Minogue v Williams

Reasoning of the primary judge 8 Weinberg J noted that s 75(i) of the Constitution conferred original jurisdiction on the High Court in all matters arising under any treaty, that s 38(a) of the Judiciary Act made exclusive to the High Court the jurisdiction in "matters arising directly under any treaty" and that s 44(2) of the Judiciary Act authorised the High Court to remit such a matter, or any part thereof, to the Federal Court. His Honour observed that, as the Federal Court had no jurisdiction, absent remitter, to hear "matters arising directly under any treaty", and as that was the basis upon which the applicant had sought to invoke the jurisdiction of the High Court, the jurisdiction to be exercised by the Federal Court in the matter could only be that sought to be invoked in the High Court. It followed, said his Honour, that whether or not the Federal Court had jurisdiction to deal with the application which had been remitted to it depended upon whether the High Court would have had jurisdiction to entertain that application, had it not been remitted. 9 The only basis upon which the applicant contended that the High Court would have had such jurisdiction was that his action was said to involve a matter arising under a treaty, namely the ICCPR. It followed that, if the applicant's action did not give rise to a matter arising under a treaty, so as to fall within the original jurisdiction of the High Court, there can be no jurisdiction in the Federal Court to deal with the action upon remitter so that an order for summary dismissal pursuant to O 20 r2(1) of the Federal Court Rules would be appropriate. 10 Weinberg J then considered whether the rights and obligations specified in the ICCPR had been incorporated into Australian domestic law and could be enforced directly in Australian courts. His Honour noted that in Dietrich v The Queen (supra) the Court had rejected the submission that Article 14(3)(d) of the ICCPR gave an indigent accused the right to legal assistance and that the common law should be developed to reflect the ICCPR in that regard: per Mason CJ and McHugh J at 305‑306, per Brennan J at 321, per Dawson J at 348‑349, per Toohey J at 359‑360. At 305 Mason CJ and McHugh J said: "Ratification of the I.C.C.P.R. as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the I.C.C.P.R. are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions. No such legislation has been passed." (footnote omitted) Weinberg J also relied on passages in the judgments in Victoria v The Commonwealth (supra) 480‑482; Sinanovic v R (supra) at 707‑708 and Minogue v Human Rights and Equal Opportunity Commission (supra) at 447‑478. His Honour noted that the principle laid down in Minister for Immigration and Ethnic Affairs v Teoh (supra) had no application in the proceeding before him. 11 His Honour then considered Re East; Ex parte Nguyen (supra) in which, in a joint judgment, by all members of the Court except Kirby J, their Honours said at 112‑113: "Differing views have been expressed, by judges and commentators, as to the operation, if any, of the words 'Arising under any treaty' in s 75(i) of the Constitution. The applicant relied in particular upon the view taken by McLelland J in Bluett v Fadden [fn (1956) 56 SR (NSW) 254 at 261] that 'where the terms of the treaty have by legislation been made part of the law of the land, it is in a very real sense the treaty which is being interpreted' and '[i]n such cases, the matter in question arises under the treaty'. The result would be that even if, as is the case here with the Act, the law did not confer original jurisdiction upon this court in matters arising under that law, within the meaning of s 76(ii) of the Constitution, this court would have original jurisdiction by force of s 75(i) itself. However, it is unnecessary and therefore inappropriate to go into that question in the present case. This is because, even if the applicant be correct in his reliance upon Bluett v Fadden, nevertheless, in order to attract jurisdiction under s 75(i), it would be necessary for the applicant to identify a justiciable controversy arising under a treaty. The applicant fails at this anterior stage. There is no 'immediate right, duty or liability to be established by the determination of the Court' [fn Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265]." (some footnotes omitted) 12 Notwithstanding what Weinberg J called this "impressive array of authority seemingly standing as a fundamental impediment to his claim" the applicant contended before his Honour that: · Since the enactment of the Evidence Act 1995 (Cth) it could no longer be said that the provisions of the ICCPR had not been enacted into domestic law as s 138 of that Act expressly incorporated the ICCPR into Australian domestic law for the purpose of determining whether to exclude improperly or illegally obtained evidence; · Re East; Ex parte Nguyen (supra) could be distinguished upon the basis that the applicant in that case had alternative remedies available to him, being the ordinary processes of appeal but in the present case the applicant had no remedies available to him which were of any practical utility; · Although s 47 of the Corrections Act expressly stated that every prisoner had certain identifiable rights, those provisions may not afford the applicant rights capable of being enforced in any court of law; · Article 10(1) of the ICCPR should be viewed as conferring upon the applicant the right at common law to be treated with dignity and to be afforded meals which sustain his health and well‑being having regard to his vulnerable status as a prisoner. 13 His Honour found that none of these submissions overcame the difficulty that the High Court lacked jurisdiction pursuant to s 75(i) of the Constitution to entertain his action based upon an alleged breach of Article 10(1) of the ICCPR. His Honour said that the applicant was relying upon the ICCPR as the direct and immediate source of the right, which he claimed had been infringed by the respondent, which was precisely what the decisions to which he had referred had said the applicant could not do. 14 His Honour rejected the proposition that, because the ICCPR had been set out in a schedule to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"), it may be taken to have been incorporated into Australian domestic law. 15 His Honour did not accept that the very limited incorporation of the ICCPR into Australian domestic law which arguably had been effected by s 138 of the Evidence Act had the effect of enabling a person whose rights were said to have been contravened under the ICCPR to enjoy the exercise of justiciable rights at large under the ICCPR. His Honour concluded that Parliament had not, by a side‑wind, incorporated the ICCPR in its entirety into Australian domestic law. 16 His Honour therefore upheld the respondent's motion and dismissed the applicant's application with costs.

