Collins v State of South Australia No. Scgrg-95-97 Judgment No. S257

COLLINS v THE STATE OF SOUTH AUSTRALIA
[1999] SASC 257

MILLHOUSE J. The plaintiff, Robert Wayne Collins at the time of the summons in this action dated 13 February 1997, had been an inmate of the Adelaide Remand Centre for over two years. He has throughout been conducting the proceedings in person.
Leave to serve the summons on the Department of Correctional Services was granted on 28 February 1997. Bollen J then adjourned the matter to the Chamber List. My brother Williams heard submissions. Noting the seriousness of the allegations, Williams J granted both parties further time to prepare their arguments. Ms De Palma, for the Department of Correctional Services, pointed out that under section 5(2)(a) of the Crown Proceedings Act (SA) 1992, the name of the defendant should be “The State of South Australia”: my brother ordered the change of name. I now set out the relief sought by the plaintiff in the amended summons dated 24 March:
“LET THE STATE OF SOUTH AUSTRALIA ... after the service of this summons on them cause an Appearance to be entered for them to this summons which is issued by ROBERT WAYNE COLLINS ... seeking from the Court declarations and orders by way of judicial review pursuant to Rule 98.01 of the Supreme Court 1987 as follows:-
1...... Under the United Nations Congress on the Prevention of Crime and the treatment of Offenders, held in Geneva in 1955 and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. The Standard Minimum Rules for the Treatment of Prisoners and in particular:-
1:1. That the Defendant immediately remove all prisoners that are housed in the Adelaide Remand housed in Cells of two persons (Doubled Up) (Part C Prisoners Under Arrest or Awaiting Trial, Section 86);
1:2. That the Defendant immediately put into place all other conditions of the Standard Minimum Rules for the Treatment of Prisoners and all other relevant standard;
2. That the Defendant do forthwith make a covenant to the Honourable Court that the conditions of the abovementioned Rules be implemented within (7) days of the service of this Order or notice thereof being given;
3...... That the Defendant do forthwith remove all double bunks in the Adelaide Remand Centre and return all accommodation cells to single beds;”
The matter next came before my brother Duggan. He on 24 April decided that the summons was an application for judicial review and ordered, pursuant to Supreme Court Rule 98.07, that it be heard by a single judge.
On 16 May Acting Master Boehm dealt with an application by the plaintiff for discovery. He thought that a number of preliminary points of law, if decided against the plaintiff, could make the question of discovery a non issue. He made this order:
“1. That there be no order for discovery at this stage.
2. That the costs of that application be referred to the trial judge.
3...... That further consideration of the application be referred to the trial judge should he be of the opinion that some order for discovery should be made prior to the hearing before him, bearing in mind that the initial matter for consideration will be a question of law.”
I had a directions hearing on 16 June and ordered that all questions of law which could be determined without evidence should be so determined before any trial proceed. In particular, I had in mind the status of the Standard Minimum Rules for the Treatment of Prisoners and the International Covenant on Civil and Political Rights which is contained in a schedule to the Human Rights and Equal Opportunity Commission Act (Cth) 1986.
On 1 September 1997 I heard argument. It soon became apparent that the plaintiff was not seeking a declaration at all. He had worded his summons in such a way that, really, he was seeking a mandatory injunction against the Crown. He was requiring the defendant to do certain positive acts: to remove all prisoners housed in the Adelaide Remand Centre from situations of “doubling up”: otherwise immediately to observe all other conditions of the Standard Minimum Rules for the Treatment of Prisoners.
Section 7 of the Crown Proceedings Act (SA) 1992:
“Injunctive relief
7. (1) Subject to subsection (2), injunctive relief may be granted against the Crown.
(2) A mandatory injunction cannot be granted against the Crown.”
This was fatal to the plaintiff's claim for relief. He was clearly asking for a mandatory injunction. Consequently, I suggested to the plaintiff that he amend his summons to ask for only a declaration. The plaintiff accordingly amended his summons to read:
“1..... A declaration that the Defendant is bound by law to treat prisoners detained by it in accordance with the “Standard Minimum Rules for the Treatment of Prisoners” as promulgated by resolution 663 C (XXIV) and 2076 (LXII) of the United Nations Congress on the prevention of Crime and the treatment of offenders AND by its practice of compelling prisoners to live within the Defendant’s prison at Adelaide Remand Centre at 208 Currie Street Adelaide in the said State and elsewhere within the said State AND in so far as the Defendant shall compel prisoners to occupy in pairs in a single roomed cell the Defendant is thereby in breach of its lawful obligations as aforesaid.
