Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85

FEDERAL COURT OF AUSTRALIA

Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85

HUMAN RIGHTS – Access to courts - Whether provisions of International Covenant on Civil and Political Rights are directly enforceable in Australian courts.

PRACTICE AND PROCEDURE – Whether trial Judge required to assist unrepresented litigant – Extent of trial Judge's duty to ensure a fair trial.

WORDS AND PHRASES – "Legitimate expectation".

Judiciary Act 1903 (Cth), s 39B.

International Covenant on Civil and Political Rights, Articles 14, 26.

Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 3(1), 6(1), 7(1), 11(1)(f), 11(1)(j), 11(1)(k), 13(1), 13(2), 20(1).

Corrections Act 1986 (Vic), s 40, 47(1)(j).

Corrections Regulations 1998 (Vic), reg 53.

Ombudsman Act 1973 (Vic), s 28.

Equal Opportunity Act 1995 (Vic).

The Queen v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13, cited.

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, distinguished.

Cachia v Hanes (1994) 179 CLR 403, cited.

Neil v Nott (1994) 121 ALR 148, cited.

Abram v Bank of New Zealand [1996] ATPR 41-507, cited.

MacPherson v The Queen (1981) 147 CLR 512, cited.

Rajski v Scitec Corporation Pty Ltd, unreported, 16 June 1986, NSW CA, followed.

In the Marriage of Johnson (1997) 139 FLR 384, cited.

Morton v Vouris (1996) 21 ASCR 497, cited.

Burwood Municipal Council v Harvey (1995) 86 LGERA 389, cited.

Panagopoulos v Southern Healthcare Network, unreported, 15 September 1997, S Ct Vic, Smith J, cited.

Dietrich v The Queen (1992) 177 CLR 292, cited.

Victoria v Commonwealth (1996) 187 CLR 416, cited.

Sinanovic v The Queen (1998) 154 ALR 702, cited.

Re East; Ex parte Quoc Phu Nguyen (1998) 159 ALR 108, followed.

Rich v Groningen (1997) A CrimR 272, discussed.

CRAIG WILLIAM MINOGUE v human rights and equal opportunity commission

vG 572 of 1998

sackville, north, kenny JJ

melbourne

12 february 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 572 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: CRAIG WILLIAM JOHN MINOGUE

Appellant

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Respondent

JUDGES: SACKVILLE, NORTH, KENNY JJ

DATE OF ORDER: 12 FEBRUARY 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. No order as to costs be made. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 572 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: CRAIG WILLIAM JOHN MINOGUE

Appellant

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Respondent

JUDGE: SACKVILLE, NORTH, KENNY JJ

DATE: 12 FEBRUARY 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Judge of this Court, dismissing an application by the appellant for a writ of mandamus and other relief, brought pursuant to s 39B of the Judiciary Act 1993 (Cth) ("Judiciary Act"). The respondent to the application was the Human Rights and Equal Opportunities Commission ("HREOC"). The appellant at all material times has been serving a life sentence in prison for murder.

