Commission submissions: Toonen & Croome
Legal
IN THE HIGH COURT OF AUSTRALIA)
HOBART OFFICE OF THE REGISTRY)
No. H4 of 1995
BETWEEN
RODNEY CROOME & NICHOLAS TOONEN
Plaintiffsand
THE STATE OF TASMANIA
Defendant
SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ON ITS APPLICATION FOR LEAVE TO APPEAR
1. The Human Rights and Equal Opportunity Commission ("the Commission"), by summons dated 11 March 1996, has sought leave to intervene Of, in the alternative, to appear as amicus curiae in the within proceedings.
2. The Commission now submits, in the light of the submissions filed by the parties, that in this case the more correct basis for its application to appear before this Court is only as an intervener pursuant to s.11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the Act").
3. The Commission resolved to apply for leave to intervene in the whole of the within proceedings (see par.12 of the Affidavit of Christopher Dominic Sidoti dated 11 March 1996). If, however, this Court is not inclined to grant this application at this time, the Commission presently seeks leave to appear only on this preliminary matter of standing.
4. The Commission submits that it is appropriate for it to be granted leave to intervene in the within proceedings because it meets the established preconditions for the grant of such leave. It is submitted that those preconditions can be identified as falling into two convenient categories -legal considerations and practical considerations.
Legal considerations
5. Brennan C. J., in an ex tempore judgment in this Court in Kruger & Ors v. The Commonwealth (Unreported, 12 February 1996), referred to the test for leave to intervene as follows:
"Applicants for leave to intervene must ordinarily show an interest in the subject of litigation greater than a mere desire to have the law declared in particular terms."
In The Queen v. Ludeke: Ex parte Customs Officers' Association of Australia (1985) 155 C.L.R. 513, at p.522, Mason J. (as he then was) made the following comment in relation to interventions before the courts generally based on United States experience:
"In general, the applicant is required to have an interest which is a substantial interest, a legal interest or one which is known and protected by the law."
6. It is submitted that the Commission, by reason of its statutory functions under the Act, meets these tests for the following reasons:
(a) By reason of s.11(1)(o) of the Act, the Commission has an interest recognised by law in intervening- with the leave of the Court- in the proceedings that involve human rights issues.
(b) The other functions of the Commission as set out in s.11 of the Act, combined with the scheduling of the International Covenant on Civil and Political Rights, also demonstrate that the Commission has a substantial interest based on statute in the resolution of the human rights issues of these proceedings.
(c) The Commission's substantial interest in the subject matter of these proceedings is also demonstrated by the fact this Commission, pursuant to s.11(1)(j) and (k) of the Act, has reported to the Commonwealth Attorney-General on the Tasmanian laws the subject of these proceedings: Human Rights and Equal Opportunity Commission, Report of the Human Rights Commissioner on certain Provisions of the Tasmanian Criminal Code, 15 July 1994.
Practical considerations
7. Practical considerations have also loomed large in the exercise of this discretion: for example, in Re Boulton (1994) 126 A.L.R. 620, at pp.626-628, the Full Court of the Industrial Relations Court held that practical factors -such as the timely notice of an intention to intervene, the use of written submissions and any significant delay which may be caused by the intervention -were all relevant in the exercise of the discretion.
8. It is submitted, for the following reasons, that in this case no practical considerations militate against the granting of leave:
(a) the other parties have received timely notice of the Commission's intention to intervene and of the written submissions intended to be made;
(b) subject to the wishes of the Court, the Commission seeks to file written submissions on the question of standing and its intervention should cause little or no delay in the hearing;
(c) the Commission's three key submissions, whilst essentially in sympathy with the related submissions of the plaintiffs, do differ from those of the plaintiffs and do elaborate upon them. Thus, they may well assist the Court in fully informing itself "of matters which it ought to take into account in reaching its decision": United States Tobacco Co v. Minister of Consumer Affairs (1988) 20 F.C.R. 520, at p.534 (Full Federal Court).
SUBMISSIONS OF HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Application for leave to intervene
1. The Human Rights and Equal Opportunity Commission ("the Commission") seeks the leave of the Court to intervene in the within matter pursuant to s.11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOCA "). In the alternative, the Commission seeks leave to appear as amicus curiae.
