Review of the Unlawful Assemblies and Processions Act 1958

Chapter 6 - International Law

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INTRODUCTION

6.1 International law, by contrast with Victorian and Australian law[292], does expressly recognise a right of peaceful assembly. The position at international law is relevant here because Australia is a signatory to the instrument that recognises the right. Further, international law influences the development of law in Australia in several important ways.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

6.2 As noted above, international law expressly recognises a right of peaceful assembly. Article 21 of the International Covenant on Civil and Political Rights ("the ICCPR") provides:

The right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

6.3 The right of peaceful assembly is reinforced by the recognition of a right to freedom of expression in Article 19 of the ICCPR:–

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary;

For respect of the rights or reputations of others;

For the protection of national security or of public order (ordre public), or of public health or morals.

6.4 A First Optional Protocol to the ICCPR was introduced in 1966. The Protocol gives the citizens of states that have ratified the Protocol, a right of petition to the United Nations Human Rights Committee, where he or she believes that there has been a violation of any of the rights in the ICCPR.

6.5 Australia has ratified both the ICCPR and the First Optional Protocol. The former came into effect for Australia on 13 November 1980, while the latter did so on 25 December 1991.

6.6 Until very recently, it was generally accepted that treaties are not directly incorporated into Australian domestic law merely by the act of ratification or accession, unless implemented by domestic legislation. In Dietrich v The Queen, Chief Justice Mason and Justice McHugh considered the impact of the ICCPR on Australian law:

Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australia unless and until specific legislation is passed implementing the provision.[294]

6.7 In other words, a right of freedom of assembly does not exist in Australia merely because the Government has ratified the ICCPR. Rather, domestic legislation is required to achieve this result.

Influence on Common Law

6.8 However, treaties may have some indirect influence on Australian domestic law prior to their implementation through legislation. Treaties may influence the development of the common law:

The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the [ICCPR] brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but 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.[295]

6.9 In particular, treaties may be used to:

• Resolve uncertainty or ambiguity in the common law;

• Support review of earlier decisions and possibly their overruling; and

• Assist in the determination of community values and standards relevant to the development of the common law.[296]

6.10 As noted in Chapters 3 and 4 of this Report, there a number of common law restrictions on the freedom to assemble. If a case involving one of these offences came before a superior court, it is conceivable that the court would consider the impact of international law on the common law offence, to perhaps restrict its operation and allow greater scope for the freedom of assembly.

Impact on Administrative Decision-making

6.11 A further indirect impact of treaties on Australian law was recently identified by the High Court of Australia. In Minister for Immigration and Ethnic Affairs v Teoh, the Court held by a majority that the ratification of an international convention by the Executive may create a "legitimate expectation" that the Executive will act in accordance with the convention:

[R]atification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention.[297]

6.12 The existence of a legitimate expectation then imposes a duty on administrative decision makers to observe procedural fairness in the exercise of discretionary powers, for example, by allowing a person who would be affected by an adverse decision to present his or her case.

6.13 Teoh's case does not, however, alter the basic legal proposition that treaties are not directly incorporated into domestic law until they have been legislatively implemented.

6.14 The case also indicates that a legitimate expectation cannot arise where there is a statutory or executive indication to the contrary. Successive Federal Governments have sought to limit the impact of Teoh's case by executive and statutory acts making it clear that a legitimate expectation is not to arise merely from the fact of Australia entering into a treaty.

6.15 On 10 May 1995, the then Minister for Foreign Affairs and the then Attorney-General issued a joint press release criticising the practical effects of Teoh. They stated further that:

...entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law.[298]

6.16 To place the matter beyond doubt, the Government then introduced the Administrative Decisions (Effect of International Instruments) Bill 1995. Clause 5 of the Bill provided:

The fact that Australia is bound by, or a party to, a particular international instrument, or that an enactment reproduces or refers to a particular international instrument, does not give rise to a legitimate expectation, on the part of any person, that:

(a) an administrative decision will be made in conformity with the requirements of that instrument; or

(b) if the decision were to be made contrary to any of those requirements, any person affected by the decision would be given notice and an adequate opportunity to present a case against the taking of such a course.

6.17 The Bill was passed by the House of Representatives, but had not been passed by the Senate when Parliament was dissolved in January 1996 for the Federal election, and therefore lapsed. The Howard Government reintroduced the Bill in June 1997, but the controversial measure had not been passed before the election in October 1998, and so lapsed again. At the time of writing, there has been no attempt to reintroduce the Bill.

6.18 The issue outlined above is relevant here, as Australia's signing of the ICCPR may have created a legitimate expectation in Australians that they have the right to organise or participate in a peaceful assembly that comes within the terms of the ICCPR.[300]

6.19 However, there are two significant problems with any attempt to apply Teoh to public assemblies. First, the High Court decision appears to apply only to administrative decisions. It is doubtful whether a decision of a police officer to act in a way that allegedly infringes a right of peaceful assembly can be classified as an administrative decision. Nor is it clear whether a decision made by a local council, or a Presiding Officer, comes within this category.

6.20 Secondly, as noted above, a legitimate expectation may arise only where there is no statutory or executive indication to the contrary. The fact that there are a number of laws applying to restrict the right of peaceful assembly may therefore operate to exclude any legitimate expectation.[301]

COMMITTEE'S COMMENTS

6.21 The Committee notes that a right of peaceful assembly exists in international law. The Committee is in favour of enshrining a right to protest in legislation, modelled on the right set out in Article 21 of the ICCPR, as modified by the Queensland Peaceful Assembly Act 1992. This issue and the Committee's Recommendation are discussed in greater detail in Chapter 4.

Scrutiny of Acts and Regulations Committee
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