FEDERAL COURT OF AUSTRALIA

Minogue v Williams [1999] FCA 1585

CONSTITUTIONAL LAW – original jurisdiction of the High Court – s 75(i) of the Constitution – meaning of “In all matters – (i) Arising under any treaty”.

PRACTICE AND PROCEDURE – remitter of action from High Court to Federal Court – s 44(2) of Judiciary Act 1903 (Cth) – whether action involved “matter” as required by s 75 of the Constitution.

INTERNATIONAL LAW – treaties –International Covenant on Civil and Political Rights 1966 – whether part of Australian domestic law.

Judiciary Act 1903 (Cth) ss 38, 44

Corrections Act 1986 (Vic) ss 47(1)(b), (c)

Human Rights and Equal Opportunity Commission Act 1986 (Cth) Sch 2

Commonwealth Constitution s 75(i)

International Covenant on Civil and Political Rights 1966 Art 10(1)

Federal Court Rules O11 r 16, O 20 r 2(1)

Re East; ex parte Nguyen (1998) 159 ALR 108 at 112-3, 127-33 referred to

Dietrich v The Queen (1992) 177 CLR 292 at 305-6, 321, 348, 359-60 applied

Victoria v The Commonwealth (1996) 187 CLR 416 at 480-2 referred to

Sinanovic v R (1998) 154 ALR 702 at 707-8 referred to

Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 applied

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 referred to

CRAIG WILLIAM JOHN MINOGUE v CLIVE WILLIAMS

V 406 of 1999

WEINBERG J

18 NOVEMBER 1999

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the action in the High Court and of the application before this Court.

3.                  The costs of the action to the date of remitter, including the costs of the order of Hayne J of 11 June 1999, are to be fixed according to the scale applicable to proceedings in the High Court and thereafter according to the scale applicable to this Court.

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

REASONS FOR JUDGMENT

1                     The applicant, Craig William John Minogue, is a prisoner who is currently serving a life sentence for murder.  By writ of summons dated 11 January 1999 he commenced an action in the High Court of Australia against the respondent, Clive Williams, who was, at that time, General Manager of HM Barwon Prison.  The applicant was then serving his sentence of imprisonment at that prison.

2                     The action having been commenced in the High Court, the applicant was designated in accordance with that Court’s procedures as the plaintiff, and the respondent as the defendant. 

3                     On 15 January 1999 the applicant filed in the High Court a statement of claim which purported to set out the nature of his various causes of action against the respondent.  In essence, the applicant’s complaints arose out of an alleged failure on the part of the prison authorities to accommodate his vegetarian status, he having become a vegetarian for what he described as “religious, ethical and health” reasons. 

4                     The applicant complained that on every day throughout the preceding three years he had been forced to accept lunch and dinner meals which consisted of identical ingredients presented in an identical manner.  He claimed that he had been subjected to a diet which was “degrading”, and physically and psychologically harmful to his well-being.  He characterised his treatment as “psychological torture”, and asserted that he had not been treated with the inherent dignity and respect to which all human beings were entitled.

5                     The applicant purported to ground his claims against the respondent in the following causes of action:

·                    Breach of statutory duty, contrary to the “rights” of prisoners under ss 47(1)(b) and (c) of the Corrections Act 1986 (Vic).

·                    Breach of CORE’s Operational Procedures.

·                    Breach of a common law duty of care owed by the respondent to all prisoners in his care.

6                     The applicant contended that he had legally enforceable rights under the International Covenant on Civil and Political Rights 1966 (“the ICCPR”) which the respondent had infringed.  He referred, in particular, to Art 10(1) of the ICCPR which is in the following terms:

“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

7                     The applicant alleged that he had suffered physical and psychological injury by reason of the deficiencies in the diet to which he had been subjected.  He sought declaratory relief affirming that he had the rights detailed in Art 10(1) of the ICCPR, and that those rights had been violated by the respondent.  The applicant also sought an injunction compelling the respondent to change his diet, and to cease treating him in a manner which the applicant described as “degrading”, and in breach of his human rights.

8                     Proceedings commenced by writ of summons in the High Court are described as “actions” – see O 1 r 7 of the High Court Rules.  Order 29 r 2 of the High Court Rules permits a plaintiff, without leave, to amend his statement of claim once at any time before the expiration of the time limited for reply, and before replying.

