Internationalism and Human Rights

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This article is a topic within the subject Crime & the Criminal Process.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 277-292.

The Australian Reluctance About Rights

[1] There has been little progress towards a constitutionally based bill of rights as in the US, or even a statutory bill of rights such as that in the UK and NZ. The reluctance of Commonwealth and State Parliaments towards a Bill of Rights incorporated into the Constitution is in relation to the concept of parliamentary sovereignty (part of the subject LAWS1150 - Principles of Public Law).

  • It is argued that the Parliament should be sovereign as it is democratically elected and held accountable to the people through the election process.
  • A constitutional Bill of Rights would provide greater scope for statutes to be ‘struck down’, allowing judges greater power over Parliament.
  • Note: a statutory Bill of Rights does not operate as a ‘super law’ that can strike down Acts of Parliament, and thus will not jeopardise parliamentary sovereignty.

Many people contend that Australia is falling behind other common law countries (eg, Canada, UK, NZ) by not introducing a bill of rights, and a possible consequence is that court decisions between Australia and those countries are going to become very different and very estranged (it will be hard to follow other common law court decisions).

Framework of Human Rights

[2] The framework of human rights protection in Australia:

  • Explicit rights in the Constitution such as trial by jury in s 80.
  • Implicit or implied rights in the Constitution.
  • The doctrine of separation of powers and judicial independence.
  • Domestic common law and statute, including statutes that give effect to international treaties.
  • International treaties and Conventions ratified by the Australian government (but not incorporated into domestic law through statute).

It should be noted that rights derived from international covenants and the like are not enforceable in Australia, if such covenants have not been incorporated into domestic law by way of statute.

The Interpretive Principle

[3] In Mabo v Queensland (No 2), Brennan J characterised international law as a ‘legitimate and important influence on the development of the common law’.

While international covenants and agreements that have not been incorporated into domestic legislation are not binding, they are useful and legitimate interpretive devices, used in situations where there is some ambiguity with regard to a statute or the common law. Unless explicitly stated otherwise, judges interpret statutes in accordance with treaty provisions.

The International Covenant on Civil and Political Rights (ICCPR) 1966

[4] Many international rights are enshrined in the ICCPR (follow link to read), which has been ratified by Australia. There are express recognition of parts of it in various Commonwealth statutes.

  • Article 14, for example, deals with the rights of an accused in a criminal trial.
  • A quick explanation of what civil and political rights are can be found here, in the subject LAWS1150 - Principles of Public Law).

State-Based Developments in Human Rights

[5] ACT adopted a statutory bill of rights in 2004 (Human Rights Act 2004 (ACT)). The Act protects various civil and political rights (freedom of movement and thought, protection from torture, right to life etc). Other functions of the Act include:

  • All interpretations of legislation in ACT are to be done in a way which is consistent with human rights.[6]
  • International law relevant to human rights should be considered when interpreting human rights.[7]
  • The judiciary (Supreme Court of ACT) is not able to invalidate legislation, rather, declares incompatibility.[8]
    • Attorney general prepares a written response (to the declaration of incompatibility) to present to the parliament.[9]
    • The parliament then determines whether to amend the legislation in question so it is compatible with human rights.
  • An Office of Human Rights Commissioner was setup up to review state legislation to ensure they are consistent with human rights.

Following this, the Victorian government set up a committee to examine whether a human rights bill should be adopted in Victoria as well. The committee recommended:[10]

  • The adoption of a statutory bill of rights similar to the one in ACT, the UK and so on.
  • Protecting civil and political rights.
  • Main objectives is the creation of a new dialogue between the government and the community (education in schools etc), and the consideration of human rights in the earliest stages of drafting of new legislation.

As a result, the Victorian parliament enacted the Charter of Human Rights and Responsibilities Act 2006 (VIC). See ss- 21-27 for an example of what rights are protected.

Applying the Charter: the Momcilivic Case

[11] An illustration of how the statutory human rights bills come into play is given in the Victorian case Momcilivic, which raised the issue of deemed possession and the reverse onus of proof in terms of drug laws, and their inconsistency to the presumption of innocence under the Charter.

  • Note: According to several drug laws, a defendant can be deemed to be in possession unless s/he 'satisfied the court to the contrary' – this reverses the onus of proof.
  • Facts: 400 grams of meth were found in he defendant's apartment (belonged to her partner). She was deemed in possession, and with intent to supply (because of the quantity).
  • Held: Court held that the sections of the drugs acts which reversed the onus of proof are inconsistent with the presumption of innocence in s 25 of the Charter. However, the court refused to read down the deeming provision and the conviction was upheld.
    • Effectively, the court left the task of changing the provisions in the drugs acts to the Victorian government (in accordance with parliamentary sovereignty).

Attempting to Apply International Standards

[12] In the absence of a Commonwealth bill of rights, it is increasingly difficult to apply the international standards of human rights in Australia.

  • The range of international decisions and organisations (treaties, international courts,committees etc) are ultimately not binding in Australia.
  • International avenues can only be appealed to if all national avenues have been exhausted and if the Australian government recognises the international avenue as a legitimate one.
  • Even in such a case, the Commonwealth is not really bound by the decision:
    • Cambodian refugee Chu Kheng Lim managed to appeal to the International Hman Rights Committee and succeeded, with the committee requiring the Commonwealth to remedy Lim for the breaches made on his human rights. No remedies were provided.

On the bright side, there has been an increased movement towards human rights from the advocacy and some of the judiciary (Murphy, Deane and Kirby JJ recorded plenty of minority judgments supporting human rights).

Rosa and Anderson suggest some areas which are possibly in breach of international human rights law:[13]

  • Police stop and search powers - might constitute arbitrary detention and arbitrary interference with privacy.
  • Offence-based restrictions on bail (ie, presumption against bail for violent offences) - might constitute a breach of presumption against innocence.
  • Lack of compensation for victims of miscarriages of justice.
  • Retrospective life sentences.
  • M Grewcock's article, 'Detention, Punishment and Children's Rights: An Australian Snapshot', states that there are continuities in the types of young people detained, including: socially marginalised backgrounds and ethnic minorities. This results in punitive impact:
    • forced removal from familiar surroundings
    • the disruption of social and family networks
    • exposure to violence and abuse
    • greater likelihood of recidivism

A Permanent International Criminal Court

[14] The International Criminal Court (ICC) has jurisdiction limited to 'the most serious crimes of international concern' and is brought into play where national courts are either unable or unwilling to act.

  • Characteristics of the ICC:
    • Sits in the Hague
    • Consists of three branches:
      • Judicial
      • Investigatory and prosecutorial
      • Administrative
    • 18 judges with nine-year terms
  • However, various limits, such as the non-ratification by states including the US and China.
    • These countries argue that it is an infringement of their sovereignty.


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Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 277-8.
  2. Textbook, pp. 278-9.
  3. Textbook, pp. 279-80.
  4. Textbook, pp. 280-2.
  5. Textbook, pp. 282-4.
  6. Human Rights Act 2004 (ACT), s 30.
  7. Human Rights Act 2004 (ACT), s 31 (1).
  8. Human Rights Act 2004 (ACT), s 32.
  9. Human Rights Act 2004 (ACT), s 33.
  10. Report of the Human Rights Consultation Committee (2005) in textbook, pp. 283-4.
  11. Textbook, pp. 286-7.
  12. Textbook, pp. 287-9.
  13. S Rosa and T Anderson, A Human Rights Audit of New South Wales Criminal Justice Law (2000).
  14. Textbook, pp. 291-2.
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