Proceedings at First Instance 2 On 27 March 1996, a policewoman was killed as the result of a bomb explosion occurring outside the then Russell Street police headquarters in Melbourne. After a trial lasting 112 days, the appellant was convicted of the murder of the policewoman. He was sentenced to life imprisonment, with a minimum term of thirty years. The appellant exhausted all appeals and is presently serving his sentence at Her Majesty's Prison, Barwon ("the Prison"). The appellant maintains that he is innocent of the crime of which he was convicted. 3 By a letter dated 14 November 1996, the appellant complained to HREOC that the Victorian prison authorities were impeding his efforts to prepare a petition of mercy. The substance of his complaint was that the accommodation manager of the Prison was denying him adequate access to legal documents relevant to his case and was refusing to provide computer facilities necessary to prepare the document required to prepare his petition. The appellant also complained that prison officers were able to gain access to documents related to the petition which were stored at the Prison. These actions were said to infringe his rights under the International Covenant on Civil and Political Rights ("ICCPR"). 4 HREOC declined to entertain the appellant's complaint, on the ground that it had no jurisdiction to do so. In a letter to the applicant, dated 6 May 1997, HREOC stated that, under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOC Act"), it was limited to investigating "acts done by or practices of Commonwealth Agencies". According to HREOC, the Human Rights Commissioner therefore had no authority under the HREOC Act to conduct an inquiry into an act or practice of an agency of the State. HREOC relied in part on s 6(1) of the HREOC Act, which is in the following terms: "This Act binds the Crown in right of the Commonwealth...but, except as otherwise expressly provided by this Act, does not bind the Crown in right of the State." 5 Faced with this response, the appellant commenced proceedings in the Court, claiming the following relief: "1. An order from the Court to compel the Human Rights and Equal Opportunity Commission to hear a human rights complaint from the Applicant. 2. An order from the Court as to the validity of [s 6(1) of the HREOC Act]. 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 [International Covenant on Civil and Political Rights], 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 obligation as set out in the ICCPR's Articles 2(1), 2(2), 2(3)(a),(b), 3, 26 and 50." The applicant prepared the application without the benefit of legal assistance and was not legally represented at any stage in the proceedings determined by the primary Judge. 6 The appellant prepared written submissions, in the form of an affidavit, in support of the relief sought by him. HREOC, in conformity with the principles laid down in The Queen v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13, sought to make a submitting appearance. The primary Judge indicated that it would assist the Court if HREOC continued to be involved in the proceedings, but suggested that its role be limited to filing affidavits and contentions of fact and law relating to the operation of the HREOC Act and the procedures of HREOC itself. In the event, HREOC filed an affidavit and written submissions limited in the manner suggested by the primary Judge. 7 The application was set down for hearing on 23 June 1998. The applicant appeared on his own behalf, while HREOC was represented by counsel. Although the transcript does not explicitly record that affidavits were read, it is clear that the primary Judge proceeded on the basis that the appellant's affidavits had been read and that HREOC did not wish to cross-examine him. The appellant's affidavits, although discursive and argumentative, contained some evidence supporting the claims made by him to HREOC. 8 In the course of the appellant's oral submissions, the primary Judge asked the appellant whether he conceded that, if s 6(1) of the HREOC Act were valid, HREOC had correctly rejected his complaint. The appellant replied in the affirmative, but added that he wished to persevere with an argument that the terms of the ICCPR had been incorporated into Australian domestic law. Since the appellant also wished to submit that s 6(1) of the HREOC Act was invalid, his Honour gave directions requiring the appellant to serve a notice of a constitutional issue on Commonwealth and State Attorneys-General. The proceedings were adjourned for further directions. 9 At a further directions hearing held on 31 July 1998, counsel for the Commonwealth Attorney-General advised the primary Judge that the Attorney-General wished to intervene in the proceedings, as he was entitled to do under s 78A(1) of the Judiciary Act. At the same directions hearing, the Chairman of the International Commission of Jurists (Victoria Branch) ("ICJ") applied for leave to appear as amicus curiae at the adjourned hearing. The affidavit in support of the application stated that the case raised important issues of general significance that had not been adequately canvassed in the documents then filed in the proceedings. 10 The primary Judge granted the application by the Chairman of the ICJ. His Honour took into account "the fact that [the appellant] appears for himself and is not legally qualified". His Honour also made an order permitting the Chairman of the ICJ to make brief oral submissions in support of his written submission. HREOC's counsel then advised the Court that, in view of the involvement of the Commonwealth Attorney-General and the ICJ, it would submit to the jurisdiction of the Court. 11 The Commonwealth Attorney-General filed detailed written submissions. These conceded that the Court had jurisdiction to entertain the application, but contended that the appellant was not entitled to any of the relief sought by him. The appellant filed written submissions in response to the Attorney-General's submissions. The Chairman of the ICJ also filed written submissions, arguing that HREOC was obliged to consider the appellant's complaint that the prison authorities had contravened his rights under the ICCPR. 12 The hearing resumed on 15 September 1998. The appellant represented himself. The Commonwealth Attorney-General and the Chairman of the ICJ each appeared by senior and junior counsel. No further evidence was adduced. The appellant and counsel made submissions on the legal issues raised by the proceedings.

