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Charlesworth, Hilary; Chiam, Madelaine; Hovell, Devika; Williams, George --- "Deep Anxieties: Australia and the International Legal Order" [2003] SydLawRw 21; (2003) 25(4) Sydney Law Review 423

Deep Anxieties: Australia and the International Legal Order


1. Introduction

The increasing internationalisation of many aspects of Australian life, from environmental hazards to terrorist threats to securities regulation, has given new prominence to the relationship between international law and the Australian legal system. It has also been accompanied by a rise in anxiety about the international legal order. International law has become a charged and politicised field in Australia and is a regular subject of debate in the popular press. There is a fear that international law undermines Australian sovereignty or the capacity to govern ourselves as we choose. Anxiety is also fuelled by a perception (akin to a form of legal xenophobia) that international law is an intrusion from ‘outside’ into our self-contained and carefully bounded legal system. Both concerns are reflected in contemporary debates about international law such as that over whether Australia should participate in the International Criminal Court.

Australian judges who have recognised the relevance of international law to our legal system have even faced stern criticism. For example, Chief Justice Murray Gleeson of the High Court was upbraided for discussing international law at an International Bar Association conference.[1] In his speech, Chief Justice Gleeson had catalogued the various means through which international human rights law affects Australian law.[2] These remarks were characterised as being ‘[l]ike some rich kid discovering the Church of Scientology’. The Chief Justice was also described as being ‘on some evangelical road to discovering the wonders of international law’.[3]

Some view international law as a source of progressive values at odds with the conservatism of Australian law. To some extent this is correct, especially in the area of human rights. Since the Human Rights Act 1998 (UK) was enacted, Australia has been alone among western nations in not having any form of a bill of rights. As a result, Australian judges have sometimes turned to international human rights law as a source of principles and ideas in the development of the common law and in the interpretation of statutes. It is often forgotten, however, that international law can also be a source of conservative values. For example, international law accords broad immunities to serving state officials for some intentional criminal acts.[4]

The perception of international law as a source of un-Australian, fanciful and chaotic norms is connected to the politics of Australian fundamentalism — the ‘shrinking society’ described by Ghassan Hage.[5] Hage argues that Australia is a worrying, defensive society — in which anxieties about our own individual positions are projected onto the nation. Nationalism has thus become characterised by a focus on the politics of preserving our borders from outsiders.[6] Hage traces the culture of worrying to the limited way that hope and social opportunities are distributed in Australia. ‘The defensive society ... suffers from a scarcity of hope and creates citizens who see threats everywhere’, he writes. ‘It generates worrying citizens and a paranoid nationalism.’[7] One important feature of any type of fundamentalism is the way it immunises itself against any critical voices from outside.[8] The suspicion about the effect that international law might have on the Australian legal system can be seen in this context as a rejection of an outsider voice.

It is important to scrutinise carefully the influence of international law upon any domestic legal system. International legal principles have no intrinsic superiority to national legal norms. The anxiety prompted by the prospect of using international law in Australia, however, has generated exaggerated and simplistic understandings about the international legal system. In this article, we sketch a map of the interaction between the Australian legal system and international law. This is part of a larger project that will include an empirical study describing and analysing the domestic/international law interface in Australia.[9]

Our focus in this article is upon how the three arms of government in Australia at the federal level, the executive, the legislature and the judiciary, have responded to the international legal system. We chart the approach of each of these institutions and the areas in which anxieties about international law typically arise. We first outline existing scholarship on the relationship between international and Australian law. We then consider Australia’s constitutional relationship with international law. The sections that follow examine the respective roles of the executive, legislature and judiciary in relation to international law. This allows a more comprehensive understanding of the context in which international law intersects with the Australian legal order.

2. The Literature

Australia does not have a long tradition of scholarly analysis of the relationship between international and Australian law. Indeed, with a few notable exceptions,[10] the field was largely ignored until the mid-1980s, when a series of judicial decisions ignited policy debate on the extent to which international law was shaping the Australian legal system.[11] Interest in the area spurred a series of government,[12] industry[13] and academic reports,[14] as well as academic treatises.[15] The sudden outpouring of material on the subject was rather inaccurate in suggesting that the interaction between domestic and international law was a new, and even radical, phenomenon.

