News: Unsuccessful High Court litigants succeed at the UN

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Last week brought news that NSW prisoners Bronson Blessington and Matthew Elliot succeeded in a complaint to the United Nations Human Rights Committee. Now in their forties, the pair were teens when they raped and murdered Janine Balding in 1988 and were in their thirties when the High Court rejected their appeals against their life sentences in 2007. The Human Rights Committee’s finding – that a NSW law that barred their parole until they were near death violated their right against cruel, inhumane or degrading treatment under the International Covenant on Civil and Political Rights – was foreshadowed by Kirby J ten years ago during a constitutional challenge to similar laws:

At the time of the offence for which Mr Blessington was convicted and sentenced, he was 14 years of age…. On a true construction of the impugned law, Mr Blessington’s “possibility of release” is, in my view, a chimera, and deliberately so. If that is the case, the impugned law is in conflict with binding international obligations expressing universal human rights and fundamental freedoms.

However, Kirby J was the only High Court judge to hold that the laws were invalid. In 2012, the High Court unanimously rejected a challenge to even stricter laws to largely prevent the parole of Elliot, Blessington and eight other New South Wales prisoners, the subject of the Committee’s recent finding.

The UN Committee’s finding does not overturn or even bring into question the High Court’s rulings. Rather, the two bodies apply completely different laws. The  High Court rules on Australian law (such as the meaning and constitutionality of the NSW parole laws), while the Human Rights Committee makes findings on international law (specifically whether Australia has violated the International Covenant on Civil and Political Rights.) As well, the bodies have completely different status in Australia. The High Court’s rulings are automatically enforced by all Australian courts, while the UN Committee’s findings are simply communicated to the Australian government, who can (and often does) ignore them. As Heydon J observed in Roach v Electoral Commissioner [2007] HCA 43, the High Court itself typically ignores the Committee’s rulings too, at least in constitutional matters:

[T]he plaintiff relied for its construction on comments by the United Nations Human Rights Committee… But the fact is that our law does not permit recourse to these materials. The proposition that the legislative power of the Commonwealth is affected or limited by developments in international law since 1900 is denied by most, though not all, of the relevant authorities – that is, denied by 21 of the Justices of this Court who have considered the matter, and affirmed by only one.

The ‘one’ exception is, of course, Kirby J, who is now a member of a different UN human rights body.

Blessington & Elliot v Australia is at least the fourth occasion when an unsuccessful litigant in the High Court was successful in a subsequent complaint to the UN. Three earlier cases were:

These paired decisions reflect how the human rights complaint system operates.  The First Optional Protocol to the ICCPR states that:

individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.

In other words, to succeed in the UN, you must first fail in Australia, including (typically) before the High Court. Many of the twenty other Australians who have succeeded before the Committee (see here and here) were first refused special leave by the High Court. The remainder were able to convince the Committee that a High Court challenge would be fruitless, in light of the Court’s own precedents or the limits of its role in Australia.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

5 thoughts on “News: Unsuccessful High Court litigants succeed at the UN”

  1. Out of interest, has any of the 21 successful applicants to the UNHRC obtained any advantage in Australia as a result of the UNHRC finding?

  2. The Cth A-G’s website lists the federal government’s response on ten communications. Those responses mostly take issue with the UNHRC’s findings and invariably reject any remedy of compensation. But, in some cases, the communication also notes changes in the circumstances of the applicant and/or alterations to the relevant law or procedures, albeit not necessarily in response to the UNHRC decision. And, of course, the government always ‘avails itself of this opportunity to renew to the Human Rights Committee the assurances of its highest consideration’.

    I’m not sure of the outcome of earlier UNHRCom cases, except for one. In Toonen v Australia, the first time the UNHRC found a violation of the ICCPR by Australia, the Committee said: ‘In the opinion of the Committee, an effective remedy would be the repeal of sections 122 (a) and (c) and 123 of the Tasmanian Criminal Code.’ Those sections were repealed about three years after the finding, on 14 May 1997. A more direct consequence of the decision is the potential support it provided for Commonwealth legislation on the topic under its external affairs power. The Commonwealth’s Human Rights (Sexual Conduct) Act 1994 commenced twenty years ago this month, and may have rendered the Tasmanian laws inoperative since that time. However, the Tasmanian laws were repealed before the High Court could rule on those matters.

    The UNHRCom in Blessington and Elliot recommended remedies, including compensation, but also changes to laws on the life imprisonment without effective parole for people who committed crimes as children, for Blessington and Elliot and for other past and future offenders. Those changes could be enacted by the NSW parliament or (relying on its external affairs power) by the Commonwealth parliament. The government has 180 days to respond to the UNHRCom.

    • Since my admittedly fuzzy recollection is that Veen was still a minor at the time of his first crimes I suspect that recommendation will not impress the NSW government nor the High Court! No one wants to be in that boat again, even if it might be a smaller price to pay than the price of measures taken to avoid being back in it.

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