Human Rights and the Rule of Law: The Judicial Function

President John von Doussa Human Rights and Equal Opportunity Commission
Melbourne University (JD) Course Guest Lecture, 3 March 2004

I would like to thank Professor Cheryl Saunders for the invitation to deliver this lecture today, and thank you all for coming.

I was invited to pick my own topic for discussion. As an ex-judge being invited to speak to students of the law, I assumed that I was expected to speak on something related to the administration of the law from a judge's perspective. And as President of Australia's Human Rights and Equal Opportunity Commission (HREOC), I assumed I was expected to mention the role of human rights promotion in our legal system.

My first thought was the topic 'Human Rights and the Administration of the Law'. But it took little reflection to realise the topic was far too broad and would (or at least should) direct attention to parts of the administration of the law that do not directly involve judges.

I have in mind those stages of the administration that concern the reporting, investigation and charging of allegedly criminal conduct. In these stages, the respect for human rights principles is frequently under strain. In some parts of the world, regrettably, they are barely recognised and almost never protected. I will say a little more about that in a moment.

I therefore settled on a much more constrained topic - 'Human Rights and the Rule of Law: the Judicial Function'.

Under that topic I want to explore the role of a judge in our system of law, and to suggest that there are judicial do's and don'ts that should be observed. I want to look at the scope which may exist for drawing on human rights principles in the application of the law without subverting the rule of law.

Before doing so, just for a moment, I want to return to the early stages of criminal investigation. As President of HREOC, I have found myself in meetings with other National Human Rights Institutions from various parts of the globe, and with representatives of other governments, discussing the most appalling human rights breaches that lawyers in first world countries simply do not encounter.

Reports given on these occasions are a stark reminder that the real impact of a legal system can occur before people reach the formal judicial system.

I mention three situations to illustrate the point that we live in a country that has formal, functioning legal and court systems in place.

I take an example from Thailand first.

In early 2003, the government, being alarmed at the escalating drug problem in its cities, implemented an anti-drugs policy directed at suspected drug dealers and heavy users. The formal methods of proof of guilt by trial processes were not proving successful, so a new anti-drugs policy allowed for the introduction of a quick trial solution. Suspects on a black list drawn up by the police were, so it seems, simply and summarily executed: no investigation, no trial; just 'bang'.

At a recent meeting of National Human Rights Institutions, the Thai Institution said that there had been deaths in the order of 2,500. A representative of the Thai Government at that meeting did not challenge the figures, but offered the information that more than 1,000 deaths were the result of armed resistance to routine police investigations and that only a dozen or so unlawful extrajudicial killings by the police had been established. In these cases, the offending officers had been charged.

The current situation in Nepal is tragic. Police actions against the Maoist opponents to the Government are simply shot without any apparent attempt to apprehend and charge them through the established court system.

The Peoples Republic of China is different again. There, perhaps because of the size of its population and the fact that the legal infrastructure is still being established, confessions obtained under duress (about which the courts hear nothing) often constitute the only evidence on which convictions are based. And if suspects do not confess, the police are likely to subject the suspect to 're-education through labour,' which equates to administrative detention in harsh gaol conditions for up to 3 years with no trial or inquiry at all, and with no right of review.

I mention these examples to illustrate an obvious proposition. Whilst judges are said to be the front line actors in the protection of human rights by upholding the rule of law, (1) this proposition presupposes a functioning democracy and a legal system which brings suspects to trial. In this country, we are fortunate to live under such a system, but in discussions about human rights and the rule of law in other countries, it is important to remember this premise cannot be assumed to exist.

Let me now return to my chosen topic. I shall confine my remarks about judicial functions to the well-developed political and legal system that operates in Australia.

If we were to ask a cross-section gathering of the community, excluding lawyers, whether it is the role of judges to decide cases according to internationally recognised human rights principles, I think the near unanimous answer would be 'yes'.

If we were to ask the same gathering whether judges should be upholding and promoting human rights principles, again I think the answer would be 'yes'.

Even enthusiastic students of the law might answer 'yes'.

But the answer is not so easy or straight forward (and perhaps those questions are themselves too ambiguous for the answers to be meaningful).

