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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 work 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, it conceals 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. The prevalence of judicial discretion in common law
jurisdictions, however, creates an imperative for its analysis.
The text 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 their irregular,
inadequate and sometimes unreasoned application, often by judges sitting
alone in different jurisdictions, is highlighted. A comparative 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. The
author 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.
Jurisdiction(s)
Australia, with comparative analyses of UK, Canada and New Zealand.
Pre-publication reviews
...excellent...Very few scholars have approached the issue of giving
greater effect to international human rights norms through the lens of
judicial exercise of discretion, and this is far and away the most sustained
treatment of the issue in Australia...It is a careful and well-documented
articulation of the position, and makes an important contribution to the
debate.
- Michael Taggart, Alexander Turner Professor of Law, University of Auckland
...exceptional quality. It constitutes an original line of inquiry, it is
deeply and comprehensively researched and it is clearly written and
presented.
- Emeritus Professor of Law Ivan Shearer, University of Sydney
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