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1997 Australian International Law Journal

INTERNATIONAL HUMAN RIGHTS LAW: A LEGITIMATE INFLUENCE OR CONSTRAINT ON SOVEREIGN JURISDICTION

Craig Richard ~ u r h a m *

Background

Recent debate has emerged in Australia concerning the manner in which Australia enters into and implements international treaties, and the effect this process has on Australia's sovereignty. The question which is asked is whether Australia's sovereignty is constrained or compromised because international treaties to which Australia becomes a party prescribe standards which are determined by the international community at large and which Australia is bound to observe.' The issue of the constraint of international treaties on Australian sovereignty is especially significant in the area of human rights law because rights and obligations are attributable to it. Any infringement of international law in the area of individual rights and freedoms would inevitably lead to debate between the individual and the state. Equally, any expansion of individual rights often leads to attempts by the state to curtail or ignore them. When this happens, it may result in social unrest, conflict and violence in the state.

International obligations which have the potential, at least in theory, to directly affect individuals will inevitably raise issues of national sovereignty when the government feels bound to incorporate them into domestic law. Some concern has been raised in Australia following its acceptance of certain international human rights instruments. The objection has been on the ground that by doing so, its system of law and institutions have been prejudiced and made subject to external influences which are perceived to be irrelevant to the Australian social, cultural and economic ethos. On the other hand, proponents of the new international legal order and strict legalism argue that incorporation of international human rights

LLB (Hons). Solicitor. 1 It was against the background of this debate that the Australian government

colnmissioned the Senate Legal and Constitutional References Committee Inquiry Report. "Trick or Treaty'? Commonwealth Power to Make and Implement Treaties". November 1995. Co~nmonwealth of Australia. Parliament House. Canberra.


norms into the domestic legal system is itself an exercise of sovereignty and not a negation of it. As such, Australia's participation in international human rights instruments will enlarge its sovereignty, and is not to make it subordinate to some higher "outside" body.

The debate concerning Australia's treaty making practices in the human rights field intensified when the Australian government acceded to the First Optional Protocol ("Optional Protocol") to the 1966 International Covenant on Civil and Political Rights ("ICCPR"). Inter aha, it conferred the right on individual Australians to lodge communications with the UN Human Rights Committee ("Human Rights Committee") regarding Australia's compliance with the ICCPR. In effect, Australia's ratification of the Optional Protocol and participation in other international human rights treaties subject Australia to comply with international human rights standards which are determined by the international community and not by its democratically elected government. Questions have been asked concerning the extent to which Australian courts are able to incorporate international human rights law and standards into the common law based on the theory that international law is a legitimate influence on the development of the common law.

It was noted in the Report by the Senate Legal and Constitutional References Committee in November 1995 that Australia is currently party to approximately 920 principal treaties. Owing to the volume involved, it is therefore not an unreasonable proposition that international treaties, when incorporated into Australian law, would have widespread domestic effects. These include the extent to which domestic courts, tribunals and bureaucrats have to pay regard to these instruments and how the Australian federal system should deal with domestic obligations when it comes time to apply the treaty provisions.

Australia is currently developing a body of jurisprudence in international human rights and the extent that this jurisprudence has influenced the development of the common law is only now being seen. It has only been since the interpretation of the external affairs power in the T m i a n i a ~ ~ Dams ('ase2 that the issue of Australia's sovereignty had come into sharp focus within this context.

Commonwealth of Australia v Tas~nania (1 983) I58 Commonwealth Law Reports 1

1997 Austfaiian lntemational Law Journal

Human rights law has its origins in the atrocities of World War 11, which provided the impetus for the 1948 Universal Declaration of Human Rights ("Universal Declaration"). The rights set out in the Universal Declaration echoed what was already stated in the 1945 Charter of the United Nations ("UN Charter"). In the preamble to the UN Charter, the United Nations reafirmed faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. The achievement of international cooperation in solving international problems of an economic, social, cultural or humanitarian character is found in Article l (3 ) of the UN Charter as one of the purposes of the United Nations. The United Nations is also required to promote and encourage respect for human rights and hndamental freedoms for all without distinction as to race, sex, language or religion.

The Universal Declaration was viewed as the first major step in the development of an international bill of human rights. At its inception, the Declaration was intended to have both legal and moral force. It was to be the stepping stone for greater and more idealistic human rights goals. Further, it recognised that between 1939 and 1945, contempt for human rights had resulted in "barbarous acts which ... outraged the conscience of mankind" resulting in the international community demanding a universal response by prescribing that "human rights should be protected by the rule of law"."

It is stated in the International Bill of Human Rights that the Universal Declaration "has had a wide impact throughout the world, inspiring national constitutions and laws as well as conventions on various specific rights. The Declaration did not have the force of law at the time of its adoption, but since then has had a p o w e h l influence on the development of contemporary international law".4 It is now generally accepted that although the Universal Declaration is not a binding instrument in the strict sense of the term, its provisions have become binding as customary international law.

7 United Nations. "The International Bill of Human Rights". Department of Public Infortnation. United Nations. New York, 1985.

' lbid at 1. Mathew. "International law and the protection of human rights in Australia: recent trends" (1995) 17 Sydney Law Review 177. 180.

In 1976, the Universal Declaration was implemented by three significant agreements on international human rights law. These are the 1966 International Covenant on Economic, Social and Cultural Rights ("ICESCR"), the 1966 International Covenant on Civil and Political Rights ("ICCPR") and the Optional Protocol. On 16 December 1966, the General Assembly had adopted these three instruments but it was not until ten years later that the instruments were ratified by the requisite number of states (namely, a minimum of 35) for them to come into force. The ICESCR came into force on 3 January 1976, while the ICCPR and the Optional Protocol came into force on 23 March 1976.

IJnder the ICCPR, contracting states bind themselves to protect their people by enacting laws aimed at preventing cruel and inhumane treatment, and to give recognition to fundamental rights such as life, freedom, privacy and security of person. States are bound to prohibit slavery, provide systems whereby persons before national courts are given a fair trial and protect against arbitrary arrest and detention. The ICCPR also recognises freedom of thought and religion, freedom of opinion, expression and of association, and the right of peaceful assembly. Under the ICESCR, states bind themselves to promote better living standards for their people by prescribing rights regarding employment, fair remuneration, social security, health, education and membership in trade unions.

