AUSTRALIAN LAW JOURNAL
The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd ed, 2004).
Editors:Sarah Joseph, Jenny Schultz And Melissa Castan
Publisher:Oxford University Press
Human Rights Law & Practice
General Eds:Lord Lester of Herne Hill QC and David Pannick QC (2nd ed, 2004)
ISBN:0 406 96971 X
These are completely revised editions of two related but distinct studies of the law of human rights. The fact that a second edition of each work was needed in the space of four or so years, and that each book is a substantial work, indicates the fast growing character of this field of law.
Perhaps the clearest indication that the times are changing can be seen in the increasing willingness even of the Supreme Court of the United States to refer to the human rights law of the European treaty bodies and to make reference to the activities of the United Nations human rights bodies. These are the subjects of the two books. In decisions a decade ago, individual Justices of the US court referred to such materials, inviting denunciation from Justice Scalia. Now, however, things have really moved on. In Atkins v Virginia 536 US 304 (2002) Justice Stevens, for the Court, footnoted reference to human rights materials in upholding a constitutional objection to capital punishment in the case of a juvenile with proved mental disabilities. In Lawrence v Texas 539 US 558 (2003) Justice Kennedy, for the Court, moved the citations up into the text. The Court held that a Texas law against sodomy, applied to two consenting adult homosexual men acting in private, was contrary to the US Constitution. When such an isolationist legal society as the United States uses human rights materials in this way, it is time for Australian lawyers to pay attention. The notable point to be made about the US decisions is that they concerned not the interpretation of a federal statute but the doctrine of the United States Constitution itself. When international human rights law begins to influence national constitutional interpretation in the US Supreme Court, it presents the question whether Australian lawyers need to reconsider their traditional reluctance.
In Australia, the use of human rights law as an influence upon the development of the common law, was recognised by the High Court in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42. More recently, the use of human rights law in the construction of ambiguous legislation has been reaffirmed: Plaintiff S 157/2002 v The Commonwealth (2003) 211 CLR 476 at 492 . In Australia, it seems likely that this process of intellectual osmosis will continue. In part, the decline in the use of United Kingdom legal authority prompts Australian lawyers to look elsewhere for equivalent intellectual stimulus. Our erstwhile links to the Privy Council cultivated in us the habits of comparative law. Now, when we look to English, Canadian and New Zealand authority (as well as that of the US) it is often influenced by regional and international human rights decisions.
As was recognised when the Bangalore Principles on Domestic Application of International Human Rights Norms were endorsed in 1988 (see (1988) 62 ALJ 531) the impact of human rights principles and decisions is unlikely to take off, in judicial elaboration, without the stimulus of informed advocacy, drawing upon such materials when they are relevant to a case in hand. Whilst there is some increase in the use of such materials in Australian courts in cases where important human rights are involved, the deficit that Australian lawyers face is the lack of a home-grown body of jurisprudence, formed around national or subnational charter of rights provisions.
That is where these two books come in. In a compact form, with excellent indexes in each case and a logical presentation of material, each book provides access to an enormous wealth of human rights legal analysis and reasoning. The book on the ICCPR by Joseph et al runs to just short of 1000 pages. The book by Lester and Pannick on developments in the United Kingdom is 716 pages in length. Whilst there are separate chapters in Lester and Pannick on the history of the Human Rights Act 1998 (UK) and the specific cases of Scotland, Northern Ireland and Wales, the heart of their book is 400 solid pages on the basic rights in the European Convention on Human Rights that are now incorporated into British municipal law. The central text on the ICCPR (600 pages) likewise involves analysis of the articles of the ICCPR. There is also a description of the procedures of the United Nations Human Rights Committee (HRC) that makes decisions on alleged breaches of the ICCPR and a list of appendices of operational and historical interest. Sarah Joseph and her colleagues have assumed the responsibility of the entire text of their book, without separate author identification. In Lord Lester's work, the authors of particular chapters are identified, revealing that Anthony Lester and David Pannick carried the lion's share of the burden both in the introductory and substantive materials.
In the book on the ICCPR, the substantive part of the analysis addresses the successive articles of the ICCPR. The text includes extracts from any relevant General Comment of the HRC, or decisions of other treaty bodies, on matters apposite to the ICCPR article in question. There then follow textual subdivisions that pick up the language of each article and extracts from the decisions of the HRC (called "Views") on communications complaining of breaches of the article in question. In the footnotes, there are useful cross-references to other texts and to law reviews and cases relevant to the matter under consideration. This is a rich analysis of a huge amount of material presented in an economical and accurate way. It allows the reader to trace the development of the HRC's doctrine on a vast range of topics. Obviously, the book by Joseph et al could not include the entirety of the HRC's reasoning in each case. However, references are made to the relevant documentation to permit follow up where needed.