Much of the scholarship in this area ultimately concerns whether international law should be viewed as an ‘attack’ on the traditional pillars of Australia’s legal system.[16] Writers have tended to examine relatively few themes. These include:

1. Incorporation or transformation: In large part, the literature focuses on the use of international law by Australian courts.[17] The courts have been both criticised for overstepping the boundaries delineated by the separation of powers doctrine,[18] and lauded for ‘judicial ingenuity in fashioning approaches to particular issues where domestic law and international law interact’.[19] Although monism/dualism and incorporation/transformation[20] are common models applied to describe a domestic legal system’s relationship with international law, certain authors have noted that these are inadequate descriptors to reflect the Australian legal system’s treatment of international law.[21] Many regard the position as more nuanced, and have contributed a more sophisticated understanding of the judiciary’s approach to international law.[22]

2. Effect on the federal balance: A focus of attention following the High Court’s decisions in Koowarta and the Tasmanian Dams Case was the implications of the Court’s broad interpretation of Commonwealth power over ‘external affairs’ under s51(xxix) of the Constitution for the distribution of power between the Commonwealth and the states. Opeskin and Rothwell’s edited book, International Law and Australian Federalism, included argument by several authors that state government participation in the treaty-making and treaty-implementation processes was vital for effective governance.[23] Authors discussed the ‘threat’ posed by the external affairs power to federalism, and the potential for the Commonwealth to use its legislative power to enter into areas traditionally under state control.[24]

3. Limited role of Parliament in treaty-making process: Another theme in the literature is the limited role of Parliament in the treaty-making process. The overriding power of the executive in this area is criticised on the basis that it undermines the separation of powers between executive and legislature and the Australian system of representative government.[25] Some authors consider that the 1996 reforms that give Parliament a greater role in this process[26] did not go far enough, and that further reform is required,[27] although the proposed nature of that reform has not been addressed in detail.

The first two themes have been developed almost exclusively based on decisions of the judiciary. This may be largely due to the fact that judges provide a formal statement of reasons when determining the extent to which international legal principles affect Australia’s legal order. However, the literature’s focus on the judicial role has led to a lopsided emphasis on the judiciary compared to that of the executive and legislature. Activity by the executive, in contrast to the judiciary, usually occurs out of the public eye and legislative action, while often giving rise to strong debate, is far less frequent. Nevertheless, activity by these limbs of government is certainly no less significant.

3. The Constitutional Framework

The Australian Constitution says little about international law. The key sections that envisage some form of intersection with the international legal order are s51(xxix), which grants the federal Parliament the power to enact legislation with respect to ‘external affairs’, and s75(i) which vests the High Court with original jurisdiction in relation to ‘matters arising under a treaty’. The Constitution makes no reference to three crucial issues: the method of Australia’s entry into binding legal relationships on the international stage; the legal effect of international law within the domestic legal system; and the responsibility for enforcement of such obligations at the domestic level.

The debates of the 1890s Constitutional Conventions reveal that there was greater reference to the relationship between international law and the Australian legal system in the initial drafts of the Constitution.[28] The most important provision in this respect was clause 7 of the Commonwealth Bill 1891. This became covering clause 5 in the Commonwealth of Australia Constitution Act 1900 (Imp) which contains the Australian Constitution. Covering clause 5 is the source of binding legal obligations under Australian law, providing that ‘[the Constitution] and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth’. This clause was drafted initially to include treaties as a source of law in the Australian legal order, providing that ‘[t]he Constitution established by this Act, and all laws made by the Parliament of the Commonwealth in pursuance of the powers conferred by the Constitution, and all treaties made by the Commonwealth, shall, according to their tenor, be binding on the courts, judges, and people of every State’ [Emphasis added].