The present application 17 The applicant sought leave to appeal from the judgment of Weinberg J on the grounds that his Honour made errors of law and denied the applicant procedural fairness by not affording him the opportunity to be heard in relation to the order for costs which should be made. In the event of the Court granting leave to appeal, the applicant seeks an order that the appeal be heard forthwith. During the hearing of the application the applicant abandoned the grounds relating to the costs order made by Weinberg J upon the respondent undertaking to the Court not to enforce the order for costs by Weinberg J in his favour or to rely upon that order in relation to any application that might be made hereafter that the applicant provide security for costs.

Issues on the application 18 It is necessary for the applicant to apply for leave to appeal as the judgment of Weinberg J was interlocutory rather than final, notwithstanding the consequence of the decision for the applicant. Whether a judgment is final, as distinct from interlocutory, depends upon whether the judgment finally determines the rights of the parties to proceedings: Licul v Corney (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248. As was pointed out in Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 at 242: "In applying this test, the court must have regard to the legal rather than the practical effect of the judgment, so that the question is whether the judgment finally determines, in a legal sense, all the rights of the parties that are in issue in the proceedings … " Although Weinberg J dismissed the applicant's action or proceeding because of lack of jurisdiction, the judgment has not, in a legal sense, determined the rights of the parties that were in issue in that proceeding. Thus, the substantive claims of the applicant, particularly in respect of s 47 of the Corrections Act, remain undetermined. It has been established in a number of authorities that dismissal of an action on the ground that it does not disclose a reasonable cause of action is interlocutory and not final: Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326 at 1328; Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601; Weatherall v Satelite Receiving Systems (Australia) Pty Ltd [1999] FCA 741; Wickstead v Browne (1992) 30 NSWLR 1 at 11; Little v State of Victoria [1999] 4 VR 596. Although a different view was taken in Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 at 149, that view appears to be inconsistent with a long line of authority. 19 It is therefore necessary to consider whether leave to appeal should be granted. The principles to be applied in determining whether leave should be granted were set out in some detail by the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In general terms, those principles are that leave should not be granted unless two tests are satisfied. The first is that in all the circumstances the decision is attended with sufficient doubt to warrant its reconsideration on appeal. The second involves asking whether substantial injustice would result if leave were refused, supposing the decision to be wrong. A distinction is also drawn between an interlocutory decision on a point of practice or procedure and an interlocutory decision determining a substantive right: Décor Corporation Pty Ltd v Dart Industries Inc (supra) at 400. Leave will more readily be granted to appeal from judgments of the latter kind. As was said by the High Court in Ex parte Bucknell (1936) 56 CLR 221 at 225: "There is one class of case which raises little difficulty. If the interlocutory order … has the practical effect of finally determining the rights of the parties, though it is interlocutory in form, a prima facie case exists for granting leave to appeal. For example, a judgment for either party on a demurrer might, in effect, be decisive of the whole litigation. Although such a judgment would often be interlocutory, it might be final in determining the issue between the parties, and, in such a case, leave would be granted almost as of course."