There are some notable examples of Australia's implementation of these various instruments including the 1975 Racial Discrimination Act (Cth) (which implements the 1965 International Convention on the Elimination of All Forms of Racial Discrimination), the 1986 Human Rights and Equal Opportunity Commission Act (Cth) (which annexes, but does not fully implement a number of human rights instruments, including the ICCPR), the 1984 Sex Discrimination Act (Cth) and the 1986 Affirmative Action (Equal Employment Opportunity for Women) Act (Cth). The latter acts give effect to the 1979 Convention on Elimination of All Forms of Discrimination Against Women ("CEDAW"). The Human Rights and Equal Opportunity Commission, set up by the 1986 Act of the same name, has powers which include the promotion of human rights issues in the community. More importantly, the Commission has power to examine Australian laws to identify areas of inconsistency with the human rights instruments annexed to the Act.

In spite of these many attempts to implement international human rights instruments domestically, the level of Australian implementation has been

~ri t icised.~ This is not unexpected because Australia has only partially implemented the ICCPR in the 1986 Human Rights and Equal Opportunity Commission Act (Cth) and partially implemented the CEDAW in the 1984 Sex Discrimination Act (Cth). The lack of commitment, and sometimes indifference, to international human rights obligations have been attributed to Australia's reluctance to intrude on state rights on these issues under Australia's federal system of government.7

The UN Human Rights Committee

One of the major features of the ICCPR is the establishment of the Human Rights committee.' The Committee consists of 18 members and its functions are twofold.

First, under Article 41(l)(a) of the ICCPR, a state may by a written communication bring a matter of non-observance of the ICCPR to the attention of another state that is party to the convention. Under Article 41(l)(b), if the matter is not resolved within six months of the date of the original communication, either state has the right to refer the matter to the Human Rights Committee. Secondly, under the Optional Protocol, individuals may communicate with the Human Rights Committee and claim to be victims of a violation by their state of their human rights under the ICCPR. If it is adjudged that the communication is admissible under the Optional Protocol, the Human Rights Committee may "forward its views" on the communication to the state and the individual complainant.

Under the Optional Protocol, a communication must be from an individual (not a group with a common interest) who claims to be a ~ i c t i m . ~ Also, the communication must not be under any other procedure for international investigation or settlement." The victim must show that he or she has

6 Charlesworth, "Australia's split personality: implementation of human rights treaty obligations in Australia" in Alston P and anor (eds), Treaty-Making and Australia: Globalistion versus Sovereignty (1995. Federation Press, Sydney) 129, 138-139. lbidat138. Article 28(1).

Y However, see E v B Communication No 2911978: a tlurd party communication on behalf of alleged victims will be accepted by the Committee in certain circumstances.

l o Articles 1 and 2. Article 5(2)(a).


exhausted all local remedies12 and the communication must not be anonymous, abusive of the right of submission or incompatible with the provisions of the ICCPR. " The rule that the victim must first exhaust all local remedies before a communication can be adjudged admissible is an important feature of the Optional Protocol. Although this principle is generally accepted as reflective of customary international law,14 it has been interpreted by the Committee that only remedies which are available and effective need be exhausted." For example, in Australia, it is doubtfbl that victims who complain of a violation of the ICCPR (but who cannot pursue a claim in domestic courts or tribunals) would need to pursue all remedies under the 1986 Human Rights and Equal Opportunity Commission Act (Cth) before they are permitted to lodge a communication with the Committee. l6

A recent example of an Australian communication to the Human Rights Committee is seen in the case of Toanen 1) I'ommonwealth of Aavtralia. l7

A communication was lodged in December 1991 by a Tasmanian gay activist, Mr Toonen, challenging a Tasmanian state law which criminalised sexual relations between consenting males. On 3 1 March 1994, the Human Rights Committee, after finding that the communication was admissible, unanimously held that Australia had violated the complainant's rights under Article 17 of the ICCPR which guaranteed a right to privacy, and under Article 2(1) of the ICCPR which guaranteed non-discrimination in the exercise of the ICCPR's guarantees.

The ability of individual Australians to lodge a complaint with the Human Rights Committee highlights the effects of Australia's accession to the Optional Protocol on Australia's sovereignty. Not only has it been suggested that accession amounted to the introduction of a Bill of Rights

' Artlcles 2 and 5(2)(b) I ' Arucle 3 13 Interhandel Case (US 1 S\\ltzerland) [1959] Internauonal Court of Justlce Reports 6 ,

1 5 2 7 Sequeira \ Urugua~ . Coin~nunication No 611977

1 i Charlesnortll. "Australia's accession to the Flrst Optlonal Protocol to the I~lternahondl Co\ enant on CI\ 11 and Polltical hghts" (1 99 1) 18 Melbourne Unlverslty Lan Re\ie\+ 128.129

1 - Colnlnunlcation No 48811992. UN Doc CCPRICl50/Dl188/1992. 1 Apnl 1991 ("Toonen Case")


through the "back door"'8 there is also the suggestion that "Australia's sovereignty is being eroded by the government's reliance on international treaties". ''

The current debate is not confined to issues of Australia's participation in multilateral and bilateral treaties and the extent to which Australia's sovereignty is subordinated by them. Some doctrinal questions arise within the ambit of the discussion of international treaty making and the effect that Australia's participation in that process has on Australian domestic law. However, it is beyond the scope of this article to discuss the need to reform Australia's treaty making practices in light of the current attitudes on the role of parliament in the process. Suffice it to say here that reform is on the political agenda to enlarge the parliament's role so that the executive arm of government can be made more readily accountable for Australia's international commitments.

It is generally accepted that sovereignty has three aspects: external, internal and territorial. For the purposes of the present discussion, focus will be on the internal aspect of sovereignty, namely, the sovereign right of a state to enact its own laws and determine its own institutions.

The conception of sovereignty in the new international legal order had changed dramatically since the time before World War 11. The modern development of international law, both treaty and custom, does not recognise the absolute sovereignty of states. The UN Charter and customary international law do not recognise the concept of absolute sovereignty. As Burmester said:

States do not exist in splendid isolation. Just as individuals in a society are not completely free to act in whatever way they like, so States as members of the international community of nations are constrained by international law in the way they can behave ... Now States are increasingly constrained in relation to the way they act towards their own ci t i~ens.~ '

I X Headline. The Age. 5 August 1991. 1 Y The Bulletin Magazine. 1 1 October 1994, quoting Senator Rodney Kemp at 19. 20 Burmester, "National sovereignty. independence and the impact of treaties and

Quoting Hannum, Burmester adds:

Modern discussions of sovereignty have often addressed the question of whether one can speak of 'absolute sovereignty' for states, a power above international law Few, if any, would support such view today, and the very concept of the equality of states at least implies that sovereign rights of each state are limited by the equally sovereign rights of others ...[ Slovereignty in its original sense of 'supreme power' is not merely an absurdity but an impossibility in the world of states which pride themselves upon their independence from each other and concede to each other a status of equality before the law 2 1

If sovereignty means absolute sovereignty or the sovereign right to freely determine relations with other states without inhibition, then international law at most will be a persuasive influence on the development of domestic law. If this is so, international law can never be a constraint on national sovereignty. On the other hand, if sovereignty is not unencumbered and treaty making is something which defines the boundaries of appropriate national conduct, Australia's sovereignty will be exercisable only to the extent that it may enact laws which are consistent with international law.

