Implementing Human Rights Norms – Judicial Discretion & Use of Unincorporated Conventions
Written by Dr Wendy Lacey, Associate Professor of Law
Presidian Legal Publications
This book examines the extent to which Australian judges may be guided by unincorporated international human rights conventions when exercising discretionary powers, with comparative analyses of UK, Canadian and New Zealand law. The book serves to highlight the scope and legal basis for judges, through application of the common law’s interpretive principles, to increase protection of human rights through reference to and application of unincorporated conventions.
The notion that Australia’s judges should take into account, when exercising discretionary power, the human rights to which Australia is bound under international law, seems uncontroversial. However, author Dr Lacey says there are actually complex issues regarding the place of international human rights norms in Australian law and the role of judges in giving effect to norms that are unincorporated in domestic law.
"As a subject, it has historically been overlooked in jurisprudence and academic commentary, often overshadowed by discussion of the influence of international norms on the exercise of administrative discretion," Dr Lacey said. "The prevalence of judicial discretion in common law jurisdictions, however, creates an imperative for its analysis."
Dr Lacey’s book begins with a study of the nature and regulation of judicial discretion in Australia and of Australia’s engagement with the international human rights system, including the absence of any comprehensive mechanism for domestic implementation of international human rights standards. The common law’s interpretive principles, which govern judicial use of unincorporated international instruments, are reviewed and Dr Lacey highlights their irregular, inadequate and sometimes unreasoned application, often by judges who are sitting alone in different jurisdictions.
An analysis is conducted of the application of the interpretive principles in the UK, Canada and New Zealand where the principles play a more active role.
Dr Lacey argues and outlines the legal basis for a more principled approach in Australia, including the development of a rebuttable presumption that relevant unincorporated conventions will be considered by judges when exercising discretion.