Judicial discretion and human rights: Expanding the role of international law in the domestic sphere

Abstract

Australian case law points to the emergence of a new development in the use of international human rights law by judges in the exercise of their discretionary powers. While resort to international law as an aid to the development of the common law, the interpretation of statutes, and the exercise of administrative discretion has been widely considered, the relevance of international standards to judicial discretion has not. In reflecting upon this development in Australian jurisprudence, the decisions of three judges stand out. Justices Kirby (Justice of the High Court of Australia and former President of the New South Wales Court of Appeal), Perry (Justice of the Supreme Court of South Australia), and Miles (former Chief Justice of the Supreme Courts oft he Australian Capital Territory and Justice of the New South Wales Supreme Court) have been prominent in this context. However, the potential significance of this development, including its relationship to the principle espoused in Teoh, and to Chapter III of the Australian Constitution, has yet to be fully examined. This article identifies and explores the implications of this development that are likely to bear upon its wider acceptance in Australian domestic law.