International human rights law prescribes parameters acceptable to the international community for the treatment of individuals subject to Australia's jurisdiction. Although the growing international concern with human rights, evidenced by the establishment of a plethora of human rights treaties, may be an effective constraint on sovereignty, at the same time it is also a legitimate influence on Australian common law. In practice, either Australia will refrain from acting inconsistently with international human rights law or the courts will interpret the common law consistently with international law. Further, parliament will enact laws to give domestic effect to Australia's international obligations.

The conception of sovereignty is all important in determining whether or not international law constrains its exercise. It is generally accepted that states are not permitted to act as they like and national systems operate within the confines of acceptable limits which are prescribed by the

international standards" (1995) 17 Sydney Law Review 127, 13 1. ' Ibid at 131: Hannu~n H: Autonomy. Sovereignty and Self-Determination: the Accommodation of Conflicting Rights (1990. University of Pennsylvania Press, Philadelphia) 15.


international community acting as one. It is unrealistic to conclude that, in the context of internal sovereignty, Australia is completely unencumbered in the way it deals with people under its jurisdiction and within its territory. However, this does not mean that formal legal sovereignty is constrained because Australia is its own formal and legal sovereign.

SOVEREIGNTY AND ~ E R N A T I O N A L HUMAN RIGHTS LAW

The issue of whether, and to what extent, if any, international human rights law imposes constraints on Australia's sovereignty is controversial. One view is that Australia's sovereignty is not constrained by its involvement in the international law making process because of the nature of international law. Australia is only bound by international law to the extent that it agrees to be bound. This view was supported by Michael Lavarch when he was Attorney-General of Australia. He said: "International law-making cannot take away Australia's sovereignty. It is for Australia ultimately to decide which international standards and mechanisms to accept and incorporate as part of Australian law".22 This approach is based on the consensual nature of international law.

The second view is that Australia's sovereignty is constrained by the increasing climate of globalisation and the body of international law regulating it. With the growth and changing character of international law and its decision-making bodies, and with the increasing number of international organisations and avenues available to individual Australians for their use, Australia's sovereignty may well be effectively constrained.

There is a third view which perhaps is the middle ground between the first two. This view is that Australia's sovereignty, although not legally constrained, is effectively constrained by the growing regime of international human rights law. Although Australia may exercise its sovereignty to accept or not accept certain international standards, for practical purposes it must accept those standards. The reason stems from world concern with human rights and the pressure imposed by the world

7 7 -- Lavarch, "The role of international law-making in the globalisation process" in Alston P and anor (eds). Treaty Making and Australia: Globalisation versus Sovereignty (1995. Federation Press, Sydney) 177. 184.


community that uniform international human rights principles be accepted. This was also the view of Lavarch who stated:

While Australia can ignore UN rulings, to do so could prove embarrassing. Would Australia be comfortable becoming an international pariah over the boat people in much the same way Japan has over whaling? Could it then tell China and Burma to clean up their human rights record^?^"

The sovereignty debate concerning international human rights law began with the process of globalisation. According to Lavarch, globalisation "is the process by which the cultural, economic, political and social fabric of our different societies [become] increasingly i n t e r ~ o v e n ' ' . ~ ~ He added:

Globalisation essentially describes the transformation from domestic to international production and distribution of goods and services. Through this process, national economies are opened to the international market place. It means Australia or any other nation cannot exist behind trade or other barriers cut off from the rest of the

The role of international law in the globalisation process must be deemed significant if Australia and the rest of the world have to meet the challenges posed by globalisation. Globalisation opens up a myriad of issues such as regulation of international markets and economies, management of foreign cultures and cultural diversity, universal civil and political rights, issues concerning the environment and its harvesting, and the treatment of individuals by states within national jurisdiction. These issues must be resolved within a legal framework so that states can live together in harmony and cooperatively.

Therefore, the developtnent of international law and international standards is important for the achievement of globalisation objectives. Sir Kenneth Keith, President of the New Zealand Law Commission, had said that the

" Bulletin Magazine. 11 October 1991. quoting Michael Lavarch MP at 19 '' See note 22 at 178. " Ibid.

"massive increase in international activity and global concern is matched by a massive growth in the law".26 ~e further stated that "with respect to treaties, their effect on domestic law is significant". As a result they are "very persuasive through much of our law".27

Whether or not the globalisation process provides an appropriate direction for the development of international human rights law is a stand alone question. The fact remains that because of the closer social, cultural and economic ties that exist between nations today, regulation of these interrelationships becomes even more important. For example, although globalisation has allowed several minor markets to hnction, this has been very much dependent on the will and attitude of developed countries.

Furthermore, the international community, through the globalisation process, is in a better position to regulate matters such as conditions of work, the use (and abuse) of children in the workplace, discrimination against women and the disabled, and racial discrimination in the workplace. This can be achieved by placing greater emphasis on minimum human rights standards in trading policies. ~nternational human rights law can therefore be used as a powerful influence to force recalcitrant states into complying with international human rights law. It is also important in other areas of international relations, such as trade and commerce, to ensure that the interests of smaller and less developed states especially are properly maintained.

There is strong support for the view that Australia's involvement in the international law making process erodes Australia's sovereignty. For example, Sir Ninian Stephen, former Governor-General and Chief Justice of Australia has said:

It has been estimated that no less than fifty thousand international instruments have come into existence in the past fifty post-war years and that a whole horde of intergovernmental agencies, some two

' 6 Keith. "A New Zealand perspective on globalisation" in Alston P and anor (eds), Treaty Making and Australia: Globalisation versus Sovereignty (1995, Federation Press. Sydney) 283. 284.

" lbid at 285.

thousand of them, now exist, most of them busy rule-making for the world. This amounts to a partial transference by nations of their sovereignty in recognition of their interdependence on one a n ~ t h e r . ~ '

According to Sir Ninian Stephen, it reflects the need of states to relate to other states, partially through the medium of international treaties and conventions. In turn, this gives rise to new international law, resulting in a diminution of sovereignty and a growth of common form laws.29

However, there seems to be stronger support for the opposing view that Australia's sovereignty is not compromised by Australia's participation in international human rights treaties although there may be a perception of, or indeed, a constraint. There are several aspects to this. One aspect is that the so-called diminution of Australia's sovereignty is in practical terms advantageous to individuals in Australia. An example is Australia's accession to the Optional Protocol which has resulted in a right being given to an individual to question and test Australia's conformity with international standards. Another example is the abandonment of the World Health Organisation by the European Union, Japan and United States in favour of the establishment of a trilateral forum called the International Conference on Harmonisation.

