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HREOCA: religious freedom

The Human

Rights and Equal Opportunity Commission Act 1986 (Cth): its application

to religious freedom and the right to non-discrimination in employment

This is an

information paper only. It is intended to provide general guidance. It

is not a legally binding document and is not a substitute for independent

legal advice. It is limited to the role and function of the Human Rights

and Equal Opportunity Commission as contained in the legislation establishing

the Commission.

The paper has

been prepared after extensive consultations with interested parties whose

views have been taken into consideration in the finalisation of the paper.

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Introduction

The rights to freedom

of religion and belief and to freedom from discrimination on the basis

of religion are highly valued in Australia and have been protected constitutionally

and legislatively by the Commonwealth in Section 116 of the Commonwealth

Constitution(1), the Human Rights & Equal Opportunity

Commission Act 1986 (Cth) ("the HREOCA"), the Racial Discrimination

Act 1975 (Cth)(2) and the Workplace Relations

Act 1996 (Cth) and by several States and Territories in anti-discrimination(3)

and Commonwealth and State industrial relations legislation.

This paper addresses

both the right of individuals and religious organisations to practise

and express their religion and the right of individuals not to be discriminated

against because of their religious beliefs (or non-belief) in employment

only within the context of the HREOCA. The protection of those rights

under other legislative enactments and in other contexts are beyond the

scope of this paper.

This paper makes

reference to a number of international treaties and declarations. These

international instruments do not automatically form part of Australia's

domestic law. However, they have important implications for Australian

law, some of which are explained in this paper.


Contents

1.

The jurisdiction and complaint-handling process of the Human Rights and

Equal Opportunity Commission

2.

How the right to religious freedom and belief is addressed in the HREOCA

3.

How the right to non-discrimination in employment on the ground of religion

is addressed in the HREOCA (including the inherent requirement and religious

susceptibilities exceptions)

4.

Checklist

5.

Appendix A


1. The jurisdiction

and complaint-handling process of the Human Rights and Equal Opportunity

Commission

The Commission administers

four different laws. These laws are the:

  • Racial Discrimination Act 1975
  • Sex Discrimination Act 1984
  • Disability Discrimination Act 1992
  • Human Rights and Equal Opportunity Commission Act 1986.

The Human Rights

and Equal Opportunity Commission Act 1986 provides the statutory schema

for the Commission to consider :

  • allegations that an act or practice of the Commonwealth is inconsistent

    with any human right as defined in section 3 of HREOCA (Part II Division

    3)

  • allegations of discrimination in employment or occupation based on

    the grounds of religion, political opinion, social origin, age, criminal

    record, sexual preference or trade union activity. (Part II Division

    4)

  • allegations of unlawful discrimination (under the Disability Discrimination

    Act 1992 (Cth), Racial Discrimination Act 1975 (Cth)

    and Sex Discrimination Act 1984 (Cth)) on the basis of

    disability, race, or sex in employment, education, the provision of

    goods and services and a range of other fields of public life (Part

    IIB)

Matters that are

the subject of complaint under Part II Division 3 and Part II Division

4 of the HREOCA are not unlawful. The difference between these sections

and Part IIB of the HREOCA is that if the President terminates

a complaint of sex, race or disability discrimination the complainant

may proceed to the Federal Court or Federal Magistrates Service to have

the matter heard and determined.

The complaint handling

process in relation to allegations under Part II Division 3 and 4

is fully described in Appendix A. In brief the process is as follows:

The President may

either decide not to continue to inquire into a complaint for a reason

set out in the HREOCA, or it may conciliate the complaint(4),

or may, after further inquiry, find that the allegations of discrimination

or breaches of human rights are substantiated, or unsubstantiated. If

the President finds that a complaint is substantiated, the President must,

after giving notice of the findings to the respondent, report to the Attorney-General

concerning the President's findings, reasons and any recommendations.

This Report must be tabled in Parliament. This process may be the subject

of judicial review.

This Paper concerns

only the inquiry functions of the Commission under Part II Divisions 3

and 4.

2. How is

the right to religious freedom addressed in the HREOCA?

One of the Commission's

functions under section 11(1)(f) of the HREOCA is to inquire into and

attempt to conciliate allegations that an act or practice of the Commonwealth

is inconsistent with any human right. In furtherance of this, Part II

Division 3 provides that a complaint may be made alleging that an act

or practice is inconsistent or contrary to any human right (s.20(1)(b)).