2.A further declaration that for so long as the Defendant shall detain the Plaintiff as a prisoner of the Defendant and in course of such detention shall compel the Plaintiff to occupy a one roomed cell the Plaintiff is entitled to such occupation free of the company of any other person.”
I came back to the matter on 11 March 1999.
Miss Judith Bradsen for the defendant State of South Australia argued that paragraph two still seeks a mandatory injunction. I accept that it does. Thus I cannot grant the relief sought in that paragraph. The defendant did concede however that paragraph one is appropriately worded for a declaration. Therefore I consider whether any declaration can or should be made.
I received evidence on affidavit and heard submissions from the plaintiff in person and Dr Genevieve Ebbeck for the defendant. I propose to set out parts of several affidavits, as, I suggest, they shew a disturbing state of affairs.
The plaintiff’s primary complaint concerns what is termed “doubling up”: when one inmate is made to share a cell, at a corrective institution, with another.
The Remand Centre was opened in 1986. It was originally built for remand prisoners, that is prisoners awaiting trial and not yet convicted. More recently the prison system has become an amalgam: all sorts of prisoners are found in almost all correctional institutions. Certainly the defendant does not deny that the Adelaide Remand Centre houses both convicted and prisoners awaiting trial. In the latter group there are alleged first offenders and those who may have offended many times. If “doubling up” is as common in the Adelaide Remand Centre as the evidence suggests, then it is quite likely that an alleged ‘possibly innocent’ prisoner is made to share with a convicted person. This is quite undesirable.
The figures detailing the extent of “doubling up” are set out in the affidavit of Mr Jim Konstad dated 18 April 1997. He was at the time the Acting General Manager of the Adelaide Remand Centre:
“ ‘doubling up’ at the ARC
69.... When the ARC first opened, each cell contained one single bed and was occupied by one prisoner. The maximum capacity of the ARC at that time was 159, excluding the 6 separation cells.
70. In 1994, all beds in ground level cells in Units 1-5 were replaced by double bunk beds. In addition, all cells in Units 6 and 8 were also fitted with double bunk beds.
71.... This increased the capacity of the ARC by 89 making a total capacity of 248, excluding the 6 separation cells. By end of 1994 all cells fitted with an additional bed were used to house 2 prisoners as required. The housing of 2 prisoners in 1 cell has come to be known as ‘doubling up’.
...
73.... In December 1996, 4 cells on the mezzanine level of Units 1-5 were also fitted with double bunk beds. This has increased the capacity of the ARC by 20 to 267, excluding the separation cells. This cells are not currently operational as a double cell and will not be used to house 2 prisoners until such time as the air conditioning system is upgraded.
...
75.... Doubling up is a temporary measure employed to overcome overcrowding.
76.The average daily prisoner numbers have increased since 1992/1993 as follows:
1992/1993                  1,132
1993/1994                  1,222 - an increase of 7.9% from the base year
1994/1995                  1,363 - an increase of 20.4 % from the base year
1995/1996                  1,423 - an increase of 25.7% from the base year.
77. . In addition, since the South Australia Police stopped transporting prisoners to and from court in December 1996, the Department can no longer rely on excess remand prisoners being held in Police cells.
78.Rule 9(1) of the Standard Minimum Rules for the Treatment of Prisoners (“the Standards”), does not prohibit doubling up for special reasons such as temporary overcrowding.
79.. A prisoner is only doubled up at the ARC when no single accommodation is available.”
The plaintiff in his affidavits makes serious allegations regarding the effect “doubling up” has had in the Adelaide Remand Centre. Among the allegations are these:
“7:1. There have been two reported rapes in the unit I have been housed in, that is unit two. There have been at least two other unreported rape incidents that I am aware of.
7:2There have been many bashings and incidents where persons have been assaulted along with stand over tactics towards other prisoners and their goods.
...
7:4The quality and life and feeling of safety at the Adelaide Remand Centre has decreased dramatically since the doubling up has commenced.
7:5... There have been several incidents that have involved the assaulting of Officers that have been exacerbated due to the extra tensions placed on all person as a direct result of the doubling up of cells.
...