If Australia were to follow suit, it would amount to a partial surrender of its sovereignty. On the other hand, the partial surrender of sovereignty is a small price to pay for the benefits of globalisation and cooperation. For example, states in partnership with one another would be in a better position to exchange ideas and share their data." This aspect of sovereignty depends on the initial conception of sovereignty. If the conception of sovereignty is individual sovereignty, then it cannot be said that international law making is a surrender of sovereignty.

Another aspect is that international law making, by its very nature, necessarily constrains Australia's sovereignty. In C1zr.stoms [Inion Between Germmy and ~~r.stricr;~' an Advisory Opinion of the Permanent Court of

. .

Justice, it was stated (albeit in the dissenting opinion):

'"ir Ninian Stephen. ..The expansion of international law - sovereignty and external affairs". Sir Earl Page Memorial Trust Lecture. 15 September 1994 at 3.

'"bid. 0 See note 6 at 123. " (193 1) Permanent Court of International Justice. Series A/B, No 4 1.


Practically every treaty entered into between independent states restricts to some extent the exercise of the power incidental to sovereignty. Complete and absolute sovereignty unrestricted by obligations imposed by treaties is impossible and practically unknown.32

Yet another aspect is the importance of the subject matter of a particular international standard and the question whether the subject matter is fundamental to human co-existence, such as fundamental human rights. If the subject matter of a treaty can be seen as expanding Australia's sovereignty, then there will be little opposition to Australia's participation in the treaty. This was illustrated by the Attorney General's comments in the Australian Parliament on the 1994 Human Rights (Sexual Conduct) Bill. He said:

The Commonwealth has used the external affairs power to reinforce Australian sovereignty. Some examples are the maritime boundary agreements with France, the Solomon Islands, Papua New Guinea and Indonesia. Most recently we have taken steps to ensure that Australia benefits from the right to a 200 nautical mile exclusive economic zone recognised in the United Nations Convention on the Law of the Sea. There were no complaints about treaties eroding our sovereignty or overriding the state in these cases.33

Again, if the subject matter of the treaty espouses rights and obligations so fundamental to mankind that no civilised nation would reject them (for example, hndamental principles of international law that are considered to bejzrs cogens) there is little argument about constraints on sovereignty. The Senate Inquiry into the Commonwealth's Power to Make and Implement Treaties ~ e ~ 0 1 - t " ~ recognises that any limitation on sovereignty imposed by treaties, such as the 1926 Slavery Convention, the 1948 Genocide Convention or the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is unlik'ely to be significant because "no civilised country would countenance acceptance of torture, slavery or genocide".35 It seems that the issue of sovereignty

32 Per Adatci, Kellog, Robin-Jaequemyns, Hurst, Schuking, Van Epinga and Wang JJ. 3 3 Lavarch. House of Representatives, Hansard. 12 October 1994, Second Reading

Speech. Human Rights (Sexual Conduct) Bill 1994 at 1775. '' See note 1 at 241. 35 Ibid.

1997 Australian fnternational taw Journal

becomes more significant when domestic law fails to mirror fundamental rights. By failing to do so, it limits sovereign rights rather than expand them.

It is the implementation of international human rights treaties which seems to raise the issue of a diminution of sovereignty in Australia. Sir Ninian Stephen, in support of this view, stated that "[nlational governments worldwide are experiencing diminished sovereignty, diminished power to legislate as they see fit and increased obligations to conform to criteria and benchmarks imposed by international agencies".'"

The Department of Foreign Affairs and Trade recognises that some subjects of treaties necessarily extend beyond national boundaries and are not purely of domestic concern. It states:

Where issues extend beyond the boundaries of any one country, and management of an issue or problem cannot be achieved by a state acting alone, some pooling of sovereignty becomes essential to a state being able to exercise effective control within its own borders by strengthening the capacity to manage the broader environment in which it must function. But, ultimately, formal sovereignty is retained, since the power to enter into such arrangements remains with government and the government retains the right to remove itself from treaty obligations if it judges that on balance the treaty no longer serves Australia's national and international interests.37

One of the major concerns of those who support Sir Ninian Stephen's view is the ceding of sovereign power to an international decision making body outside the jurisdiction of Australia. An obvious example is Australia's accession to the Optional Protocol of the ICCPR. Australia's accession to the Optional Protocol was strongly criticised on the basis that it exposed Australia to international standards determined by an international body which was remote and, in the main, irrelevant to Australia. The critics have stated that Australia's participation in the Optional Protocol effectively represented a transference of Australian sovereignty to the Human Rights Committee.

'"ee note 28 -3- Department of Fore~gn Affairs and Trade. Canberra. "Australian and International

Treaty Making. Infor~nation Kit" October 1991


On 25 September 1991 Gareth Evans QC, the Labor Party's Minister for Foreign Affairs and Trade deposited with the United Nation's Secretary- General in New York, Australia's instrument of accession to the Optional Protocol. On the political level, accession to the Optional Protocol was seen as an unnecessary reliance on international standards which could lead to an undermining of Australian domestic legal institutions. Liberal Senator John Kemp criticised the Government's decision resoundingly by stating that:

The decision by the Federal Government to involve UN Committees in Australian domestic disputes will inevitably over time undermine our own legal institutions. Acceptance of a UN decision, which is critical of a High Court judgment or against an Australian Government, inevitably diminishes the importance of our own system.38

Some hesitation to the Optional Protocol was also shown by the various State and Territory governments. This was primarily due to their concern about undue international interest in human rights issues in their respective jurisdictions, like the treatment of prisoners:" Despite this opposition, Australia accepted the Optional Protocol, not least because Australia had not long before become a member of the United Nations Commission on Human Rights, but accession had been recommended in the 1991 National Report of the Royal Commission into Aboriginal Deaths in

In 1994, Alexander Downer, as Leader of the Liberal Party, agreed with Senator Kemp's criticism of the Labor Government's preparedness "to cede the powers and responsibilities that [were] rightly those of Australians to international bodies such as UN ~omrnittees".~' Mr Downer argued that the ability of Australians to directly access international bodies was not in the national interest. He said:

38 "International tribunals and the attack on Australian democracy in upholding the Australian Constitution" Proceedings of the Fourth Conference of the Samuel GriEth Society. July 1996 at 135. " Thompson. "Implications of Australia's ratification and potential ratification of international human rights treaties" Proceedings of the 1991 International Law Weekend, Australian National University Centre for International and Public Law 86, 89, 99-101.