"Human rights" are defined in s.3 of HREOCA to mean the rights

and freedoms recognised in the international Instruments which are declared

or scheduled to the HREOCA(5).

Two of the international

instruments which are scheduled to the HREOCA have special relevance o

the freedom of religion and belief:

  • the International Covenant on Civil and Political Rights (1966)

    ('the ICCPR") and

  • the Declaration on the Elimination of All Forms of Intolerance

    and of Discrimination Based on Religion or Belief (1981) ("the Religion

    Declaration").(6)

The ICCPR provides

in article 18 that:

  1. Everyone shall have the right to freedom of thought, conscience

    and religion(7). This right shall include freedom

    to have or adopt a religion or belief of his choice, and freedom, either

    individually or in community with others and in public or private, to

    manifest his religion or belief in worship, observance, practice and

    teaching.

  2. No one shall be subject to coercion which shall impair his freedom

    to have or adopt a religion of his belief or choice.

  3. Freedom to manifest one's religion or beliefs may be subject only

    to such limitations as are prescribed by law and are necessary to protect

    public safety, order, health, or morals or the fundamental rights and

    freedoms of others.(8)

  4. The States Parties to the present Covenant undertake to have respect

    for the liberty of parents and, when applicable, legal guardians to

    ensure the religious and moral education of their children in conformity

    with their own convictions.

The ICCPR also provides

that:

  • advocacy of religious hatred which amounts to incitement to discrimination,

    hostility or violence must be prohibited by law (article 20);

  • everyone is entitled to equality before the law and equal protection

    of the law without discrimination on the ground of religion among other

    grounds (article 26); and

  • minority groups are entitled to profess and practise their own religion

    (article 27).

The Religion Declaration prohibits unintentional and intentional

acts of discrimination and defines discrimination in article 3 as:

Any distinction, exclusion, restriction or preference based

on religion or belief and having as its purpose or as its effect nullification

or impairment of the recognition, enjoyment or exercise of human rights

and fundamental freedoms on an equal basis.

Article 6 of the

Religion Declaration stipulates that the religious community's joint or

shared expression of its beliefs is protected equally with the individual's

right and protects manifestation of religion or belief including, but

not limited to,

  • worshipping and assembling, and maintaining places for this purpose
  • establishing and maintaining charitable or humanitarian institutions
  • practising religious rites and customs
  • writing and disseminating religious publications
  • teaching of religion and belief
  • soliciting voluntary financial support
  • training and appointment of religions leaders in accordance with

    the requirements and standards of the religion or belief

  • observing religious holidays and ceremonies
  • communicating with individuals and communities on matters of religion

    and belief.

The complaint mechanism

under section 20(1) could be utilized, for example, when an individual

or group complains that the Commonwealth, or an agency of the Commonwealth

performed an act or practice which was somehow inconsistent with or contrary

to their right to (for example) freedom of religious expression, solicit

financial support, build and/or maintain places of worship etc.,

3. How is

the right to freedom from discrimination in employment on the basis of

religion addressed in the HREOCA?

The rights of individuals

and religious groups to act in accordance with their beliefs free from

interference by the government have often been balanced against prohibitions

on discrimination in employment based on religion or belief. Australia's

international obligations in this regard are grounded in the International

Labour Organisation Discrimination (Employment and Occupation) Convention

1958 ("ILO Convention 111")(9) which is scheduled

to the HREOCA.

ILO 111 specifically

prohibits discrimination on the ground of religion in employment and occupation

(article 1.1). It also provides that discrimination on the ground of religion

may be exempt in relation to employment of people by religious institutions

where such discrimination is required by the tenets and doctrines of the

religion, is not arbitrary and is consistently applied or where religion

is "an inherent requirement of a particular job" (article 1.2). The terms

"Employment or occupation" include access to vocational training, access

to employment and to particular occupations, and terms and conditions

of employment (article 1.3).

In addition, in

relation to the freedom from religious discrimination in employment, the

ICCPR:

  • guarantees the enjoyment of human rights without distinction of any

    kind, such as race, colour, sex, language, religion, political or other

    opinion, national or social origin, property, birth or other status

    (article 2.1)

  • provides that everyone is equal before the law. It requires that

    everyone be guaranteed equal and effective protection against discrimination

    (article 26).

