Justice For All Australians

The Growing Impact of International Law on Australian Domestic Law (Option 1) - Implications for the Procedures of Ratification and Parliamentary Scrutiny

 

Date: 06 March 1995
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Organisation: Australian Legal Notes
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OPTION 1

AUSTRALIAN LAW JOURNAL

INTERNATIONAL LEGAL NOTES

The growing impact of international law on Australian domestic law. Implications for the procedures of ratification and Parliamentary scrutiny

No Australian lawyer could fail to observe the debate about the growing use of international treaties as a foundation for Federal legislation, expanding the area of Federal law-making into matters hitherto regulated by State law.

In a recent speech, delivered as an Occasional Lecture for the Senate Department of the Australian Parliament, Justice Michael Kirby, who is President of the Court of Appeal of New South Wales but also holds a post as Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia, addressed the expansion of treaty-based law-making. He made a proposal for improving the procedures of Parliamentary scrutiny of treaties before they are ratified, or acceded to, by Australia.

Because of the significance of this debate, extracts adapted from Justice Kirby's lecture follow:

Controversial use of international treaties

"The controversy about the use of treaties to support Australian Federal legislation came to the fore during the passage of the Human Rights (Sexual Conduct) Act 1994 (Cth).1 That measure was designed to give effect to the decision of the Human Rights Committee of the United Nations in the complaint by Mr N Toonen against Australia. Yet that Federal Law was simply the latest of a number, under successive Governments and Parliaments. The quandaries already existed in the 1920s when Federal Parliament enacted the Air Navigation Act to give effect to the ratification, including on behalf of Australia, of the Paris Convention of 1919 regulating international aerial navigation.2 They were certainly there when the Parliament enacted conservation legislation under which the Governor-General, pursuant to the World Heritage Convention3 made regulations protecting an area of national park in Tasmania leading to the Tasmanian Dams Case.4 But there was something about the passion and emotion of the recent debate which called forth the most strongly voiced reservations yet expressed about what was seen by some as a worrying, even undesirable, legislative trend.

Some of the commentary was ill tempered and confused. Yet behind often emotive language lies the expression of serious concern which requires the attention of those who are generally sympathetic to the incoming tide of international human rights law and its influence upon Australia. The noted commentator John Hyde, writing in The Australian said:5

"There is something amiss with a polity that, to achieve its aims, enters treaties with undemocratic committees of the United Nations, ... to overrule the processes by which it itself is governed. This was not the intention of those who drafted the constitution; nor is it the wish of Australians today. ..."

To the same effect were the remarks of Senator Rod Kemp who concluded:6

"Involving UN committees in Australian domestic disputes will inevitably, over time, undermine our own legal institutions. ... Australia's major constitutional problems [are] ... the expansive use of the external affairs power, the ruthless use of ILO and UN treaties to over-ride States and the ceding of sovereignty to foreign committees. The present generation of Australians do not want their laws made in London or at the UN."

The former Prime, Mr Malcolm Fraser, also criticised the process of the use of international conventions:7

"In one case, in December 1992, the Governor-General was asked to ratify a treaty only hours before the dissolution of Parliament. No media release was issued. ... [A]re Australians to be masters of their own affairs or are Australians to give away their sovereignty to United Nations committees? The point become all the more relevant when you look at the membership of these committees. The membership is appointed by governments that often ignore the decisions of the committee and yet Australia binds itself and feels required to obey."

There are similar statements by other Australian politicians and ex-politicians. Not all of them are members of the Coalition side of politics. For example, the former ALP Senator Peter Walsh observed:17

"I am not and never have been a monarchist, but find it ironic that so many contemporary Australians determined to protect us from the non-existent threat of English tyranny, fall over each other in a scramble to surrender Australian sovereignty to a rag-tag and bobtail of unrepresentative United Nations committees, accountable to nobody."

There are undoubtedly questions here for serious reflection. They derive from the democratic and federal nature of our constitution. From our traditional willingness to leave our human rights to be determined, from time to time, by Parliaments elected by our people and upheld by independent courts Australian suspicion is fuelled when the obligation to change Australian law derives from committees of the often inefficient United Nations made up of people whose commitment to the kind of values which Australians generally share is generally thought to be doubtful.