HREOC Act 13 Before considering the judgment of the primary Judge, it is convenient to set out the relevant terms of the HREOC Act and the provisions of the ICCPR relied on by the appellant. 14 The Act establishes HREOC: s 7(1). Section 11 provides that its functions include the following: "(1) The functions of the Commission are: ... (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." The expression "human rights" is defined to include the rights and freedoms recognised by the ICCPR: s 3(1). However, "act" is defined by s 3(1) to mean, relevantly, "an act done (a) by or on behalf of the Commonwealth or an authority of the Commonwealth; (b) under an enactment [that is, a Commonwealth or Territory enactment]; (c) wholly within a Territory; or (d) partly within a Territory...". "Practice" is defined in similar terms. These definitions are consistent with s 6(1) which, as has been seen, provides that the HREOC Act binds the Crown in right of the Commonwealth, but not the Crown in right of a State. 15 Sections 13 and 20 of the HREOC Act provide as follows: "13(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. 20(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." The provisions in the ICCPR relied on by the appellant were these: "Article 14 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. ... 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) ... (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. ... 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." The Judgment at First Instance 16 His Honour rejected the appellant's submission that s 6(1) of the HREOC Act was invalid. His Honour held that Commonwealth legislation purporting to implement an international Convention, such as the ICCPR, is not invalid merely because it only partly takes up the obligations imposed by the Convention. In his view, the HREOC Act was sufficiently stamped with the purpose of carrying out the terms of the ICCPR to be a valid law with respect to external affairs (Constitution, s 51(xxix)), notwithstanding the exclusion of State agencies from the reach of the legislation. 17 The primary Judge rejected the appellant's alternative contention, that s 6(1) of the HREOC Act was invalid because it was inconsistent with the terms of the ICCPR which (according to the appellant) forms part of Australian municipal law without its terms having been adopted by statute. His Honour held that the terms of the ICCPR do not form part of Australia's domestic law unless implemented by statute. The primary Judge also accepted a submission made on behalf of the Attorney-General, that the question of whether or not Australia has breached its international obligations is not a matter justiciable at the suit of a private citizen. 18 Finally, his Honour rejected a contention put forward by the Chairman of the ICJ, that HREOC had failed to consider whether it should exercise the powers conferred by s 11(1)(j) and (k) of the HREOC Act. His Honour held that those sub-paragraphs, which empower HREOC to act "on its own initiative" did not confer functions on HREOC that it could be required to perform at the insistence of a complainant.

The Grounds of Appeal 19 The appellant's grounds of appeal are expressed in the following terms: "(a) That the learned trial Judge erred when he did not adequately assist the unrepresented, non-lawyer Applicant; (b) That the learned trial Judge erred when he did not provide adequate procedural guidance so as to achieve a full and just hearing of all the issues associated with the Application; (e) That the learned trial Judge erred when he did not rule on an order for relief claimed in the Application, namely: "An order form [sic] 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". (f) That the learned trial Judge erred when he did not adequately assist the unrepresented, non-lawyer Applicant to properly identify the ancillary orders for relief that had arisen out of the Application in connection with the above mentioned ground (c), and which clearly formed a legitimate part of the Application."