9                     A defence to the applicant’s statement of claim was filed by the respondent on 23 March 1999.  Order 24 of the High Court Rules provides that a plaintiff shall deliver his reply within fourteen days from the delivery of the defence.  That meant that the applicant’s reply to the respondent’s defence was required to be filed on or before 6 April 1999.  No reply was filed by the applicant.

10                  On 14 April 1999 the applicant purported to file, without leave, an amended statement of claim.  That amended statement of claim differed in certain respects from the original statement of claim.  For the most part, however, it contained the same allegations, and sought the same relief. 

11                  On 11 June 1999 the applicant appeared before Hayne J to seek an order that the action be remitted to this Court, pursuant to s 44 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).  There was no opposition to the remitter as such, though the respondent contended before Hayne J that the remitter should be to the Supreme Court of Victoria. 

12                  Hayne J ordered that the action should be remitted, in accordance with the applicant’s wishes, to this Court.  His Honour observed, however, that there might well be difficulties in a constitutional sense arising out of the applicant’s statement of claim, and its attempt to invoke the original jurisdiction of the High Court.  His Honour drew attention to the recent decision of the High Court in Re East; ex parte Nguyen (1998) 159 ALR 108, and expressed reservations as to whether the applicant’s attempt to ground his claim upon the ICCPR could give rise to legal rights cognizable in any Australian court. 

13                  Section 75(i) of the Constitution confers original jurisdiction upon the High Court in all matters arising under any treaty.  Section 38(a) of the Judiciary Act makes exclusive to the High Court the jurisdiction in “matters arising directly under any treaty”.  Section 44(2) of the Judiciary Act authorises the High Court to remit such a matter, or any part thereof, to this Court.

14                  As this Court has no jurisdiction, absent remitter, to hear “matters arising directly under any treaty”, and that is the basis upon which the applicant has sought to invoke the jurisdiction of the High Court, the jurisdiction to be exercised by this Court in this matter can only be that sought to be invoked in the High Court. 

15                  It follows that whether or not this Court has jurisdiction to deal with the application which has been remitted to it depends upon whether the High Court would have had jurisdiction to entertain that application, had it not been remitted.

16                  The only basis upon which the applicant contends that the High Court would have such jurisdiction is that his action is said to involve a matter arising under a treaty, namely the ICCPR. 

17                  The respondent has, by notice of motion dated 15 September 1999, applied to have the entire proceeding dismissed pursuant to O 20 r 2(1) of the Federal Court Rules, essentially upon the basis that the proceeding discloses no reasonable cause of action.  The respondent seeks, in the alternative, an order pursuant to O 11 r 16 of the Federal Court Rules striking out the applicant’s statement of claim, based largely upon what are contended to be numerous and significant pleading deficiencies.

18                  Clearly if the applicant’s action does 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 this Court to deal with it upon remitter.  In that event, an order for summary dismissal pursuant to O 20 r 2(1) of the Federal Court Rules would be appropriate.  It is necessary, therefore, to consider the fundamental question to which Hayne J adverted, but which he did not decide, when his Honour remitted the action to this Court.  Does the applicant’s claim give rise to a matter arising under a treaty?

19                  The respondent submits that the law on this subject is well settled.  The fact that the ICCPR is a treaty which has been ratified by this country, and included in Sch 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) does not mean that an individual may obtain legal redress in relation to an alleged contravention of that treaty.  The rights and obligations specified in the ICCPR are not, it is submitted, incorporated into Australian domestic law, and cannot be enforced directly in Australian courts.

20                  In Dietrich v The Queen (1992) 177 CLR 292 the appellant succeeded in persuading the High Court that Australian courts have power to stay proceedings that will result in an unfair trial, and that the power to grant a stay extends to a case in which representation of the accused is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.  One of the primary submissions which he relied upon was that Art 14(3)(d) of the ICCPR gives an indigent accused the right to legal assistance, and that the common law should be developed to reflect the Covenant in that regard.  That particular submission was rejected.  Mason CJ and McHugh J stated at 305:

“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)