7:8... The Department has caused inmates who are non smokers to occupy a cell with another person who is a smoker. The Department also demand this person to sign a waiver so as they cannot make a claim against the Department of Correctional Services. If an inmate refuses to occupy a double up cell then they have all privileges removed and transferred to the punishment unit. This has happened on at least two occasions whilst my stay at the Remand Centre.
7:9The Department with no regard to the safety of other inmates place persons with communicable diseases with person with no disease. Whilst I have been in the Adelaide Remand Centre I have known of at least one person who contracted a disease from another whilst using his shaver.”
Mr Konstad answers the allegations:
“(With respect to 7:1) ... Departmental records indicate that 4 alleged rapes have been reported to Correctional staff since the ARC was opened. Two of the alleged rapes were reported prior to the commencement of ‘doubling up’, and two were reported following the introduction of ‘doubling up’, namely in 1995/1996;
(7:2) ... Departmental records indicate that assaults by prisoners upon other prisoners have occurred at the ARC from time to time. These assaults have occurred both before and after the commencement of doubling up. In 1992/1993, 17 assaults by prisoners upon other prisoners were reported at the ARC. In 1993/1994 and 1994/1995, 12 assaults were reported, respectively. In 1995/1996, 20 assaults were reported. (Sexual assaults are included in these statistics);
(7:4) ... the defendant denies the allegations contained therein;
(7:5) ...departmental records indicate that Correctional Officers at the ARC are assaulted by prisoners from time to time. These assaults have occurred both before and after doubling up. Departmental records indicate that in 1992/1993, 2 assaults by prisoners on Correctional Officers were reported at the ARC. In 1993/1994, 6 such assaults were reported. In 1994/1995 eleven such assaults were reported. In 1995/1996, 9 such assaults were reported. I am unaware of any assault upon a Correctional Officer that was exacerbated or caused by alleged extra tensions placed on all persons as a direct result of the doubling up of prisoners;
(7:8) ... smoking is only allowed in the cells (and the yards). A non smoking prisoner will only be required to share a cell with a smoking prisoner when no other accommodation is available. Such occurrence is rare. The ARC does not require a non smoking prisoner to sign a ‘disclaimer’ where that prisoner is require to share a cell with a smoker. However, when a non smoking prisoner specifically requests to double up with a smoker, the non smoker will be required to sign a ‘disclaimer’. In the event that a non smoker was required to double up with a smoker due to lack of accommodation, and the non smoker refused, he would most likely be placed in Separation Unit 7. I recall one occasion where a non smoker refused to double up with a smoker and consequently was placed in Unit 7. The prisoner was moved to single accommodation as soon as it became available. The prisoner only spent 12 hours in Unit 7.
(7:9) ... the defendant admits that prisoners with communicable diseases are placed with other prisoners but denies that it has no regard for the safety of inmates in doing so. If a prisoner has a disease or illness that requires the prisoner to be separated because the disease or illness is contagious, the prisoner will be housed in the infirmary, a single cell or Unit 7. Correctional staff rely upon the advice of Prison Medical Services in connection with the placement of inmates with contagious diseases. I am unaware of any incidents where a prisoner has contracted an illness or a disease from another prisoner whilst using that prisoner’s shaver. Had a prisoner caught such a disease or illness by using another prisoner's shaver, I would have expected the medical staff to raise this as an issue. I am unaware of such a matter being raised by medical staff.”
There is reason, I suggest for real concern about the affects of “doubling up” at the Remand Centre: an increase in assaults on staff: at a time where non-smoking is encouraged, non smokers are made to share with smokers or are punished if they refuse: any rape or assault on any person is absolutely unacceptable. It is clear that “doubling up” has continued to increase. The assertion that this is a temporary measure is obviously wrong. “Doubling up” has been occurring at the Adelaide Remand Centre since 1994 and renovations in 1996 were made to increase the “doubling up” capacity. How can "doubling up" be regarded as a temporary measure? Five years is not temporary. It is one thing, though, to state the problem. It is another to be able to grant relief at law.
I turn now to the arguments of law about that. First, I refer to the Standard Minimum Rules for the Treatment of Prisoners. These Rules were adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1955. They were approved by the Economic and Social Council of the United Nations by its resolutions 663 C (XXIV) of 31 July 1987 and 2076 (LXII) of 13 May 1977. The plaintiff argued that the Australian Government being a signatory to the United Nations has agreed to abide by these Rules. He complains of many breaches. I do not set them out, but refer to a number of relevant paragraphs of the Rules:-
“RULES OF GENERAL APPLICATION
...
