simms[21] which discusses this issue in the context of the English ‘principle of legality’, the nearest equivalent of our fundamental rights principle. His Lordship

said:

... the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the
individual.

The principle of legality may be somewhat stronger than the principles recognised by Australian courts - although I should not be understood to be asserting that it necessarily is. In Australia, courts generally seem cautious in their application of these interpretive principles for fear of

overstepping their judicial role.

It was therefore encouraging to read the address by French CJ to the Australia and New Zealand Scrutiny of Legislation Conference, in which he expressed support for the view that common law rights, such as the freedom of movement and speech, are more than merely residual liberties, existing only insofar as the law does not curtail

them.[22] Rather, he said,

fundamental rights are essential elements of the common law and their importance under the common law justifies the interpretation of legislation and the common

law in a way which ensures their protection.

3.2 Human rights in the development of the common
law

Thus far I have discussed how human rights provide useful principles for resolving ambiguity or uncertainty in statutory interpretation. I would now like to provide some illustrations of human rights jurisprudence guiding the development of the common law of Australia - as I would suggest, for the

better.

(a) International law and conventions

It is well-established that international human rights instruments may serve as legitimate guides in developing the common law. Brennan J expressly

recognised this in Mabo v Queensland (No
2)[23] where he stated that:

[T]he international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human
rights.[24]

The Mabo (No 2) decision is a striking illustration of the High Court’s development of the common law by reference to international human

rights jurisprudence. Brennan J (with Mason CJ and McHugh J agreeing) said:

The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it
imports.[25]

Therefore in light of Australia’s accession to the First Optional Protocol to the ICCPR and the Covenant’s ‘powerful influence’

it brought to bear on the common law, in Mabo terra nullius was found to

be ‘an unjust and discriminatory doctrine’ that was no longer

acceptable.[26]

As you may know, the effect of Australia’s accession to the Protocol is to give an individual who is subject to Australia’s jurisdiction and has exhausted domestic remedies, a right of complaint to the UN Human Rights Committee regarding any Australian legislative or executive action which is in

violation of the ICCPR.

Since Mabo (No 2), Sir Anthony Mason has written extra-curially highlighting the significance of this for the development of the common law not

only by the High Court but by all courts and tribunals in Australia:

[t]he fact that the I.C.C.P.R. exists as a body of supra-national law...capable of being invoked by an Australian complainant and applied by the Human Rights Committee to Australia, means that there is a possibility that Australian courts will have regard to its provisions and to the interpretation placed upon them by the Committee and other courts and tribunals in formulating
the common law.[27]

Sir Anthony points to the status of the European Convention on Human Rights (ECHR) in English law as an example, noting the ‘tendency of English courts in recent times to formulate the common law in such a way that it involves no disconformity with the European Convention on Human

Rights.’[28] (I should add

that at the time of Sir Anthony’s writing of this paper, the UK Human Rights Act of 1998, which more or less incorporates the ECHR into English

domestic law, was not in force.)

Sir Anthony’s reference to the European Convention was perhaps inspired in part by argument in a case over which he presided three years earlier. That

case was Dietrich v R.[29] In

submissions in that case, Counsel for the applicant pointed to the status accorded to the ECHR in English law and the ‘common-sense

approach’[30] of some English

courts of having regard to international obligations in order to resolve uncertainty or ambiguity in judge-made

law.[31]

I make reference to Dietrich for a second reason.

Many of you will be familiar with the decision, so I will confine discussion of it to that which is relevant for present purposes. The applicant contended that where an accused person charged with a serious crime punishable by imprisonment cannot afford counsel, that person has a right to be provided with counsel at public expense. Counsel for the applicant argued that one source of that right is to be found in Australia’s international obligations, in particular as contained in Art 14(3)(d) of the ICCPR to which Australia is a party. Art 14(3)(d) gives an accused the right ‘to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to

pay for it.’[32] In other

words, it provides for the right of an accused in criminal proceedings to legal

aid.

Mason CJ and McHugh J, in their joint reasons, said that this provision of the ICCPR, though not part of Australian municipal law, ‘is a legitimate influence on the development of the common

law’.[33] Toohey J, in a

separate judgment, recognised that ‘[w]here the common law is unclear, an international instrument may be used by a court as a guide to that

law’.[34] The problem for the

applicant, however, was that there was no ambiguity or uncertainty that needed to be resolved in this case; the Court was being asked to declare the existence of a right that had until that point never been recognised. As you know, the

Court declined to do so.

