Law of Property, Human Rights in Australian Common Law - Essay Example

Running Head: LAW OF PROPERTY Law of Property [The Writer’s Name] [The Name of the Institution] Law of Property The current role of human rights in Australian common law is in a state of flux, a position espoused by Kirby J in Newcrest Mining (WA) Ltd v Commonwealth. This suggestion both provides an accurate general depiction of the application of international human rights to Australian common law, and holds much truth given the limited historical existence and operation of international human rights. Much of the common laws recognition of human rights in Australia has been inherited from English common law, with the most notable developments being the Magna Carta 1215, and the Bill of Rights 1688, which bore resemblance to the modern human rights provisions. "Despite a commitment to internationalism in Australia's human rights diplomacy, international statements of human rights have been enacted as part of domestic law in only a very small number of cases”, 1given this lack of active legislating to ensure compliance, it is not surprising the Australian courts have had to determine the role of human rights and their application to Australian law. The traditional position of the courts in relation to the use of international human rights has been a reluctance to recognise their operation in the common law unless those rights have been given legislative force by the parliament. The reasoning for this is to prevent the courts from changing the law without the authorization of the parliament. “In the interests of marketability, the common law has evolved rules which enable the holder of the capital interest to transfer full ownership of the thing in certain circumstances, so effectively obliterating or overriding any other property interest in the thing held by someone else.” 2 However, the modern approach of the High Court of Australia has been a rejection of this "black letter law" approach and an adoption of an activist role in ensuring Australian common law conforms to Australian obligations under international human rights treaties. Mabo v Queensland (No 2) (Mabo) is a clear example of this activist role, in which Brennan J (with whom Mason CJ and McHugh J agreed) stated: “Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform to international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.” 3 Mabo has been a turning point in the common law recognition of international human rights, as it was one of the first significant cases to give recognition to international human rights law's involvement in the development of common law as a "legitimate and important influence", which at the time was a new direction for common law. While Mabo was a new direction for the common law and a departure from the English precedent, Brennan J acknowledged a restriction in the courts use of human rights treaties in the common law: “In discharging its duty to declare the common law of Australia, ...[the courts are] not free to adopt rules that accord with contemporary notions of ...human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.” 4 Brennan J, then went on to state that the ability to distinguish between cases which contain a skeletal principle and those which do not is impossible, however a case cannot be bound to a rule of law where that rule "seriously offends the values of justice and human rights". 5A rule may be overturned if the rule of law used as a precedent "seriously offends the values of justice and human rights". However Brennan J suggested that a rule of law should only be overturned where the benefit from overturning it would outweigh any disturbance from doing so. This is the second precedent set by the court in Mabo, which allows international human rights treaties to be used to revisit and amend the common law. The Bangalore principles are a set of five principles developed by lawyers and judges of whom were members of the commonwealth, based on statements by Lord Atkins. The principles are used as a guide by the courts, in interpreting and determining the circumstances where international law may be applicable to the common law. Under these principles, "where an ambiguity arises (as by a lacuna in the common law, obscurity in its meaning or ambiguity in a relevant statute) a judge may seek guidance in the...principles of international law”. These principles have been employed and affirmed by the High Court in Dietrich v R (Dietrich). In Dietrich, the High Court granted leave to the accused who was convicted of importation of heroin, contrary to the provisions of the Customs Act 1901 (Cth) . The accused appealed on the grounds of an unfair trial based on an inability to obtain legal representation in contravention of both a fundamental common law right to a fair trial and article 14(3) of the International Covenant on Civil and Political Rights (ICCPR). Counsel for the appellant acknowledged that the ICCPR was not part of Australian domestic law, however they argued that common law should be developed in such a way which recognizes the existence and enforceability of rights under the international human rights conventions to which Australia is a party. “Most systems balance these competing aims by allowing for some circumstances in which lesser property interests in things can be overridden on a sale of a larger interest in the thing.” 6 Mason CJ and McHugh J affirmed the Bangalore principles in using international law to resolve ambiguity in common law as common-sense approach, however the court also acknowledged that such principles are not applicable in the case, as there was no legally recognized right to a fair trial in Australia. Toohey J, like Mason CJ and McHugh J agreed upon the use of international treaties as a guide to the interpretation of the law; however Toohey J went further than this position in raising the possibility of using international treaties where there is a lacuna in the law. The court held that the fundamental right top a fair trial as existing in Australian law, was akin to the principles under article 14(3) of the ICCPR, and acknowledged that international law may influence the development of common law and procedural right to a fair trial. “There is an argument that exploitation of resources to the benefit of society as a whole can best be achieved by conferring property interests on those who expend skill and labour on things.”7 The rule of law arising from Dietrich provides that a court may adjourn proceedings where an indigent accused faces a serious criminal charge until legal representation can be obtained. One of the landmark cases which address both the relationship between international human rights, common law and administrative law is Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (Teoh). In Teoh the appellant who was a Malaysian citizen had applied for permanent residency status in Australia. This application was pending when the appellant was convicted of importing illicit drugs, following which the Department of Immigration denied the application and sought to deport the appellant. The appellant appealed the decision to the Immigration Review Panel who upheld the Department of Immigration's decision. 