The initial clause 7 was modelled on Article VI of the Constitution of the United States, which provides that ‘[t]his Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land’. The United States Supreme Court has interpreted this provision to mean that treaties form part of United States law by a process of automatic incorporation and must ‘be regarded in courts of justice as equivalent to an act of the legislature’.[29] However, treaties that require action by Congress, such as the appropriation of funds, are not considered ‘self-executing’ and do not automatically become part of domestic law.[30]

The corresponding clause 7 of the Commonwealth Bill 1891 was amended to remove the reference to treaties on the suggestion of the Legislative Council of New South Wales at the Sydney Convention in 1897. The reason for the removal was explained by the Premier of New South Wales, George Reid:

This is an expression which would be more in place in the United States Constitution, where treaties are dealt with by the President and the senate, than in the constitution of a colony within an empire. The treaties made by her Majesty are not binding as laws on the people of the United Kingdom, and there is no penalty for disobeying them. Legislation is sometimes passed to give effect to treaties, but the treaties themselves are not laws, and indeed nations sometimes find them inconvenient, as they neglect them very seriously without involving any important legal consequences.[31]

A similar amendment was made to the external affairs power in s51(xxix), which originally contained a power to legislate as to ‘external affairs and treaties’ [Emphasis added]. The words ‘and treaties’ was struck out at the Melbourne Convention in 1898, apparently lest they be construed as involving a claim on the part of Australia to a power to enter into treaties.[32] The amendment was insisted upon by Sir Edmund Barton on the basis of the need for consistency with the amendment to initial clause 7 deleting treaties as a source of Australian law.[33]

The decision not to define the relationship with international law in the Australian Constitution therefore appears to have been based on two considerations. First, at the date of Federation, the Imperial government had exclusive control over Australia’s foreign relations. The drafters were concerned not to include any provision that might suggest that Australia was entitled to enter into treaties on its own behalf.[34] The second consideration was a concern with the nature of international law. The debates in the Constitutional Conventions reflect a perception that international law was not law, but rather a discretionary set of norms that states could neglect at will.[35] On the basis that there was then no effective enforcement regime operating in the international arena, it was seen as illogical to accord direct effect to international obligations in the domestic legal system.

Against this backdrop, it is unclear why the reference to treaties was retained in section 75(i), which gives the High Court original jurisdiction in all matters ‘[a]rising under any treaty’. Patrick Glynn, a delegate to the 1897–1898 Convention from South Australia, objected to the subsection because judicial decisions upon treaties ‘might abrogate the Imperial law or polity upon the question at issue’.[36] However, other Members of the Convention, including Reid, argued for the retention of the subsection because treaties that specifically concern Australia might one day be entered into or that ‘[s]ome day hereafter it may be within the scope of the Commonwealth to deal with matters of this kind’.[37] It is unclear why the same logic was not applied in relation to provisions relating to incorporation of treaties into Australian law, or subsequent implementation of treaties, without which it could be argued judicial consideration of treaties would not be possible.

Indeed, the prophecy that Australia might one day enter into treaties was fulfilled. While the treaty-making power was for some years after Federation regarded as possessed by the Imperial Crown, this royal prerogative became subsumed over time under the general executive power of the Commonwealth in s61 of the Constitution.[38] Moreover, the power of the legislature has been interpreted broadly to extend to implementation of rights and obligations contained in treaties ratified by Australia. On the other hand, the High Court’s power in s75(i) has been utilised rarely, and construed narrowly.[39]

The modest view taken of the significance of international law in the 1890s of course fails to capture the changed nature of the international legal order since that time. International law has been transformed from an ‘inter-state law of peaceful co-existence’[40] into a law that transcends individual state boundaries to affect domestic affairs and individuals. The globalisation process has brought with it increased co-operation among states in the regulation of economics and trade, human rights, the environment, communications, education, science, transport and so on. The lack of provision in the Australian Constitution means that the Australian legal system is able to accommodate such changes, although the manner in which it should do so is not specified. The development of mechanisms to accommodate developments in international law has been left to the executive, legislature and judiciary.

4. The Executive and International Law

Australia’s constitutional structure assigns the executive a central role in determining the extent to which international law affects the domestic legal system. The powers of the executive are not defined but vested by s61 of the Constitution in the Queen, and are exercisable by the Governor–General as her representative. Nevertheless, it is clear that the executive power grants to the executive an exclusive power to assume international obligations.[41] The executive also has the capacity to determine the manner in which international obligations are implemented domestically.

