Kirby, Michael --- "Domestic Implementation of International Human Rights Norms" [1999] AUJlHRights 27; (1999) 5(2) Australian Journal of Human Rights 109
[*] The Hon Justice Michael Kirby AC CMG is a Justice of the High Court of Australia. He was President of the International Commission of Jurists between 1995 and 1998.[1] Higgins R Problems and Process -- International Law and How We Use It (OUP, 1994) p 204.
[2] Anzilotti D, cited in Higgins, above.
[3] Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 224-225. See also per Gibbs CJ at 193.
[4] A measure of the recognition of the growing impact of international law on Australian law, and thus on its judiciary and legal profession, is this conference. It follows closely upon a conference at the University of Sydney in which the impact of international law on Australian law was explored. The opening address to that conference was delivered by my colleague, Justice Gummow (Gummow W `International Law and the Australian Judiciary', Conference at the University of Sydney, 28 November 1997). It cannot be entirely coincidental that within a week, the two of us have been asked to speak on related themes.
[5] [1996] HCA 6; (1996) 185 CLR 259.
[6] Section 22AA read with the definition of `refugee' in s 4(1).
[8] (1997) 190 CLR 225
[9] Above at 232.
[10] (1996) 187 CLR 640.
[11] Incorporated by the Family Law Act 1975 (Cth), s 111B.
[12] De L v Director-General, New South Wales Department of Community Services [1997] HCA 14; (1997) 190 CLR 207.
[14] Section 160(d).
[15] A number of Australian statutes and regulations have provisions similar to s 160(d). See Air Services Act 1995 (Cth), s 9(3); Australian Postal Corporation Act 1989 (Cth), s 28(c); Chemical Weapons (Prohibition) Act 1994 (Cth), ss 22 and 95; Civil Aviation Act 1988 (Cth), s 11; Customs Act 1901 (Cth), s 269SK; Customs (Prohibited Exports) Regulations (Cth), reg 13CA(2); Endangered Species Protection Act 1992 (Cth), s 171; Extradition (Ships and Fixed Platforms) Regulations 1993 (Cth), regs 6(2) and 7(2); Hazardous Waste (Regulation of Exports and Imports) Regulations 1996 (Cth), reg 7(2); Navigation Act 1912 (Cth), s 422; Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth), s 70(1); Ozone Protection Act 1989 (Cth), s 45(5); Sea Installations Act 1987 (Cth), s 13; Telecommunications Act 1997 (Cth), s 366.
[16] (1998) 193 CLR280.
[17] The Termination of Employment Convention and the Termination of Employment Recommendation 1982 (ILO Rec No 166). These were incorporated in the Industrial Relations Act 1988 (Cth) by s 170CA(1). That Act has since been repealed and replaced by the Workplace Relations Act 1996 (Cth). The Convention remains incorporated by s 170CA(1)(e) but the Recommendation is not expressly mentioned. The Convention Concerning Discrimination in Respect of Employment and Occupation (No 111) of the ILO was given effect by s 170CA(2) of the previous Act. It is not mentioned in the Workplace Relations Act 1996. The Equal Remuneration Recommendation 1951 and the Discrimination (Employment and Occupation) Recommendation 1958 (Rec 111) are given effect by s 170BA of both the previous and the current Acts.
[18] [1997] HCA 5; (1997) 191 CLR 119.
[19] See Toonen v Australia UN Doc CCPR/C?50/488/1992 (April 1994). See note (1994) 5 Public Law Review 72.
[20] See Kirby M `The Seven Lessons of Hobart' (1997) 16 Uni of Tas L Rev 1. For discussion see Funder A `The Toonen case' (1994) Public Law Review 156; Selvaner G ```Gays in Private", The Problems with the Privacy Analysis in Furthering Human Rights' [1994] AdelLawRw 12; (1994) 16 Adelaide L Rev 331; Morgan W `Protecting rights or just passing the buck?' [1994] AUJlHRights 27; (1994) 1 AJHR 409.