The Appellant's Submissions 20 The appellant again appeared in person on the hearing of the appeal. The Commonwealth Attorney-General, as intervener, was represented by Mr Burmester, who appeared with Ms Ebbeck. The Chairman of the ICJ did not participate in the appeal. 21 The appellant's written submissions argued that the primary Judge had failed to perform what was said to be the duty he owed to ensure that the appellant received an effective hearing and a just outcome. The appellant chose not to elaborate on this aspect of his written submissions, but invited the Court to address them. 22 The appellant pointed out that he had said to the primary Judge on a number of occasions that he was not legally trained. He argued that, in these circumstances, his Honour was under a duty to assist him. It is fair to observe that the appellant did not explain how the alleged failure on the part of the primary Judge had adversely affected the presentation of his case, bearing in mind that the issues debated at the trial were essentially questions of law. Nonetheless, the appellant sought a new trial by reason of the alleged failure to provide him with adequate guidance. 23 The appellant also contended that the primary Judge had erred in failing to address his claim for a declaration or order that he had the human rights identified in Articles 14(1), (3)(b), (5), and 26 of the ICCPR . Indeed, he said that the primary Judge should have gone further and addressed a large number of additional questions even though these were not identified in the application or in any other document before the primary Judge. The appellant identified these questions as follows: "(a) Do I have any human rights? (b) Am I considered a fully fledged human being at Australian law? (c) If I have human rights, then were [sic] is the remedy at law for me to enforce those rights? (d) If there is a remedy, then do I have the right to have a legitimate expectation that that remedy be an effective remedy? (e) Do I have the common law right of unimpeded and equitable access to the courts? (f) Where is the remedy, for the wrongs that I claim are being perpetrated upon my person by prison authorities, who will not allow me to prepare a case for court? (g) If I can have no meaningful access to the courts, if communication with the courts and my lawyer is a privilege – like all other visits, telephone calls and letters – then how can I protect myself from human rights abuses? (h) Do all Australians have human rights, or don't they? (i) Or do only some Australians have human rights, excluding state prisoners?" 24 Finally, the appellant submitted that, whether or not the primary Judge had addressed his claim for declaratory relief, this Court should do so and make the orders sought by him. He argued that the ICCPR conferred on him a right to unimpeded access to the courts and to legal materials necessary for the preparation of a petition of mercy. He contended that the human rights conferred by the ICCPR had been incorporated into Australian domestic law, since otherwise Australians would have rights without any effective remedies. In the alternative, the appellant argued that the doctrine of legitimate expectations applied by the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, produced the consequence that the rights conferred on individuals under the terms of the ICCPR had been incorporated into domestic law. 25 It should be noted that the appellant did not seek to argue on appeal that s 6(1) of the HREOC Act was unconstitutional. Nor did he contend that HREOC is obliged, at the insistence of a complainant, to perform the powers conferred by s 11(1)(j) and (k) of the HREOC Act.