A. Assumption of International Obligations

The executive power to assume particular international obligations has political ramifications, but it is subject to no legislative or constitutional limits. Executive control in relation to international obligations is maintained through the procedural mechanisms for assuming international obligations. The drafting and negotiation of treaties, for example, is directed by the executive. The Department of Foreign Affairs and Trade (DFAT) describes the process in relation to multilateral conventions as follows:

Decisions about the negotiation of multilateral conventions, including determination of objectives, negotiating positions, the parameters within which the Australian delegation can operate ... are taken at Ministerial level, and in many cases, by Cabinet.[42]

The ratification of multilateral treaties and bilateral treaties, if necessary, must have the approval of the Federal Executive Council,[43] which is made up of all Minsters and parliamentary Secretaries.[44] Since the introduction of the reforms to Australia’s treaty-making process in 1996,[45] ratification has also become contingent on fulfilment of the parliamentary scrutiny procedures.[46] These procedures enable Parliament to scrutinise proposed treaties in detail, but do not legally constrain the executive in its decisions as to whether or not to ratify a treaty.

A corollary to the executive’s power to enter into treaties is the power to withdraw from them, subject only to the specific terms of a treaty and to general international law.[47] DFAT’s public documentation on treaty-making notes that the government ‘retains the right to remove itself from treaty obligations if it judges that the treaty no longer serves Australia’s national and international interests’.[48] Any decision to withdraw from a treaty must be approved by Executive Council and follow the parliamentary tabling procedures. Australia has rarely taken the step of withdrawing from a treaty. One example is Australia’s withdrawal from membership of the United Nations Industrial Development Organisation (UNIDO) in 1996. The grounds for the withdrawal were that:

UNIDO’s activities were not considered to make a substantial contribution to Australia’s priority development objectives; [and] ... Funding obligations did not represent value-for-money or an appropriate contribution to Australia’s aid objectives.[49]

The assumption of international obligations has varied according to a particular government’s policies, some being more anxiety-prone than others. Australia first began conducting international affairs independently of the United Kingdom with the advent of World War II. The upheaval of the war, and the important role played by HV Evatt in the creation of the United Nations, ensured an active international role for Australia during this period.[50] The Coalition governments of 1949–1972 had different domestic political imperatives, and faced different international pressures, to their Labor predecessor. The focus of the governments was therefore on external issues such as security and defence.[51] The Whitlam Labor government from 1972–1975 transformed the nature of Australia’s engagement with international law through its concentration on issues such as apartheid, labour rights, refugees and human rights.[52] The Coalition governments that followed maintained this momentum by, among other things, committing Australia to the two major international human rights conventions.[53] Subsequent Australian Labor governments largely maintained this level of engagement with international law.

The present Coalition government has retreated from a high level of engagement with international law, displaying particular ambivalence about the international human rights system.[54] This retreat is illustrated by the government’s decision in 2000 to undertake a ‘whole of government review of the operation of the United Nations treaty committee system as it affects Australia’.[55] The review was prompted by what the government considered the ‘blatantly political and partisan approach’ taken by the UN Committee on the Elimination of Racial Discrimination towards Australia’s report under the related Convention, resulting in ‘a polemical attack on the Government’s indigenous policies’.[56] The government did not release terms of reference for the review, nor did the review involve any public or non-government consultation.[57]

No official report from the review was released to the public. Instead, the results of the review were advised simply through a media release.[58] The release noted the need to ‘ensure adequate recognition of the primary role of democratically elected governments’[59] and signalled the government’s resolve to ‘adopt a more robust and strategic approach to Australia’s interaction with the treaty committee system’.[60] This approach included the creation of two interdepartmental committees to review Australia’s ongoing interaction with the UN human rights treaty committee system, and the government’s decision not to sign the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women.[61] Chris Sidoti, former Australian Human Rights Commissioner, noted in relation to the substance of the review that:

[T]here has not been a single issue on which Australia received criticism from a treaty committee that has not previously been subject the subject of criticism by the Australian Human Rights Commission and by human rights groups within Australia.[62]

Without the report of the review, it is impossible to fully assess the government’s conclusions. The circumstances of the review, however, highlight the anxieties prompted by invocations of international law. It is striking that a review on an issue of considerable public interest was conducted in secret, contrary to the government’s expressed concern for transparency and accountability within the treaty-making process.[63] The review has also left Australia in an uncertain position with respect to its international human rights obligations. Australia remains officially committed to upholding human rights at an international level, but it is hesitant to transform that commitment into domestic law.