[21] [1996] HCA 14; (1996) 70 ALJR 541 (HC).
[22] [1996] HCA 14; (1996) 70 ALJR 541 at 542.
[23] See also Limbo v Little (1989) 98 FLR 421; Re Limbo (1989) 64 ALJR 241 (HC); Linden v Commonwealth (1995) 70 ALJR 145.
[24] [1997] HCA 21; (1997) 71 ALJR 767 (HC). The plaintiff invoked the Genocide Convention introduced into domestic jurisdiction by the Genocide Convention Act 1949 (Cth) (at 772-773); see also Akhavan, `Enforcement of the Genocide Convention Through the Advisory Opinion Jurisdiction of the International Court of Justice' (1991) 12 Human Rights Law Journal 285 at 296.
[25] [1997] HCA 21; (1997) 71 ALJR 767 at 769.
[26] See also Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 368-369 per Gummow J.
[27] [1997] HCA 21; (1997) 71 ALJR 767 at 779 (HC).
[28] See Chicago and Southern Airlines Inc v Waterman Steamship Corporation 323 US 103 at 111 (1948) and Crockett v Reagan 658 F Supp 893 (1982).
[29] See for example Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183 and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; see also Perry J `At the Intersection of Australian and International Law' (1997) 71 ALJ 841.
[30] See for example Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 263 (CA).
[31] See (1988) 14 Commonwealth Law Bulletin 1196 and (1988) 62 ALJ 531. See discussion in Kirby M `The Australian Use of International Human Rights Norms: From Bangalore to Balliol' [1993] UNSWLawJl 15; (1993) 16 UNSWLJ 363 and Kirby, `The Bangalore Principles' (1997) 78 The Parliamentarian 326.
[32] Bangalore Principles No 4.
[33] Bangalore Principles No 7.
[34] [1976] 1 QB 198 at 207.
[36] (1992) 175 CLR 1 at 42 (citations omitted).
[37] [1992] UKHL 6; [1992] 1 QB 770.
[38] [1992] UKHL 6; [1993] AC 534.
[39] See Keith K `The Application of Human Rights Law in New Zealand' 32 Texas Intl LJ 401 at 411.
[41] For example, Berrehab v Netherlands [1988] ECHR 14; (1989) 11 EHRR 322; Beljoudi v France [1992] ECHR 42; (1992) 14 EHRR 801.
[42] [1994] 2 NZLR 257 at 260; see also Minister for Immigration and Ethnic Affairs (Australia) v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 278.
[43] See, for example, Vishaka v State of Rajasthan (1997) 84 AIR 3011 per Verma CJ (Supreme Court of India).
[44] See Parliamentary Approval of Treaties Bill 1995 (Cth) and Administrative Decisions (Effect of International Instruments) Bill 1997 (Cth); see also Joint Statement by Minister for Foreign Affairs and Minister for Justice, `The Effect of Treaties in Administrative Decisions'.
[45] See, for example, Rose D `Judicial Reasoning and Responsibility in Constitutional Cases' [1994] MonashULawRw 9; (1994) 20 Monash U L Rev 195.
[46] See Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at 325 per Brennan J (dissent). See also Triggs G `Customary International Law and Australian Law' in Ellinghaus M, Bradbrook A and Duggan A (eds) The Emergence of Australian Law (Butterworths, 1989) pp 376, 381 and Fitzgerald B `International Human Rights and the High Court of Australia' (1994) 1 James Cook University Law Review 78.
[48] Unreported, Privy Council, 27 June 1997.
[49] Above Article 14 concerns protection of privacy, family and home from unlawful attacks. It follows the language of Article 17 of the ICCPR.
[50] [1997] HCA 38; (1997) 190 CLR 513.
[51] Teori Tau v Commonwealth [1969] HCA 62; (1969) 119 CLR 564.
[52] Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 657.
[53] Ibid at 657-8 (citations omitted).
[54] But see Victoria v Commonwealth (1996) 187 CLR 416 at 476-480 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.