Accommodation
9.(1) Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room.
...
C.PRISONERS UNDER ARREST OR AWAITING TRIAL
...
85.(1)Untried prisoners shall be kept separate from convicted prisoners.
...
86.Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.”
From the evidence there have been breaches of the Rules. Even now untried prisoners share the same facilities and possibly the same cells as convicted prisoners. Untried prisoners are not being separately housed and “doubling up” is not, as I have said, a temporary strategy.
Yet, is the State of South Australia bound by these Rules? The plaintiff argued that a legitimate expectation exists, when a person enters a correctional institution that he will be protected by the Department of Correctional Services, that the Minister and departmental officers will act conformably with any Convention and/or rules to which Australia is a signatory. He cited the High Court decision of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (@ 291 per Mason CJ and Deane J):
“... Rather ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention”
Having put the argument the plaintiff had to concede the Standard Minimum Rules for the Treatment of Prisoners are "not a Convention” and have “moral force only on its own and is to be used to interpret other Conventions”.
The defendant put that the Minimum Rules do not have the status of a treaty or convention. Rather they contain a code of conduct or basic guidelines. This is made clear in the first two clauses of the Rules themselves:
“PRELIMINARY OBSERVATIONS
1. The following rules are not intended to describe in detail a model system of penal institutions. They seek only, on the basis of the general consensus of contemporary thought and the essential elements of the most adequate systems of today, to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.
2. .... In view of the great variety of legal, social, economic and geographical conditions of the world, it is evident that not all the rules are capable of application in all places and at all times. They should, however, serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application, in the knowledge that they represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations.”
The Minimum Rules are not a convention, treaty or covenant. They do not impose obligations on signatories. They merely declare principles. Consequently there are no obligations in International Law arising from them.
Furthermore, the defendant argued that the Minimum Rules have not become part of domestic law. Dr Ebbeck also referred to Teoh’s case (@ 286-287 per Mason CJ and Deane J):
“It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.”

The Minimum Rules have not been enacted nor are they a schedule to any current State or Commonwealth law. They have however been utilised to construct a policy document entitled “Standard Guidelines for Corrections in Australia 1996”. Paragraph two of the preface:
“The Minimum Standard Guidelines for Australian Prisons was based on the United Nations Standard Minimum Rules for the Treatment of Prisoners and related recommendations and the Council of Europe Standard Minimum Rules, and modified to accommodate trends in correctional thinking in Australia during the 1970’s. Their purpose was to set standards for the conduct of prisons in Australia.”
Paragraph seven of the preface:
“These guidelines are not intended to be law or to be treated as absolute; they are for guidance. Whilst ultimately the desirable level of implementation is a political decision based on legislative provisions, government policies and the availability of resources, the guidelines do provide a base for protecting human rights in Corrections in Australia.”
Neither Guidelines nor Minimum Rules on which they are based have the force of law. This part of the plaintiff’s argument therefore fails.
The plaintiff did put another argument not explicitly set out in his summons. Rather than have the summons further amended and the matter adjourned again, I heard the argument. It involves the status of the International Covenant on Civil and Political Rights. The Covenant is a schedule to the original Human Rights and Equal Opportunity Commission Act (Cth) 1986. The plaintiff argues that certain Articles in the Covenant have been breached. As well, that the Covenant has been enacted into domestic law and is binding on the State of South Australia. He asked for a declaration that the State of South Australia through the Department of Correctional Services has breached human rights in accordance with the Articles contained in the Covenant.
There is one article particularly apposite:
“Article 10
1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
2.(a). Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to treatment appropriate to their status as unconvicted persons;”
The plaintiff asserted that there is no respect for human dignity when one is made to go to the lavatory within one metre of the person in the bottom bed and in his full view. Accused persons are not segregated from convicted persons in the Adelaide Remand Centre. The plaintiff is an example: he is a convicted prisoner who had been housed in the Adelaide Remand Centre with accused persons for about three years. I do not know how many other convicted persons are housed at the Adelaide Remand Centre but I expect the plaintiff is not the only one. This treatment of accused persons, not yet convicted, makes a mockery of one of the cornerstones of criminal law, the presumption of innocence. If all prisoners, accused and convicted, are treated alike, how can it be said that the presumption of innocence is taken seriously by the Department of Correctional Services? The Standard Guidelines for Corrections in Australia detail how remand prisoners ought to be treated:
“Remand Prisoners
5.15. Remand prisoners are presumed to be innocent until found guilty, and as such must be treated without restrictions other those necessary for prison organisation and the security of the prison and the prisoner.
