The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

The Role of IPAA: Public Presentation — Key Issues in Governance

In the December 1997 issue of this journal our editors expressed concern about the decline in teaching of public administration. This does not reflect any decline in the overall level of involvement by government in the economy or society. Rather it seems to reflect changing perceptions of what is needed to succeed in public administration.
This in turn raises the very important issue of what we as a society expect from our future public administrators. While many management skills are common to both business and the public sector, public administration needs to extend beyond the limits of business management to comprehend issues such as accountability, probity and policy processes. Indeed it is increasingly being recognised that what is at stake is not just management per se, but rather the broader array of relationships involved in good governance.
The Institute of Public Administration Australia has over the years played an important role in bringing practitioners and teachers together to help foster a better appreciation of these issues. Now more than ever, when the public sector is experiencing considerable change, there needs to be a lively forum where these broader issues of public administration can be debated and new approaches can be tested.
The National Council of the Institute has accordingly been considering how the Institute might encourage a wider public appreciation of good governance. In order to assist in this process and to provide some guidance to spokepersons, the Council has agreed the following Statement. We hope that all members of the Institute will find this Statement helpful and will be encouraged to promote the ideals it seeks to uphold.