Other examples of international law anxiety include the panic that occurred within the government party room in the lead up to Australia’s ratification of the Statute of the International Criminal Court (ICC). The Foreign Minister and the Attorney–General were long-time supporters of the ICC, and ratification of the statute was said to have been approved by Cabinet three times.[64] Nonetheless, when the time for ratification was looming, some Coalition members voiced strenuous objections to taking such action. Bronwyn Bishop, a Coalition backbencher, for example, maintained that ‘at the end of the day, we have to ensure that we protect our people against political or malicious interpretations of international arrangements into which we enter with good will. It is fundamental to us as a sovereign nation...’.[65] Australia ultimately ratified the Statute on the understanding that ‘the decision to ratify does not compromise Australia’s sovereignty’.[66]

The notion of protecting Australian sovereignty from international law also seemed to underpin the Australian Government’s 2002 vote against the adoption of an Optional Protocol to the Torture Convention.[67] The Minister for Foreign Affairs stated that the Protocol was rejected because ‘UN officials should seek the agreement of the federal, [and] ... the state governments, to have access to our prisons, not just get off the plane ... and walk into the prison.’[68] This statement is not an accurate account of the effect of the Protocol, which requires that notice be given to a government before a visit is made to any place of detention.[69] It also does not explain Australia’s decision to reject the very existence of the Protocol as Australia could simply have chosen not to become party to it. This attempt to preserve Australian sovereignty is a high watermark in Australian unease about accepting international obligations.

Australian anxiety about the international order does not extend to all categories of international law however. The government acknowledges the inevitability of globalisation and explicitly embraces some of its consequences.[70] The government is particularly enthusiastic about trade liberalisation and the potential benefits for Australia of engaging in the global trading regime. The Foreign Minister has identified trade liberalisation as the main benefit of globalisation,[71] and has described Australia’s commitment to the World Trade Organisation as ‘unswerving’.[72] This commitment is particularly evident in the government’s regular use of the WTO dispute settlement system,[73] and in its willingness to enforce those decisions domestically.[74] The government also considers strong bilateral trading relationships to be in Australia’s national interest. It recently concluded a Free Trade Agreement with Singapore[75] and is optimistic about the likely outcome of negotiations for a Free Trade Agreement with the United States.[76]

B. Implementation of International Obligations

The executive possesses a range of options in its interpretation of Australia’s international obligations and in determining the manner in which those obligations are to be implemented domestically. Domestic implementation can occur, inter alia, through the introduction of specific implementing legislation (which may be passed as a result of executive control of Parliament, or at least the House of Representatives); through reliance on existing Commonwealth or state legislation, including the power to make regulations; or, where a treaty imposes obligations only on the government, implementation can occur through administrative measures made under the executive power.[77] It should be noted that the executive’s willingness to enter into international treaties is not necessarily matched by an interest in fully implementing treaty obligations. For example, Australia is a party to the six major United Nations human rights treaties and yet has failed to implement many of their provisions.[78] For this reason, Australia can be described as ‘Janus-faced’ with respect to particular treaties: the international face smiles and accepts obligations, while the domestic-turned face frowns and refrains from giving them legal force.[79]

The Attorney–General’s Department is the administrative institution responsible for determining whether existing legislation is sufficient, or new legislation is necessary, to give effect to a treaty.[80] Where international obligations are best implemented through reforms to state legislation, the Commonwealth government must choose either to engage the states in co-operative implementation or to use the external affairs power under s51(xxix) of the Constitution to impose the relevant changes on the states.[81] Current Commonwealth government practice is to prefer implementation through co-operation with the states over reliance on s51(xxix).[82] Indeed, very few treaties to which Australia is a party have been implemented through legislation based solely on the external affairs power.[83]

The executive’s flexibility in this area means that domestic implementation of Australia’s international obligations is subject to the political priorities of the day and to the anxiety generated by international law. This has led to inconsistencies in Australia’s approach to its international obligations. Take, for example, the different government reactions to decisions of UN committees empowered to hear individual complaints about rights violations in Australia. In the Toonen case,[84] the United Nations Human Rights Committee found that Tasmania’s anti-sodomy laws violated privacy rights protected under the International Covenant on Civil and Political Rights (ICCPR) and, accordingly, that Australia was in breach of its international obligations. Faced with Tasmania’s refusal to amend the offending provisions of its law, the then Commonwealth (Labor) government passed legislation designed to give effect to the Committee’s view.[85]

