The defendant had been convicted in a lower court of serious offenses involving the trafficking of narcotics. He could not afford counsel and legal aid societies refused him assistance. Australia, by this time, was an adherent to the International Covenant on Civil and Political Rights, which included in its provisions the right to legal counsel for defendants, provided for by the state. In a joint statement, Chief Justice Mason and Justice McHugh of the Australian High Court said,

“Assuming, without deciding, that Australian courts should adopt a similar, common-sense approach, this nevertheless does not assist the applicant in this case where we are being asked not to resolve uncertainty or ambiguity in domestic law but to declare that a right which has hitherto never been recognised should now be taken to exist. Moreover, this branch of the applicant’s argument assumes that art. 14(3)(3) of the ICCPR supports the absolute right for which he contends. An analysis of the views of the Human Rights Committee on communications submitted to it relating to art. 14(3)(d) reveals little more than that the Committee considers that legal assistance must always be made available in capital cases . . . However, the European Court of Human Rights has approached the almost identical provision in the ECHR by emphasising the importance of the particular facts of the case to any interpretation of the phrase ‘when the interests of justice so require’ . . . As will become clear, that approach is similar to the approach which, in our opinion, the Australian common law must now take.” (para. 20)

They also said,

“Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions . . . No such legislation has been passed. This position is not altered by Australia’s accession to the First Optional Protocol to the ICCPR, effective as of 25 December 1991, by which Australia recognises the competence of the Human Rights Committee of the United Naations to receive and consider communications from individuals subject to Australia’s jurisdiction who claim to be victims of a violation by Australia of their covenanted rights. On one view, it may seem curious that the Executive Government has seen fit to expose Australia to the potential censure of the Human Rights Committee without endeavouring to ensure that the rights enshrined in the ICCPR are incorporated into domestic law, but such an approach is clearly permissible.”

The High Court then proceeded to declare a right to free legal assistance in serious criminal cases as an aspect of the common law right to a fair trial. Thus, in serious cases where a defendant could not afford counsel, the courts would have to issue a stay of proceedings until legal counsel could be provided, by whatever means. In so holding, the Court did not declare whether the ICCPR right to legal counsel provision had become customary or general international law. However, the Court was clearly influenced by it. Thus, when the common law was unclear and domestic law did not contradict international law, the Australian High Court could show a willingness to at least be influenced by such international law.

(found in Toward Implementing Universal Human Rights: Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee, ed. Nisuke Ando, pp. 254-255, 257)