2. The specific human rights issues involved in this matter are those referred to in Articles 2, 17 and 26 of the International Covenant on Civil and Political Rights ("the ICCPR"). [1]
3. The matters which the Commission seeks to put to this Court go beyond the interests of the plaintiffs alone and it is anticipated that arguments additional to those of the plaintiffs will be made.
4. In relation to the matters raised by the defendant's summons dated 9 February 1996, the Commission seeks only to make written submissions on the issue of standing raised in par .2(ii) of the said summons, should it be granted leave to appear. Those submissions are set out hereafter.
Outline of the submissions of the Commission
5. The plaintiffs seek declarations. Accordingly, upon established principle [2], the plaintiffs must meet either of two tests to establish standing. Namely, that there has been an interference in the private rights of the plaintiffs or that the plaintiffs have a "special interest" in the subject matter of the litigation.
6. In addition to supporting the submissions of the plaintiffs in respect of the issue of standing, the Commission seeks to make the following submissions on standing:
(a) A submission in respect of standing based on "private rights
(b) In the alternative to the submission in respect of private rights, the Commission seeks to make two submissions in respect of the plaintiffs' "special interest" in the subject matter.
Submissions of the Commission in respect of standing based on "private rights"
7. It is submitted that the Human Rights (Sexual Conduct) Act 1994 (Cth) ("the Commonwealth Act") confers a certain private right to privacy upon persons "eighteen years old or more" [3].
This private right is set out by s.4(1) of the Commonwealth Act:
"Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights. "
Whether s.4(1) does in fact confer a private right is a question of construction [4], "but once that question is answered affirmatively the standing of the plaintiff to sue is clear" [5]. The question therefore becomes whether, as a matter of construction, the Commonwealth Act confers a private right. If it does, this action clearly proposes to protect it.
8. It is submitted that private rights may be conferred by a statute upon a large class or group within the community and be enforceable by each member of that class or group[6]. Although the Commonwealth Act does not refer directly to any particular type of sexual conduct or limit the right to any particular class, this does not preclude it from being seen to create a broad private right [7].
9. Any ambiguity or obscurity in relation to the question as to whether the Commonwealth Act was intended to confer a private and personal right can be resolved in part by referring to the Second Reading Speech [8] which clearly indicates that the Commonwealth Act was intended to guarantee and protect personal privacy [9]. Furthermore, the same Second Reading Speech clearly anticipates an inconsistency between the Commonwealth Act and the Tasmanian Criminal Code Act 1924 (Tas) ("the Tasmanian Act") and that this inconsistency was deliberate in order to afford individuals freedom and protection from arbitrary interference in their private right to sexual privacy [10]. Therefore it is submitted that any person whose sexual privacy is relevantly interfered with has standing to bring proceedings to secure the benefit of the private right created by the Commonwealth Act.
1O. In Onus v. Alcoa of Australia Ltd a similar submission to the above was put to this Court by counsel for two Aboriginal women who were seeking an injunction under Archaeological and Aboriginal Relics Preservation Act 1972 (Vic.) ("the Victorian Act"). Counsel for these plaintiffs submitted that the women had a private right to sue under the Victorian Act because, it was submitted, the Victorian Act had been "passed for the benefit or protection of the aboriginal people as a class, and that any member of the class could sue to enforce the prohibitions contained in the Victorian] Act" [11]. This submission was rejected by this Court but only because, upon construction of the Victorian Act, it was not possible to hold that the Victorian Act conferred any private rights on Aborigines or any class of Aborigines [12]. This is quite distinguishable from the present circumstances involving the Commonwealth Act which, as the Second Reading Speech confirms, is demonstrably intended to protect and guarantee certain personal privacy rights of adult Australians.
11. Conclusion as to the issue of "private rights"
It is submitted that:
(a) the Commonwealth Act confers a certain private right of privacy upon all Australians of or over the age of eighteen years in respect of their sexual conduct;
(b) the plaintiffs' private rights as conferred by the Commonwealth Act are alleged to be interfered with by certain provisions of the Tasmanian Act;
(c) thus, the plaintiffs have standing to protect any interference with the private rights conferred upon them by the Commonwealth Act
Submissions of the Commission in respect of standing based on "special interest"
12. The special interest test is "broad" [13], "flexible" [14] and "of general application" [15] and what suffices for a special interest will depend on the subject matter of the litigation [16]. However, while there is no conclusive list as to the interests that will suffice [17], the Court's decision must be based on legal principles [18].