8 On appeal to the High Court by the Minister, the court by a majority of 4-1 dismissed the appeal and upheld the decision of the Federal Court. In doing so the court reaffirmed the principles established in Mabo and Dietrich while also establishing the right to a legitimate expectation that government agencies will take the principles of treaties it has ratified, into account when making decisions. However, they are compelled to consider by way of procedural fairness any applicable treaties to give reasons for departing from its obligations and to provide the person affected by the adverse decision with an opportunity to present a case for not adopting the proposed course. The practical effect of this is decision is the availability of a judicial review of any decision, which fails to take the terms of international human rights treaties into account. Kioa v Minister for Immigration and Ethnic Affairs supports this proposition of judicial review, in that a decision maker who fails to apply the rules of natural justice when making a decision that impact upon ones rights or interests is subject to judicial review. Flynn suggests that in light of persuasive English cases and a lack of Australian legislation that the legitimate expectation extends to the commonwealth prosecution in the least, and it is this extension to prosecution that may have the most significance by application to both the administrative and prosecutional realms. This position has not been well received by the commonwealth government, especially given the erosion of state sovereignty and simultaneous extension of international human rights into both Australian common law and administrative decision-making. 9In response to Teoh, the government has issued two joint statements from the by the Minister for Foreign Affairs and the Attorney-General expressing a clear disapproval of the legitimate expectation rule arising from Teoh and a attempt to reverse the effect of the decision . The government has also introduced the Administrative Decisions (Effect of International Instruments) Bill into parliament to negate the effect of Teoh; however of the three bills, which have been introduced, all have lapsed due to elections and failure to pass the senate. As yet no legislation has been enacted, thus the rule of law established by Teoh remains. The Canadian Supreme Court in Baker v Canada (Minister of Citizenship and Immigration) took a similar path to that of Teoh, further reinforcing the solidarity of the decision. In conclusion it is clear that the use of international human rights law in the development of the common law is now firmly established and accepted by the courts as is the use of international human rights treaties in the interpretation of both statute law and common law. However the position of human rights treaties in filling a lacuna in the law remains uncertain, although the possibility was raised by Toohey J in Dietrich the possibility has not yet been fully tested in a court. Mabo establishes the role of human rights in replacing common law, which seriously offends its inherent values. Teoh has considerably widened the role of human rights in Australia and widened the scope for the judicial review of decisions not just in administrative law but as Flynn suggests, in the common law, although such a position remains somewhat unclear. However, perhaps the most interesting proposition of applying human rights treaties to create new common law is yet to be tested in courts. Although given the collective resurgence to the use of international human rights law in the common law, it could be suggested it is only a matter of time before human rights role in Australian common law is given the ultimate mandate to fulfil the blank left by a lack of constitutionally and statutory entrenched human rights. Until that day, international human rights laws will continue to achieve expansion into the common law with the only certainty being the "relationship between Australian common law and international human rights instruments...[remaining] in a state of perpetual evolution".10 Bibliography Alison Clarke & Paul Kohler: 2007: Property Law -Cambridge University Press 11-13 Bird G, The Process of Law in Australia: Intercultural perspectives, 2nd Ed, Butterworths, Melbourne, 1993. 119-24 Bouwhuis S, "International human rights at century's end", (2000) 25(1) Alternative Law Journal 19. Brownlie I, Principles of Public International Law, 4th Ed Clarendon Press, Oxford, 1990. Cranwell G, "Treaties and Australian Law - Administrative Discretions, Statutes and the Common Law", (2001) 1(1) QUTLJJ 49. Dunston R, "Delivering On The Promise of Human Rights - Where Are We And Where Do We Need To Be?" [(1997) 4(1) Australian Journal of Human Rights 5. Eastman K & Ronalds C, "Using human rights laws in litigation: the practitioners perspective", Chapter 14 in Kinley D (ed), Human Rights in Australian Law, Federation Press, 1998. Elihu Lauterpacht, C. J. Greenwood, A. G. Oppenheimer, International Law Reports: Cambridge University Press (August 12, 2002): 429-33 Flynn M, Human Rights in Australia: Treaties, Statues and Cases, Butterworths, Sydney, 2003. Flynn M, "Human rights, prosecutorial discretion and judicial review - the emergence of missing links? paper presented to the Australian Institute of Criminology Conference: Prosecuting Justice, Melbourne, 1996. Garkawe S, Human Rights: LAW00522 Study Guide, Southern Cross University, Lismore, 2004. Kirby M, "Domestic Implementation of International Human Rights Norms", (1999) 5(2) Australian Journal of Human Rights 109. Kirby M, "The Australian Use of International Human Rights Norms: From Bangalore to Balliol - a View from the Antipodes" (1993) 16 University of NSW Law Journal 363. Legal Information Access Centre, "Human Rights", (2001) 35 (5), Hot Topics Max Griffiths: Aboriginal Affairs, 1967-2005: Seeking a Solution: Rosenberg Publishing (1 Mar 2006): 114 Mykyta S, "Encouraging a Culture of Justification: A Comparison of Teoh and Baker", (2003) 8 Deakin Law Review 367. Ozdowski S, "The Relevance of Human Rights in Contemporary Australia", Byron Bay, 4 July 2003. Nick O'Neill, Simon Rice and Roger Douglas: 2004: Retreat from Injustice Human rights law in Australia: 2nd Edition: The Federation Press: 112 Pritchard S, "The Jurisprudence of Human Rights: Some Critical Thought and Developments in Practice", (1995) 2(1) Australian Journal of Human Rights 3. Roberts S, "Teoh v Minister for Immigration: The High Court Decision and the Governments Reaction to it: (1995) 2(1) Australian Journal of Human Rights 135. Rule of Law: Human Rights Protection: NSW accessed on 11-12-2005 from http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_spigelman_101298 Read More