The rule of law requires the unbiased, consistent application of the substantive laws of the land, especially statutes and statutory instruments that have clear established meaning. In this way, the law provides the structural framework in which people can order their affairs and reliably predict outcomes. The rule of law requires that the law laid down in Acts of Parliament be applied according to the letter, and where the letter is clear, there is no room for moderation and manipulation of the letter of the law to better reflect a fair outcome.

Where in the system can a judge allow human rights principles to influence the outcome of a case?

If the black-letter law which must be applied, in the opinion of a judge is unfair or discriminatory in its operation, or if it fails to reflect current human rights standards established under international law, how is that situation to be given publicity, and how is change to be promoted?

Given my background and my present position, I propose to discuss these questions by referring also to the functions of HREOC, which in some respects, stands in contrast to those of a judge, yet are an important part of the legal framework that allows for the promotion and protection of human rights in Australia.

Functions of HREOC

HREOC occupies a unique place in Australian society. It sits independent of Government, yet it is not what is traditionally known as a non-government organisation or an advocate.

It is a statutory authority responsible for the oversight of human rights in Australia. Broadly speaking the Commission functions are to:-

  • Promote an understanding and acceptance of human rights in Australia;
  • Undertake research to promote human rights;
  • Investigate and attempt to conciliate complaints about breaches of human rights or of equal opportunity laws;
  • Intervene or act as amicus curiae in important legal cases that may affect the human rights of people in Australia;
  • Examine laws related to human rights; and
  • Provide advice to government on laws and actions that are required to comply with Australia's international human rights obligations.

Implicit in all of these functions is education - educating the Australian public about human rights and discrimination. Our educative function is carried out in a number of ways including the ongoing development of school based education programs, on line services and the engagement in public debate via the media on issues of importance.

As President of the Commission, in contrast to my position as a judge, I am required to be both a human rights advocate and defender, and thus by definition, to enter into the public realm and comment on both law and policy as they affect human rights in Australia.

This can be a very delicate balancing act to ensure the Commission retains and is seen to retain its independence and impartiality - whilst at the same time, reporting without fear or favour on the state of human rights, whether through the media or other public avenues, both domestically and through intergovernmental human rights fora.

The judicial function

I turn now to the judicial function, and how this function is exercised in the context of human rights laws.

The elaboration of an answer to this question has occupied some of the greatest legal minds of our time, and a considerable international effort over the last twenty years has produced a very comprehensive response.

I refer to some of the standard-setting instruments that have been developed by jurists at the regional and international levels to provide guidance on what constitutes the judicial function and how it should be exercised. These instruments contain important statements about the universal principles of judicial independence and impartiality that are recognised in international human rights instruments such as the ICCPR.(2)

Key among these standard-setting documents is the Basic Principles on the Independence of the Judiciary,(3)which was endorsed by the UN General Assembly in 1985. The principles are primarily directed to States, and relate to the independence of judges; their right to freedom of expression and association; the process for the selection and professional training of judges; as well as the conditions for their service, tenure, discipline, suspension and removal.

These principles emphasis the fact that public confidence in the judiciary, and therefore the operation of the rule of law, relies very much on the personal integrity of individual judges.(4)

To complement the UN Principles on the Independence of the Judiciary, the UN has also introduced Basic Principles on the on the Role of Lawyers and the UN Guidelines on the Role of Prosecutors.

The Basic Principles have also been the inspiration for a number of regional and inter-regional standards that are more squarely directed at the judiciary. As a result of their regional genesis, these documents are designed to provide a framework for regulating judicial conduct, and to do so with regard to the specific regional political, economic, social and cultural circumstances. I don't want to go into each of these in detail as they are all accessible on the internet. I simply refer by name to:

1. The Beijing Statement of Principles on the Independence of the Judiciary which was adopted by the Sixth Conference of Chief Justices of Asia and the Pacific in 1995. It sets out the minimum standards that should be applied domestically to create and maintain a competent, incorruptible and independent judiciary. It represents an achievement of remarkable consensus, given the divergent cultures and legal systems of the 32 different nations in the region who contributed to its development.

2. The Bangalore Principles of Judicial Conduct, which were adopted by a roundtable meeting of Chief Justices from the Asia and African Regions in The Hague in 2002, which is also a remarkable achievement of consensus, particularly in light of its very detailed and comprehensive provisions.