13. The special interest test allows and requires "a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and the closeness of that plaintiff's relationship to that subject matter" [19]
14. Bearing in mind these general principles, the Commission submits in the following two submissions that the plaintiffs or, in the case of the second submission, at least the second plaintiff, have a special interest in the subject matter of this litigation.
15. A person in jeopardy of criminal prosecution by reason of past (or clearly and believably proposed) conduct has a "special interest" in the law which places him or her in such jeopardy.
(a) The Tasmanian Act places the plaintiffs in jeopardy of criminal prosecution for the past acts and, in all probability, for their future acts as members of a limited class within the general community. [20] In this case it the jeopardy of criminal prosecution- which exists as a matter of fact- that appears to be the relevant prejudice to these plaintiffs, not the fact or otherwise of prosecution. Similarly the plaintiffs' acts remain liable for description as "unlawful" irrespective of whether they are prosecuted.
(b) If the plaintiffs succeed in their action they will have achieved a distinct benefit from this litigation which is more than the mere satisfaction of righting a wrong or upholding a principle or winning a contest [21]. Namely they will have removed the jeopardy of criminal prosecution that they face by reason of the relevant provision of the Tasmanian Act.
(c) Furthermore, this benefit that the plaintiffs may obtain from this litigation will be "a benefit or advantage greater than the benefit or advantage thereby conferred upon the ordinary member of the community" [22] (who does not face the same jeopardy of prosecution under the Tasmanian Act). This is especially so if the term "community" is considered to mean "the Australian community" [23] but remains nevertheless even it is only taken to mean "the Tasmanian community".
16. A person whose personal rights have been recognised in international law may, by reason of that fact, have a "special interest" in domestic .proceedings brought in respect of the same matter.
(a) It is respectfully submitted that this Court has accepted that there is an important role for international law (and instruments) within the municipal law of Australia; for example, in construing an ambiguous statute [24], as a guide when the common law is unclear [25] or as creating a legitimate expectation that certain matters will be taken into account in the making of an administrative decision [26].
(b) It has also been held by this Court that 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 " [27].
(c) The common law has recognised a multiplicity of circumstances that will or can found a "special interest"; for example, certain cases involving commercial interests, ratepayers, electors and members of an Aboriginal tribe [28]. It is submitted that an additional category should be recognised; namely, where a litigant's personal or private rights have been recognised in international law.
(d) It is therefore submitted that where an individual's personal rights have been recognised in international law, especially where that recognition is in respect of the existence of human rights, then that may of itself establish that that individual has a "special interest" in relation to domestic litigation on the same matter. It is further submitted that such a development of the common law is not only consistent with the established domestic relevance of international law (especially in the area of human rights), it is also consistent with the considerations that have consistently guided and concerned courts in relation to the question of standing [29].
(e) The second plaintiff, Nicholas Toonen, successfully brought Communication No. 488/1992 to the Human Rights Committee of the United Nations. The Human Rights Committee is established under Article 28 of the ICCPR. The Human Rights Committee, with one dissentient as to reasoning but not result [30], was of the view that there had been a violation of Mr Toonen' s rights under Article 17 par. 1 and Article 2 par. 1 of the ICCPR and that he was entitled to a remedy [31]. Its unanimous opinion was that an effective remedy would be the repeal of s.122(a) and (c) and s.123 of the Tasmanian Act [32].
(f) Thus, as a matter of international law, Mr Toonen's personal rights have been found to have been violated by the Tasmanian Act and this view by the Human Rights Committee was made notwithstanding the fact that no criminal prosecution had been commenced against Mr Toonen under the Tasmanian Act.
(g) It is therefore submitted that the opinion of the Human Rights Committee which recognises in international law the relevant private rights of Mr Toonen -is sufficient for this Court to find that Mr Toonen has a special interest in the subject matter of this litigation. In essence, this is to say Mr Toonen has an interest in the subject matter of this litigation well beyond the interest of other members of the community in this matter [33], The legitimacy of this approach is supported, in this case, by the fact that the Second Reading Speech in relation to the Commonwealth Act explicitly refers to the Communication (by Mr Toonen) to the Human Rights Committee [34] and demonstrates a clear acceptance of the views expressed in that Committee's opinion.