40 (1991) 1 Royal Commission into Aboriginal Deaths in Custody National Report 5, 26. 41 Transcript of address by Alexander Downer MP to the National Press Club. 8 June

1994 at 6.

1997 Australian Internatianal Law Journal

[Tlhe protection of Australia's.. .interests are most effectively upheld by Australians through our Parliaments, our courts and other bodies, and not through the UN or other international committees that are ill-suited to playing any direct role in the Australian legal system ... 42

Perhaps the views of both Senator Kemp and Mr Downer are more in the nature of political rhetoric than an accurate statement of legal theory. Under Article 5(4) of the Optional Protocol, the Human Rights Committee "shall forward its views to the State Party concerned and to the individual" after considering the communication and submissions from the parties. However, since the Committee's decisions are "views" only, they have no direct and binding influence on the Australian domestic legal system. As Attorney-General Lavarch had stated in Parliament in 1994:

The Human Rights Committee is not a court. It does not make binding decisions. It has no power of enforcement. Its decisions do not oblige any action from Australia to change our laws or alter our practices. While the Government does believe the views expressed by the Committee have weight and should be regarded seriously, this Committee cannot alter Australian law.4'

The Attorney-General's views represent the strict and correct international law treatment of the role of the Human Rights Committee. To the extent that Australia retains its formal legal sovereignty, that is, the extent to which Australia chooses to be bound by an international human rights treaty, Australia's accession to the Optional Protocol does not represent a transference of sovereignty. This is primarily because the Human Rights Committee cannot directly bind the Australian parliament or other Australian institutions. As such, it cannot change Australian law.

Some critics of the Committee's role have drawn analogies from Australia's past relationship,with the Privy Council. However, an analysis of Australia's legal and constitutional position when Privy Council appeals were allowed from Australian courts, demonstrates that the Human Rights Committee's relationship with Australia is entirely different to that which Australia had with the Privy Council. As explained by Justice Kirby:

'' Ibid at 7. '' (1994) 197 House of Representatives Debates 1776-1777.


By our Constitution, the Privy Council was part of the Australian judicial hierarchy. No United Nations Committee and no other international court has the same power. So far as the Committee's decisions are concerned, their decisions derive only from the power which we, as a nation, have accorded to them . . . As in the case of the decision of the Human Rights Committee on the complaint of Mr Toonen against the Tasmanian laws, the decision is only translated into action in Australia by the authority of an Australian law maker ... But the authority of the statute rests upon a decision, duly debated, of the Australian Parliament. No Australian law was changed, as such, by the decision of the United Nations ~ o m m i t t e e . ~ ~

The Department of Foreign Affairs and Trade held a similar view:

[Tlhe UN Committee on Human Rights.. .is responsible, among other things, for considering whether parties to a convention are meeting obligations, but any assessments they make are advisory and have 'moral suasion' only. They are not binding and the Committee has no enforceable legal jurisdiction over nation states which have acceded to the treaties which they monitor ... this is an exercise, not a relinquishing of sovereignty.45

Another important feature of the Human Rights Committee is that "it does not regard itself as a 'court of fourth instance' ".46 Charlesworth explained that the Human Rights Committee had on numerous occasions refbsed to consider whether domestic human rights law had been appropriately applied and did not see itself as a body to re-hear and re-determine issues already decided by domestic courts.47

From the above discussion, the argument that Australia's accession to the Optional Protocol places a constraint on Australia's sovereignty cannot be sustained. This is not to say that by accepting an alternative definition of

44 Kirby. Submission to the Senate Legal and Constitutional References Committee on the Commonwealth's Power to Make and Implement Treaties, Submission No 41, Volume 2 at 350.

3 Jones. Department of Foreign Affairs and Trade Submission to the Senate Legal and Constitutional References Committee on the Commonwealth's Power to Make and Implement Treaties. Submission No 93. Volume G at 1175.

36 See note 1G at 434. 47 Ibid at 434.

sovereignty, Australia's formal legal sovereignty is effectively constrained by pressures exerted by the international community on Australia to conform. The Optional Protocol does not create legal obligations for Australia but allows Australia's implementation of international human rights standards to be scrutinised at an international level. In 1994 the Attorney General had stated:

By allowing complaints to the Human Rights Committee, Australia affords its citizens an avenue to explore whether our good record on human rights is being maintained. It displays our confidence in our capacity to meet the same standards which Australia contends internationally should be met by all nations.48

THE DEVELOPMENT OF THE COMMON LAW

Apart from Australia's involvement in international human rights instruments, there is another way in which international human rights law can be applied in, and influence, Australian law. International human rights law can be, and has been, used by Australian judges to assist in the interpretation and development of Australian common law. There are two ways in which the courts may have influenced the development of the common law in the protection of individual human rights. The first is through the consideration and interpretation of Australian legislation incorporating international human rights based on the external affairs power under the Australian Constitution, namely, section 5 ~ ( x x i x ) . ~ ~ The second is the use of international human rights norms as a means of developing the common law when the common law is incomplete, ambiguous or non-e~istent.~'

It has only been relatively recent that the courts have embraced the idea that international human rights law has a place in modern domestic jurisprudence. Perhaps the beginnings of the movement towards judicial embracement of these controversial ideas can be traced to Phillips' writing on the external affairs power in the Australian Constitution. He said:

48 (1994) 197 House of Representatives Debates 1776- 1777. 49 For example. Commonwealth of Australia v Tasmania (1983) 158 Commonwealth

Law Reports 1. 'O For example, J v Lieschke (1987) 162 Commonwealth Law Reports 447, 463;

compare Regina v Secretary of State for the Home Department; Ex parte Brind [I9911 Appeal Cases 696.