Part II Division

4 of the HREOCA confers functions on the Commission in relation to the

investigation of complaints of discrimination in employment or occupation

on a prescribed ground (including religion) in pursuance of ILO 111.

For the purpose

of Part II Division 4, "discrimination" is defined in s.3 of HREOCA as

follows:

"Discrimination, except in Part IIB,

means:

(a) any distinction, exclusion or preference

made on the basis of race, colour, sex, religion, political opinion,

national extraction or social origin that has the effect of nullifying

or impairing equality of opportunity or treatment in employment or occupation;

and

(b) any other distinction, exclusion or preference

that;

(i) that has the effect of nullifying

or impairing equality of opportunity or treatment in employment or occupation;

and

(ii) has been declared by the regulations to constitute discrimination

for the purposes of this Act; but does not include any distinction,

exclusion or preference:

(c) in respect of a particular job based

on the inherent requirements of the job; or

(d) in connection with employment as a member

of the staff of an institution that is conducted in accordance with

the doctrines, tenets, beliefs or teachings of a particular religion

or creed, being a distinction, exclusion or preference made in good

faith in order to avoid injury to the religious susceptibilities of

adherents of that religion or that creed."

Unlike the Racial

Discrimination Act 1975 (Cth) and the Sex Discrimination Act

1984 (Cth), the Human Rights and Equal Opportunity Commission Act

1986 (Cth) does not contain separate prohibitions on direct and indirect

discrimination. However, Justice Katz of the Federal Court held in Commonwealth

of Australia v Human Rights and Equal Opportunity Commission and Hamilton

[2000] FCA 1854 that the definition of discrimination in section 3

of the HREOCA encompassed both direct and indirect discrimination, notwithstanding

that it does not expressly refer to the distinction.

An example of what

is commonly understood as "direct discrimination" would be where religion

is the reason for refusing to hire an applicant (and neither the inherent

requirement or religious susceptibilities exception applies).

Example: A

manufacturer advertised for a new storeman. One suitable job applicant

was refused employment when the interviewing manager discovered he was

a Jehovah's Witness.

An example of what

is commonly understood as "indirect discrimination" would be where there

is a requirement, rule, policy or practice that appears to be the same

for everyone but has an unequal and disproportionate effect on one particular

group and is not a reasonable requirement even if there is no intention

to discriminate. This sort of discrimination may occur when employers

are inflexible about making appropriate adjustments to allow for employees'

religious practices which do not conform to the pattern of most employees

and neither the inherent requirement or religious susceptibilities exception

applies.

Example: A rule that no employee may leave work before

5 pm. This rule affects Orthodox Jews in winter because they must leave

work with enough time to reach home before sundown to observe the Sabbath.

Orthodox Jews who are refused flexible scheduling could be forced to choose

between their religion and their jobs.

Exceptions:

If a complaint is

made against a religious or non-religious organisation that it made a

distinction on the basis of the religious belief of a job applicant or

employee, that institution may be able to argue that the distinction,

although based on a proscribed ground, does not breach the requirements

of the Act if it is a distinction in respect of a particular job based

on the inherent requirements of the job.

Religious organizations

may also be able to avail themselves of a second exception. Section 3(d)

HREOCA provides that a distinction on the basis of the religious belief

of a job applicant or employee although based on a prescribed ground,

does not breach the requirements of the Act if it is a distinction in

connection with employment as a member of the staff of an institution

that is conducted in accordance with the doctrines, tenets, beliefs or

teachings of a particular religion or creed, being a distinction, exclusion

or preference made in good faith in order to avoid injury to the religious

susceptibilities of adherents of that religion or that creed.

The inherent

requirements exception

Not all distinctions,

exclusions and preferences are discriminatory. Measures taken by an employer

based on the inherent requirements of a particular job are not discriminatory.

The inherent requirements

of a particular job include not only the duties of the employee but also

the circumstances in which the particular employment is to be carried

out(10).

An example of where

this exception may be raised is when an organisation requires that an

applicant must be a practising member of a particular religious group.

