Document

IndyMedia Article: Australian Courts Not Bound by International Conventions

By W. McMahon, 5 Jan 2006

If you thought that your point of view was going to be upheld in an Australian court because the government of this country had broken some convention such as the International Covenant on Civil and Political Rights or the Human Rights Convention, you are incorrect.

In a recent informal discussion with a lawyer (Dec. 2005) I was surprised to be advised that International Conventions, such as UN Conventions had nothing to do with Australian law. They were just Conventions Australian Governments signed as part of a club - UN. They had no relevance to Australian law.

I replied, "why did we sign these Conventions if they mean nothing to Australians?" "What was the point of signing Conventions that would never be part of Australian law?"

Australia is a Democracy and the people expected these Conventions to be implemented. The UN expects signatory nations to ratify these conventions and make them law and carry out these rights to all people.

I reminded the lawyer that Parliament was not the only place where law was made - it was made in the Courts were ordinary people came for justice and the Court's decisions become case law or common law.

As Australia is a democracy we, the voters elect our Governments. A we pay our politicians, we have a Master Servant relationship and it was time our servants the State and Federal Governments started doing what we their employers the voters and taxpayers require and expect.

We the people who elect our governments must insist that our servants carry out our instructions and make these International Conventions law.

Australia has ratified many International Conventions and the decision in Teoh case shows that the High Court of Australia expects that the Federal and State Governments MUST implement International Conventions such as the UN Universal Declaration of Human Rights because the citizenry expects it. So basically I was right.

The lawyers and the judiciary have a lot to answer for enforcing the myth that these Australian ratified International Conventions mean nothing - that is because they don't give a damn about our rights and profit from our vulnerability.

To the lawyers our belongings are just assets for them to seize while they run a case. Our expectations and theirs are quite different and this situation needs to be rectified before they ruin more lives. How eloquently do you wish me to word this fact of life.

How many people have lost their assets so lawyers can travel FREE on cab charge?
The Implications of Teoh's Case for whistleblowers and ALL Australians especially truth tellers (aka whistleblowers)

Minister of State For Immigration And Ethnic Affairs -V- Ah Hin Teoh: The High Court Decision and the Federal Government's Reaction To It. (They legislated against it). The precedent created in this case stands.


INTRODUCTION

*it gives unprecedented significance to the ratification of international instruments by the Executive, in particular [Human Rights] Convention on the Rights of the Child [2] ("CROC") by the majority stating that the ratification of such instruments creates the basis for a legitimate expectation; and

*it has provoked a swift and all encompassing reaction from the Government evincing an intention to reverse Teoh's case.

[The High Court decided that an Internationally ratified Convention be upheld.. The Universal Declaration of Human Rights - the rights of the child]

Law is made by Court decisions and by Act of Parliament. [Because of the Court's decision the Government legislated the Right away because the Court system would not change the law or the precedent this case law has set. A precedent has been set - that International Conventions can and will be implemented by the Courts.]

Position before the High Court Decision

Prior to the decision of the High Court in Teoh's Case, the domestic ramifications of Australia being party to an international treaty were limited. The ramifications can effectively be summarised as being that:

*the provisions of a treaty were not part of Australian law unless they were incorporated into law by way of domestic legislation; [3]
*where there was ambiguity in a statute or subordinate legislation, a construction should be adopted that complies with Australia's obligations under international instruments; [4] and
*the principles contained in an international instrument may be used by courts as a guide to developing the common law in Australia.[5]

As will be shown below, the decision of the High Court extended the impact of Australia ratifying an international instrument beyond these established classes and into the arena of administrative decision-making and procedural fairness.

HIGH COURT DECISION

The doctrine of legitimate expectation was considered by Mason CJ, Deane, Toohey and McHugh JJ. Mason CJ, Deane and Toohey JJ accepted as correct the finding of Carr and Lee JJ that the ratification of an international convention can be a basis for the existence of a legitimate expectation and that, in this instance, there had been a want of procedural fairness. McHugh J dissented on this point and Gaudron JJ did not rely upon it in her reasons.

Mason CJ and Deane J (in a joint agreement) held that:

.....ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internally accepted standards to be applied by courts an[d] administrative authorities in dealing with basic human rights affecting the family and the child. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent any statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as a primary consideration'. [16]

Toohey J agreed that:
....by ratifying the Convention Australia has given a solemn undertaking to the world at large that it will: 'in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative or legislative bodies' make 'the best interests of the child a primary consideration'. [17]

[In this case the rights of the child but the precedent relates to ALL other basic human rights that Australia has ratified internationally.]

It was held by Mason CJ, Deane and Toohey JJ that is was not necessary for persons seeking to rely upon such a legitimate expectation (or in the case of a child, for their parent or guardian) to actually have the expectation themselves, but rather that the existence of the expectation be reasonable in the circumstance.[18]
Their Honours held, however, that the presence of the legitimate expectation does not compel the decision-maker to act in a way that complies with that expectation. To require compliance would be to incorporate "the provisions of the unincorporated convention into our municipal law".[19] All the decision-maker is required to do by way of procedural fairness, if he or she is proposing to make a decision inconsistent with the legitimate expectation, is to provide the affected person with the opportunity to present a case for not adopting the proposed course.[20].


Conventions that directly affect truth tellers (aka whistleblowers) because we can expect to rely upon (Doctrine of Expectation) them being implemented by the Executive are:

Torture - United Nations Convention Against Torture and Other Cruel Inhuman or degrading Treatment or Punishment (from United Nations Office of High Commissioner or Human Rights). Australia ratified 7 September 1989 http://www.unhchr.ch/html/menu3/b/h_cat39.htm

Bullying, intimidation, HealthQuesting / psychiatric abuse, financial destitution, isolation, violation of health needs, loss of employment, ostricization, tagging, etc.

Right or Association - to belong or not to belong to a union or church or political party

Political Rights - United Nations - International Covenant on Civil and Political Rights (Date of Australia entering into force 13/11/80) http://www.unhchr.ch/html/menu3/b/a_ccpr.htm

Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. (8 March 1999)

The Universal Declaration of Human Rights. (1948) http://www.unhchr.ch/udhr/

Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. (1975)
http://www.unhchr.ch/html/menu3/b/h_comp38.htm

Justice - United Nations - Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Adopted by General Assembly resolution 40/34 of 29 November 1985 http://www.unhchr.ch/html/menu3/b/h_comp49.htm


Work Rights of People - International Covenant on Economic, Social and Cultural Rights. Australia Ratified 10 Dec 1975 http://www.ohchr.org/english/law/cescr.htm


United Nations - Charter - Preamble: "We the Peoples of the United Nations Determined ... http://www.unhchr.ch/html/menu3/b/ch-pream.htm

The Universal Declaration of Human Rights

United Nations - Charter - Purposes and Principles http://www.unhchr.ch/html/menu3/b/ch-chp1.htm

United Nations Convention against Corruption (Signed by Australia 9 December 2003) http://www.unodc.org/unodc/en/crime_convention_corruption.html

"Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a government's ability to provide basic services, feeding inequality and injustice, and discouraging foreign investment and aid".

Through this Convention victims (often whistleblowers) can claim compensation.

 

[See the original article and all comments at: http://sydney.indymedia.org.au/front.php3?article_id=63400]