[Nlow there is a discernible tendency in modern international jurisprudence to elevate the authority of international law so as to subordinate that of municipal law in conflict therewith. A certain juristic quality is postulated of international law which by its nature compels municipal subservience. This doctrine is in truth a legal expression of political conceptions. It might well be described as the judicial parallel of the political conception subjecting the claims of unlimited national sovereignty to the servitudes implied and deducted from the existence of a community of nation^.^'

Perhaps Phillips had some foresight on modern judicial attitude to the development of the common law initiated by the'new world order and the concept of "universal respect for, and observance of, human rights and fundamental freedoms" as set out in Article 55(c) of the UN Charter. With an increasing number of decisions relating to human rights issues being handed down in Australian domestic courts, Australian lawyers and more particularly the Australian judiciary are becoming increasingly accepting of the concept that international human rights law is a legitimate influence on Australian common law. Justice Kirby states 'in support of this view that "our judicial leaders are beginning to encourage a new sensitivity to this perspective of international law, including that branch which states universal human rights norms. Suddenly international law is becoming relevant to Australian legal practice".52

This current attitude towards the role of international human rights in the development of Australian common law is supported by the former Chief Justice of the High Court of Australia, Sir Anthony Mason. At a conference of the International Law Association in Australia in 1990, he said:

There is a prima,facie presumption that the legislature does not intend to act in breach of international law. Accordingly, domestic statutes will be construed, where the language permits, in such a way that the statute conforms to the state's obligations under international law. The favourable rule of statutory interpretation goes some distance towards ensuring that the rules of domestic law are consistent with those of international law. In construing statutes to give effect to a Convention,

" Phillips, "External affairs &d the Commonwealth" (1936) 1 Res Judicatae 200,20 1. 52 Kirby, "The new world order and human rights" (1991) 18 Melbourne University

Law Review 209, 214.

the Court will resolve an ambiguity be reference to the Convention, even where the statute is enacted before ratification of the Convention.. .and there are many instances here and elsewhere of national courts taking into account the provisions of the Universal Declaration on Human Rights in interpreting national statutes and shaping the rules of municipal law ... [Jludges and lawyers in this country and in other jurisdictions are developing a growing familiarity with comparative law and showing a greater willingness to borrow from other legal systems. Ultimately, the new spirit will facilitate the moulding of rules of international law suited to incorporation into national law and create a climate in which acceptance by national courts is more readily attair~able.~"

There is no doubt the general principle still holds true that international treaties do not confer justiciable rights on individual Australians unless the treaties have been incorporated by legislation into Australian domestic law.54 However, there is a growing body of domestic jurisprudence which provides that in certain circumstances, regard may be had to principles of international human rights law as an aid to decision making. These circumstances are not exactly certain, but it is generally accepted that in appropriate cases international human rights law may be of assistance in judicial decision making despite the fact that the particular law has not been incorporated into Australian law.

In cases involving the interpretation of a statute where the words are ambiguous or incomplete, "it will be right for the court to consider whether the case is one where the search for legislative purpose will be firthered by

'"ason. "The relationship between international law and national law and its application in national courts", unpublished address, 24 August 1990, 64th Conference of the International Law Association, Broadbeach, Queensland.

54 See Chow Hung Ching v The King (1948) 77 Commonwealth Law Reports 449; Bradley v The Commonwealth (1973) 128 Commonwealth Law Reports 557 per Banvick CJ and Gibbs J at 582; Simsek v Minister for Immigration and E h c Affairs (1982) 40 Australian Law Reports 61 per Stephen J at 66; Koowarta v Bjelke- Peterson (1982) 153 Commonwealth Law Reports 168 per Mason J at 224: Tasmanian Wilderness Society Inc v Fraser (1 982) 15 3 Commonwealth Law Reports 550 per Gibbs CJ at 570;Re Limbo (1990) 64 Australian Law Journal Reports 241 per Brennan: and Minister for Immigration and Ethruc Affairs v Teoh (1994-1995) 183 Commonwealth Law Reports 273 per Mason CJ and Deane J at 279-293.

the assumption that the Parliament would have intended its enactment to be interpreted consistently with international human rights law".55

An expression of the modern approach to the use of human rights principles in interpretation can be found in the Bangalore ~r inc i~les .~"n effect, the Bangalore Principles provide:

(a) international law (whether international human rights law or otherwise) is not, as such, part of domestic law in most common law countries;

(b) such law does not become part of the domestic law until Parliament so enacts or the judges (as another source of law making) declare the norms thereby established to be part of domestic law;

(c) the judges will not do so automatically just because the norm is part of international law or in a treaty even if ratified by the particular nation;

(d) but, if an issue of uncertainty arises (as by a lacuna in the common law, obscurity in its meaning or ambiguity in a relevant statute), a judge may seek guidance in the general principles of international law, as accepted by the community of nations; and

(e) from this source material, the judge may ascertain and declare what the relevant rule of domestic law is. It is the action of the judge, incorporating the rule into domestic law, which makes it part of domestic law.57

55 Wilson, "The domestic impact of international human rights law" (1993) Cornmon- wealth Law Bulletin 1246, 1249.

56 These principles were developed in February 1988 by a group of lawyers from a number of Commonwealth countries in Bangalore, Inda. The meeting was chaired by the former Chief Justice of India, PN Bhagwati and attended by Mr Anthony Lester QC (now Lord Lester of Herne Hill), Justice Rajsoomah Lallah (now Chief Justice of Mauritius), Justice Enoch Dumbutshena (then Chief Justice of Zimbabwe) and Justice Michael Kirby (now Justice of the High Court of Australia). Joining the Commonwealth participants was a Judge of the Federal Circuit Court in the United States. Ruth Bader Ginsburg (now a Justice of the United States Supreme Court).

57 Kirby, "The Australian use of international human rights norms: from Bangalore to Balliol - a view from the Antipodes" (1993) 16 University of New South Wales Law Journal 363.

f S97 Australian tnternationat taw

Therefore, in the light of the above discussion, it may be concluded that it is legitimate for judges to have regard to international human rights norms for the purpose of deciding cases where the domestic law is uncertain and incomplete so as to remove the ambiguity or uncertainty. Although the Bangalore Princi les have been criticised in the years following their

5 J' pronouncement, the courts have shown an increasing tendency to use international human rights norms as an aid in the development of common law. Perhaps the most relevant example of this is the decision of Brennan J in Mabo v Queenslarzd (No 2jS9 where he held:

The expectations of the international community accord in this respect with the contemporary values of the Australian people. 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 powerfbl influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but 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 rightsb0

Earlier cases in the High Court and state courts have recognised that international law had a legitimate role in the development of the common law. In Jago v District Court of New South Wales, for instance, the New South Wales Court of Appeal considered an application for a stay in criminal proceedings for an alleged abuse of process caused by undue delay in the commencement of trial proceedings. Kirby P believed that in considering the content of the applicable common law, and rather than use the English common law:

58 (1988) 12 New South Wales Law Reports 558. Note Samuels JA who stated the following: "The Interrlational Covenant on (i'vil and Political Rights (to wluch Australia. with certainreservations and declarations. is a party). . .is not part of the law of Australia. Accession to a treaty or international covenant or declarations does not adopt the instrument into municipal law in the absence of express stipulation, such as that which may be derived from the Racial Discrimination Act 1975 (Cth), ss 7, 9 and 10.. .": ibid at 580.

