FEDERAL COURT OF AUSTRALIA

HUMAN RIGHTS– application seeking writ of mandamus – whether the exclusion of the States from the purview of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the Act”) is inconsistent with the terms of the International Covenant on Civil and Political Rights and therefore invalid – whether a breach of Australia’s international obligations is a matter justiciable at the suit of a private citizen – whether the Human Rights and Equal Opportunity Commission is required to perform a function under s 11(j) or (k) of the Act at the insistence of a complainant.

Judiciary Act 1903 (Cth) ss 39B, 78B

Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 6(1), 7, 11(1), 13, 20

Victoria v Commonwealth (1996) 187 CLR 416, followed

Commonwealth v Tasmania (1983) 158 CLR 1, followed

Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, followed

Dietrich v The Queen (1992) 177 CLR 292, followed

Tasmanian Wilderness Society Inc. v Fraser (1982) 153 CLR 270, followed

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, followed

CRAIG WILLIAM JOHN MINOGUE v human rights and equal opportunity commission

vg 744 of 1997

MARSHALL J

MELBOURNE

12 OCTOBER 1998

THE COURT ORDERS THAT:

The application be dismissed.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1.         On 24 December 1997 the applicant, Mr Minogue, commenced a proceeding in which he sought a writ of mandamus pursuant to s 39B of the Judiciary Act 1903 (Cth) against Mr Chris Sodoti, the Human Rights and Equal Opportunity Commissioner.  The application sought the following relief:

2.         1.         An order from the Court to compel the Human Rights and Equal Opportunity Commissioner to hear a human rights complaint from the Applicant.

2.         An order from the Court as to the validity of Section 6(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

3.         An order from the Court affirming that the Applicant has the human rights as detailed in Article 14, paragraphs 1, 3(b), and 5, of the ICCPR, and that he has the conditional protection of the rights as detailed in Article 26 of the ICCPR.

4.         An order from the Court in relation to Australia’s failure to meet its treaty obligations as set out in the ICCPR’s Articles 2(1), 2(2), 2(3)(a)(b), 3, 26 and 50.

3.         By consent the Human Rights and Equal Opportunity Commission (“HREOC”) was substituted for Mr Sodoti as the respondent. On 23 June 1998 a notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) was filed by Mr Minogue and shortly thereafter served upon the Commonwealth and State attorneys. At a directions hearing on 31 July 1998 the Commonwealth attorney appeared in the proceeding and amicus curiae status was granted to Professor Zifcak on behalf of the International Commission of Jurists. HREOC was granted leave at that time to withdraw from the proceedings.

BACKGROUND FACTS

4.         On 19 November 1996 HREOC received a letter of complaint from Mr Minogue dated 14 November 1996. The complaint essentially related to Mr Minogue’s concern that his human rights had been breached by the Victorian State prison authorities denial of unimpeded access to him of legal research materials and computer facilities to prepare a “Petition of Mercy”. Mr Minogue is currently a prisoner residing at Her Majesty’s Prison Barwon. He is serving a life sentence for the murder of a policewoman who was killed as a result of a bomb explosion occurring outside the then Russell Street police headquarters in Melbourne on 27 March 1986.

5.         The letter of complaint dated 14 November 1996 contained various attachments. Under cover of letters dated 24 December 1996 and 22 February 1997 Mr Minogue sent further documents to HREOC relevant to his complaint.

6.         By letter dated 6 May 1997 HREOC responded to Mr Minogue in the following way:

“Dear Mr Minogue

I refer to your complaint lodged at the Commission on 19 November 1996. Your complaint was the management of Barwon Prison (the “prison”) have breached your human rights by not allowing you full access to the legal materials and computer facilities you require to prepare your Petition of Mercy.

I have also noted your further concerns regarding the access of prison officers to the documents you have in storage and the prison’s recent “cell rotation policy”.