The Primary Judge's Duty to the Appellant 26 Unrepresented litigants present difficult issues for courts and for individual Judges. As the majority observed in Cachia v Hanes (1994) 179 CLR 403, at 415: "Whilst the right of a litigant to appear in person is fundamental, it would be disregarding the obvious to fail to recognise that the presence of litigants in person in increasing numbers is creating a problem for the courts". Increasing attention is being devoted to the policy issues created by the increasing numbers of litigants in person. See, for example, Australian Law Reform Commission, The Unrepresented Party (Background Paper 4, December 1996). 27 In Neil v Nott (1994) 121 ALR 148, the High Court considered whether the trial judge's exercise of discretion to refuse an extension of time for lodging an application for maintenance and support under the Administration and Probate Act 1958 (Vic). The Court observed (at 150) that a "frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy". In Abram v Bank of New Zealand [1996] ATPR 41-507, at 42,347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial Judge had not given him appropriate assistance to present his case, made this comment: "What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case". We respectfully agree with this observation. Because the duty of the Judge varies according to the factors identified by the Full Court in Abram, the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a Judge hearing civil proceedings in which one or more of the parties are not legally represented: cf MacPherson v The Queen (1981) 147 CLR 512; DA Ipp, "Judicial Intervention in the Trial Process" (1995) 69 ALJ 365, at 369-370. 28 The general principles governing the role of the Judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corporation Pty Ltd, Butterworths unreported judgments, 16 June 1986, NSW CA. Samuels JA said this (at 14): "In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. ...At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. ...An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent." Mahoney JA made the following observation (at 27): "Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done." These comments have been referred to with approval in subsequent cases: see In the Marriage of Johnson (1997) 139 FLR 384 (Fam Ct/FC), at 406 (and cases cited there); Morton v Vouris (1996) 21 ACSR 497, at 513-514, per Sackville J. There is nothing in Neil v Nott inconsistent with what was said in Rajski v Scitec Corporation. 29 A trial Judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 (NSW CA), at 397, per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, 15 September 1997, S Ct Vic/Smith J), at 6. 30 The appellant's case, as presented to the primary Judge, raised only questions of law. There was no dispute as to the admissibility of evidence. There was no cross-examination of the appellant and, indeed, there was no oral evidence adduced. The appellant did not fail to obtain the relief he sought because of any defect in the evidence on which he relied. The primary Judge specifically recognised the disadvantage under which the appellant laboured by reason of his lack of legal training. It was precisely for this reason that the primary Judge granted leave to the Chairman of the ICJ to appear at the hearing as amicus curiae. 31 The Chairman of the ICJ was represented at the hearing by senior and junior counsel. They prepared detailed, helpful written submissions which, in substance, supported the applicant's case for relief against HREOC. Senior counsel elaborated on these submissions at the adjourned hearing and the contentions were addressed by the primary Judge in his reasons for judgment. The mere fact that an unrepresented party is forced to present legal arguments without the benefit of assistance from the Court does not constitute a basis for requiring a fresh hearing. In any event, the present case can hardly be placed in that category. The appellant had the benefit of carefully formulated and presented arguments that supported his principal claim for relief. 32 Senior counsel for the Chairman of the ICJ did not support all contentions the appellant wished to make. In particular, the amicus curiae did not support the appellant's argument that s 6(1) of the HREOC Act was invalid. The appellant had to put that and other contentions himself. But that fact does not establish that the primary Judge failed to comply with any duty to ensure that the proceedings were conducted fairly. It is clear from the appellant's presentation of the appeal that he is intelligent and has given careful thought to the arguments he wishes to put. He is well able to raise the legal points on which he wishes to rely, and he did so both before the primary Judge and this Court. 33 In any event, it is difficult to see what further steps the primary Judge could have taken, in the circumstances of the present case, to ensure that the appellant received a fair trial. He gave leave to the Chairman of the ICJ to appear as amicus curiae and he accorded the appellant every opportunity to put his arguments. The appellant's submissions appear to assume that it was the primary Judge's responsibility to formulate and conduct the appellant's case for him. That, however, is not a role the primary Judge was entitled, let alone obliged, to perform.

