Use of the International Covenant on Civil and Political Rights by the Australian High Court (Part 1)

This article explores how the High Court of Australia (‘High Court') has used the International Covenant on Civil and Political Rights (‘ICCPR or Covenant'). It identifies, categorises and analyses judgments in which a reference was made to the Covenant, and considers how the Court has used the ICCPR in the context of checks on executive-decision making and constitutional interpretation. The ICCPR has not been incorporated into domestic law. Nevertheless, the High Court referred to the Covenant in 161 cases up until the end of 2024, and judges have ‘used' the Covenant in different ways. The majority of judges have not given the ICCPR systematic legal effect in judgments on executive power and the Australian Constitution (‘Constitution’). Judges have retained their literal/legalist approach to the Constitution, even during a period in which judgments in more than 17 per cent of cases referenced the ICCPR. Kirby J was the only judge who consistently argued the ICCPR should be taken into account when interpreting the Constitution and his tenure coincided with the highest number of references to the Covenant in judgments. Since his retirement in 2009, the High Court seems to be once again in agreement on the irrelevance of international law for constitutional interpretation

Civil rights · Constitution · High Court · International Covenant on Civil and Political Rights · Politics · Statutory interpretation · Commonwealth, Australian Politics and Federalism · Evolving Legal Systems and Governance · Legal case studies and regulations