R v Cheung
Legal
IN THE SUPREME COURT OF NEW SOUTH WALES
CRIMINAL DIVISION
NO 70007 of 1991
R -v- CHEUNG
LIST OF AUTHORITIES OF THE PROPOSED INTERVENER
Legislation
1. Human Rights and Equal Opportunity Commission Act 1986
Authorities
(i) R -v- Shrestha 100 ALR 757
(ii) Mabo -v- Queensland (1992) 66 AUR 408
(iii) Adamopoulous -t- Olympic Airways SA 25 NSWLR 75
(iv) Gradidge -v- Grace Bros Pty Ltd (1988) 93 FLR 414
OUTLINE OF SUBMISSIONS OF THE PROPOSED INTERVENER
The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations General Assembly in 1966 and entered into force in 1976.
Australia ratified (that is, became a party to) the ICCPR on 13 August 1980. The ICCPR requires (Article 2.1) that parties (including Australia) "respect and ensure to all individuals within their territory and subject to their jurisdiction" the rights which the Covenant recognises and that parties provide protection against discrimination which may limit the enjoyment of the rights recognised therein. Its application is not restricted to Australian citizens or residents. Article 14 of the Covenant states in part as follows:
Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a full and public hearing by a competent, independent and impartial tribunal established by law…(Emphasis added)
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality; (Emphasis added)
…
(b) To have adequate facilities for the preparation of his defence and to communicate with counsel of his own choosing;
…
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (Emphasis added)
…
Article 28 of the Covenant provides for the establishment of a Human Rights Committee, composed of persons 'of high moral character and recognized competence in the field of human rights'. The functions of the Committee include the study of reports submitted by States Parties to the Covenant concerning measures they have adopted to give effect to the rights recognized' in the Covenant. Paragraph 4 of Article 40 states as follows:
The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States parties. …
In a statement adopted by the Committee on 30 October 1980 entitled 'Statement on the Duties of the Human Rights Committee Under Article 40 of the Covenant, the Committee stated:
The general comments [made under Article 40.4] could be related, inter a/ia, to the following subjects:
…Questions related to the application and the content of individual articles of the Covenant. ... (UNDOC CCPR/C/18,)
At its 516th meeting on 12 April 1984, the Committee adopted a General Comment on Article 14. The General Comment states the following, at paragraph 9:
9. Subparagraph 3 (b) provides that the accused must have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. What is adequate time depends on the circumstances of each case, but facilities must include access to documents and other evidence which the accused requires to prepare his case… (uNDOC CCPR/C/21/Rev.1,p14) (Emphasis added)
While there are of course limits to the arguments presently open for the application of international human rights standards in Australian courts, it is important to note the increasing importance being given to these obligations in recent dicta of the High Court.
In the context of the rights of those subject to criminal proceedings, the comments of Deane, Dawson and Toohey JJ are noted from the recent case of R v Shrestha 100 ALJR 757 at 753 -
[This country] has a responsibility, both moral and under international treaty, to treat all who are subjected to criminal proceedings in its courts or imprisonment in its jails humanely and without discrimination based on national or ethnic origins (see, eg, (CERD) Article 5(a))
The importance of international human rights obligations in shaping the common law was put thus by Brennan J in the recent case Mabo v Queensland (1992) 66 ALJR 408, 417, 422
The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human tights (especially equality before the law) which are aspirations of the contemporary Australian legal system. If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied. Whenever such a question arises, it is necessary to assess whether the particular rule is an essential rule of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning (p 417)
The opening up of international remedies to individuals pursuant to Australia's Accession to the Optional Protocol to the International Covenant on Civil and Political Rights… brings to bear on Australian law the powerful influence of the Covenant and the international standards it imports...
The Commission submits that the court should apply the standards set out in Article 14 of the 1CCPR in ensuring that criminal proceedings are conducted fairly.
The Commission further submits that reference should be had, in particular, to the minimum guarantees listed in Article 14, paragraph 3 of the ICCPR, in determining whether proceedings ought to be stayed.
In the Commission's submission the court should consider, in particular whether:
1. evidence can only be produced in Australia in transcript form and in translation and whether this prejudices the accuser's right to a fair trial;
2. the accused has "…access to documents and other evidence which the accused requires to prepare his defence"
3. the accused is prevented from having access to documents or access is limited as a result of a claim or privilege; and
4. the accused is able to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him
as required by Australia's international treat obligations, which are binding on Australia as a matter of International law.
Dated this 3rd day of August 1992.
R v CHEUNG
OUTLINE OF COMMISSION'S SUBMISSIONS
APPLICATION OF THE COVENANT
1. The Covenant is an international instrument which Australia has ratified. However, the Covenant has not specifically been enacted as a law of Australia (contrast the enactment as a law of Australia of the UNC1TRAL Model Law on International Commercial Arbitration which is effected by s 16 of the International Arbitration Act 1974).
2. A question arises as to the extent to which the Covenant has any impact on Australian domestic law. There seem to be two conflicting views.
THE TRADITIONAL VIEW
3. This view was expressed by Nicholson CJ in Jane (1989) PLC 92-007 at 77,245-77,249 and by Samuels JA in Jago (1988) 12 NSWLR 558 at 580-582. The view is that international obligations cannot of themselves give rise to rights and liabilities as part of Australian domestic law but that they may assist where there is no clear common law rule, or in the resolution of a statutory ambiguity, and in any event in the exercise of a discretion under Australian domestic law.
4. This view of the significance of international obligations is consistent with the evolutionary approach expressed by Brennan J (with whom Mason CJ and McHugh J agreed) in Mabo (1992) 66 ALJR 408 at 416-7, 422. It is also consistent with the views expressed by Deane, Dawson and Toohey JJ, on a different convention, in Shrestha (1991) 100 ALR 757 at 773. It is also consistent with the approach expressed by Kirby P in Jago at 569 and Adamopoulos (1991) 25 NSWLR 75 at 78.
ALTERNATIVE VIEW
5. The more radical view was expressed by Nicholson CJ in Marion (1991) FLC 92- 193 at 78,301-78,304. There he took the view that on a proper construction of the Human Rights and Equal Opportunity Commission Act 1986, the Covenant had in fact been imported into Australian domestic law as a substantive part of that law. It would follow from this view that the Covenant could operate as a direct source of rights and liabilities. Nicholson CJ was unable in Marion to persuade his bretheren Strauss and McCall JJ of the correctness of his views: they preferred to remain with the views expressed by Nicholson CJ in Jane.
CONCLUSION
6. The settled view, which is certainly binding on courts of first instance and which, having regard to Mabo and Shrestha, is probably now binding on State Courts of Appeal, is that an international obligation which has not been specifically enacted as part of Australian domestic law cannot take effect as a direct source of rights and liabilities in Australian domestic law. It is, however, to be taken into account in the consideration of the principles of domestic law and in the construction of domestic statutes, and in the exercise of discretions arising under domestic law. If the wider view is to prevail, it would need to be as a result of a clear decision of the High Court or as a result of specific enactment by Parliament.
Last updated 19 May 2003.