In contrast, the succeeding Commonwealth (Coalition) government responded to the next major decision of the Human Rights Committee[86] by simply rejecting the Committee’s finding that Australia’s immigration detention policies violated the ICCPR. The Attorney–General said that the Committee ‘provides views and opinions and it is up to the countries to decide whether they agree with those views and how to respond to them’.[87] The government has recently reiterated this position. In response to a decision of the Committee on the Elimination of Racial Discrimination, [88] a spokesperson for the Attorney–General said,

The Government is confident that Australia’s domestic processes, which found no racial discrimination in this case, are second to none in this world. The Government notes that the committee is not a court and its views are not binding ... . The Government’s serious concerns regarding the quality and standards applied by UN complaint bodies are a matter of public record. In the absence of real reform of the UN treaty body system, those concerns remain.[89]

Notwithstanding these inconsistencies of approach, Commonwealth governments of different political views were united in their negative reaction to a judicial decision that gave international obligations domestic force, even without prior legislative implementation. In Teoh,[90] the High Court held that international conventions that are not incorporated into Australian law can give rise to a legitimate expectation that, in making administrative decisions, the government will act in a manner consistent with its international obligations. This decision gave rise to a vision of international law functioning without restraint within Australia and it provoked considerable political anxiety. The executives of both the Labor and subsequent Coalition governments attempted to repudiate the effect of the Teoh judgment by issuing Executive Statements in order to clarify the position of international law within Australia.[91] Both governments also subsequently attempted to introduce legislation to nullify the impact of Teoh.[92] Underlying this position was a desire to control more directly the reception of international human rights law into the Australian legal system. For example, the Bill introduced by the Coalition government to undo Teoh was presented as fulfilling an aspect of the 1996 Coalition Law and Justice Policy which stated:

Australian laws, whether relating to human rights or other areas, should first and foremost be made by Australians, for Australians ... . [W]hen Australian laws are to be changed, Australians and the Australian political process should be at the beginning of the process, not at the end.[93]

While the High Court was recently critical of Teoh, in a case in which its ruling was not under direct consideration,[94] the doctrine remains part of Australian law. Courts and tribunals have continued to apply the legitimate expectation test without apparent difficulty.[95]

5. The Legislature and International Law

The debates leading up to Federation indicate that the Australian colonies were not considered to have international legal personality separate to that of the British government.[96] The role of the Australian Parliament in relation to international law or treaties was not a topic that attracted much attention either during the debates or for the two decades that followed. The formal recognition of Australia’s international personality, through the Balfour Declaration (1926) and the Statute of Westminster (1931), failed to excite much parliamentary interest. Indeed, the Commonwealth Parliament delayed domestic adoption of the Statute of Westminster until 1942, 11 years after it had been adopted by the British Parliament.[97]

During this period, relations between members of the Commonwealth were governed by the doctrine of inter-se.[98] As a consequence, many of the inter-dominion agreements negotiated during this period only applied to Australia with the approval of Parliament.[99] The Agreement between the United Kingdom, Australia and New Zealand for the Administration of Nauru, for example, provided in Article XV that: ‘The Agreement shall come into force on its ratification by the Parliaments of the three countries.’[100] The Australian Parliament retained a role in approving all treaties before ratification, at least where domestic implementing legislation was required, until the late 1970s, when the practice fell into decline.[101] The statute that gave effect to the treaty normally also included approval for the treaty. The practice was to ratify the treaty once legislation had passed, but before it entered into force.[102]

In 1961, Prime Minister Menzies had announced a commitment to table in both Houses of Parliament the text of treaties Australia had signed but not yet ratified or to which Australia contemplated accession.[103] Except for urgent cases, treaties were to be tabled at least 12 sitting days before proposed ratification or accession. The aim of this measure was to keep Parliament informed about treaty matters. The executive maintained this practice until the late 1970s, when treaties began to be tabled in bulk after periods of about six months.[104] Bulk tabling meant that many of the tabled treaties had already been ratified and that Australia had assumed new, and sometimes significant, international obligations without any parliamentary scrutiny. The late 1970s also saw the demise of the practice of putting the necessary implementing legislation in place before the executive took binding treaty action.[105] The combined effect of these changes was to deny Parliament a meaningful role in scrutinising treaties and in debating implementing legislation.[106]

