Courts and administration

Human rights in Australian courts

During the 1990s and into the 21st century there has been a significant move in Australian courts towards accepting reference to Australia’s human rights obligations as a basis for interpreting Australia law.

The extent to which human rights obligations should influence Australian judges’ interpretation is limited and is still contested. One of the earliest and most significant statements was by Justice Brennan in the High Court:

‘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. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule …’.

(Mabo v State of Queensland [No 2] [1992] HCA 23)

The emphasis is on interpretation – the law as it is stated will be given effect, but when there is uncertainty, or a gap in the law, then Australia’s human rights obligations are relevant. This accords with the 1988 Bangalore Principles: ‘if an issue of uncertainty arises … a judge may seek guidance in the general principles of international law, as accepted by the community of nations’. This approach is generally only available to the higher ranked courts, which have a role in interpreting law. There will, however, be occasions when lower level courts and tribunals need to interpret law. It remains to be seen how confident they will be in referring to human rights standards as a means of doing so.

Hot Tip

In 1988 in Bangalore, India, a group of judges and lawyers from common law jurisdictions within the Commonwealth met to consider the long-term implications for the domestic law of their countries of developments in international human rights law. The public statement which provided a summary of the proceedings is known as the ‘Bangalore Principles’. The participants included representatives from Pakistan, Zimbabwe, Papua New Guinea, Malaysia, Australia, India, Mauritius, Sri Lanka and the United States. (1988) 14 Commonwealth Law Bulletin 1196.

Human rights in administration and policy development

In 1995 the High Court decided that people in Australia have a ‘legitimate expectation’ that government administrators will, where relevant, take into account Australia’s international obligations in making their decisions: see Teoh’scase. The Court agreed that to require a decision to be made in accordance with a treaty would be legislating ‘by the back door’, and therefore would not be permissible. The most an applicant can expect is that the obligations Australia has assumed in relevant treaties will be considered when their application is assessed. Since Teoh, government decision-makers have taken account of Australia’s treaty obligations when considering a decision, but have never been bound by them. There have been some Federal Court applications for review of immigration decisions which argue that the Teohrequirement has not been complied with, but the argument has rarely been successful.

Despite this limited role for treaties in administrative decision-making, the then Labor Government argued that the Teohdecision interfered with the proper role of Parliament in implementing treaties. In 1995 it introduced the Administrative Decisions (Effect of International Instruments) Bill to negate the effect of Teoh. This ‘Teoh Bill’ lapsed in 1996 with the calling of a Federal Election. In 1997, a similar bill was reintroduced by the new Coalition Government. It lapsed with the calling of a federal election in 1998.

The Bill was reintroduced to Parliament in late 1999. Debate lasted into April 2001. Once again, the Bill lapsed with the proroguing of Parliament for a Federal Election in October 2001. In 2000, when considering Australia’s compliance with the ICCPR as part of its regular monitoring, the Human Rights Committee in Geneva said of the Teoh Bill that enactment of the Bill would be ‘incompatible with the Australia’s obligations under the Covenant’.

In both Victoria and the ACT, public servants are now working in an environment in which ‘public authorities’ are subject to a duty to behave consistently with human rights (see Formal human rights protection in Australia) recognised by the Charter of Human Rights and Responsibilities Act 2006(Vic) and the Human Rights Act 2004(ACT) respectively. In practice, this means that public servants and statutory office holders must, as they exercise statutory discretions, make decisions and develop policies for Ministerial or Cabinet approval, consider the relevant human rights standards.