59 (1992) 175 Commonwealth Law Reports 1,42 ("Mabo Case"). 60 For similar remarks see the English Court of Appeal in Derbyshire County Council v

Times Newspapers Limited [I9921 1 Queen's Bench 770. affirmed House of Lords in [I9931 Appeal Cases 534.

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[a] more relevant source of guidance.. .may be the modern statements of human rights found in international instruments, prepared by experts, adopted by organs of the United Nations, 'ratified by Australia and now part of international law".61

After dispensing with "disputable antiquarian research concerning the procedures which may or may not have been adopted by the itinerant justices in eyre in parts of England", in the same part of his judgment, Kirby P held that "Australian judges ...[ would] do well to look for more reliable and modern sources for the statement and development of the common law. One such reference point may be an international treaty which Australia has ratified and which now states international law".

In Gradidge v Grace Bros Pty ~ t d G ~ Kirby P again referred to the ICCPR in determining whether a deaf mute litigant had a right to an interpreter when legal argument arose in civil proceedings. In holding that there was such a right, he referred to Articles 14.1, 14.3(a) and 14.3(f) of the ICCPR and stated that those provisions had now become part of customary international law. Consequently, it was desirable that the common law should, so far as possible, be in harmony with those provisions.63

In Re ~ a n e ~ ~ the Family Court of Australia had to deal with an application to sanction the sterilisation of a mentally incompetent 17 year old girl. The principle that international law was not part of Australian domestic law until lawfully incorporated into Australian law was repeated in the context of the instruments annexed to the 1986 Human Rights and Equal Opportunity Commission Act (Cth). In his decision, Nicholson CJ at page 17 had regard to international human rights law and stated that it could be relevant insofar as it "may be open to have regard to [such laws] as an aid to determining what the common law is in the event of doubt about, for example, the existence of a particular right [and it is] useful to have regard to them in considering the exercise of discretion".

In Puharta v Webb, an application for an extradition order of a Swedish national was refused because the legislation to which the court had regard

(1988) 12 New South Wales Law Reports 558,569. 62 (1988) 93 Federal Law Reports 414. 63 Ibid at 422. 64 (1988) 94 Federal Law Reports 1.

in implementing the extradition treaty did "not detract from the common law right of any person, whether a citizen or visitor to this country, to whom protection of the laws of this country extends, to approach the court and seek relief from unlawhl detention"." This case is an example of legislation not abrogating the common law right of habezrs corpus in spite an international agreement and domestic legislation incorporating it into Australian law. The court concluded that relief could be granted consistently with the common law.

A more recent example of courts having regard to international human rights norms may be found in the case of Dietrich v R." The case involved an applicant who was convicted of a serious criminal offence without legal representation provided at public expense. The central issue before the court was whether, due to a lack of legal representation, the accused had been denied the right to a fair trial. In concluding that the absence of legal representation was prejudicial to the accused's right to a fair trial, the High Court was of the following opinion:

(1) international law may be considered to resolve an ambiguity or uncertainty in the common law [per Mason CJ; McHugh and Toohey JJ];

(2) international law may be used to define a new (and hndamentally different limb) of existing common law [per Deane J]; and

(3) international law may be used as a reason to overrule a previous decision of the High Court and as a guide to replace an existing common law rule [per Gaudron J]. 67

An interesting point was raised by the Dietrich Case, namely, whether international human rights law can be used to create a new common law principle. Fitzgerald believed that:

At this stage, all that can be suggested with confidence is that international law is likely to be used by the High Court as a factor in

65 [1983] 2 New South Wales Law Reports 3 1. 66 (1992) 177 Commonwealth Law Reports 292 ("Dietrich Case"). 6 i Fitzgerald "International human rights and the High Court of Australia" (1994) 1

James Cook University Law Review 78. 91.

1997 Australian lntemational Law Jownal

deciding when and how to replace common law. The filling of gaps in the common law, the creating of new (as opposed to replacement) common law, and the invalidation of statutes on the basis of international human rights are issues at the moment but ones on which the court is yet to fblly develop. In this sense, international human rights are seen as a 'modernising agent' of the existing common law and not as a creator of new domestic common law.68

Another recent example is the case of Minister for Immigation and Ethnic Afairs v ~ e o h . ~ ' Mr Teoh challenged a deportation order made against him by the Minister for Immigration and Ethnic Affairs. The Minister made the decision after Mr Teoh was sentenced to six .years imprisonment for offences relating to the importation and possession of heroin. However, Mr Teoh had married an Australian citizen and between the two of them, had seven children. Mr Teoh challenged the Minister's decision in the Full Federal Court of Australia and his application for a stay of the deportation order was successful. He argued that in making the decision to deport him, the Minister's delegate did not have adequate regard to the effects the decision would have on the interests of the children under Article 3.1 of the 1989 United Nations Convention on the Rights of the Child, which convention Australia had adopted.''

The Minister appealed the Full Federal Court decision to the High Court. It was held by the majority of the High Court [per Mason CJ, Deane, Toohey and Gaudron JJ; McHugh J dissenting] that:

... ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act," particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this

68 Ibid at 92-93. 69 (1994-1995) 183 Commonwealth Law Reports 273 ("Teoh Case"). 'O It will be seen later that because Australia had ratified the convention, but had not

incorporated it into Australian domestic law by legislation it became a crucial point in the case. Refer Samuels JA in note 58.

7 1 See Minister for Foreign Affairs and Trade v Magno (1992) 37 Federal Court Reports 298, 343: Tavita v Mnister of Immigration [I9941 2 New Zealand Law Reports 257.266.

f 997 Australian fflternatianaf taw Jo

country to the world and to the Australian people that the executive government and its agencies will act in accordance with the [I989 Convention on the Rights of the Child]. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision- makers wilt act in conformity with the Convention.. . 72

The basis of the majority decision was the significance of the role of an unincorporated (albeit ratified) treaty in interpreting legislation. Mason CJ and Deane J (Gaudron J concurring) held that where a statute is ambiguous, the courts would favour a construction which was consistent with the obligations in the treaty especially when a statute had been enacted after the implementation of the treaty or in anticipation of entry into force of the treaty. Mason CJ and Deane J provided guidance on the meaning of "ambiguity" as follows:

Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is, because Parliament, prima facie, intends to give effect to Australia's obligations under international

The High Court's approach in the Teoh Case and Mabo Case showed that in appropriate circumstances and where the values of modern Australian society required, the common law might be legitimately influenced by international human rights law as determined by the community of nations.