3. The Vienna Declaration on the Role of Judges in the Promotion and Protection of Human Rights and Fundamental Freedoms, which was developed at a high level international symposium organised by the UN High Commissioner for Human Rights to mark the tenth anniversary of the United Nations World Conference on Human Rights in December 2003.(5)

Going back to the 1995 Beijing Statement of Principles of the Independence of the Judiciary, clause 10 provides a succinct outline of the objects and function of the judiciary, namely:

  1. to ensure that all persons are able to live securely under the Rule of Law;
  2. to promote, within the proper limits of the judicial function, the observance and attainment of human rights; and
  3. to administer the law impartially among persons and between persons and the State.

It is clear that the motivation for the development of these standard-setting instruments is not to protect judges, but to guarantee the rule of law at the hands of an impartial, independent judiciary. Such a judiciary advances and preserves the rule of law by fearlessly applying it in each case, independent of external influence from either the executive arm of government or any other source. As Sir Gerard Brennan has observed, "The rule of law must be the aim and objective of every legal system, else legal power becomes an instrument of oppression and corruption."(6)

The corresponding responsibilities of the executive arm of government which underpin the independence and integrity of the judiciary, and therefore further the rule of law, include:

  • the appointment of competent, incorruptible and independent judges,
  • the provision of secure tenure and adequate remuneration,
  • the security and physical protection of judges and their families,
  • protection of judges from the pleasure or displeasure of the executive arm of government,
  • respect for and enforcement of legal judgements by both the legislative and executive branches of government, and
  • the provision of adequate resources to the courts to enable them to efficiently exercise their jurisdiction.

I return to Article 10 of the Beijing Statement. Paragraphs (a) and (c) require the judiciary to ensure that all persons live securely under the rule of law and that the law is administered impartially amongst persons and between persons and the State. Fulfilment of these functions provides the greatest protection of human rights.

In this country, the established law largely reflects fundamental human rights principles, and critically provides avenues for redress and remedies that give practical effect to the enjoyment of these rights. To take but one common area of Australian law, the HREOC Act and regulations recognise in our domestic law the human rights set out in the following international instruments:

  • ILO Convention 111, Concerning Discrimination in Respect of Employment and Occupation;
  • ICCPR;
  • Convention on the Rights of the Child;
  • Declaration of the Rights of Mentally Retarded Persons;
  • Declaration of the Rights of Disabled Persons (specific remedies for breaches
  • of these rights are provided by the Disability Discrimination Act 1992).

In addition, the Race Discrimination Act 1975, and the Sex Discrimination Act 1975 schedule the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women respectively, and hence provide mechanisms for contraventions of the rights provided under these international instruments to be addressed in a wide range of public life transactions.

In addition, there are State and Territory Acts that bring into our domestic law most of the human rights recognised in the Conventions referred to above.

But is it paragraph (b) of the Article 10 of the Beijing Statement which I think requires emphasis and close attention. It provides that a function of the judiciary is "to promote within the proper limits of the judicial function, the observance and entertainment of human rights........."

What are the proper limits of the judicial function?

At the forefront is the critical limitation that the judicial function to ensure the maintenance of the rule of law and the unbiased and fair application of domestic law can only be exercised in specific cases which are brought to court by litigants. This is a fundamental limitation on the power of courts. Save in some jurisdictions where the constitutional court has power to give advisory opinions on constitutional issues, courts can only decide specific cases brought to them. A court cannot be a self-starter. The court cannot search out and pursue perceived injustices on its own initiative.

And once a case is brought to it, a court is limited to the issues raised by the parties, and by domestic law. If a judge thinks a domestic law is out of date, or inconsistent with a human right recognised by international law, the proper limits of judicial function require nonetheless that the judge apply the domestic law, not depart from it.

Judges should not grandstand. They should not run public campaigns and agendas to change laws. A judge can point out possible shortcomings in existing law in measured terms in a judgement, but the judicial function stops there. Thereafter it is for the legislature to change the law. In a democracy, it is the function of elected politicians, not judges, to make or change the law.

It is not for a judge to promote his or her judgement about a shortcoming in the law. That is something others must pick up and run with, such as the media, academics and, again, HREOC.

A judge's function in a case stops at the courtroom door. Outside the courtroom, in public, a judge, like a child, should be seen and not heard.

What room is there then, for a judge to promote the observance and attainment of human rights? Is what I have said so far too legalistic?