17. Conclusion as to the issue of "special interest"
It is submitted that:
(a) Both of the plaintiffs have a "special interest" in the subject matter of this litigation by reason of the fact that the Tasmanian Act places the plaintiffs in jeopardy of criminal prosecution for their past acts, and for their future acts, because they are members of a limited class within the general community.
(b) As well, or in the alternative, the second plaintiff Mr Toonen has a "special interest" in the subject matter of this litigation by reason of the fact that the Communication of the Human Rights Committee in respect of Mt Toonen is sufficient for this Court to find that Mr Toonen has "an interest in the subject matter of the present action which is greater than that of other members of the public" [35]; indeed, it is almost certainly an interest beyond that of all other members of the public at the present time.
(c) Finally, it is submitted that the plaintiffs' interest in this subject matter should or must be at least comparable with the interest previously found sufficient to give standing in the matter of Robinson v. The Western Australian Museum [36]. In that case this Court held [37] that the plaintiff had standing to challenge the validity of certain provisions of two Western Australian statutes on the ground, inter alia, that they contravened s.109 of the Constitution. In that case Gibbs J. made the following comments in finding that the plaintiff had standing:
"He had worked on the wreck, and had recovered things of value from it, and was prevented by the operation of the statutes from continuing to do so. In other words, the [Western Australian] statutes prevented him from carrying on the activity in which he had been engaged and thereby caused him possible pecuniary detriment; they interfered with what was for him his trade or business. This is enough to entitle him to challenge the validity of the legislation in so far as it prevents him from continuing his former activities" [38]
In Robinson [39] the plaintiff was a person whose proposed activities were declared unlawful by reason of State statutes which he alleged were unconstitutional: this is essentially the same as the within plaintiffs' claim against the Tasmanian Act [40]. The only relevant difference between the two cases is that Robinson concerned proposed commercial activity and this case concerns proposed sexual activity . In light of the submissions made above, it is submitted that this difference cannot deny the plaintiffs standing.
Mark Nicholls
13 March 1996
1. Annexed as the second schedule to the HREOCA
2. See Onus v. Alcoa of Australia Ltd (1981) 149 C.L.R. 27, at pp.36, 48-49 and 66.
3. Section 4(2) of the Commonwealth Act.
4. Onus v. Alcoa of Australia Ltd., at pp.66-67 per Brennan J.
5. Ibid., at p.67 per Brennan J
6. Ibid. at pp.67-68 per Brennan J.
8. Section 15AB of the Acts Interpretation Act 1901 (Cth) allows recourse to the Second Reading Speech if a statutory provision is ambiguous or obscure.
9. The Second Reading of the Human Rights (Sexual Conduct) Bill 1994 (Cth) was made by the Attorney-General (Second Reading Speech, Hansard, House of Representatives, 12 October 1994). At p.1775 the Attorney-General stated that "This bill is about basic freedoms -the right of adult Australians to make their own choices about sexual practices within the privacy of their own home"; at p.1777 he also stated that"... only individuals and not governments enjoy rights. Governments exist to protect rights, not to enjoy them at the expense of the individual"; at p.1778 he also stated that "The bill offers protection to all Australians" and at p.l779 he also stated that "I believe that this bill is a significant step in guaranteeing the protection of the freedom from intrusion by government in the most intimate details of one's personal private life."
10. Second Reading Speech, Hansard, House of Representatives, 12 October 1994, at pp.1777, 1779.
11. Ibid., at p.33 per Gibbs C.J. (word inserted).
12. Ibid., at pp.35, 41, 48-49, 59 and 66-67.
13. Australian Conservation Foundation Inc. v. Commonwealth (1980) 146 C.L.R. 493. at p.528 per Gibbs J.
14. Onus v. Alcoa of Australia Ltd, at p.36 per Gibbs C
15. Ibid at p.71 per Brennan J.
16. Onus v. Alcoa of Australia Ltd, at p.36 per Gibbs C.J.
17. Australian Conservation Foundation Inc. v Commonwealth, at p.547 per Mason J.
18. Onus v. Alcoa of Australia Ltd, at p.75 per Brennan J.
19. Onus v. Alcoa of Australia Ltd, at p.42 per Stephen J.
20. See par.7 of the plaintiffs' statement of claim which states that "[e]ach of the plaintiffs has had sexual relations (including sexual intercourse) with each other, and intends to continue to have, sexual relations (including sexual intercourse) with male persons".