5.16. The treatment of remand prisoners must not be less favourable than that of sentenced prisoners.
5.17. Where practicable remand prisoners must not be put in contact with convicted prisoners against their will.
5.18. Remand prisoners may be given the opportunity to wear their own suitable clothing.
5.19. Where work is available, remand prisoners should be offered the opportunity to work, but must not be required to work.
5.20. Remand prisoners should be allowed to procure at their own expense or at the expense of a third party such books, newspapers, writing material and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the prison.”
I am satisfied on the evidence I have been given that Article 10(1) and Article 10(2) of the Covenant have been breached at the Adelaide Remand Centre.
The Covenant is a schedule to the Human Rights and Equal Opportunity Act (Cth) 1986 and has been since the Act was passed. It was not attached at a later date and cannot be said to be an afterthought. The Covenant represents and gives force to the human rights sections of the Act. Section 13 of the Acts Interpretation Act (Cth) 1901:
“Headings, schedules, marginal notes, footnotes and endnotes
(1) The headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act.
(2)... Every schedule to an Act shall be deemed to form part thereof.
(3)No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act."
The International Covenant on Civil and Political Rights has therefore been enacted into domestic law by virtue of it being a schedule to the Human Rights and Equal Opportunity Commission Act.
Support for this view can be found in the Family Court decision of Re Marion (1990) 14 Fam LR 427. In that case Nicholson CJ considered the status of the Declaration of the Rights of the Child, also a schedule to the Human Rights and Equal Opportunity Commission Act:
“It seems to me that the Act and its Schedules constitute a specific recognition by the parliament of the existence of the human rights conferred by the various instruments within Australia and, that it is strongly arguable that they imply an application of the relevant instruments in Australia.
It now seems to me to be inconsistent with the whole purpose of the Act to assert that the human rights which the Act requires the commission to protect are not rights which are recognised by Australian domestic law. (@ 449)
...
I now think it strongly arguable that the existence of the human rights set out in the relevant instrument, defined as they are by reference to them, have been recognised by the parliament as a source of Australian domestic law by reason of this legislation.” (@ 451)
Legoe AJ also considered the issue in R v Carbone (1995) 82 A Crim R 1 (@17):
“The Human Rights and Equal Opportunity Act (HREOC Act) is an Act of limited application. It establishes the Human Rights and Equal Opportunity Commission and the office of Aboriginal and Torres Strait Islander Social Justice Commission. Certain international documents, including the international covenant on civil and political rights, are scheduled to the Act; the ‘rights’ contained in the covenant thereby become ‘human rights’ for the purposes of the Act.”
If the Covenant is part of our domestic law, is it binding on the State of South Australia? Unfortunately for the plaintiff's argument, the Act makes it clear how far it affects a State:-

“.................. Extent to which Act binds the Crown

6 (1)This Act binds the Crown in right of the Commonwealth and of Norfolk Island but, except as otherwise expressly provided by this Act, does not bind the Crown in right of a State.
(2) Nothing in this Act renders the Crown in right of the Commonwealth, of a State or of Norfolk Island liable to be prosecuted for an offence.”

The State of South Australia is not to be bound by the Act unless expressly provided. Only Part II Division 4 of the Human Rights and Equal Opportunity Commission Act makes such an express provision. The division deals only with functions relating to equal opportunity in employment. The inevitable conclusion is that the State is not bound.
May it be argued that the Covenant in its own right has force in law? Kirby P in Daemar v Industrial Commission of New South Wales & Ors (1988) 12 NSWLR @ 45 considered the International Covenant on Civil and Political Rights in interpreting the Federal Bankruptcy Act:
“It is obviously a serious matter to deprive any person of the important civil right of access to the courts, especially one might say where the public law is invoked and where an allegation is made that the public officials have not performed their legal duties or have gone beyond their legal powers. This starting point in the approach by a court to the construction of the Act derives reinforcement from the International Covenant on Civil and Political Rights: see articles 14.1 and 17. Australia has ratified that Covenant without relevant reservations. The entitlement of persons with a relevant interest to invoke the protection of the courts to ensure compliance with the law is so fundamental that the Act would be interpreted, whenever it would be consonant with its language, so as not to deprive a person of that entitlement.”
It is a powerful statement but falls short of expressing the view that the Covenant is legally binding.
