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Article Excerpt
[In recent years an increasing number of judges of national courts, including in Australia, have taken part in a transnational dialogue about basic principles of the law, the values that underpin these principles, and the light that may be thrown on such values and principles by the international law of human rights. In Australia, the use of such materials in elucidating local legislation (especially when intended to give effect to a treaty) and in elaborating the common law is less controversial following Mabo v Queensland [No 2]. However, their use in constitutional elaboration remains contested. The author describes the occasions for such judicial dialogue, including international civil society organisations of lawyers and two new bodies with which he is associated: the Judicial Reference Group of the United Nations High Commissioner for Human Rights and the Hague Institute for lnternationalisation of Law. He then describes the way in which international law may seep into constitutional reasoning. He instances the prisoners' voting decision of Roach v Australian Electoral Commission. The minority in that case criticised the majority judges for referring to reasoning of the European Court of Human Rights'. The author suggests that references to such analogous materials are both inevitable and beneficial.]
CONTENTS I Introduction: Transnational Judicial Conversation II Venues for Transnational Dialogue A The Office of the High Commissioner for Human Rights B The Judicial Reference Group C Other III Australian Judicial Engagement with the Internationalisation of Law A Judges' Engagement with International Law B Constitutional Limitations upon Greater Engagement C Judicial Use of Sources of International Law IV A Divided Constitutional Decision V Conclusion
I INTRODUCTION: TRANSNATIONAL JUDICIAL CONVERSATION
A distinctive feature of the present age has been the increase in dialogue between judges and other lawyers across national boundaries. This dialogue has concerned both the substance of the law and its doctrines and procedures for conducting trials, appeals and the work of the courts generally.
To some extent the dialogue has been comparatively uncontroversial, as in cases where national judges are called upon to interpret international treaties incorporated into municipal law. The growth of treaty law, especially since 1945, (1) has meant that increasing numbers of cases have involved national courts in construing treaty provisions. There are strong reasons why such tasks of interpretation should be carried out, as far as possible, in a consistent way. Recognition of this principle has taken Australian courts to a study of the international law governing the interpretation of treaties; (2) the travaux preparatoires that preceded the adoption of the treaty; (3) and the decisions of courts and tribunals of high authority in other countries struggling with the same or similar problems. (4)
More controversial, at least in Australia, has been the extent to which it is legitimate for judges in national courts in non-treaty cases to invoke decisions of courts of other countries, or principles of international law, in discharging their responsibilities of finding and declaring national law. Most controversial of all has been the invocation of the international law of human rights, especially in matters of constitutional adjudication. (5)
In a sharp comment, in his dissenting reasons in the recent decision of the High Court of Australia in Roach v Australian Electoral Commissioner, (6) Heydon J rejected the invocation by the plaintiff prisoner of analogies suggested for the case in hand by the terms of, and decisions about and commentaries on, various named international treaties and national constitutional provisions. (7) Heydon J said that
these instruments can have nothing whatever to do with the construction of the Australian Constitution. These instruments did not influence the framers of the Constitution, for they all postdate it by many years ... The language they employ is radically different. One of the instruments is a treaty to which Australia is not and could not be a party. Another of the instruments relied on by the plaintiff is a treaty to which Australia is a party, but the plaintiff relied for its construction on comments by the United Nations Human Rights Committee. If Australian law permitted reference to materials of that kind as an aid to construing the Constitution, it might be thought that the process of assessing the significance of what the Committee did would be assisted by knowing which countries were on the Committee at the relevant times, what the names and standing of the representatives of these countries were, what influence (if any) Australia had on the Committee's deliberations, and indeed whether Australia was given any significant opportunity to be heard. The plaintiff's submissions did not deal with these points. But the fact is that our law does not permit recourse to these materials. The proposition that the legislative power of the Commonwealth is affected or limited by developments in international law since 1900 is denied by most, though not all, of the relevant authorities--that is, denied by 21 of the Justices of this Court who have considered the matter, and affirmed by only one. (8)
The 'one' concerned was identified as myself. I shall return to the decision in Roach later in this article, for it indicates that there may be a growing willingness on the part of Australian judges to acknowledge the utility of international materials in the performance of their own tasks, discharged with the aid of transparent analogical reasoning. First, however, I will describe some of the practical ways in which the international conversation between national judges of courts of high authority is taking place.
In recent months, two meetings have occurred that illustrate the dialogue that is taking place. That dialogue is one that expands the source materials of analogical information available to contemporary judges. One was a meeting of a new Judicial Reference Group of the High Commissioner for Human Rights ('JRG') that took place in Geneva in November 2007. The other was a meeting at Cambridge University organised by the Hague Institute for the Internationalisation of Law ('HiiL') in February 2008. These meetings occurred against a background of many other professional gatherings in which judges and practising lawyers from many countries now participate, share ideas and experience, and receive information and the stimulus of fresh insights from colleagues in other jurisdictions.
The purpose of this article is to demonstrate that with the growing body of treaty law, increasing international trade and commerce, the advent of the internet and enhanced international travel have come stimuli of a specifically judicial and legal kind. Inevitably, these stimuli have influenced the ideas and values of national judges as they approach the resolution of local legal problems. Honesty and transparency sometimes suggest an acknowledgement of such source materials. The proposition is that this is a development as natural as it is inevitable. It is no more than part of the global reality of contemporary times.
II VENUES FOR TRANSNATIONAL DIALOGUE
A The Office of the High Commissioner for Human Rights
In the past, the Office of the High Commissioner for Human Rights ('OHCHR') has engaged with national judges in a number of ways. The links have included the provision of training materials for use in the education of judges about international norms and treaty body jurisprudence; (9) the occasional consultation with particular judges concerning special aspects of human rights guarantees; (10) the establishment of expert groups on legal issues which have included national judges; (11) the invitation to particular judges or former judges to participate in the special procedures of the Human Rights Council as United Nations special rapporteurs or special representatives; and the occasional provision of submissions to national courts by way of amicus curiae briefs in appropriate cases. (12)
Whereas the engagement of the OHCHR with the governments of member states is institutionally assured through the activities of the Human Rights Council and whereas contact with national Human Rights Commissions (and other bodies within the executive government of member states) is institutionally provided for on a regular basis, the contacts between the OHCHR and national judges have, until now, been relatively limited and confined.
In part, this has been the result of the very large number of national courts, their diverse functions, the differing ways in which they are organised and the practical difficulties of making direct contact with them. In part, it has followed from respect for the principle of judicial independence, which is itself expressed in international human rights law. (13) Until quite recently, in many countries, this principle was given effect by limiting the contact between members of the judiciary and other branches of the national government, even for purposes of general judicial education. Still less was the direct contact with international agencies of the UN. Relationships with such agencies were conventionally viewed as the exclusive responsibility of the executive government of the nation and inappropriate for the national judiciary.
In more recent years, the judiciary in most countries, including Australia, have become involved in activities of judicial education, in global and regional meetings designed to promote the exchange of experience and ideas and contact with international bodies concerned with shared questions of legal doctrine, the administration of justice and human rights. As more countries have ratified international human rights treaties (14) and as reference to these instruments in domestic judicial adjudication has increased in most countries, (15) the interest and involvement of members...
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