Under s.11(1)(f) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the “Act”), the Human Rights Commissioner (the “Commissioner”) has authority to inquire into any act or practice that may be inconsistent with or contrary to any human right. Under the Act, ‘human rights’ is strictly defined, and relates to specific international instruments to which Australia is committed and only deals with acts done by or practices of Commonwealth agencies.

Your circumstances are that you are a state prisoner incarcerated in a state prison. The Commissioner does not have any authority under the Act to conduct an inquiry into an act or practice of a state agency.

For this reason, I must decline your complaint pursuant to s 20(2)(a) of the Act, in that the Commission does not have the jurisdiction to consider this complaint.

This file is now closed. I regret that I am not able to assist you on this occasion.

Yours sincerely

Julie Kinross

DELEGATE OF THE HUMAN RIGHTS COMMISSIONER”

7.         As a result of the refusal of HREOC to investigate his complaint Mr Minogue issued proceedings in this Court.

THE LEGISLATIVE CONTEXT

8.         The provisions of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the Act”) which are germane to this proceeding are set out below:

9.         s 6(1) of the Act provides that:

“This Act binds the Crown in right of the Commonwealth and of Norfolk Island but, except as otherwise expressly provided by this Act, does not bind the Crown in right of a State.”

10.              s 7 of the Act establishes HREOC and gives it corporate status.

11.       s 11(1) of the Act sets out the functions of HREOC, which include:

“…

(f)    to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:

(i)          where the Commission considers it appropriate to do so – to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and

(ii)         where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement – to report to the Minister in relation to the inquiry;

……

(j)    on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to human rights;

(k)    on its own initiative or when requested by the Minister, to report to the Minister as to the action (if any) that, in the opinion of the Commission, needs to be taken by Australia in order to comply with the provisions of the Covenant, of the Declarations or of any relevant international instrument;

……”

12.       s 13 of the Act provides as follows:

(1)    The Commission has power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions.

(2)    The Commission may at any time report to the Minister on any matter arising in the course of the performance of its functions and shall report to the Minister on such a matter if requested by the Minister to do so.”

13.       s 20 of the Act, so far as is material, provides that:

“(1)Subject to subsection (2), the Commission shall perform the functions referred to in paragraph 11(1)(f) when:

(a)               the Commission is requested to do so by the Minister;

(b)               a complaint is made in writing to the Commission alleging that an act or practice is inconsistent with or contrary to any human right; or

        (c)        it appears to the Commission to be desirable to do so.

(2)    The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:

        (a)        the Commission is satisfied that the act or practice is not inconsistent with or contrary to any human right;”

s 6(1) OF THE ACT

14.       On 23 June 1998, the first day of the substantive hearing of the application, Mr Minogue conceded that if s 6(1) of the Act was valid it operated to prevent HREOC from investigating his complaint. However he contended that s 6(1) of the Act was unconstitutional. In essence, Mr Minogue’s submission on this point was that by relevantly excluding the States from the purview of the Act s 6(1) is inconsistent with the terms of the International Convenant on Civil and Political Rights (“the Convention”). In this context Mr Minogue relied in particular upon the provisions of Art 50 of the Convention which state that:

“The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.”

15.       There is considerable High Court authority to support the proposition that legislation which purports to implement an international convention is not invalid if it only partly takes up obligations referred to in the convention.

16.       In Victoria v Commonwealth (1996) 187 CLR 416, Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said at 488:

“It would be a tenable proposition that legislation purporting to implement a treaty does not operate upon the subject which is an aspect of external affairs unless the legislation complies with all the obligations assumed under the treaty. That appears to have been the view taken by Evatt and McTiernan JJ in R v Burgess; Ex parte Henry. But the Tasmanian Dam Case and later authorities confirm that this is not an essential requirement of validity.”

“In the Tasmanian Dam Case, the Wilderness Regulations that were under attack implemented only in part the supporting convention. They were nevertheless upheld. A criterian of validity expressed in R v Burgess; Ex parte Henry namely, whether the Regulations could fairly be regarded as “sufficiently stamped with the purpose of carrying out the terms of the convention”, was applied by Brennan J. Deane J dealt as follows with “partial” legislative implementation.”