The plaintiff brought to my attention Justice Kirby’s article “The Australian use of International Human Rights Norms: From Bangalore to Balliol - A view from the Antipodes” (1993) 16(2) UNSW Law Journal 363. The learned judge talks of the “Bangalore Principles” and how they can be used within the judicial system:
“The Bangalore Principles acknowledged that in most countries of the common law such international rules are not directly enforceable unless expressly incorporated into domestic law by legislation. But they went on to make these important statements:
......... ‘[T]here is a growing tendency for national courts to have regard to these international norms for the purpose of deciding cases where the domestic law - whether constitutional, statute or common law - is uncertain or incomplete.’
.‘It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes - whether or not they have been incorporated into domestic law - for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.’ ”
Support for these propositions comes from the judgment of Brennan J in Mabo v State of Queensland (1992) 107 ALR 1 (@ 29):
“Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.”
International law may be a legitimate consideration when developing the common law. Brennan J also goes further than the “Bangalore Principles”: he seems to be of the view that there is no requirement for the common law to be ambiguous or uncertain.
Minister for Immigration and Ethnic Affairs v Teoh followed Mabo and Dietrich v The Queen (1992) 177 CLR 292, both of which advocated using international law to develop the common law. Teoh’s case held that a legitimate expectation arose under the United Nations Convention on the Rights of the Child that the Executive Government and its agencies would act in accordance with the terms of the Convention, even when those terms have not been incorporated into Australian domestic law: The expectation existed whether or not the individual knew of the said convention or not. On the importance of international conventions Mason CJ and Deane J said (@ 291):
“Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.”
On publication of the decision in Teoh came many ministerial statements, both at Commonwealth and State level, indicating that “treaties do not create legitimate expectations in administrative law”. At present before the Commonwealth Parliament is the Administrative Decisions (Effect of International Instruments) Bill 1997, its purpose to remove any legitimate expectation that Australians may have with respect to any international instrument entered into by the executive arm of Government. It includes those treaties not yet incorporated into domestic law and any domestic law which refers to such instruments.
South Australia has enacted its own legislation, the Administrative Decisions (Effect of International Instruments) Act (SA) 1995:
“SECTION 2
Interpretation
2. .... In this Act-
“international instrument” means-
(a)a treaty, convention, protocol, agreement or other instrument that is binding in international law; or
(b)a part of such a treaty, convention, protocol, agreement or other instrument.
SECTION 3
Effect of international instruments
3.(1)    An international instrument (even though binding in international law on Australia) affects administrative decisions and procedures under the law of the State only to the extent that the instrument has the force of domestic law under an Act of the Parliament of the Commonwealth or the State.
(2) It follows that an international instrument that does not have the force of domestic law under an Act of the Parliament of the Commonwealth or the State cannot give rise to any legitimate expectation that-
(a)     administrative decisions will conform with the terms of the instrument; or
(b)    an opportunity will be given to present a case against a proposed administrative decision that is contrary to the terms of the instrument.
(3) However, this Act does not prevent a decision-maker from having regard to an international instrument if the instrument is relevant to the decision.”
The Act makes two things clear. First, there is no redress for this plaintiff or any other plaintiff in this State, arising from international law. As far as I know the only introduction of international treaties into domestic law appears to be the schedules in the Human Rights and Equal Opportunity Commission Act, which makes it clear that such treaties are not binding on the States.
Secondly, the effect of the Act in South Australia is to make Australia’s involvement in international conventions “merely platitudinous and ineffectual”. As a recent Amnesty International News Release (dated 20 June 1997) put it:
“ ‘This is the latest in a series of steps by the Australian Government which effectively undermine their commitment to human rights. On the one hand, it is telling the world that it is bound by the treaties it has ratified - and in some cases helped to develop. But on the other hand, with this draft law, the government is giving its people and the world a very different message.”
Much as I regret it, as a single judge I am not able to give force to the basic human rights set out in these conventions.
This said, Toonen v Australia (1994) (Human Rights Committee, 50th Session, Communication No: 488/1992) provides some hope for the future. The plaintiff sought relief through the Human Rights Committee in Geneva. The Committee found that prohibiting consensual sexual acts between men, in private, was in breach of Articles 2.1 and 17.1 of the International Covenant on Civil and Political Rights. A determination of the Committee is not enforceable in Australia, as our law does not provide for the enforcement of the Committee’s decision. Yet the finding placed Australia under international scrutiny. Consequently, the Commonwealth Parliament enacted the Human Rights (Sexual Conduct) Act (Cth) 1994, providing that there should not be any arbitrary interference with sexual conduct involving only consenting adults acting in private.