This brings me to some caveats on the influence of unincorporated human rights conventions on Australian common law. The first is that, just as a provision in a Covenant might provide the source for a right, its particular

wording will also define and qualify the content of that right. Dietrich is an instructive example of this. The right provided by Art 14(3)(d) is not an

absolute right; the provision contains the phrase ‘when the interests of justice so require’. It therefore could not support the absolute right to legal aid which Mr Dietrich sought to establish. The second caveat might be

described as a normative one. As Mason CJ and Deane J remarked in Minister for Immigration and Ethnic Affairs v

Teoh

[35], such development of

the common law must be approached with caution, for it ‘must not be seen as a backdoor means of importing an unincorporated convention into Australian

law.’[36] The High Court in Dietrich recognised that courts could ‘not, independently of the

legislature and the executive, legitimately declare an entitlement to legal

aid’;[37] to do so would have

been to import into Australian law Art 14(3)(d) of the ICCPR through the

backdoor.

Also worth noting is the extent to which Australian judges have been willing to refer to decisions of the European Court of Human Rights in giving content to

the concept of a ‘fair trial’ under Australian common law. In Dietrich, Mason CJ and McHugh J considered the approach taken by the

European Court on Human Rights to a provision in the ECHR almost identical to Art 14(3)(d) of the ICCPR. They noted that the Strasbourg Court’s approach was to ‘emphasis[e] the importance of the particular facts of the case to any interpretation of the phrase ‘when the interests of justice so require’ and ‘that approach is similar to the approach which, in our opinion, the Australian common law must now

take.’[38]

4 Using human rights to inform the exercise of discretion

The third way in which human rights can influence judicial decision-making is
by informing the exercise of discretion.

In the course of your work you are often called upon to exercise discretion. The exercise of discretion invariably involves a certain degree of normative judgment. I am inclined to believe that where there is a judicial discretion to be exercised, it is preferable that it be exercised in accordance with internationally accepted human rights principles rather than by reference to the, sometimes unconscious, subjective values or opinions of the

decision-maker.

I am, of course, not alone in holding this view. Kirby J, for example, is well known for his view that international standards may lend legitimacy to the views of judges when carrying out their judicial functions, particularly in the case of ambiguity or

discretion.[39]

Indeed, there are several examples of decisions from different jurisdictions in Australia which support the view that human rights obligations are a relevant consideration in exercising discretionary powers. A large proportion of these decisions concern the criminal law – an area in which discretionary powers clearly invoke human rights principles concerning the deprivation of liberty and

procedural fairness.[40]

The remarks of Maxwell P in the Royal Women’s
Hospital[41]case provide
further support. His Honour there said:

...over the past two decades Australian courts have been prepared to consider
the use of international human rights conventions in:

exercising a sentencing
discretion;[42]
considering whether special circumstances existed which justified the grant
of bail;[43]
considering whether a restraint of trade was
reasonable;[44] and
exercising a discretion to exclude confessional
evidence.[45]

In Tomasevic v Travaglini[46],
which was concerned with the right to a fair trial, Bell J added two more
to Maxwell P’s list. These were:

granting or refusing injunctions, and
adopting procedures or exercising powers to ensure a trial or hearing is fair and
impartial.[47]

Let us take one of the cases which both Justices Maxwell and Bell cited and look at it

in greater detail. In Schoenmakers v Director of Public
Prosecutions,[48] the Federal

Court considered the appeal of a man who was refused bail after being arrested in Australia pending extradition for offences relating to the growth and distribution of cannabis under US law. At the time of the appeal, he had already been in custody for 11 months. The man was a joint citizen of Australia and the

Netherlands and regularly travelled between both countries.