For an attribute

such as a particular religious belief or adherence to a particular religious

faith to be an inherent requirement of the job, an organisation should

be able to demonstrate:

  • why an individual needs to possess that particular belief to be able

    to perform the duties of that particular position; for example by reference

    to the duty statement of that position, the expectations in the work

    culture or environment, the organisation's Mission Statement, the interplay

    of the Mission Statement and management style and expectations.

  • why the individual was unable to perform the duties of that particular

    position; for example, why an individual who is sympathetic to the values

    of the organisation and could demonstrate a capacity to operate in a

    manner consistent with them would be unable to perform the position.

The religious

susceptibilities exception

This exception only

applies to religious institutions. There has been no direct judicial consideration

of this exception under the HREOCA. It permits "a distinction, exclusion

or preference in connection with employment as a member of the staff of

an institution that is conducted in accordance with the doctrines, tenets,

beliefs or teachings of a particular religion or creed, being a distinction,

exclusion or preference made in good faith in order to avoid injury to

the religious susceptibilities of adherents of that religion or that creed".

There are three elements

to this exception:

  1. The employer institution is conducted in accordance with the doctrines,

    tenets, beliefs or teachings of a particular religion or creed.

  2. The religious distinction, exclusion or preference is imposed in

    good faith.

  3. It is imposed to avoid injury to the religious susceptibilities of

    adherents of that religion or that creed.

In relation to the

first element, the employer should be able to show that the institution

is conducted in accordance with the doctrines, tenets, beliefs or teachings

of a particular religion or creed. The exception cannot be claimed merely

on the basis that the organisation or persons associated with it have

certain religious views or affiliations. The organisation must be one

in which the religious doctrines, tenets, beliefs and teachings inform,

or are required for, the day to day operation of the organisation. This

is a question of fact and degree and will depend on the particular case

under consideration.

In relation to the

second element, the employer should show that the religious distinction

was made in good faith. Clearly, a distinction made in bad faith does

not gain the protection of the section. This would be the case where the

distinction is applied capriciously, arbitrarily or randomly. It would

also be the case where a distinction, ostensibly made on religious grounds,

is really based on extraneous personal or other reasons that have no basis

in religious doctrine or teaching.

The "good faith"

element must be read in conjunction with the final element: the distinction

should be made in good faith in order to avoid injury to the religious

susceptibilities of adherents of that religion or creed. This is not an

entirely subjective requirement. Religious organisations clearly can determine

what would injure the religious susceptibilities of adherents of that

religion or creed. However, there should be some objective evidence that

the selection of an employee who is not of a particular religious persuasion

offends the doctrines, tenets, beliefs or teachings of that religion.

4. Checklist

When advertising a position

or promotion, all employers should:

  • identify the inherent or essential requirements of every position

    in the organisation

  • ensure that job advertisements and other selection documents are

    designed in accordance with the inherent requirements of the particular

    job.

Employers, including

religious organisations, who regard membership of a particular religious

group, evidence of church attendance or some other religious qualification

as an inherent requirement of any position should:

  • only consider setting a religious criterion in the light of the requirements

    of individual positions and not as a blanket criterion for all positions.

  • ensure that the religious qualification is an inherent requirement

    of the position in that it is necessary in order for the individual

    to effectively discharge the duties of the position. To do this, employers

    should:

    • analyse why

      an individual needs to possess that particular religious qualification

      to be able to perform the duties of that particular position; for

      example by reference to the duty statement of that position, the

      expectations in the work culture or environment, the organisation's

      Mission Statement, the interplay of the Mission Statement and management

      requirements, style and expectations.

    • evaluate whether

      an individual who is sympathetic to the values of the organisation

      and could demonstrate a capacity to operate in a manner consistent

      with them would be unable to perform the duties of that particular

      position;

Religious organisations

employing staff and considering setting a religious criterion to avoid

offending the religious susceptibilities of adherents should:

  • clearly identify the established doctrines and tenets of the religion

    on which the organisation is based

  • consider whether these doctrines and tenets are central to the day

    to day work of the organization

  • ensure that the religious criterion is necessary to avoid offending

    the religious susceptibilities of adherents of that faith; and

  • ensure the criterion is set in good faith to avoid offending the religious

    susceptibilities of adherents of that faith.