All this apart, there is another obstacle in the plaintiff's way. He seeks a declaration that human rights have been breached with respect to the “doubling up” situation. A declaration is not to be given where the matter is theoretical or hypothetical. A matter is considered to be hypothetical where it is impossible or inconvenient to give the applicant any practical relief, A-G v Colchester Corporation [1955] 2 All ER 124, Merricks v Nott-Bower [1964] 1 All ER 717. Here the only practical relief is to remove all “doubled up” cells. This is not practical. Mr Konstad describes the impossibility of the situation:
“14... If such an order were made, the ARC’s capacity would eventually be reduced by 89.
15. Thus, in order to comply with such an order the department would have to give consideration to placing mainstream prisoners in separation cells at the ARC. There are only 6 separation cells at the ARC.
16. . Given the lack of available staff and budgetary constraints, it is anticipated that such mainstream prisoners would be required to comply with the regime of separated prisoners. Separated prisoners spend 23 hours per day locked in their cells and are permitted to use the exercise yard for 1 hour per day.
...
19. . The Department would also have to give consideration to holding remand prisoners at other institutions where they would be required to mix with sentenced prisoners on mass.
20.Due to lack of available staff and budgetary constraints, remand prisoners would likely have to follow the regime of the institution in which they were housed despite their status. It is likely therefore, that they would only receive visits on weekends and would have more limited access to legal representatives. Prisoners such as Mr Collins, who are permitted to use a lap top at the ARC, may not be permitted to do so if housed at Yatala for example.
21.. A number of remand prisoners are already being held at Yatala because of the lack of room at the ARC. I understand that these prisoners follow the same regime as sentenced prisoners.
22.Departmental statistics suggest however, that holding remand prisoners in other institutions, alone would not solve the accommodation problems at the ARC in the event of a Court order requiring prisoners in the ARC to be housed singly.
23.. The Department’s maximum capacity is currently 1571 prisoners. This includes 75 beds at the women’s prison. Thus the Department’s maximum capacity for male prisoners is 1496.
24.The average daily prison population for the year 1996/7 as at the end of February was 1498 prisoners. This includes the average daily prison population at the women’s prison of 71.
25.. The Department has therefore, on average housed about 1427 male prisoners per day for the 1996/7 financial year to date.
26. If the Court ordered the Department to house prisoners in the ARC singly, this would reduce the Department’s maximum capacity for male prisoners (by 89) to 1407, and would on average mean that the Department would be unable to provide beds for approximately 20 prisoners per day."
Prisoners can't be kept without beds. Accepting what Mr Konstad says, the only way to avoid "doubling up" while keeping all prisoners within a corrective institution, would be to build new institutions. Unfortunately successive Governments, perhaps sensing that public opinion would be to spend the money on other things have not been prepared to build sufficient new prisons. It has been said that there are no votes in building gaols. The Courts cannot tell the government how it should spend its money.

Defence counsel appropriately directed my attention to the words of Brennan J in Re Citizen Limbo (1989) 92 ALR 81 (@ 82-83):
“But when one comes to a court of law it is necessary always to ensure that lofty aspirations are not mistaken for the rules of law which courts are capable and fitted to enforce. It is essential that there be no mistake between the functions that are performed by the respective branches of government. It is essential to understand that courts perform one function and the political branches of government perform another. One can readily understand that there may be disappointment in the performance by one branch or another of government of the functions which are allocated to it under our division of powers. But it would be a mistake for one branch of government to assume the functions of another in the hope that thereby what is perceived to be an injustice can be corrected. Unless one observes the separation of powers and unless the courts are restricted to the application of the domestic law of this country, there would be a state of confusion and chaos which would be antipathetic not only to the aspirations of peace but to the aspirations of the enforcement of any human rights.”
This situation is not the same as that in Toonen’s case. Toonen did not require the spending of money to give effect to the relief sought: the declaration sought by the plaintiff here would require money to be spent.
I accept that the situation about which the plaintiff complains is quite undesirable, even wrong: it is a breach of the principles in the Standard Minimum Rules for the Treatment of Prisoners. I am not able, at law, to do anything to have it improved. I express the hope, though, that the Government will.
The application is refused.

[1999] SASC 257

25 June 1999