Under the Extradition Act, French J had to decide whether there were special circumstances justifying his release from remand. French J said that decision necessarily involves making a value judgment about the range of circumstances

favouring the grant of bail.[49] In

his view, that judgment was to be made with reference to the purpose of the law

and what he called ‘broader community
standards’.[50] In

assessing ‘broader community standards’, French J remarked: ‘it can never be regarded as anything other than a special circumstance that a person should have to spend a year in prison unconvicted of any

offence.’[51] He also referred

to article 9 of the ICCPR which protects the right not to be arbitrarily detained and commented that this article ‘serves as an indication of the value placed by Australia, as part of the international community, on the liberty of the individual and the presumption in favour of that liberty. That presumption must, of course, give way to specific statutory provisions. But where those provisions do, as in the case of the Extradition Act, allow for normative judgments... then the presumptions arising under the common law and in relevant international instruments may be taken into

account.’[52]

I would like to conclude this section of my address by sharing with you some
pertinent observations made by Bell J in Tomasevic v Travaglini in the context of the relevance of ICCPR provisions to the right to a fair trial under

Victorian law:

Without impairing, indeed by asserting, the independence of our own law, judges can, and in my view should, act consistently with the international obligations specified in the ICCPR by accepting that, when appropriate, the exercise of relevant judicial powers and discretions, such as the duty to ensure a fair trial, can take into account the human rights specified in the ICCPR. That, I think, is the state and rationale of the current law. Of course the inherent duty to ensure a fair trial always remains the source of the binding law, but its nature is better understood, its function in the law is strengthened, its application is more penetrating and its capacity to evolve is enhanced once it is appreciated that its performance has an international
dimension.[53]

In other words, just as human rights are recognised as useful principles for resolving ambiguity or uncertainty in interpretation of statutes and the common law, human rights are also useful principles for resolving the uncertainty

inherent in discretionary decisions.

5 Impact of the enactment of a Human Rights Act

Although I will stick to my undertaking not to rehearse the arguments in favour of an Australian Human Rights Act, I would like to give brief consideration to what impact such an Act would have on judicial decision-making. In doing so, we are fortunate to have emerging experience from Victoria and the

ACT which have introduced their own human rights Acts.

5.1 Interpretative provisions

Let’s first look at the impact of a Human Rights Act on statutory
interpretation.

The ACT and Victorian human rights Acts contain special interpretive provisions which require courts to interpret legislation in a way that is compatible with the rights set out in the Act, so far as it is possible to do so consistently with the purpose of the legislation being

examined.[54]

The Chief Justice Spigelman has described the introduction of these special interpretation provisions as the most significant statutory change to the law of statutory interpretation in

Australia.[55]

An important feature of this type of interpretive obligation is that it applies to all laws, whether or not enacted before the interpretative provision itself and regardless of whether an individual judge thinks the ordinary meaning

of the law is ambiguous.

However, I tend to agree with French CJ when he said that an interpretive Charter operates in much the same way as common law rights and freedoms currently inform the interpretation of

statutes.[56]

Contrary to the suggestions of critics that the interpretive obligations contained in human rights Acts in the ACT and Victoria turn judges into law-makers, human rights Acts in Australia do not authorise courts to give laws a meaning which is inconsistent with their

purpose.[57] This is not the case

with the interpretive provisions under the UK Human Rights Act which contain no limitation on purpose. Indeed, in giving a judge’s perspective on the first 18 months of the Victorian Charter’s operation, Maxwell J’s

observations are telling:

Fears of judicial adventurism under the Charter have...proved to be wholly unfounded...Judges are not in a headlong rush to utilise the Charter and impose their own human rights perspectives. On the contrary, we are adhering - as we try always to do - to the rule of
parsimony.[58]

I am not aware of any case so far in Victoria or the ACT in which a court has made a declaration of incompatibility on the basis that a law was not able to be interpreted consistently with human

rights.[59]

However, it is still early days and the courts are yet to identify a preferred approach for the application of the special interpretive provisions. Even in the UK and New Zealand, where human rights Acts have been in place for many years, courts continue to debate the best approach to interpretation under

a Human Rights Act.

5.2 The duty on public authorities

As I mentioned earlier, a Human Rights Act may impose on ‘public authorities’ a duty to act compatibly with, and give proper consideration

to, human rights.

This means that where courts and tribunals are considered ‘public authorities’ for the purposes of the Human Rights Act, they will be

required to act compatibly with human rights.