21. See generally, Australian Conservation Foundation Inc. v. Commonwealth, at p.530 per Mason and Onus v. Alcoa of Australia Ltd, at p.75 per Brennan J.
22. Onus v. Alcoa of Australia Ltd, at p.75 per Brennan J
23. Male homosexual acts between consenting adults in private were decriminalised in South Australia in 1972, in the ACT in 1976, in Victoria in 1980, in the Northern Territory in 1983, in New South Wales in 1984, in Western Australia in 1989 and in Queensland in 1990: see Human Rights and Equal Opportunity Commission, Report of the Human Rights Commissioner on certain provisions of the Tasmanian Criminal Code, 15 July 1994, at p.4.
24. Chu Kheng Lim v. Minister for Immigration, Local Government and Ethnic Affairs & Anor (1992) 176 C.L.R. I, at p.38 per Brennan, Deane and Dawson JJ. .
25. Dietrich v. The Queen (1992) 177 C.L.R. 292, at p.360 per Toohey J.
26. Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh (1995) 183 C.L.R. 273. at pp.291-292 per Mason C.J. and Deane J. (Gaudron J. agreeing, at p.304) and at pp.302-303.
27. Mabo v. Queensland [No.2] (19920 175 C.L.R. I, at p.42 per Brennan J. See also Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh, at pp.288 per Mason C.J. and Deane J.
28. See generally, Report No.27 of the Australian Law Reform Commission, Standing in Public Interest Litigation, at pp.66-69.
29. See Onus v Alcoa of Australia Ltd, at pp35-36 per Gibbs C.J.
30. The dissentient considered that there was also a violation of Article 26 of the ICCPR,
31. The relevant paragraphs from the opinion of the Human Rights Committee are as follows:
"9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal a violation of articles 17, paragraph I, juncto 2, paragraph 1, of the Covenant.
10. ...the author, as a victim of a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant, is entitled to a remedy. In the opinion of the Committee, an effective remedy would be the repeal of sections 122 (a) and (c) and 123 of the Tasmanian Criminal Code."
32. The views of the Committee on the Communication were adopted on 31 March 1994 at its fiftieth session.
33. Onus V. Alcoa of Australia Ltd, at pp.35-36, 41, 43, 44 and 74.
34. Second Reading Speech, Hansard, House of Representatives, 12 October 1994, at p.1778.
35. Onus V. Alcoa of Australia Ltd, at p.36 per Gibbs C.J.
36. (1977) 138 C.L.R. 283. See also, for further comparison, Ogle v. Strickland (1987) 13 F.C.R. 306, although it is in the context of "persons aggrieved" within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
38. (1977) 138 C.L.R. 283, at pp.301-302 [Insert and emphasis added]
39. Ibid. See also at pp.292-293 per Barwick C.J., at p.315 per Stephen J.
40. Similarly, in both Robinson and the within case the allegedly unconstitutional State laws may well operate to cause a detriment in respect of past activity.
41. See par.7 of the plaintiffs' Statement of Claim.
SUBMISSIONS OF THE HUMAN RIGHTS AND EOUAL OPPORTUNITY COMMISSION
(INTERVENING BY LEAVE)
1. Pursuant to an order of Brennan C.J. dated 15 March 1996 the Commission was granted leave to intervene in the within matter. In the present hearing, the Commission seeks only to make submissions on the issue of standing and not on the jurisdictional issue of whether there is a "matter" within the meaning of s.76 of the Constitution.
Standing on the basis of a Private right
2. The Commission supports and adopts the submissions of the plaintiffs that the Human Rights (Sexual Conduct) Act 1994 (Cth) ("the Commonwealth Act") confers a private right on the plaintiffs and that this right is interfered with by s.122 and s.123 of the Criminal Code Act 1924 (Tas) ("the Tasmanian Act"): see pars 24-28 of the plaintiffs' Outline of Submissions dated 12 July 1996.