The Claim for Relief under the ICCPR 34 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 Articles 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. 35 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: see, e g Dietrich v The Queen (1992) 177 CLR 292, at 305-306, 321, 348, 359-360; Victoria v Commonwealth (1996) 187 CLR 416, at 480-482; and Sinanovic v The Queen (1998) 154 ALR 702, at 707. 36 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. 37 The second limb of the appellant's submission as to the effect of the ICCPR depended on an analysis of the High Court's decision in Minister v Teoh. That case was, so the appellant submitted, authority for the proposition that Australia's entry into the ICCPR gave rise to a legitimate expectation in him that he would be given the benefit of the ICCPR and that, accordingly, he had the rights referred to in Articles 14 and 26. That submission must fail, because, amongst other things, it misconceives the relevance at law of the concept of legitimate expectations. The concept is relevant only to questions of procedural fairness. Ratification of a treaty by Australia may give rise to a legitimate expectation that a decision-maker will act in conformity with it. The decision-maker's failure to act in conformity with the treaty may in turn give rise to a denial of procedural fairness, if the person affected by the decision is not given an opportunity to argue against that course being taken. The notion of legitimate expectations does not make provisions of the ICCPR part of Australian law. We should add that it was not suggested in this case that HREOC had denied procedural fairness to the appellant in connection with its decision to decline to entertain the appellant's complaint. 38 As his Honour recognised, where a complaint is made to HREOC, it has power to enquire into any act or practice which is alleged to be inconsistent with any human right set out in the ICCPR and which is done or engaged in (a) by or on behalf of the Commonwealth or an authority of the Commonwealth, (b) under a Commonwealth or Territory enactment, or (c) wholly or partly within a Territory (to the extent to which the act was done or practice engaged in within a Territory): see the definitions of "act" and "practice" in s 3(1) of the HREOC Act. HREOC does not have jurisdiction under s 11(1)(f) of the HREOC Act to determine a complaint involving the acts and practices of a State or private authority done or engaged in a State. It therefore had no jurisdiction in relation to the appellant's complaint and the question whether any rights declared by the ICCPR might have been breached could not arise before it on that complaint. 39 It does not follow from what has been said that the appellant's complaints are without redress and that, as the appellant submitted, he is to be "cast adrift in waters outside the rule of law". The position of prisoners held in prisons in Victoria is governed by common law and statute, including the Corrections Act 1986 (Vic) ("Corrections Act") and the Corrections Regulations 1998 (Vic). Section 40 of the Corrections Act provides for visits by lawyers, and reg 53(2) of the Corrections Regulations provides for the exchange of legal documents between a lawyer and a prisoner. Pursuant to reg 53(4), a prisoner may retain legal documents, subject to reasonable quantity limits imposed by the Governor. 40 In this connection, the appellant acknowledged familiarity with and indeed drew the Court's attention to Rich v Groningen (1997) 95 ACrimR 272. The plaintiff in that case was a prisoner held in a Victorian prison. The defendants were the Commissioner for Correctional Services and officers of the prison in which the plaintiff was incarcerated. The plaintiff claimed that he was being denied unimpeded access to the courts and reasonable access to law books and other legal documents. As Gillard J observed in that case (at 287): "[T]he plaintiff as a prisoner enjoys the right of every citizen in this State to unimpeded access to the courts, subject to the provisions of any legislation in this State which applies to him.... In my opinion, the authorities could infringe his right to access to the court by making it impossible for him to present his case by taking away his appeal documents. This could, in certain circumstances, be as effective as physically stopping him going to court." 41 As that decision shows, however, a court will not grant declaratory or other relief unless a case for the relief is established on the particular facts: it will not grant relief "in the abstract" or on a hypothetical basis. Nonetheless, Rich v Groningen is an example of the means by which a prisoner may invoke the jurisdiction of State courts to inquire into, and if necessary, protect prisoners against the denial of rights conferred by common law or statute. 42 Besides the courts, there are, as the appellant acknowledged, others to whom a prisoner may make complaint. Section 47(1)(j) of the Corrections Act confers a right on a prisoner "to make complaints concerning prison management to the Minister, the Secretary, the Governor, an official visitor and the Ombudsman". Under the Ombudsman Act 1973 (Vic), the function of the Ombudsman is to make independent enquiry into administrative action taken by relevant pubic bodies. In the case of prisoners held in prisons in the State, provision is made, in s 28 of the Ombudsman Act, for letters sent by prisoners to be forwarded by prison authorities to the Ombudsman unopened (unless a letter is suspected of containing drugs, weapons or other contraband). There may be other bodies, as for example the Equal Opportunity Commission, established under the Equal Opportunity Act 1995 (Vic), which in an appropriate case would have power to investigate a complaint concerning the denial of a relevant right said to have been denied a prisoner. 43 For these reasons, the primary Judge did not err in declining to make a declaration or order that the appellant had the human rights identified in Articles 14 and 26 of the ICCPR. Nor did his Honour err in failing to address the wide-ranging questions identified by the appellant, but not the subject of any claim for relief. Had his Honour addressed those questions he would have been bound to deny any relief to the appellant in respect of them.

Conclusion 44 The appeal should be dismissed. The Attorney-General, as intervenor, does not seek costs. Accordingly, there will be no order as to costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, North & Kenny.

Associate: Dated: 12 February 1999 Counsel for the Applicant: Self Represented

Counsel for the Respondent: Mr H Burmester QC with Ms G Ebbeck

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 9 February 1999

Date of Judgment: 12 February 1999