The definition of public authority excludes courts and tribunals, except when they are acting in an administrative capacity. According to recent decisions in Victoria, activities which are considered to fall within the definition of ‘administrative capacity’ include those ‘operational’ aspects of courts and tribunals, such as employment of staff and treatment of

customers at a registry.[60] Therefore, in carrying out these administrative functions, courts are bound by a

Human Rights Act in the same way as any other public authority to respect human

rights.

6 Conclusion

Before I finish, I would like to comment that during the course of the National Human Rights Consultation, I perceived considerable trepidation about the idea of a federal Human Rights Act. It is understandable that changes should be threatening. But for me, this brought back memories of the last time that Commonwealth administrative laws were comprehensively overhauled. These changes evoked a similar reaction in many minds. But now we look at the AAT and the ADJR Acts with pride and rightly see them as initiatives which represent world best

practice in administrative law.

I believe that a Human Rights Act that, while respecting the sovereignty of Parliament, requires the executive, legislature and judiciary to integrate human rights principles into their daily work would have a real and positive impact on the culture of this country - including the culture that informs judicial

decision-making.

[1] See Handyside v United
Kingdom (1976) 1 EHRR 737 at 754, paras 48-49 (cited in Theophanous v
Herald & Weekly Times Ltd (1994) 182 CLR 104 at 162 and Leask v
Commonwealth of Australia (1996) 187 CLR 579 at 615); see also Sunday
Times v United Kingdom (1979) 2 EHRR 245.

[2] See, for example, Charter of Human Rights and Responsibilities Act 2006 (Vic), s 7(2) and Human Rights Act 2004 (ACT), s

28(1).

[3] Lord Hoffman, ‘The

Universality of Human Rights’, Judicial Studies Board Annual Lecture, 19 March 2009, p 8.

[4] von Doussa, J.

W., ‘Natural Justice in Federal Administrative Law’ (1998) 17 AIAL Forum 1, p 3 (original emphasis).

[5] Lord Hoffman, above,

n1.

[6] Applicant A v Minister
of Immigration and Ethnic Affairs (1997)190 CLR 225,

230-231.

[7] Applicant A v
Minister of Immigration and Ethnic Affairs (1997)190 CLR 225,

230-231.

[8] Minister of Foreign
Affairs and Trade v Mango (1992) 37 FCR 298,

[303]-[305].

[9] Pilkington
(Australia) Ltd v Minister of State for Justice and Customs (2002) 127 FCR

92 at [26].

[10] AB v
Registrar of Births, Deaths and Marriages [2007] FCAFC 140,

[14]-[16].

[11] IW v City of
Perth (1997) 191 CLR 1 at 22-23, 27, 39, 41-42 and

58.

[12] Chu Kheng Lim v
Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR

1 at 38, per Brennan, Deane and Dawson JJ; Salomon v Cmrs of Customs and
Excise [1967] 2 QB 116.
[13] Coco v R (1994) 197 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ.

[14] Minister for
Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ

and Deane J.

[15] Al-Kateb v
Godwin (2004) 219 CLR

562.

[16] Al-Kateb v
Godwin (2004) 219 CLR 562 at

590.

[17] Migration Act 1958 (Cth) (‘Migration Act’), s 189, s 196, s

198.

[18] Al- Kateb, 581

per McHugh J; 642-643 per Hayne J; 661 per Callinan J; see also 662 per Heydon J agreeing with Hayne J ‘subject to reserving any decision about whether s 196 should be interpreted in a manner consistent with treaties to which Australia is a party but which have not been incorporated into Australian law by statutory enactment’.

[19] Al-Kateb, 595 per McHugh

[20] Al-Kateb, 577 per

Gleeson CJ citing Coco v The Queen (1993) 173 CLR 427; 607 per Gummow J, 616 per Kirby J.

[21] R v
Secretary of State for the Home Department, ex parte Simms [2002] 2 AC 115

at 131.

[22] French CJ,

‘Adding Value to Law Making’, Australia and New Zealand Scrutiny of Legislation Conference, Canberra, 6 July 2009.

[23] (1992) 175 CLR 1

(‘Mabo (No
2)’).
[24] (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed).

[25] (1992) 175 CLR 1 at

42 per Brennan J (with whom Mason CJ and McHugh J agreed).

[26] (1992) 175 CLR 1 at

42 per Brennan J (with whom Mason CJ and McHugh J agreed).