The international perspective

As Special Representative of the Secretary-General for Human Rights in Cambodia I am obliged to report to the Commission on Human Rights in Geneva in March 1995. This post has taken me on five missions to Cambodia. The missions are exhausting and sometimes even a little dangerous. They have to be squeezed into my extremely busy court duties. I see, and report upon, aspects of Cambodian human rights which are discouraging and even depressing. The abiding problems of security. The ever-present reminders of the genocide. The landmines which claim daily victims. The poverty, low expenditure on health and education. The new peril of HIV/AIDS. Corruption. The poor standard of some media and the intolerance of criticism of some government officials. All of these problems I chronicle with, I hope, constructive suggestions for improvements.

But I also report upon the many advances which are made daily in the rebuilding of Cambodia.

My reports on Cambodia must be given twice a year: once in March to the Commission on Human Rights in Geneva and then, in November, to the General Assembly in New York. The experience of doing this is a humbling one. The hall is packed with the great variety of humanity. Virtually every nation on earth and many inter-governmental and international agencies are there. It is, of course, an imperfect place, just as our world is imperfect. Doubtless at the tables sit not a few who have little real commitment to fundamental human rights or whose agenda puts any such concerns below others. But one after another, the UN Special Representatives and Special Rapporteurs are heard. They have complete freedom to speak as they see things. They call dictators and tyrants to account before the bar of the international community and the judgment of humanity. It is the pressure of these almost continuous sessions of international scrutiny of human rights which has helped bring about the fundamental changes we have recently seen in South Africa, in Malawi, in Palestine and elsewhere. It is there that reports are made on particular countries and on abiding themes of importance to global human rights. Pressure is applied to countries such as Cuba, China, Haiti, Iran, Iraq, Sudan, Afghanistan, Burma and the states of the former Yugoslavia. Once, in the name of "sovereignty", they would have ignored such pressure. In front of the world community that is now impossible.9

Pressure is also applied to Equatorial Guinea, to Indonesia in respect of East Timor, to Papua-New Guinea in respect of Bougainville, to India and Pakistan in respect of Kashmir, to China in respect of Tibet. Pressure is even applied to Australia in respect of our long neglected Aboriginal people. Of course, the pressure sometimes fails. Immediately following my last report on Cambodia, the Rapporteur on Sudan was denounced by the government of that country. But the important point is that the representative of Sudan was obliged to answer to the world and to very specific criticisms.

The lesson of recent decades is that this requirement may eventually have a beneficial effect. It gives a voice to the oppressed. It lifts the hopes of those who would otherwise be without hope. In the one big room, the essential inter-dependence and ultimate unity of humanity is brought home to all. In a world of jumbo-jets, of instantaneous telecommunications, of global environmental hazards and of AIDS we are forced to see human rights as it is: a cause of international concern. Doubtless it has many inefficiencies and weaknesses. But it grew out of the awful revelations of the last World War and the detonation of the atomic bomb at Hiroshima. International peace and security were seen as interrelated with human rights. International Security would have no lasting reality unless built on universal respect for fundamental rights. So long as that is not assured, the world will continue to be an angry and a dangerous place.

We in Australia cannot be entirely cut off from the international moves for the protection of universal human rights. Our continent is part of the world. The thought that we can shut out the influence of this global development of such potential for the coming millennium is as unrealistic as it is unworthy.10

The Australian path of gradualism

Some, at least, of the concerns that have been voiced by the commentators about the growing influence of international human rights principles upon our law can, I think, be adequately answered:

1. The international committees which are frequently criticised stand in an entirely different relationship to the Australian legal system than the Privy Council in London did. By our constitution, the Privy Council was part of the Australian judicial hierarchy. No United Nations committee and no international court has the same power. So far as the committees are concerned, their decisions derive only from the power which we, as a nation, have accorded them. Their decisions are not self-executing. As in the case of the decision of the UN Human Rights Committee on the complaint of Mr Toonen against the Tasmanian laws,11 the decision is only translated into action in Australia by the authority of an Australian law-maker. The Sexual Conduct Act rests upon a decision, duly debated, of the Australian Parliament. No Australian law was changed, as such, by the decision of the United Nations committee;