In the Hamlyn Lecture Series on judicial activism that Justice Kirby delivered in the UK late last year, he argued that the "excessive legalism" that Chief Justice Owen Dixon proudly ascribed to the High Court of Australia last century, is a popular myth that conservative elements within society perpetuate to maintain the status quo.(7)

There have been times when Australia's courts could be accused of relative judicial passivity and restraint - even resistance to change. However, on closer examination, Kirby J concluded that application of the law by necessity involves:

  • interpreting it
  • weighing competing values and
  • taking public policy into account.

In this sense, Kirby J concluded that judges of the common law have a responsibility to "engage intellectually" with the reality of their creative role in making law:

"Indeed, without identifying the issues of legal principle and legal policy at stake, there is a real risk that the judge may stumble along from case to case in a confusion of ideas derived from a mechanical application of past authority without appropriate regard to the dynamics of the contemporary circumstances in which the rules of law must operate."(8)

However, Kirby J also cautioned that all judges have a responsibility to "anchor" their legal reasoning firmly in legal authority, to ensure they cannot be accused of creating new principles of the common law. I cannot agree more with this conclusion.

Within these limitations, there remains in my view, considerable scope for judges to invoke, to be guided by, and to promote human rights principles.

I think it is helpful to break down the judicial process into stages and reflect at each stage on the potential role for human rights principles to be a permitted influence.

First there are the rules of procedure which govern the exercise of judicial function in a particular case. It has often been said that the rules of procedure even the black-letter rules of court, are to aid the attainment of justice, not to be a fetter on it. Fundamental to the procedural rules is fairness in the litigation process. Within this fundamental principle, which is also a central human rights principle, judges make orders on a daily basis to excuse non-compliance with rules, and where necessary, to create by direction, new or different rules to meet a novel or difficult case.

In the criminal jurisdiction, principles tend to be more rigid, and the requirement of a fair trial is essential to protect the liberty of the accused and the reputations of the parties and witnesses. Nevertheless, in this area of the law, the scope for modification of procedural rules, including the rules of evidence by which the facts are established, has been demonstrated again and again. I mention just a few of the procedural rules that have evolved in relation to:

  • taking evidence from children in sexual abuse cases,
  • the rules about identity evidence,
  • about confessions, and
  • about illegal and improperly obtained evidence.

In some of these instances, it may be said the changes involved the evolution of the common law, but this does not lessen the point, that where a matter of procedure is in question, the overriding human right dictate of fairness in the trial process leaves considerable scope for a judge to invoke human rights principles. In the case of children in sexual cases, the human rights principle that the best interests of the child shall be a primary consideration(9) has at last been recognised.

Observing Human Rights Principles - The Best Bakery Case, Supreme Court of India

There has recently been an interesting development in another jurisdiction concerning the imputance of the observance of human rights principles in procedural matters. It has occurred very recently in the Supreme Court of India, and is seen as a matter of very great significance by the National Human Rights Commission of India. You may remember reports of the horrific communal violence that occurred in Gujarat in early 2002 between Hindu and Muslim nationals.

A train containing Hindu fundamentalists was torched killing many people who were trapped in the carriages. There were perceptions that the train was set alight by Muslims who constitute a minority group in the State of Gujurat. There followed vicious reprisal attacks on members of the Muslim community, including women and children, and the torching the Best Bakery, which led to the deaths of many people in the bakery.

The Gujurat riots were the cause of much concern in India, particularly after reports that the police were not acting on reports of human rights violations against Muslims, and were allegedly lending tacit, if not active support to the violence against Muslims.

Action by the Indian Human Rights Commission and court directions were necessary to bring about independent investigations. Eventually a number of people were identified and charged in relation to the Best Bakery case,(10) but were acquitted in the trial court.

There is a right of appeal against conviction in India. The Indian Commission, of its own volition, petitioned the Supreme Court of India for leave as an intervener to appeal against the acquittals on the grounds that the trial court, contrary to the right to a fair trial, recognised in Article 14 of the ICCPR, had been breached by the acquittals which were said to be due to the failures of the prosecution and law enforcement agencies to protect witnesses from threats and intimidation, and to a failure of the court and the prosecution authorities to use all the available powers to "unearth the truth and render justice so that the crime is punished."(11)

The Supreme Court has accepted the petition and granted leave to the Indian Commission to proceed with this argument. If the Commission is successful in the Best Bakery case, as it is known, the frontiers of human rights protection will take a giant leap forward, at least in that country.(12)

Using human rights principles to interpret enactments

Before turning to the substantive law by which a case must be decided, it is necessary for the court - be it a judge alone or judge and jury - to find the facts. Juries are regularly instructed that they must use their own knowledge of people, the community and its values in deciding whether or not the evidence of a witness appears to them as credible. Judge must likewise do the same.