The ICCPR book contains many instances of communications by Australians to the HRC complaining that Australian law does not conform to the ICCPR standards. One such complaint, Toonen v Australia, concerned the former laws of Tasmania on the subject of homosexual offences that was later examined by the US court in Lawrence. There are multiple references to the Toonen decision throughout this text. It led to legislative responses, federal and State, in Australia. In the US Supreme Court, reference was made to an amicus brief by the former High Commissioner for Human Rights, Mary Robinson, which cited extensively from the HRC's treatment of the issue in Toonen. As the Privy Council has said, views of the HRC are not binding decisions in the same way as judgments of an international court or tribunal. However, they are entitled to respect because made by an independent panel of qualified experts: Tangiora v Wellington District Legal Services  1 WLR 240 at 244. Under the HRC procedure, a member of the HRC from the country the subject of a communication does not participate in that case. Most of the members of the HRC are retired judges (Baghwati CJ of India, Lallah CJ of Mauritius) or law professors (such as Sir Nigel Rodley (UK) and Ivan Shearer AM (Australia)). Several of the past members went on to serve on the International Court of Justice. The list of them in Appendix H speaks of their distinction (the Hon Elizabeth Evatt AC was a past Australian member and wrote the foreword to the first edition of this work, reproduced in this edition).
Because Australia is a party to the First Optional Protocol to the ICCPR, it is subject to the decisions of the HRC. It was that feature that led Brennan J in Mabo (above) to conclude that the process of the influence of the ICCPR on Australia's municipal law was bound to increase and that this was an inevitable process. As that process continues, the book by Joseph et al is an essential tool for finding the elaboration of particular articles of the ICCPR and the views of the HRC on those articles. Where they are relevant to a case in hand, the book is thus an indispensable tool to finding the important principles by which Australia is bound in international law. The discussion and explanation of the views of the HRC (together with any separate and minority opinions) can be a very useful source of ideas in exploring any large questions of principle that lie behind the authority of the common law or that inform ambiguous provisions of Australian legislation.
Because Australia is not a party to the European Convention, the use of the decisions of the European Court of Human Rights in Strasbourg has been less than might otherwise have been the case. However, from time to time the opinions of that court - whose jurisdiction now extends from Ireland to Vladivostock - are cited by Australian courts. This should cause no surprise. The post World War II flowering of global and regional human rights instruments was mainly led by Anglo-American lawyers. Many of the principles in the UN treaties (such as the ICCPR) and regional instruments (such as the European Convention) reflect the values of the common law. When large issues of legal principle arise, it is often useful for Australian lawyers to return to core values. Instances of this may be seen in The Queen v Carroll (2002) 77 ALJR 157 (concerning the rule against double jeopardy) and Daniels Corporation v ACCC (2002) 77 ALJR 40 (concerning client legal privilege). In those cases, suggested uncertainty in the common law and in a federal statute, respectively, were resolved in favour of the core principles invoked. Get the principles right and many legal issues fall into place.
These books are therefore useful for a step in much contemporary legal reasoning. Naturally, they do not take Australian lawyers the whole distance. In the past, Australian lawyers looked to old English cases, Coke and Blackstone for core principles. Then came the greater use of texts, parliamentary debates and law reform reports. Now there is an increasing resort to international human rights jurisprudence where this is relevant. Because it is now so universal, it will spread to Australian courts. These two books provide the tools that will help this happen.
Obvious attention has been paid in each publication to the presentation of the material so as to make it readily accessible. An advantage of Lester and Pannick is that the text of the Convention is presented in a box and is visually distinguishable from commentary and case notes. For future editions, I would recommend a similar layout to Sarah Joseph and her colleagues. For busy judges and legal practitioners, the most important part of each text is the summary of materials relevant to treaty provisions. For even better access, it might be possible to identify that article and subject heading at the head or foot of the page, so that the reader could immediately turn up the provision under consideration.
Both texts include references to relevant provisions of international instruments other than the treaty that is their main focus. Without diverting attention from that focus, this is a useful supplementation of source material. In Joseph et al, there is an appendix detailing all of the "communications" that have been decided by the HRC. This consumes 25 pages and I question its contribution to the work. Where decisions are relevant, they are detailed in the text with explicit references for ease of access. That should be enough.
However, it is difficult seriously to fault either book. Each is attractively presented, accurately printed and brings credit on the editors, authors and publishers. The first appendix in each book contains the text respectively of the ICCPR and the European Convention. I predict that in twenty years or so, every Australian lawyer will have texts of this kind close at hand. Whether or not more Australian jurisdictions follow the precedent of the ACT, enacting a human rights statue, courts will use such materials as regular sources for fundamental concept and principles. At the moment the novelty of the idea makes it unpalatable to some lawyers of the older generation. Of course, the uninformed or over-enthusiastic have to be reminded that such treaty provisions are not, in terms, part of our law. (See Minister for Immigration v B  HCA 20). However, these books will facilitate the growing use of international human rights doctrine in Australian legal reasoning. For that, Australian lawyers and other citizens should be grateful.
In his foreword to Lester and Pannick, Lord Chief Justice Woolf declares that human rights in Britain "have come of age" and Lester and Pannick is "now accepted as one of the most authoritative works on human rights" in the context of UK law. In his foreword to Joseph et al, Professor Shearer, Australian member of the HRC, describes how members of the HRC snapped up the first edition at their own expense "so obvious were the book's merits and usefulness". By bringing the reasoned work of the HRC to a world-wide audience, the authors of the ICCPR text have done a large service to the cause of human rights in legal reasoning. Those authors are based in the Castan Centre for Human Rights at Monash University in Melbourne. One of them, Melissa Castan, is the daughter of the late Ron Castan QC, the successful lead barrister in the Mabo case. Ideas can be great engines for justice and change. The ideas of fundamental human rights continue to work their effect in the legal systems of the world. These excellent books bring a cornucopia of reasoning to the fingertips of Australian lawyers. We can have no excuse now to ignore that reasoning when it is relevant.