21                  Their Honours continued at 305-6:

“Although counsel for the applicant accepted that the I.C.C.P.R. does not form part of domestic law, he submitted that the common law of Australia should be developed in a way which recognizes the existence and enforceability of rights provided for in international instruments to which Australia is a party.  In particular, the applicant points to the enactment of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).  This Act has scheduled to it the I.C.C.P.R., as well as other international legal instruments dealing with human rights, and assigns to the Commission it creates the function, inter alia, of inquiring into and reporting on any act or practice that may be inconsistent with or contrary to human rights as declared in the scheduled instruments …

In Jago v Judges of the District Court of N.S.W. [fn  (1988) 12 N.S.W.L.R. 558, at p 569)] Kirby P. expressed the view that, where the inherited common law is uncertain, Australian judges may look to an international treaty which Australia has ratified as an aid to the explication and development of the common law.  As a suggested example of this approach, the applicant points to the status accorded to the E.C.H.R. in English law.  In common with the status of the I.C.C.P.R. in Australian law, the E.C.H.R. is not part of English domestic law and thus rights contained in the E.C.H.R cannot be enforced directly in English courts; furthermore, if domestic legislation conflicted with the E.C.H.R., English courts would nevertheless be required to enforce the legislation. …

Assuming, without deciding, that Australian courts should adopt a similar, common-sense approach, this nevertheless does not assist the applicant in this case where we are being asked not to resolve uncertainty or ambiguity in domestic law but to declare that a right which has hitherto never been recognized should now be taken to exist.”  (emphasis added)

22                  Brennan J referred to Art 14(3)(d) of the ICCPR and stated at 321:

“Although this provision of the Covenant is not part of our municipal law, it is a legitimate influence on the development of the common law.  Indeed, it is incongruous that Australia should adhere to the Covenant containing that provision unless Australian courts recognize the entitlement and Australian governments provide the resources required to carry that entitlement into effect.  But the courts cannot, independently of the legislature and the executive, legitimately declare an entitlement to legal aid.”

23                  Dawson J stated at 348-9:

“Article 14(3)(d) has not been enacted as part of the domestic law of Australia, but the applicant sought to rely upon it by submitting that the development of the common law should, where possible, be in conformity with international obligations.  There is authority for the proposition that, in the construction of domestic legislation which is ambiguous in that it is capable of being given a meaning which either is consistent with or is in conflict with a treaty obligation, there is a presumption that Parliament intended to legislate in conformity with that obligation.  Whether that approach may be extended beyond statutory interpretation to the resolution of uncertainty in the common law is not so clearly established.  It is unnecessary to consider the question in this case because to extend to the common law the principle which underlies Art. 14(3)(d) – the principle that there are cases in which the absence of representation of itself results in an unfair trial – would not be to resolve ambiguity or uncertainty but to effect a fundamental change.”  (footnotes omitted)

24                  Toohey J stated at 359-60:

“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.”  (emphasis added)  (footnotes omitted)

25                  His Honour continued at 360:

“Where the common law is unclear, an international instrument may be used by a court as a guide to that law.  But the applicant’s difficulty is that the common law does not recognize the right to counsel for which he contends.  There is no ambiguity or uncertainty to be resolved.  And no international instrument upon which the applicant may successfully rely has been incorporated by legislation into Australian municipal law.”  (footnotes omitted)

26                  In Victoria v The Commonwealth (1996) 187 CLR 416 (the Industrial Relations Act Case), in a joint judgment of five members of the Court, the following observations in connection with ILO Conventions ratified by Australia were recorded at 480-2:

“As a general proposition, under the common law, entry by the Executive into a treaty is insufficient, without legislation to implement it, to modify the domestic or municipal legal order by creating or changing public and private legal rights and obligations.  …

Thus, as matters stand in Australia, … the conduct of external affairs by the Executive may produce agreements which the Executive wishes to translate into the domestic or municipal legal order.  To do so, it must procure the passage of legislation implementing those agreements if it wishes to create individual rights and obligations or change existing rights and obligations under that legal order. …

Where, as in the present case, the Executive ratifies a Convention which calls for action affecting powers and relationships governed by the domestic legal order, legislation is needed to implement the Convention.”  (footnotes omitted)

27                  In Sinanovic v R (1998) 154 ALR 702 Kirby J dealt with an attempt to invoke principles of international law as expressed in the ICCPR as a basis for complaint regarding the conduct of certain criminal proceedings.  His Honour stated at 707-8:

“The principles of international law to which Mrs Sinanovic has referred are not, as such, part of the domestic law of Australia.  Australian courts may take them into account in performing their functions where the law is ambiguous or uncertain.  …In my view courts may be assisted by such universal principles when constitutional or other rights are involved which are ambiguous and which may be made clear by reference to such principles.