Judges should not disengage from what is happening in the broader community, or block their ears to the views that are exchanged in the public domain. On the contrary, judges need to be aware of the evolution of community values by observing the issues and concerns that periodically capture public debate. Having the capacity to put oneself in someone else's shoes and evaluate the situation and its consequences from that perspective is an invaluable asset for any person, but especially if you also happen to be a judge.

Part of the general awareness that judges will bring to bear is a knowledge of the community's, and where appropriate, the governments' commitments to human rights principles.

At the stage of applying the substantive law to the facts found, the scope to allow human rights principles to intrude will depend on the source of the law.

If the law is statute-based, the scope will be limited. The words of the legislation must be applied if their meaning is clear, or settled by authority. But there remains scope to resort to human rights principles as a guide if there is unresolved uncertainty or ambiguity of the language used in the legislation.

As a consequence of this approach, international law and international treaties are now being used as tools in interpreting enactments. As Mason CJ and Deane J stated in Teoh's Case:

"It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law."(13)

The decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri(14)is a good illustration,(15) although it remains to be seen what view the High Court of Australia takes about that judgement. The decision of Fitzpatrick v Sterling Housing Association Ltd used by Kirby J in the Hamlyn Lecture Series is another good example where "family" of the deceased for the purpose of the UK Rents Act was held to include a same-sex partner. This was a conclusion that avoided discrimination contrary to contemporary perceptions of human dignity and equality before the law.(16)

If the source of the substantive law is the common law, the courts have shown a preparedness to allow the common law to evolve to take account of contemporary values, including those reflected in international human rights principles.

In Dietrich v. The Queen, the Court explained that:

"Where a common law rule requires some expansion or modification in order to operate more fairly or efficiently, this court will modify the rule provided no injustice is done thereby. And, in these exceptional cases where a rule of common law produces a manifest injustice, this court will change the rule so as to avoid perpetuating the injustice."(17)

Some of the significant areas where the common law has evolved to protect human rights, include:

  • Right to a fair trail
  • Right to remain silent
  • Right not to be subject to arbitrary detention
  • Right to a trial without undue delay
  • Right to inviolability of the body
  • Right to privacy
  • Right to administrative fairness
  • Right to free speech

But it has also been acknowledged by the High Court that the development of the common law has its limits and that:

"In discharging its duty to declare the common law of Australia, this court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of law its shape and internal consistency."(18)

The preparedness of the courts to oversee the evolution of the common law to reflect where possible, contemporary societal values and international law norms has, I think, been one of the influences that has lessened the calls for Australia to adopt a Bill of Rights or a Charter of Fundamental Freedoms.

The judicial function outside the courtroom

Finally there is another area where I think members of the judiciary can and do make very significant contributions to the promotion and protection of human rights principles and instruments, without exceeding the limits of proper judicial function. This is in the areas outside the courts where it is legitimate for judges to contribute to scholarly academic debate, and to community education about the law, its aims and its procedures.

We are all familiar with judges speaking at law conferences, giving lectures to law students, presenting orations on contemporary legal subjects, and contributing learned articles to journals and textbooks. These are all commendable and very valuable contributions. So long as the occasion is not used to engage in sensitive political debate or to side with a particular view in a current contentious issue in the community, the contribution is entirely proper.

Finally, I would like to mention another area that falls outside the normal areas of this type of activity.

Justice Mullighan

Since the early nineties, Justice Mullighan, a senior judge of the Supreme Court of South Australia, has been actively promoting cultural awareness amongst the judiciary and magistracy in that State and supporting innovation in the sentencing of Aboriginal defendants. In recognition of his work, Justice Mullighan was awarded the 2003 Human Rights Award in Law by HREOC.

He has chaired the Cultural Awareness Committee of the court since 1995. This committee has managed seminars, and community justice workshops through which cultural awareness within the judiciary is promoted.