[27] Sir Anthony Mason,

A.C., K.B.E., ‘An Australian Common Law?’ Paper delivered at 1995

Australiasian Law Teachers Association 50th Anniversary Conference,

La Trobe University, 1 October 2005, p 14.

[28] Sir Anthony Mason,

‘An Australian Common Law?’, pp 14-15.

[29] (1992) 177 CLR 292

(‘Dietrich’).
[30] Dietrich at 306 per Mason CJ and McHugh J.

[31] See, for example, Derbyshire County Council v Times Newspapers Ltd [1992] 1 QB 770 at pp

812-813 per Balcombe LJ (cited in Dietrich); Sir Anthony in ‘An
Australian Common Law?’ cites Derbyshire County Council v Times
Newspapers Limited [1993] A.C. 534 and Attorney-General v Guardian
Newspapers Ltd (No 2) [1990] 1 A.C. 109.

[32] ICCPR, Art

14(3)(d).

[33] Dietrich at

321 per Mason CJ and McHugh J.

[34] Dietrich at 360

per Toohey J.

[35] (1995) 183 CLR

273.

[36] Teoh at 288 per

Mason CJ and Deane J.

[37] Dietrich at 321 per Mason CJ and McHugh

[38] Dietrich at 307

per Mason CJ and McHugh J (citations omitted).

[39] Kirby J,

‘The Role of the Judge’, Australian Law Review, 1988, vol
62, p514 at p526.
[40] Cases in other areas have concerned, among other things, contractual disputes,
extradition and family law matters: W. Lacey, Implementing Human Rights
Norms: Judicial Discretion and Use of Unincorporated Conventions, 2008, Presidian Legal Publications, p155-156.

[41] (2006) 15 VR 22,

38-9.

[42] R v Togias (2001) 127 A Crim R 23, 37 [85] per Grove J; 43 [123] per Einfield AJ; R
v Hollingshed (1993) 112 FLR 109,115, contra Smith v R (1998) 98 A

Crim R 442, 448.

[43] Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70, 75; see

also Re Rigoli [2005] VSCA 325.
[44] Wickham v Canberra
District Rugby League Football Club Ltd (1998) ATPR 41–664, [64]-[70]; McKellar v Smith [1982] 2 NSWLR 950, 962F.
[45] McKellar v Smith [1982] 2 NSWLR 950, 962F. See now the much fuller list set out by Bell J in Tomasevic (2007) 17 VR 100, 114 [73] and fn 49.
[46] (2007) 17 VR 100.

[47] Gradidge v Grace
Bros Pty Ltd (1988) 93 FLR 414, 422 per Kirby P, 426 per Samuels JA and 427

per Clarke JA (agreeing with Kirby P).

[48] (1991) 30 FCR 70

(‘Schoenmakers’).
[49] Schoenmakers at 74.
[50] Schoenmakers at 74.
[51] Schoenmakers at 74.
[52] Schoenmakers at 75.
[53] Tomasevic at 115.
[54] Human Rights Act 2004 (ACT) s 30; Charter of Human Rights and
Responsibilities 2006 (Vic) s 32(1). For example, s 32(1) of the Victorian Charter states: ‘So far as is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’.

[55] The Hon

Justice J Spigelman AC, Statutory Interpretation and Human Rights, 2008 McPherson Lectures, University of Queensland, 11 March 2008.

[56] French CJ,

‘Adding Value to Law Making’, Australia and New Zealand Scrutiny of Legislation Conference, Canberra, 6 July 2009.

[57] This is consistent

with s 15AA of the Acts Interpretation Act 1901 (Cth) which provides that: ‘[i]n the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose of object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object’.

[58] Justice

Maxwell, ‘The Victorian Charter of Human Rights and Responsibilities So Far: A Judge’s Perspective’, Annual Castan Centre Conference, Melbourne, 17 July 2009, p 1.

[59] Victorian Human Rights

and Equal Opportunity Commission, Emerging Change: The 2008 Report on the
operation of the Charter of Human Rights and Responsibilities, 2008; ACT Human Rights Commission, Submission to the National Human Rights Consultation, 2009.

[60] Kracke v Mental
Health Review Board & Ors (General) [2009] VCAT 646, [255]-[333].