…

It is understandable, perhaps, for a lay person to think that international law, being at a higher plane, overrides Australian domestic law to the extent of inconsistency:  just as State law may override a local government law or, federal law, if valid, may override State law.  However, the position is not as simple as that … The use that may be made of international law in Australian domestic law is much more indirect, subtle and controversial.”  (footnotes omitted)

28                  Finally, in Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 a Full Court of this Court comprising Sackville, North and Kenny JJ dealt with an earlier complaint by the present applicant concerning a refusal by the Human Rights and Equal Opportunity Commission to require the Victorian prison authorities to permit him adequate access to legal documents relevant to a petition for mercy which the applicant was at that time in the course of preparing.  The Human Rights and Equal Opportunity Commission had declined to entertain the applicant’s complaint on the ground that it had no jurisdiction to do so.  Under the terms of the HREOC Act it claimed that it was limited to investigating “acts done by or practices of Commonwealth Agencies” – see s 6(1) of that Act which provides that it binds the Crown in right of the Commonwealth, but save as otherwise expressly provided does not bind the Crown in right of a State.

29                  In a joint judgment their Honours stated at 447-8:

“In our view, it is clear enough that the primary judge rejected the appellant’s contention that he was entitled to a declaration or order that he had the human rights identified in Arts 14(1), (3)(b), (5) and 26 of the ICCPR.  His Honour specifically held, in the context of dealing with an argument that s 6(1) of the HREOC Act was inconsistent with the ICCPR, that the ICCPR did not form part of domestic Australian law unless its terms were adopted by legislation.  That holding was fatal to the appellant’s claim.

The primary judge was plainly correct in holding as he did.  The provisions of an international treaty do not form part of Australian law merely because Australia is a party to the treaty and has ratified it.  In consequence, the ICCPR does not of itself operate to give rights to or impose duties on members of the Australian community …

Although the HREOC Act was enacted to secure the fulfilment of Australia’s obligations under the ICCPR, the Act does not make the provisions of the ICCPR directly enforceable in Australian courts.  Nor have the provisions of the ICCPR upon which the appellant relies been given the force of law in Australia by any other statute.  It is because the ICCPR does not give rise to rights or obligations enforceable under Australian law that it cannot give rise to a “matter” which constitutes a “justiciable controversy”:  see Re East; Ex parte Quoc Phu Nguyen (1998) 159 ALR 108 (H Ct) at 113.  That is, the ICCPR cannot support the making of an order or declaration of the kind which the appellant seeks.”

30                  Their Honours went on to deal with an alternative submission advanced by the present applicant to the effect that the decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 provided a proper basis for his reliance upon the ICCPR.  In Teoh, however, Mason CJ and Deane J observed at 286-7:

“It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.  This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive.  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.  In this case, it is common ground that the provisions of the Convention have not been incorporated in this way.”  (footnotes omitted)

31                  Their Honours went on to hold that the Convention in question in that case, namely the United Nations Convention on the Rights of the Child, which had been ratified by Australia, but not implemented by statute, could give rise to a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers would act conformably with the Convention.  That principle was said by the Full Court in Minogue (supra) to have no application in the circumstances of Mr Minogue’s claim against HREOC.  It also has no application in the present proceeding.

32                  In Re East: Ex parte Nguyen (supra) the High Court dealt with an application for prerogative relief brought in the original jurisdiction of the Court.  The proceedings arose out of a sentence of imprisonment imposed upon the applicant and his contention that by reason of his lack of fluency in English and his not having been provided with the assistance of an interpreter, he had not been afforded the rights and protections arising from the International Convention of the Elimination of All Forms of Racial Discrimination as enacted in Australia in s 9 of the Racial Discrimination Act 1975 (Cth).  The applicant sought to attract the jurisdiction conferred upon the High Court in relation to “matters … arising under any treaty” by the Constitution s 75(1).  In a joint judgment comprising all members of the Court other than Kirby J, their Honours stated at 112-3:

“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)

