IN THE SUPREME COURT OF NEW SOUTH
70007 of 1991
LIST OF AUTHORITIES
OF THE PROPOSED INTERVENER
Human Rights and Equal Opportunity Commission Act 1986
R -v- Shrestha 100 ALR 757
(ii) Mabo -v- Queensland (1992) 66
(iii) Adamopoulous -t- Olympic Airways SA 25 NSWLR 75
Gradidge -v- Grace Bros Pty Ltd (1988) 93 FLR 414
OF SUBMISSIONS OF THE PROPOSED INTERVENER
International Covenant on Civil and Political Rights (ICCPR) was adopted by the
United Nations General Assembly in 1966 and entered into force in 1976.
ratified (that is, became a party to) the ICCPR on 13 August 1980. The ICCPR requires
(Article 2.1) that parties (including Australia) "respect and ensure to all
individuals within their territory and subject to their jurisdiction" the
rights which the Covenant recognises and that parties provide protection against
discrimination which may limit the enjoyment of the rights recognised therein.
Its application is not restricted to Australian citizens or residents. Article
14 of the Covenant states in part as follows:
All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a full and
public hearing by a competent, independent and impartial tribunal established
In the determination of any criminal charge against him, everyone shall
be entitled to the following minimum guarantees, in full equality;
(b) To have adequate facilities for the preparation
of his defence and to communicate with counsel of his own choosing;
To examine, or have examined, the witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him; (Emphasis added)
28 of the Covenant provides for the establishment of a Human Rights Committee,
composed of persons 'of high moral character and recognized competence in the
field of human rights'. The functions of the Committee include the study of reports
submitted by States Parties to the Covenant concerning measures they have adopted
to give effect to the rights recognized' in the Covenant. Paragraph 4 of Article
40 states as follows:
Committee shall study the reports submitted by the States Parties to the present
Covenant. It shall transmit its reports, and such general comments as it may consider
appropriate, to the States parties.
a statement adopted by the Committee on 30 October 1980 entitled 'Statement on
the Duties of the Human Rights Committee Under Article 40 of the Covenant, the
general comments [made under Article 40.4] could be related, inter a/ia, to the
related to the application and the content of individual articles of the Covenant.
... (UNDOC CCPR/C/18,)
its 516th meeting on 12 April 1984, the Committee adopted a General Comment on
Article 14. The General Comment states the following, at paragraph 9:
Subparagraph 3 (b) provides that the accused must have adequate time and facilities
for the preparation of his defence and to communicate with counsel of his
own choosing. What is adequate time depends on the circumstances of each case,
but fascilities must include access to documents and other evidence which the
accused requires to prepare his case
(uNDOC CCPR/C/21/Rev.1,p14) (Emphasis
there are of course limits to the arguments presently open for the application
of international human rights standards in Australian courts, it is important
to note the increasing importance being given to these obligations in recent dicta
of the High Court.
the context of the rights of those subject to criminal proceedings, the comments
of Deane, Dawson and Toohey JJ are noted from the recent case of R v Shrestha
100 ALJR 757 at 753 -
country] has a responsibility, both moral and under international treaty, to treat
all who are subjected to criminal proceedings in its courts or imprisonment in
its jails humanely and without discrimination based on national or ethnic origins
(see, eg, (CERD) Article 5(a))
importance of international human rights obligations in shaping the common law
was put thus by Brennan J in the recent case Mabo v Queensland (1992) 66
ALJR 408, 417, 422
peace and order of Australian society is built on the legal system. It can be
modified to bring it into conformity with contemporary notions of justice and
human rights, but it cannot be destroyed It is not possible, a priori, to distinguish
between cases that express a skeletal principle and those which do not, but no
case can command unquestioning adherence if the rule it expresses seriously offends
the values of justice and human tights (especially equality before the law) which
are aspirations of the contemporary Australian legal system. If a postulated rule
of the common law expressed in earlier cases seriously offends those contemporary
values, the question arises whether the rule should be maintained and applied.
Whenever such a question arises, it is necessary to assess whether the particular
rule is an essential rule of our legal system and whether, if the rule were to
be overturned, the disturbance to be apprehended would be disproportionate to
the benefit flowing from the overturning (p 417)
opening up of international remedies to individuals pursuant to Australia's Accession
to the Optional Protocol to the International Covenant on Civil and Political
brings to bear on Australian law the powerful influence of the Covenant
and the international standards it imports...
Commission submits that the court should apply the standards set out in Article
14 of the 1CCPR in ensuring that criminal proceedings are conducted fairly.
Commission further submits that reference should be had, in particular, to the
minimum guarantees listed in Article 14, paragraph 3 of the ICCPR, in determining
whether proceedings ought to be stayed.
the Commission's submission the court should consider, in particular whether:
evidence can only be produced in Australia in transcript form and in translation
and whether this prejudices the accuser's right to a fair trial;
the accused has "
access to documents and other evidence which the accused
requires to prepare his defence"
the accused is prevented from having access to documents or access is limited
as a result of a claim or privilege; and
the accused is able to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him
required by Australia's international treat obligations, which are binding on
Australia as a matter of International law.
this 3rd day of August 1992.
OF COMMISSION'S SUBMISSIONS
OF THE COVENANT
The Covenant is an international instrument which Australia has ratified. However,
the Covenant has not specifically been enacted as a law of Australia (contrast
the enactment as a law of Australia of the UNC1TRAL Model Law on International
Commercial Arbitration which is effected by s 16 of the International Arbitration
A question arises as to the extent to which the Covenant has any impact on Australian
domestic law. There seem to be two conflicting views.
This view was expressed by Nicholson CJ in Jane (1989) PLC 92-007 at 77,245-77,249
and by Samuels JA in Jago (1988) 12 NSWLR 558 at 580-582. The view is that
international obligations cannot of themselves give rise to rights and liabilities
as part of Australian domestic law but that they may assist where there is no
clear common law rule, or in the resolution of a statutory ambiguity, and in any
event in the exercise of a discretion under Australian domestic law.
This view of the significance of international obligations is consistent with
the evolutionary approach expressed by Brennan J (with whom Mason CJ and McHugh
J agreed) in Mabo (1992) 66 ALJR 408 at 416-7, 422. It is also consistent
with the views expressed by Deane, Dawson and Toohey JJ, on a different convention,
in Shrestha (1991) 100 ALR 757 at 773. It is also consistent with the approach
expressed by Kirby P in Jago at 569 and Adamopoulos (1991) 25 NSWLR 75
The more radical view was expressed by Nicholson CJ in Marion (1991) FLC
92- 193 at 78,301-78,304. There he took the view that on a proper construction
of the Human Rights and Equal Opportunity Commission Act 1986, the Covenant had
in fact been imported into Australian domestic law as a substantive part of that
law. It would follow from this view that the Covenant could operate as a direct
source of rights and liabilities. Nicholson CJ was unable in Marion to persuade
his bretheren Strauss and McCall JJ of the correctness of his views: they preferred
to remain with the views expressed by Nicholson CJ in Jane.
The settled view, which is certainly binding on courts of first instance and which,
having regard to Mabo and Shrestha, is probably now binding on State
Courts of Appeal, is that an international obligation which has not been specifically
enacted as part of Australian domestic law cannot take effect as a direct source
of rights and liabilities in Australian domestic law. It is, however, to be taken
into account in the consideration of the principles of domestic law and in the
construction of domestic statutes, and in the exercise of discretions arising
under domestic law. If the wider view is to prevail, it would need to be as a
result of a clear decision of the High Court or as a result of specific enactment
updated 19 May 2003.