17.       Brennan J stated in Commonwealth v Tasmania (1983) 158 CLR 1 at 233-4:

“The purpose of the Wilderness Regulations is thus to fulfil, pro tanto, the obligation imposed upon Australia by the Convention.

The Wilderness Regulations do not exhaust Australia’s obligations under the Convention. …It is no objection to the validity of the Wilderness Regulations that the Commonwealth in making those Regulations implements the Convention only in part. The relevant obligation arising under Arts. 4 and 5 is imposed upon Australia but, so far as the performance of the obligation calls for legislative or executive action with respect to a property in a State, the obligation may be performed by the Commonwealth or by the State or partly by each of them. Where a treaty obligation gives rise to a legislative power in the Commonwealth to perform the obligation fully and the Commonwealth chooses to exercise the power only to a limited extent, the validity of the law it chooses to make is not affected by its failure to exercise its powers and to perform Australia’s obligation more fully. Unless such a law, on its true construction, could not fairly be regarded as “sufficiently stamped with the purpose of carrying out the terms of the convention.” (R. v Burgess; Ex parte Henry, per Evatt and McTiernan JJ.), it would be a valid law.”

18.       Deane J at 268:

“It is competent for the Parliament, in a law under s. 51(xxix), partly to carry a treaty into effect or partly to discharge treaty obligations leaving it to the States or to other Commonwealth legislative or executive action to carry into effect or discharge the outstanding provisions or obligations or leaving the outstanding provisions or obligations unimplemented or unperformed. On the other hand, if the relevant law “partially” implements the treaty in the sense that it contains provisions which are consistent with the terms of the treaty and also contains significant provisions which are inconsistent with those terms, it would be extremely unlikely that the law could properly be characterized as a law with respect to external affairs on the basis that it was capable of being reasonably considered to be appropriateand adapted to giving effect to the treaty.”

19.       Alternatively Mr Minogue submitted that s 6(1) of the Act is invalid because it is inconsistent with the Convention which, he submitted, forms part of the municipal law of Australia without its terms having been adopted by any Australian statute. The observations of members of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, 361-362 and Dietrich v The Queen (1992) 177 CLR 292 at 305 provide a complete answer to Mr Minogue’s submissions.

20.       I accept the submissions of counsel for the Attorney-General of the Commonwealth that s 6(1) of the Act is not beyond the legislative competence of the Parliament. I also accept his submission that whether or not Australia has breached its international obligations “…is not a matter justiciable at the suit of a private citizen” Tasmanian Wilderness Society Inc. v Fraser (1982) 153 CLR 270 at 274 per Mason J. See also Dietrich at 305-306, 321, 348 and 359-360.

21.       I am fortified in my conclusions on these issues by the fact that counsel for Professor Zifcak did not seek to contend that s 6(1) of the Act was invalid.

THE s 11(1)(j) & (k) ISSUE

22.       Counsel for Professor Zifcak did contend that HREOC had erred in law in that it failed to consider whether, “on its own initiative”, to report to the Attorney-General regarding matters referred to in s 11(1)(j) and (k) of the Act regarding Mr Minogue’s complaint. This was not a submission which was adopted by Mr Minogue. Counsel for the Attorney-General took issue with it and in my view persuasively so. Mr Minogue did not seek HREOC’s investigation of any issue in the context of s 11(1)(j) or (k). Counsel for the Attorney-General, Mr Burmester QC, submitted that these paragraphs confer a function on HREOC which is not one that HREOC may be required to perform at the insistence of a complainant. Mr Burmester also contended that mandamus cannot be granted to compel HREOC to report to the Minister “of its own initiative”. I accept those submissions. The latter of which is supported by High Court authority. See Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 579-580 per Mason CJ, Dawson, Toohey and Gaudron JJ, and Brennan J at 595.

ORDER

23.       Having regard to the foregoing, the order of the Court is that the application be dismissed.

Associate:

Dated:              12 October 1998