2. The United Nations committee has, it is true, members from a number of states which do not share all of our perspectives on human rights. But the members of the committee are elected for their individual expertise. When serving, they do not act as representatives of their country but in a personal capacity. They must make a solemn and public declaration to that effect. The Toonen decision was unanimous. This suggests that, even in a matter as controversial in some countries as the rights of homosexuals, nationality and legal tradition had little final influence.12 The decision of the committee may be criticised on its merits, as it has been, by experts in international law who think that it went too far13 or not far enough.14 Some criticism was directed to the inability of Tasmania, as such, to be heard directly by the committee. But that was simply the result of the fact that, by the Australian constitution, the Commonwealth is the international representative of Australia. In fact, the Federal authorities consulted Tasmania. Extracts from Tasmania's submissions were included in the Australian statements to the committee. But rejected;

3. The notion that Tasmania's democratically elected Parliament should have the right to over-ride fundamental rights, globally declared and relevantly held applicable, begs an important question. It would have been preferable for the people of Tasmania, through their Parliament, to have accepted the justice of repealing the sections of the Tasmanian Criminal Code which threatened to punish, and which stigmatised Mr Toonen, and other homosexual and bisexual men and occasioned the complaint. There is now an Australia-wide legal standard on this matter. A distinguished international human rights court had earlier declared what fundamental respect for human rights required of the law on this subject.15 Scientific enlightenment had made it clear that to punish or stigmatise a person on the grounds of sexual orientation is as wrong as to do so on the ground of gender or race and as irrational as to do so on the basis of left-handedness. Tasmania has an unusual electoral system. The prospect of a change of mind in the Upper House seemed remote, at least in the short term. Australia's international obligations have been declared. It was either to ignore the declaration and justify it by reference to its constitution and politics - or it was obliged to act to fulfil the obligation it had accepted;

4. The democratic argument, and the complaint about loss of "sovereignty" have an undoubted appeal. But it is increasingly recognised that democracy is not simple majoritarian votes. Democracy, as it is now practised, is a system of government which accords power to persons elected by the majority of citizens upon the condition that they will respect the fundamental rights and dignity of minorities. Professor Ronald Dworkin has explained that human rights are promises to minorities that their dignity and equality be respected by the majority.16 It seems unlikely that Australians would accept a State law which criminally punished people because they were of Jewish or Chinese ethnicity or because they were women or because their skin was dark. Seen in this light, the limits of democracy are reached. Far from being a surrender of "sovereignty", measures taken to uphold minority rights, authoritatively declared by an expert international committee, may be seen as an exercise of sovereignty. To talk of "sovereign States", or for that matter "the sovereign Federation", is to indulge in metaphors which are not sustained by the Australian Constitution as it has been interpreted. Australia's is a complex sovereignty. In 1901 it divided up great power by adopting the Federal system of government. It did not adopt the other means of dividing power by an entrenched, written, bill of rights although this is now being reconsidered.17

5. A little known change which has come about in recent years parallels the passage of legislation through Parliament to give effect to international standards. This is the impact of international human rights jurisprudence upon Australia's court decisions. As Justice Brennan pointed out in Mabo18 it is inevitable that, over time, the influence of the International Covenant on Civil and Political Rights will be brought to bear upon the perception by Australian judges of what judge-made law requires. If there is a gap in the common law, or if a statute is ambiguous, it is inevitable and right that Australian courts should fill the gap, or resolve the ambiguity, by reference to any applicable international rule. Better that the judge should do this than rely upon personal, idiosyncratic values or upon distant analogies from earlier, different times. This is simply the next natural phase in the development of the Australian common law as it adapts to the world of internationalism. Fortunately, our system of law has a never-ending capacity to respond to new problems and to adapt sensible solutions from new sources;19 and

6. For those who say that Australia has nothing to learn from these international developments, which may be useful enough to the poor people of Cambodia and to the oppressed in Cuba, Sudan, Burma and elsewhere, history denies it. In the matter of the human rights of homosexuals, the statute law stood as an oppression to that section of our community in all parts of Australia for more than a hundred years. It still remains on the statute books of Tasmania. In hindsight, what is remarkable is not that these things were changed, but that they lasted so long.20 It is also notable that Australia enjoyed one hundred and fifty years of elected, representative government and not a single Parliament of this nation saw fit to reverse the manifest fiction that Australia was terra nullius when the settlers arrived. It was left to the High Court of Australia in Mabo to shatter the fiction and propel our country to a juster law. In this way Australians, through their constitutional government, strive toward enlightenment. Sole reliance upon the democratic assemblies may not always ensure that respect is accorded to the fundamental rights of minorities. Occasionally, an external stimulus is useful. One such stimulus in today's world is international human rights law. The instruments of stimulus include such bodies as the UN Human Rights Committee, the International Penal Tribunal just established including Sir Ninian Stephen, the UN Commission on Human Rights and the Special Representatives and Special Rapporteurs, of whom I am one. We should see these instruments as a natural development of the history of our planet to which Australia has an obligation, and a privilege, to contribute.