Submissions of the parties 20 The applicant made three general submissions: (a) Weinberg J made an order for costs without the applicant being given the opportunity to make submissions on the issue of costs and was therefore denied natural justice. (b) Weinberg J did not, in his reasons for judgment, deal with submissions raised by the applicant relating to the observations of Kirby J in The Queen v Swaffield (1998) 192 CLR 159 at 212‑214. (c) His Honour erred in law in holding that the ICCPR had not been incorporated into Australian domestic law by virtue of its reproduction as the Second Schedule to the HREOC Act. The applicant raised a ground in his draft notice of appeal that Weinberg J erred when he rejected the applicant's submission that the partial incorporation of the ICCPR into s 138 of the Evidence Act (assuming that that be its effect) had the effect that the whole of the ICCPR had been incorporated into Australian domestic law. He addressed no submissions on this ground.

Has the ICCPR been incorporated into Australian domestic law? 21 The applicant submits that Weinberg J erred in declining to regard the ICCPR as incorporated into Australian domestic law by reason of its being set out in a schedule to an Act of the Commonwealth Parliament. The ICCPR comprises Schedule 2 of the HREOC Act. The applicant submitted that a schedule to an Act is part of an Act (see s 13(2) of the Acts Interpretation Act 1901 (Cth)) and, if the Act provides for the schedule to be used for a particular purpose, it must be read as operating for that purpose: Inland Revenue Commission v Gittus [1920] 1 KB 563 at 576. Although the ICCPR is found in a schedule to the HREOC Act, there is nothing in that Act which purports to incorporate the ICCPR as part of Australian domestic law or enact it as such. The ICCPR is not referred to in the HREOC Act for the purpose of creating or conferring statutory rights in accordance with its terms. It is referred to in s 11(1) of the Act but only for the purpose of identifying one of the functions of the Human Rights and Equal Opportunity Commission as being to report to the Minister as to any action that needs to be taken by Australia to comply with the provisions of the covenant, or to examine any relevant international instrument for the purpose of ascertaining whether there are any inconsistencies between that instrument and the covenant. Further, by virtue of s 46C(4) of the Act the Commissioner in performing his functions must "as appropriate, have regard to" the ICCPR. 22 The applicant's submission is inconsistent with, and fails to take account of, the observations of the members of the High Court in Dietrich v The Queen (supra). For example, we refer to the observations of Mason CJ and McHugh J in par 10 above and the observation of Toohey J at 359‑360: "Article 14(3)(d) of the I.C.C.P.R. has been mentioned already. The ratification by Australia of the I.C.C.P.R. on 13 August 1980 did not render it part of Australian municipal law. The I.C.C.P.R. is now contained in Sched. 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). While the Act confers power on the Human Rights and Equal Opportunity Commission to investigate and conciliate alleged breaches of rights contained in the I.C.C.P.R., it does not create justiciable rights for individuals." As was said by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (supra) at 287: "So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law." 23 Weinberg J referred to the observations of Millhouse J in Collins v South Australia [1999] SASC 257 and disagreed with his Honour's conclusion that the ICCPR had been enacted into domestic law by virtue of its reproduction as a schedule to the HREOC Act. Millhouse J found support for his view in Re Marion (1990) 14 Fam LR 427 where at 451 Nicholson CJ thought it strongly arguable that the existence of human rights set out in the various international instruments scheduled to the HREOC Act had been recognised by the Parliament as a source of Australian domestic law by reason of the HREOC Act. Millhouse J also relied on the observations of Legoe AJ in R v Cabone (1995) 82 A Crim R 1 at 17 that the