Increasing dissatisfaction with Parliament’s desultory role in the treaty-making process, in particular the perception that reduced Parliamentary involvement produced a ‘democratic deficit’,[107] led to a 1995 Senate inquiry into the treaty-making power and the external affairs power.[108] Many of the recommendations from the inquiry were implemented by the new Coalition government in its 1996 reforms to the treaty-making process. The Senate inquiry had recommended that the reforms be introduced by legislation,[109] but they were ultimately introduced by resolution.

The reforms had five aspects:

In August 2002, the Minister for Foreign Affairs announced refinements to the tabling process. Treaties of major political, economic or social significance are now tabled for 20 sitting days, while other treaties continue to be tabled for 15 sitting days.[111]

The 1996 reforms have had a significant impact on treaty-making in Australia. The executive has largely maintained its commitment to the tabling time frames. A 1999 government review of the treaty-making reforms concluded that the ‘balance currently struck in determining the length of the tabling period is adequate and appropriate’.[112] The NIAs have evolved into far more useful documents than they were initially, although the need for yet more improvement has been acknowledged.[113] Despite the creation of a template for the style and content of the NIAs, for example, their quality still varies depending on the department responsible for drafting them.

The Treaties Council has met only once to date, to discuss international instruments including the World Trade Organisation Agreement on Government Procurement and the Draft Declaration on the Rights of Indigenous Peoples.[114] It is not clear why the Treaties Council has not been more active, particularly as adequate and timely consultation with the states remains one of the sensitive areas in Australian treaty-making practice.[115] It is possible that this record reflects an overlap, and confusion, between the role of the Treaties Council and that of the Commonwealth/State and Territory Standing Committee on Treaties. The Standing Committee consists of senior Commonwealth and State and Territory officers who meet twice a year.[116] It is mandated to identify treaties and other international instruments of sensitivity and importance to the states and to follow those instruments through the negotiation and implementation process, including by referring treaties to the Treaties Council where appropriate.[117] The Standing Committee process appears to be working well,[118] and it may be that the Committee has felt able to conduct its role adequately without reference to the Treaties Council. It is also possible, however, that the logistics of maintaining the Standing Committee have been easier because its bureaucrat members are free from the demands of time and politics faced by the members of the Treaties Council.

A. The Joint Standing Committee on Treaties

The parliamentary institution of JSCOT has been the most influential of all of the 1996 reforms. The 1999 government review described the JSCOT process as having been ‘very effective’.[119] Before the creation of JSCOT, treaties could be referred to existing Senate Standing Committees, but attempts to do so usually failed for political reasons.[120] An important part of the 1996 reforms, therefore, was the introduction of a parliamentary committee concerned exclusively with scrutinising treaties. Under its resolution of appointment, JSCOT is empowered to inquire into and report upon:

1. matters arising from treaties and related National Interest Analyses and proposed treaty actions presented or deemed to be presented to Parliament;

2. any question relating to a treaty or other international instrument, whether or not negotiated to completion, referred to the committee by:

(a) either House of the Parliament; or
(b) a Minister; and
(c) such other matters as may be referred to the committee by the Minister for Foreign Affairs and on such conditions as the Minister may prescribe.[121]

The JSCOT process works in tandem with the tabling of treaties in Parliament. JSCOT must review treaties within the defined 15 or 20 day sitting day period for the treaties, although extensions are possible in exceptional circumstances.[122] The review process generally involves an examination of the accompanying NIA, public submissions and a public hearing on the treaty. Those called on to address the Committee at public hearings usually include representatives from relevant government departments, relevant non-government and other private organisations and any other individuals whom the Committee deems appropriate. At the end of the process, JSCOT issues a report containing its recommendations as to whether and in what circumstances the treaty should be ratified.