For further information

If

you would like to obtain further information about issues in this paper

please contact:

Human

Rights and Equal Opportunity Commission

GPO Box 5218

Sydney NSW 2001

Complaints Infoline: 1300-656-419

Facsimile: 02-9284-9611

TTY: 1800-620-241

Home page: http://www.humanrights.gov.au

Appendix

A

Under Part II of

the HREOCA the Commission may inquire into complaints that either:

  • allege discrimination in employment based on the person's religion.

    The Commission can accept complaints about discrimination in employment

    against Commonwealth, State, Territory and local government employers

    and by private sector employers; and/or

  • allege that an act or practice carried out by the Commonwealth, on

    behalf of the Commonwealth or by an authority of the Commonwealth, is

    inconsistent with the right to freedom of religion.

The complaints process

is flexible and each case is carefully assessed to determine the best

way to handle it. Generally, however, most complaints are dealt with in

the following way:

All complaints are

assessed by the Director, Complaint Handling. The Commission tries to

get an initial idea of the nature of the complaint and decides whether

it is covered by the law. The Director may make an initial recommendation

to commence the inquiry.

The complaint is

then forwarded to the President of the Commission (or Delegate) for consideration.

The President notes receipt of the complaint and approves the recommendation

to commence inquiry.

At the next step,

Commission staff may contact the complainant for further information.

After that the Commission will write to the respondent and seek its comments

on the complaint and ask particular questions relating to the circumstances

of the complaint. The respondent will also be asked to make submissions

in relation to any exemption, exception or defence that may apply.

Once all the relevant

information and documentation is obtained the complaint will be reviewed

and the President (or Delegate) will decide if:

  • The complaint should be declined for any of the reasons outlined

    in the law - ie the complaint is lacking in substance, or the complaint

    has been adequately dealt with by another statutory authority, or, in

    relation to a complaint of discrimination in employment, that an exception

    applies and therefore the alleged acts are not discriminatory.

  • Attempts should be made to try and settle the complaint through conciliation

    whereby both parties have an opportunity to resolve the complaint on

    their terms.

If the complaint

is declined, the President advises the complainant of this in writing

and explains the reasons. The respondent will also be notified of the

decision.

The parties may then

access rights of review available to them in the Federal Court.

If a complaint that

has not been declined for one of the statutory reasons and is considered

to be not conciliable the President may undertake further inquiry. The

President makes a preliminary finding which is forwarded to the parties

who are invited to make submissions, either orally or in writing, in relation

to the complaint.

If, after receipt

of these submissions and further consideration of the matter, the President

(or Delegate) finds that the practice does not constitute discrimination

or that there has been no human rights breach the President (or Delegate)

will issue a report containing her findings and reasons to the parties

but not to the Attorney- General.

However if, after

this further inquiry, the President (or Delegate) finds that the practice

does constitute discrimination or that there has been a human rights

breach the President (or Delegate) will serve a notice on the respondent

setting out the findings, the reasons for the findings and any recommendations

as a result of the findings. The respondent will be given 28 days to advise

what action they have taken or propose to take in response to the findings

and recommendations.

Again the parties

may then access rights of review available to them in the Federal Court.

After receipt of

this advice from the respondent the President (or Delegate) will then

forward a report to the parties and to the Attorney-General which

will include her findings and recommendations together with details of

any action taken or proposed to be taken by the respondent as a result

of those findings or recommendations.

The Attorney-General

must table this Report in Parliament.


Endnotes

1.

"The Commonwealth shall not make any law for establishing any religion,

or for imposing any religious observance, or for prohibiting the free

exercise of any religion, and no religious test shall be required as a

qualification for any office or public trust under the Commonwealth".

2.

The Racial Discrimination Act 1975 (Cth) ("RDA") provides some

limited protection against discrimination on the basis of religion. If

a religious group can also be classified as an "ethnic" group, the RDA

may cover direct and indirect discrimination and vilification under the

racial hatred provisions of the Act. Even if a religious group cannot

be classified in that way, the RDA arguably covers discrimination on the

basis of religion in certain circumstances such as indirect race discrimination.

3.

The Equal Opportunity Act 1995 (Vic), the Anti-Discrimination

Act 1991 (Qld), the Equal Opportunity Act 1984 (WA), the

Discrimination Act (ACT) 1991, the Anti-Discrimination Act 1996

(NT).The Anti-Discrimination Act 1977 (NSW) prohibits discrimination

on the ground of "race" which also includes ethno-religious background.

4.