Lessons for the future

The concerns of many Australians about respect for democracy, the preservation of the Federal compact and local responsibility for human rights matters must not be lightly dismissed. They are views sincerely held, strongly argued and they have a foundation which is legitimate. How can we reconcile what seems to be the natural tide of history, one that is often, if not usually, beneficial, with the constitution of this country drawn up for utterly different international circumstances and for a significantly different Australian people?

The Minister for Foreign Affairs (Senator Evans) who has done a great deal to support the United Nations work in human rights has rejected the proposal that Australia's ratification of international treaties should be submitted to Parliamentary approval. To Senator Kemp's rhetoric "We could not have the people at all involved in this", Senator Evans told an Estimates Committee bluntly, "Dead right". Later Senator Evans, before an Estimates Committee, agreed that treaties would be tabled in Parliament before action is taken to adhere to them.21

It is certainly our tradition that the Executive Government, succeeding to the prerogative powers of the Crown, has reserved to itself the right, and the duty, to subscribe to international treaties in the name of Australia. There are arguments for persisting with this tradition. Not the least of these is the frequent need for Australia to act swiftly and with a single voice in matters of international concern. Procedures have been introduced for consultation on new treaties with State Governments and, where relevant, with industry and community groups. This is a beneficial development. The question is whether it has gone far enough.

Some important treaties have been ratified with little Parliamentary or public debate. The Government's action of depositing the instrument of accession to the First Optional Protocol to the ICCPR before the tabling of the instrument in Parliament was described as "extraordinary" ... "without any public debate or even public awareness of its existence, let alone its scope and significance".22 The growing body of treaty law has an increasing impact on Australian law. It therefore seems legitimate, in some way, now to involve the national Parliament in the superintendence of Executive action in respect of treaties. The old rule may have been apt for a time when international law was in its infancy. But nowadays, in economic matters as well as those relevant to human rights, the growth of international treaty law is extremely significant and growing even more important. In 1961 Prime Minister Menzies announced that, in general, the Australian Government would not proceed to ratify or accede to a treaty until it had lain on the table of both Houses of Federal Parliament for twelve sitting days.23 Whilst the politics of resistance to Parliamentary scrutiny are understandable and I would regret a move to the United States requirement of advice and consent of the legislature, which has proved such a reinforcement of isolationism, there is surely an intermediate position. Parliamentary scrutiny is not the same as Parliamentary approval. Scrutiny could be part of the larger function of raising Australian awareness of the growing body and importance of international law. As that law comes to sustain Australian statutes (such as the Sexual Conduct Act), Australian Executive action (such as the Tasmanian Dams regulations) and Australian court decision (such as, in part, Mabo), it is appropriate that the actions of the Federal Executive in ratifying treaties should be assisted by the consideration of the representatives of the Australian people. I do not believe that Australians favour an isolationist country. Still less do I believe that they are unaware of the important moves which I have described, in the international community, for the better protection of human rights everywhere. The Australian people can be trusted, as can their representatives in Parliament, to understand that it is possible to reconcile our Federal constitution and the growing province of international law. In their genius, the Founders provided the means to do so. It takes legislators and judges of understanding to ensure that the constitution continues to serve Australia and its people in a time when human rights, like so much else, assumes an expanding international dimension.

The external affairs power in the Australian constitution appears, both by express terms and by its location in the document, are an element of a constitution which is Federal in its basic character. Although the grant of power is large indeed, it is not uncontrolled. It is the function of successive Parliaments and of the High Court, to chart the boundaries of the power in new circumstances. Amongst the new circumstances are the growing sense of national identity of Australians, the changing role of Australia in its region and in the world, the changing features of international law and the role of the United Nations and other international or regional bodies. To say this is simply to say that our constitution adapts to the changing nation and world in which it must operate. We have institutions, working in constant symbiosis, which provide the solutions for changing times. Should these solutions sometimes prove unacceptable we have the remedy in our own hands. Those who enjoy the temporary responsibility of exercising power in Australia should not forget the Federal character of the constitution. That character itself protects our freedoms. But they should also have a view of our changing world and a vision of the future so that they see Australia as it is - part of a world of increasing economic and human interdependence."