Despite these developments in the common law, and more particularly the decision of the High Court in the Teoh Case, the Australian government moved swiftly to close what they saw as potential floodgates created by that decision. In Joint Statement No M44, issued by the Minister for Foreign Affairs and the Attorney-General in Canberra on 10 May 1995, it was stated that action had to be taken:

72 See note 69 per Mason CJ and Deane J at 291: compare Simsek v Macphee (1982) 148 Commonwealth Law Reports 636.644.

7 9 e e note 69 at 287.

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. . . to restore the position to what it was understood to be prior to the Teoh case.. . [namely]. . .that entering into an international treaty is not reason for raising any expectation that government decision makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law.

Following this joint Statement, there were government efforts to introduce legislation which would reverse the effects of the decision. This resulted in the 1995 Administrative Decisions (Effect of International Instruments) Bill (Cth).

This step taken by the Australian government was strongly criticised as a backward step in the development of Australian law because it prevented Australia from keeping pace with modern international human rights law. It was rather disappointing that the natural development which had been occurring in Australian domestic law, through the courts, had been stifled in this manner. The distinction between the High Court's view of "ratification", namely, "a positive statement ... to the world and to the Australian people" (referred to above), and'the government's view of "ratification", has little validity in modem society. If Australia believes that it takes its human rights obligations seriously then reliance on strict legalism to halt common law development on human rights issues must be revisited.

Charlesworth had this to say on the Australian government's position following the Teoh Case:

The executive statement and legislation to undo the Teoh decision provide a very low point in the undistinguished history of Australia's domestic implementation of its international human rights obligations. Not only has Australia utterly failed to fblfil some of its obligations or implemented them in a selective way, but it has also closed off avenues developed by the judiciary in deriving domestic significance from our international actions. The extraordinary nature of the post-Teoh action makes even more stark the contrast between our international and national personalities on human rights issues. Indeed, it may well damage our international image to the extent that it is finally more consistent with our national performance.7'

- - " Cl~arlesworth. "Australia's split personality:implementation of human right treaty

It is also necessary to briefly consider the sovereignty issue in this context, that is, whether a court in invoking the Bangalore Principles or applying the principles stated in the Maho Case and Teoh Case, are contributing to the subordination of Australian domestic law to international human rights law. Cook P in Tavita v Minister .f ir Immigration (Nz)~' addressed this issue by holding that if national institutions such as the parliament, the executive or the judiciary make unambiguous and binding rules, then no international human rights law can undermine or overrule domestic law. When there is a Iaczrna or gap in the common law, or some other ambiguity in legislation, the courts may then import an international law rule into the domestic law. According to Justice Kirby, this process, "[flar from being a negation of sovereignty. ..is an application of it."77

Australia is currently undergoing a steady period of change in its approach to, and the interpretation of, its international human rights obligations. Certainly the importance and relevance of international human rights law in modern civilised society and the binding character of international law (both customary and treaty law) have placed increased focus on Australia's treaty making practices. Prior to the Senate Legal and Constitutional References Committee Inquiry on the Commonwealth's Power to Make and Implement Treaties, concerns were raised about a number of matters. These included the Australian parliament's role in treaty making, the interpretation of the external affairs power under section Sl(xxix) of the Australian Constitution, the impact of treaties on the federal system, and constraints on Australia's sovereignty caused by international treaties.

On a legal analysis of the different aspects of sovereignty, it has been shown that Australia's participation in international human rights treaties does not constrain its sovereignty. This is because Australia is only bound by human rights treaties to the extent that it wants to be bound by them. In the spirit of the consensual nature of international law, Australia may choose which international human rights standards to adopt, and to what

obligations in Australia" in Alston note 6 at 140. (Edltor: As a result of inaction, perhaps caused by adverse reaction to it, the 1995 Administrative Decisions (Effect of International Instruments) Bill (Cth) has since lapsed.) '' [I9941 2 New Zealand Law Reports 257.

7 7 ' Kirby, "The impact of international liuman rights norms: 'A law undergoing evolution' " (1995) 25 Western Australian Law Review 30, 43.

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extent it will observe them. This is in spite of the fact that Australia, by becoming a party to the Optional Protocol, had opened up the possibility of aggrieved Australians communicating with the Human Rights Committee directly about alleged abuses of human rights in Australia. Again, in the strict legal sense of sovereignty, the opening up of Australia's implementation of international human rights obligations to the scrutiny of an international body, which only has the right to formulate "views", is not a surrender or constraint on Australian sovereignty. As Attorney-General Lavarch had said at the time of the Toonen Case, the views of the Human Rights Committee are not binding on Australia and the Committee's decisions cannot directly change Australian law.

However, on the political meaning of "sovereignty", one wonders whether Australia's sovereignty, if not legally constrained, is effectively constrained by the growing body of international human rights law. The Australian government has stated on several occasions that Australia takes its international human rights obligations seriously (although not without some criticism because of alleged hypocrisy). For it to ignore a Human Rights Committee decision could prove embarrassing because Australia would inevitably have to face the prospect of widespread international condemnation. It may be that international pressure to comply with uniform international standards may lead Australia to defend international human rights laws more vigorously and implement them more studiously. On a more sceptical note, it may even lead Australia to increase its reliance on international human rights treaties for social policy ends. Either way, international human rights law fi-om this perspective is a persuasive and real influence on the sovereignty of Australia.

Therefore, international human rights law can be a powefi l influence on the development of the common law in Australia. This was clearly established by the remarks of Brennan J in the Mabo Case. The case recognised that the common law should be able to be moulded and influence Australian human rights jurisprudence in appropriate cases. As stated by Justice Kirby:

As we enter a new millennium where there will be increasing international law of every kind, it is part of the genius of our legal system that our courts have found a way to take cognisance of international human rights jurisprudence in appropriate circumstances

5997 Australian international taw Jo

and by appropriate and familiar techniques of reasoning.78

Although the common law is moving swiftly to 'bridge the gap' between it and international human rights law, as evidenced by the recent Mabo Case and Teoh Case, the Australian government needs to reassess its position on the implementation of Australia's international human rights obligations, lest the development of the law be stifled. Although Australia's participation in international human rights treaties and the current development of the common law in the human rights context are not a constraint on legal sovereignty, it can be, and is, a powerfbl and legitimate influence on Australian domestic law. The tide of change has arrived and Australia must ride with it if it is not to become isolated from the rest of the world. Perhaps the real issue for Australia is not one of constraint, but one of willingness to comply with international human rights obligations which are readily accepted by Australia.

'' Ibid at 44.

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