The definition of "complaint" in section 3 of the HREOCA provides that:

"complaint" except in Part IIC, means a complaint lodged under Division

1 of Part IIB". This section was inserted by the Human Rights Legislation

Amendment Act 1999 (No 1) ("the Amendment Act") which inserted

new provisions into the HREOCA for handling complaints of unlawful discrimination.

The definition appears to relate to complaints of "unlawful discrimination"

lodged under that Part. These are acts, practices, or omissions that are

unlawful under the Racial Discrimination Act, the Sex Discrimination

Act or the Disability Discrimination Act. There was no analogous

section in the HREOCA prior to the enactment of the Amendment Act and

it appears that the definition of "complaint" in section 3 is meant to

apply to complaints under Division 1 of Part IIB only. While the definition

is not explicit to this effect and, indeed, explicitly exempts Part IIC

and not Part II from its scope, the legislation read as a whole does not

make sense if "complaint" in s.20 (part II Division 3) and indeed section

32 (part II Division 4) is read according to the newly inserted definition

in section 3. In order to ensure that the complaint provisions of Part

II are not rendered otiose or absurd by a definition recently inserted

the Commission's view is that the definition in section 3 must be read

as applicable only to those parts newly inserted into the HREOCA - that

is, Parts IIB and IIC - with the explicit exception of Part IIC. This

view is confirmed by the Explanatory Memorandum for the Amendment Act

which provides that "this Part of the Schedule [which inserts the changes

to the HREOCA] makes a number of amendments to the new HREOCA to deal

with the changes to the handling of complaints of unlawful discrimination

under the DDA, the RDA and the SDA ..." (para 89).

5.

These are: Declaration on the Elimination of All Forms of Intolerance

and of Discrimination Based on Religion or Belief, Declaration of the

Rights of the Child, Declaration on the Rights of Mentally Retarded Persons,

Declaration on the Rights of Disabled Persons, and the Convention on the

Rights of the Child.

6.

The Convention on the Rights of the Child (CROC) also prescribes that

States parties shall respect the right of the child to freedom of thought,

conscience and religion, (article 14.1) and that the State shall respect

the rights and duties of the parents and, when applicable, legal guardians,

to provide direction to the child in the exercise of his or her right

in a manner consistent with the evolving capacities of the child (article

14.2). Although the CROC and the ICCPR are not directly implemented in

Australia and do not therefore form part of Australian law, they have

been ratified by Australia and so are legally binding on Australia in

international law. They affect domestic law to the extent that where legislation

permits a discretion that discretion should be exercised in conformity

with Australia's international treaty obligations. The Religion Declaration

is not a treaty but is a valuable tool for interpreting the scope of ICCPR

article 18.

7.

The freedom of thought, conscience and religion is absolute ( i.e cannot

be derogated from ?) and covers theistic, non-theistic and atheistic beliefs,

as well as the right not to profess any religion or belief.

8.

Although there are no limitations on the freedom to believe, the freedom

to manifest one's religion or beliefs is subject to limitations, set out

in ICCPR article 18.3. However, this limitations clause was given a restrictive

interpretation by the United Nations Human Rights Committee in General

Comment No. 22, (1993) which stated that:

Limitations

may be applied only for those purposes for which they are prescribed and

must be directly related and proportionate to the specific need on which

they are predicated. Restrictions may not be imposed for discriminatory

purposes or applied in a discriminatory manner. The Committee observes

that the concept of morals derives from many social, philosophical, and

religious traditions; consequently limitations on the freedom to manifest

a religion or belief for the purpose of protecting morals must be based

on principles not deriving exclusively from a single tradition

So, unlike the freedom

of religion itself, the freedom of religious practice or 'manifestation'

can be limited by law provided the limitation is necessary to protect

public safety, order, health or morals or the fundamental rights and freedoms

of others.

9.

Ratified by Australia in 1973. The ILO 111, like the ICCPR, is not directly

implemented in Australia and does not form part of Australian law though,

like the ICCPR, it has been ratified by Australia and is legally binding

on Australia in international law. It also affects domestic law where

legislation permits a discretion: it is accepted that discretion should

be exercised in conformity with Australia's international treaty obligations.

10.

Justices Gummow and Hayne in X v The Commonwealth (1999) 167 ALR

529.

Last

updated 08 March 2006.