Standing on the basis of a right inherent in the plaintiffs as members of a class
3. Alternatively, the Commission supports and adopts the submissions of the plaintiffs that the Commonwealth Act was enacted to benefit a class of persons and that the plaintiffs, as members of that class, are entitled to sue to enforce that benefit: see pars 29-30 of the plaintiffs' Outline of Submissions dated 12 July 1996.
4. However, the Commission respectfully submits that the class of persons that were demonstrably intended to benefit from the Commonwealth Act should be defined differently from the way submitted by the plaintiffs. The Commission submits that the class is any Tasmanian residents (or transients) who may be affected by s.122 and s.123 of the Tasmanian Act. This submission is made because the Commonwealth Act, whilst broadly framed, was clearly directed towards the operation of the Tasmanian Act and extended to any individual affected by it: see pars 26 and 27 of the plaintiffs' submissions.
Standing on the basis of personal circumstances founding a special interest
5. Alternatively, if tile Commonwealth Act only creates a public right, the Commission supports and adopts the submissions of the plaintiffs and the Commonwealth that the within plaintiffs have a special interest in the subject matter of this litigation by reason of their personal circumstances: see pars 31-35 of the plaintiffs' Outline of Submissions dated 12 July 1996 and par.3 of the Commonwealth's Written Submissions dated 12 July 1996.
6. In addition, the Commission submits that the appeal decision of the Supreme Court of Ireland in tile matter of Norris v. The Attorney General [1] is a particularly persuasive authority on this particular question of standing.
7. In Norris the plaintiff had sought declaratory relief that certain provisions of an Irish criminal statute were unconstitutional: the provisions impugned by Norris were similar to tile relevant provisions of the Tasmanian Act in the within matter. The personal circumstances of the plaintiff Norris were similar to those of the within plaintiffs; in particular, he was homosexual and he had not been prosecuted under the impugned provisions. The Supreme Court of Ireland unanimously found that the plaintiff had standing to pursue the proceedings by reason of his personal circumstances. In the Supreme Court, O'Higgins C.J., at p.59, held:
". ..I do not agree with the defendant's submission that the plaintiff lacks standing to complain merely because he has not been prosecuted nor has had his way of life disturbed as a result of the legislation which he challenges. In my view, as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in, such right, if it exists, is threatened and the plaintiff has standing to seek the protection of the Court. "
See also: O'Higgins C.J., at p.58; Henchy J., at p.68; McCarthy J., at pp.81-92 [2].
8. It is also submitted that there is a consistent stream of authority in the European Court of Human Rights that the (mere) existence of laws similar to s.122 and s.123 of the Tasmanian Act affects the private life of a homosexual person "continuously and directly" [3].
Standing for the Second named only (by reason of his special interest)
9. Alternatively, if both of the plaintiffs do not have standing on the above grounds, then it is respectfully submitted that this Court should find that the Second named plaintiff has standing by reason of the fact that his personal rights have been recognised in international law: see par.33 of the plaintiffs' Outline of Submissions dated 12 July 1996.
10. This Court has accepted that there is an important role for international law within the municipal law of Australia [4] and that 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" [5].
11. The common law has recognised a multiplicity of circumstances that will or can found a "special interest" [6]. Further, the rules as to standing are made by judges and may be changed by judges to preserve the integrity of "the rule of law despite changes in the social structure, methods of government and the extent to which the activities of private citizens are controlled by government authorities" [7].
12. It is therefore submitted that an additional category of interest should be recognised as special for the purpose of standing; namely, when a litigant's personal or private rights have been formally recognised in international law by reason of a finding by a recognised international body, such as the Human Rights Committee.
13. It is further submitted that such a development of the common law is not only consistent with the established domestic relevance of international law (especially in the area of human rights, it is also consistent with the considerations that have consistently guided and concerned courts in relation to the question of standings. [8]
14. The second plaintiff, Nicholas Toonen, successfully brought Communication No. 488/1992 to the Human Rights Committee of the United Nations pursuant to the First Optional Protocol to the International Covenant on Civil and Political Rights ("the ICCPR"). Australia ratified the ICCPR in 1980 and acceded to the Optional Protocol in 1991. The Human Rights Committee is established under Article 28 of the ICCPR. The Human Rights Committee was unanimously of the view that there had been a violation of Mr Toonen's rights under Article 17 par.1 and Article 2 par. 1 of the ICCPR and that he was entitled to a remedy [9]. Its unanimous opinion was that an effective remedy would be the repeal of s.122(a) and (c) and s.123 of the Tasmanian Act.
