Re Kavanagh's Application

The applicant, a former employee of the Tasmanian Government, sought leave from the High Court to issue proceedings. These proceedings aimed to obtain declarations that his right to a fair hearing had been violated in earlier litigation in the Supreme Court of Tasmania and that the High Court had jurisdiction to hear an appeal on such grounds, invoking the International Covenant on Civil and Political Rights (ICCPR). The applicant had previously been unsuccessful in an application for special leave to appeal from the judgment of the Full Court of the Supreme Court of Tasmania.

The central legal issues before the High Court were whether the ICCPR, as an unincorporated treaty, could override or circumvent clear domestic statutory law, specifically the provisions of the Judiciary Act 1903 requiring special leave to appeal. The court was also required to determine if the applicant's propositions, based on the alleged effect of the ICCPR, were reasonably arguable in the context of Australian domestic law and the existing statutory framework governing appeals to the High Court.

Kirby J reasoned that Australian courts derive their authority from the Constitution and must obey laws made under it. While acknowledging the growing influence of international law, his Honour held that unincorporated treaties like the ICCPR do not, in themselves, oust or override municipal law. The applicant's belief that the ICCPR could be used to circumvent the clear language of the Judiciary Act was mistaken and fatal to his application. The court found that the proposed declarations and orders would be inconsistent with the statutory requirement for special leave to appeal, and that the applicant's propositions were not reasonably arguable.

Consequently, the application for leave to issue the proceeding was dismissed.