FOOTNOTES

* President of the Court of Appeal of New South Wales. Chairman of the Executive Committee of the International Commission of Jurists. Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia.

1. See eg (1994) 3 Human Rights Defender 1; (1994) 5 HIV/AIDS Legal Link 1.

2. See The King v Burgess (1936) 55 CLR 608.

3. Convention for the Protection of the World Cultural and Natural Heritage (UNESCO).

4. See The Commonwealth v Tasmania (1983) 158 CLR 1. (The Tasmanian Dams Case).

5. 2 September 1994.

6. R Kemp "Let's Make our Own Laws" Herald Sun, 30 August 1994, 15.

7. M Fraser "UN Poses Biggest Threat to our Sovereignty", The Australian, 17 August 1994. Contrast E G Whitlam, "National and International Maturity" (1992) 46 Aust J Interntl Affairs 29.

8. P Walsh cited in M Fraser op cit n 7.

9. See Commentary, "The United Nations Commission on Human Rights: 50th Session" (1994) 52 The Review (ICJ), 66.

10. A F Bayefsky, "Making the Human Rights Treaties Work" in L Henkin and J L Hargrove (eds) Rights: An Agenda for the Next Century, ASIL, Washington DC, 1994.

11. United Nations, Human Rights Committee, Communication No 688/1992. Nicholas Toonen and Australia Doc: CCPR/C/50/D 488/1992 (4 April 1994).

12. H Charlesworth "Protecting Human Rights" (1994) 68 Law Inst J (Vic) 462 at 463.

13. See eg A Funder "The Toonen Case" (1994) 5 Public Law Rev 156.

14. See eg G Selvaner "Gays in Private, the Problems with the Privacy Analysis in Furthering Human Rights" (1994) 16 Adelaide L Rev 331; W Morgan "Protecting Rights or Just Passing the Buck?" (1994) 1 Aust J Human Rights 409.

15. See Dudgeon v United Kingdom (1981) 3 EHRR 40; Monnell and Norris v Ireland (1988) 10 EHRR 205 and Modinos v Cyprus (1993) 16 EHRR 485 (decisions of the European Court of Human Rights). Cf D W Jackson, "Judging Human Rights: The Formative Years of the European Court of Human Rights" (1993) 13 Windsor YB Access J 217, 236.

16. R Dworkin Taking Rights Seriously, 1977, 205.

17. See eg M D Kirby, "The Bill of Rights Debate", Australian Lawyer, vol 29, December 1994, 16.

18. (1992) 175 CLR 1, 42.

19. See M D Kirby, "The Australian Use of International Human Rights Norms" (1991) 16 UNSWLJ 363.

20. See for Amnesty's criticism of Australia (1994) 3 Human Rights Defender, 1.

21. See Australian Senate, Estimates Committee, Hansard, 29 November 1994, 157. See also the tabling by Senator Harradine, on 23 August 1983, of a proposal for a Standing Committee on Treaties, reintroduced on motion in each session since 1983 and the introduction by the Australian Democrats of the Parliamentary Approval of Treaties Bill 1994 (Cth). The Bill would provide a system of Parliamentary disallowance of subscription to treaties disapproved by Parliament. On 21 October 1994, Senator Evans and the Federal Attorney-General (Mr Michael Lavarch) issued a statement reaffirming "the Government's commitment to responsible and transparent treaty making", stating that the Government was "happy to take further steps to strengthen the flow of information to Parliament".

22. See A Twomey, Parliamentary Research Service Bkgrd Paper No 27, 1995 Procedure and Practice of Granting and Implementing International Treaties 9 February 1995, 9. See also Australian Parliament, Joint Committee on Foreign Affairs, Defence and Trade, A Review of Australia's Efforts to Promote and Protect Human Rights, AGPS, Canberra, Nov 1994, 47ff.

23. See Commonwealth Parlt Debates 10 May 1961, 1693. This practice should be restored.