15. The Commonwealth legislation at the centre of this case has arisen directly from the vindication of Mr Toonen's Communication to the Human Rights Committee. This is demonstrated by the fact that the Second Reading Speech in relation to the Commonwealth Act explicitly refers to the Communication (by Mr Toonen) to the Human Rights Committee [10] and demonstrates a clear acceptance of the views expressed by that Committee. That these events originated in the actions of Mr Toonen demonstrates conclusively that Mr Toonen has an interest in the subject matter of this litigation well beyond the interest of other members of the community [11].
Public interest standing in matters involving human rights
16. If, contrary to the above, the existing parameters for establishing standing are insufficient to give the plaintiffs standing to sue, then the Commission considers it necessary to support and adopt the plaintiffs' submissions in support of an expanded basis for standing in human rights matters: see pars 36-39 of the plaintiffs' Outline of Submissions dated 12 July 1996.
Mark Nicholls
18 July 1996
1. [1984] I.R. 50. In Norris, the plaintiff did not succeed on the merits before the Supreme court of Ireland but subsequently went to the European Court of Human Rights and succeeded there: see Norris v. Ireland (1989) 13 EHRR 186.
2. However, these relevant comments by the Supreme Court in Norris may be considered obiter dicta because the Attorney General had lost on this aspect of the standing question at trial in the High Court and had not appealed that part of the decision to the Supreme Court: see Henchy J., at p.68. Nevertheless, on appeal the Supreme Court went on to satisfy itself explicitly on this standing issue, as stated above. The Supreme Court also dealt with another issue to do with standing, but that was peculiar to the Irish Constitution.
3. See Modinos v. Cyprus (1993) 16 EHRR 485, at p.494. This was consistent with the earlier authorities of Dudgeon v. United Kingdom (1981) 4 EHRR 149 and Norris v. Ireland (1988) 13 EHRR 186.
4. For example, in construing an ambiguous statute -Chu Kheng Lim v. Minister for Immigration, Local Government and Ethnic Affairs & Anor (1992) 176 C.L.R. I, at p.38 per Brennan, Deane and Dawson JJ.; as a guide when the common law is unclear -Dietrich v. The Queen (1992) 177 C.L.R. 292, at p.360 per Toohey J.; or as creating a legitimate expectation that certain matters will be taken into account in the making of an administrative decision -Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh (1995) 183 C.L.R. 273, at pp.291-292 per Mason C.J. and Deane J. (Gaudron J. agreeing, at p.304), at pp.302.303 per Toohey J.
5. Mabo v. Queensland [No.2] (1992) 175 C.L.R. 1, at p.42 per Brennan J. (as he then was). See also Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh (1995) 183 C.L.R. 273, at p.288 per Mason C.J. and Deane J.
6. See, generally, par .126 of Report No.27 of the Australian Law Reform Commission, Standing in Public Interest Litigation. See also par .29 of the Outline of Argument filed by the defendant (applicant) dated 20 June 1996.
7. Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses [1982] A.C. 617, at pp.639-640.
8. See Onus v. Alcoa of Australia Ltd (1981) 149 C.L.R. 27, at pp.35-36 per Gibbs C.J.
9. The relevant paragraphs from the views of the Human Rights Committee -adopted on 31
March 1994 at its fiftieth session- are as follows:
"9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal a violation of articles 17, paragraph I, juncto 2, paragraph 1, of the Covenant.10. ...the author, as a victim of a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant, is entitled to a remedy. In the opinion of the Committee, an effective remedy would be the repeal of sections 122 (a) and (c) and 123 of the Tasmanian Criminal Code."
10. Second Reading Speech, Hansard, House of Representatives, 12 October 1994, at p.1778.
11. Onus v. Alcoa of Australia Ltd (1981) 149 C.L.R. 27, at pp.35-36, 41, 43, 44 and 74.
Last updated 19 May 2003.