33                  Although Kirby J at 127-132 articulated a broader interpretation of s 75(i) of the Constitution than that which seemed to commend itself to the majority of the Court, his Honour noted at 132-3 that the applicant as the party asserting jurisdiction was required to demonstrate the existence of a legal right or duty apt to judicial determination, and not mere “abstract questions of law without the right or duty of any body or person being involved”.  The applicant acknowledged that there was nothing in the Convention itself which expressly conferred upon him rights directly enforceable in a court, still less the High Court.  Nor could he point to duties which were enforceable by legal proceedings.  Kirby J noted that redress for a breach of the ICCPR could ultimately be obtained through a complaint to the Human Rights Committee of the United Nations.  On that, and several other bases, he found that there was no “matter” within the meaning of s 75 of the Constitution, and therefore no basis for invoking the original jurisdiction of the High Court.

34                  The applicant contended before me that notwithstanding this impressive array of authority seemingly standing as a fundamental impediment to his claim, he could rely upon the alleged breach by the respondent of Art 10(1) of the ICCPR to invoke the original jurisdiction of the High Court.  In summary, his contentions were:

·                    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.  Section 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.  That fact had escaped the attention of other courts which had dealt with this issue.

·                    Re East; Ex parte Nguyen could be distinguished upon the basis that the applicant in that case had alternative remedies available to him, being the ordinary processes of appeal.  Mr Minogue, however, had no remedies which were of any practical utility available to him.  Recourse to the Ombudsman or to the Human Rights Committee of the United Nations could not realistically be viewed as providing adequate mechanisms for the vindication of rights under the treaty.

·                    Although s 47 of the Corrections Act 1986 (Vic) expressly stated that every prisoner had certain identifiable rights including:

“47(1) …

(b)               the right to be provided with food that is adequate to maintain the health and well-being of the prisoner;

(c)                the right to be provided with special dietary food where the Governor is satisfied that such food is necessary for medical reasons or on account of the prisoner’s religious beliefs or because the prisoner is a vegetarian …”

those provisions afforded the applicant no rights capable of being enforced in any court of law.

·                    Article 10(1) of the ICCPR should be viewed as conferring upon the applicant a right at common law to be treated with dignity, and to be afforded meals which sustained his health and well-being, by reason of his vulnerable status as a prisoner.

35                  In my opinion none of the points sought to be made by the applicant is sufficient to overcome the difficulty that there is no jurisdiction in the High Court pursuant to s 75(i) of the Constitution to entertain his action, based as it is upon an alleged breach of Art 10(1) of the ICCPR.  It is clear that although the ICCPR may properly be taken into account in construing domestic legislation which is ambiguous, it is not being invoked for that purpose by the applicant.  Rather, it is relied upon as the direct and immediate source of the right which the applicant claims has been infringed by the respondent.  That is precisely what courts of the highest authority have said repeatedly the applicant cannot do.

36                  I note that there have been some judicial pronouncements which suggest that the ICCPR, by reason of its being set out in a schedule to an Act of the Commonwealth Parliament, may be taken to have been incorporated into Australian domestic law.  See for example the observations of Millhouse J in Collins v South Australia [1999] SASC 257.  I respectfully disagree with his Honour’s conclusion in that regard.

37                  Moreover, I cannot accept the applicant’s contention that the partial incorporation of the ICCPR into s 138 of the Evidence Act 1995 (assuming that that be its effect) renders per incuriam almost the entire body of authority to which I have referred. 

38                  Section 138 deals with evidence that was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law.  Section 138(1) provides that such evidence is not to be admitted unless the desirability of admitting it outweighs the undesireability of admitting it.  Section 138(3) provides that, without limiting the matters that the Court may take into account in exercising the discretion set out in s 138(1), it is to take into account whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the ICCPR. 

39                  I do not accept that the very limited incorporation of the ICCPR into Australian domestic law which may arguably have been effected by s 138 has the effect of enabling a person whose rights are said to have been contravened under the treaty to vindicate justiciable rights at large, rather than merely to call upon the ICCPR as a basis for the exercise of an exclusionary discretion under the Evidence Act.  Parliament has not, by a side-wind, incorporated the ICCPR in its entirety into Australian domestic law.

40                  It follows that the objection to jurisdiction which has been taken by the respondent must succeed.  The action initiated by the applicant in the High Court, and remitted to this Court must, in accordance with the rules of this Court, and in particular O 20 r 2(1), be dismissed.

Associate:

Dated:              18 November 1999