rights contained in the ICCPR become "human rights" for the purposes of the HREOCActbecause they are recited in a schedule to that Act. 24 Whilst it is well recognised that international standards reflected in treaties have been drawn upon to influence the development of the common law (see Dietrich v The Queen (supra) at 306, 321 and 360), the observation of Millhouse J that incorporation of the terms of a treaty into domestic law results merely by it being a schedule to an Act cannot be accepted. The observations are inconsistent with, and fail to take into account, the observations in Dietrich v The Queen (supra) to which we have referred. They are also inconsistent with the observations of Full Courts of this Court in Minogue v Human Rights and Equal Opportunity Commission (supra) at 447‑448 and Thompson v Nulyarimma (1999) 165 ALR 621 at 673‑676, per Merkel J (with whom Wilcox J, at 631, and Whitlam J, at 638, agreed on this point). 25 We are therefore satisfied that his Honour did not err in rejecting the submission that the ICCPR has been incorporated into or has become part of Australian domestic law by reason of its reproduction as a schedule to the HREOC Act. The Queen v Swaffield (1998) 192 CLR 159 at 212‑214 26 Although Weinberg J did not refer specifically in his reasons for judgment to the observations of Kirby J in The Queen v Swaffield (supra) at 212‑214, we are satisfied that it is implicit in his Honour's reasoning that he did not regard those observations as relevant to the determination of the issue before him. 27 The applicant had specifically referred Weinberg J to the passage in the judgment of Kirby J in The Queen v Swaffield (supra) upon which he relies. There was then a dialogue between the applicant and his Honour about the significance and relevance of these observations and it is apparent from his Honour's reasons that he did not regard these observations as supporting the proposition that the ICCPR created rights which were enforceable in the sense that the High Court could grant a remedy for an infringement of those rights. In the course of discussion with the applicant, Weinberg J said: "I don't see that passage [in Kirby J's judgment] as suggesting that it [the ICCPR] confers upon an individual the right to go to court and to simply refer to the provision of the treaty and say, 'There's my right. I want a remedy. I can point to the covenant. Please give me my remedy.' In fact I can't think of any case where anyone has ever been able to point to a provision in a treaty in that way …" The effect of the passage in The Queen v Swaffield (supra) relied upon by the applicant is that the common law in Australia should be developed or re‑formulated in a manner which is compatible with international jurisprudence. 28 It is apparent from his Honour's reference to a citation from Re East; Ex parte Nguyen (supra) that he did not regard the observations of Kirby J in The Queen v Swaffield (supra) as supporting the proposition that the applicant had rights granted by Article 10(1) of the ICCPR which were enforceable in the High Court as a matter of Australian domestic law. 29 We do not accept the submission that his Honour erred in not referring specifically to the passage in the judgment of Kirby J in The Queen v Swaffield (supra) to which he had been taken by the applicant in the course of argument.

Conclusion 30 For the foregoing reasons we are satisfied that the decision of Weinberg J was not attended with sufficient doubt to warrant the grant of leave to appeal. We would add that in our view his Honour did not err in law in arriving at the conclusion that the proceeding should be dismissed on the ground of lack of jurisdiction as the matter before the Court was not a justiciable controversy arising under a treaty (s 75(i) of the Constitution) nor was it a matter arising under a law of the Commonwealth (s 39B(1A) of the Judiciary Act). As the parties resolved the issue of costs by agreement in the course of the hearing it is not necessary for us to say any more about it.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Merkel and Goldberg.

Counsel for the Respondent: R D Shepherd & L W Maher