In 1997, he instigated a Law and Justice Conference which was hosted by the traditional communities of the Anangu Pitantjatjara Yankunyjatara (APY) Lands, bringing together Aboriginal law men and a group of judges and magistrates. He has advocated for Aboriginal court interpreters and has promoted models of restorative and community justice.

Following the 1997 meeting, the Supreme Court in 2002 sat on APY lands; the State Coroner conducted inquests in to the deaths of three petrol sniffers on APY lands; and the Federal Court heard APY native title case there. Justice Mullighan has been active in nominating Aboriginal Justices of the Peace and has examined traditional Aboriginal ways of dealing with offending behaviours. He has championed Aboriginal Reconciliation among his peers and within the general South Australian community.

Conclusion

The public spotlight is often squarely focussed on the judiciary. Not surprisingly, this spotlight has grown in intensity, both in Australia and other common law countries, with the development of human rights jurisprudence.

The protection and promotion of human rights is usually in support of minority groups to prevent arbitrary erosion of their rights by the majority. The Legislature, which relies on majority support, cannot be expected routinely to risk political self-destruction by promoting minority causes; whereas the judiciary, which does not rely on any constituency, risks nothing in protecting them where it can in the ways I have indicated above.

Serious questions are asked about the proper scope for judicial decision-making where human rights issues influence the outcome. Some politicians, media commentators and indeed lawyers continue to advocate that this preoccupation with rights must be reigned in to restore 'predictability' and 'accountability' to the legal system.(19)

Public debate serves an important purpose. It increases public discussion in Australia about what courts and judges actually do. It also helps to foster a deeper understanding of the legitimacy and indeed, the need for, judicial action to secure just and rational outcomes.

I hope that my comments today contribute to that debate.

Thank you


Endnotes

  1. Vienna Declaration on the Role of Judges in the Protection of Human Rights and Fundamental Freedoms, Clause 1, December 2003.
  2. Both the Universal Declaration of Human Rights (Article 10) and the International Covenant on Civil and Political Rights (Article 14(1)) recognise that everyone should be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
  3. The Basic Principles on the Independence of the Judiciary were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
  4. Sir Gerard Brennan (1997) 'The Significance of the Beijing Statement of Principles of the Independence of the Judiciary', 15th LAWASIA Conference, Manila, 30 August, p.3.
  5. This symposium, entitled The role of judges in the promotion and protection of human rights - strengthening interagency cooperation was chaired by the (then) Acting United Nations High Commissioner for Human Rights, Mr Bertrand Ramcharan.
  6. Sir Gerard Brennan (1997) 'The Significance of the Beijing Statement of Principles of the Independence of the Judiciary', 15th LAWASIA Conference, Manila, 30 August, p.3.
  7. Justice Michael Kirby (2003) "Judicial Activism" Authority, Principle and Policy in the Judicial Method, The Hamlyn Lecture Fifty-Fifth Series, 19 November 2003, www.ex.ac.uk/law/other/hamlyn, p.4-5.
  8. Justice Michael Kirby (2003) ibid, p.7
  9. Convention on the Rights of the Child, Article 3(1).
  10. Zahira Habibulla H. Sheikh and another Appellants Vs. State of Gujurat and other Respondents, 2004 SCCL.COM 507 (Criminal Appeal Nos. 446 - 449 of 2004).
  11. Journal of the national Human Rights Commission of India, 2003, Vol. 2, p.174.
  12. Postscript: The Supreme Court of India, with great expedition, delivered judgement allowing the appeal on 12 April 2004. The acquittals were set aside and a new trial ordered in the neighbouring State of Maharashtra.
  13. (1995) 183 CLR 273 at 287-288.
  14. [2003] FCAFC 70, delivered 15 April 2003.
  15. At paragraphs 139 - 156, Article 9(1) of the ICCPR, which provides that a person shall not be subject to arbitrary arrest or detention, was taken into account in construing the scope of the detention power in s.189 of the Migration Act 1958(Cth).
  16. Kirby J (2003), op cit, p.8.
  17. Dietrich v. The Queen (1992) 177 CLR 292 at 318-319 per Brennan J
  18. Mabo v Queensland (No.2) (1992) 175 CLR 1 at 43 per Brennan J.
  19. See for example Padraic McGuinness (2003) 'Under Kirby's law, we are all subject to the whim of judicial adventurism; in Sydney Morning Herald, 9 December 2003.

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