JSCOT had issued 53 reports as at 1 September 2003. The usual practice is for a single report to include reviews of a number of treaties, normally all the treaties tabled at a particular time. In line with its powers, however, JSCOT has also produced a number of single issue reports. These reports have concerned matters of particular economic, social, cultural or political significance and include reports on the Statute of the International Criminal Court,[123] the Multilateral Agreement on Investment (MAI),[124] the World Trade Organisation,[125] Australia’s extradition policy[126] and the Kyoto Protocol to the Climate Change Convention.[127]

In general, JSCOT has recommended the taking of binding treaty action by the executive. Its practice of preferring consensus outcomes to majority/dissenting reports means it would be unusual for the Committee to make a strong finding against the government.[128] It also makes displays of political partisanship within the Committee extremely rare. The Committee seems to take a politic approach to its reports and is more likely to make recommendations that will be adopted by government than take a strong stance that may be ignored.[129]

It is clear, however, that the Committee does not consider itself simply to be a rubber stamp for executive action. The tenor of JSCOT reports suggests a committee confident of its position and influence within government and one unafraid of criticising government where appropriate. The Committee found fault, for example, with the ‘inadequate’ consultation that Treasury conducted in relation to the MAI.[130] The Committee criticised Treasury’s role with respect to the MAI, ‘not to accuse it of wrong doing but to draw attention to how excessive zeal for a cause in which it believes can sometimes blind an organisation’.[131] The Committee has been similarly critical in relation to less controversial treaties. In its 34th report, the Committee explicitly disapproved the manner in which it was informed of the amendments to the Convention on International Trade in Endangered Species, which automatically come into force for parties. The Committee expressed dissatisfaction with the quality and the timing of the information presented to it by Environment Australia, commenting that, ‘In view of this neglect, it is harder to feel confident about the way in which Environment Australia represents Australia’s interests in international fora’.[132] The seriousness with which the Committee regards its role is also evident in its concern that automatic entry into force provisions ‘operate in a manner that is plainly contrary to the intentions of the reformed treaty making process’.[133]

The Coalition government’s attitude towards JSCOT has been generally enthusiastic, although it is slow to respond to JSCOT recommendations. It is not unusual for responses to JSCOT reports to be issued up to a year after the recommendations were made. The government is also aware of the potential implications of ignoring JSCOT recommendations. The Minister for Foreign Affairs has stated that ‘any government would need to think very carefully of the political consequences before it ignored a unanimous JSCOT recommendation’.[134] It is difficult to assess the accuracy of this statement, however, as the recommendations of JSCOT and the intentions of the executive have so far appeared to coincide. The executive has been able consistently to act in line with JSCOT recommendations, or at least not directly contrary to them. The impact of an executive failure to follow the recommendations of JSCOT is difficult to predict.

The Coalition government has expressed satisfaction in regard to the 1996 reforms as part of the ‘ongoing process to facilitate parliamentary scrutiny of the treaty-making process and public accountability’.[135] Yet there has been no independent and systematic review of JSCOT, or of the 1996 reforms more generally. This has led to almost unquestioning acceptance of the success of the reforms at improving transparency and accountability within Australia’s treaty-making process. It is true that the reforms have both enhanced Parliament’s role in scrutinising international treaty action and facilitated much greater public access to information about treaty-making. However, the extent to which these improvements have actually enhanced transparency and accountability of the executive has yet to be clearly established.

One analysis of the JSCOT process, in relation to Australia’s multilateral economic diplomacy, agreed that it adds an important layer to the management of international law within Australia.[136] It also concluded, however, that:

For all the committee’s activism, and for all its unusual non-partisanship, the JSCOT initiative has been unable to alter substantially the way in which Australia’s foreign economic policy has been made .... [W]e conclude that the main role of JSCOT in the realm of trade diplomacy has been as a tool of political management, a means by which the executive can channel protest, deflect opposition, and in essence legitimize its own policy preferences.[137]

The JSCOT process may have thus become a mechanism through which public anxieties about Australia’s relationship with international law are reduced. It does not, however, seem to have had a similar effect on executive anxieties about international law. For example, the federal Coalition government signed fewer treaties in the period between 1997 and 2002 than its predecessor Labor government had signed in a similar period.[138] Despite the enhanced transparency of the treaty-making process under JSCOT, therefore, it seems that the executive has retained its dominant role in Australia’s relationship with international law.

B. Implementing Legislation

If the executive has determined that complying with Australia’s international obligations requires the passage of specific implementing legislation, Parliament has an important role in determining the form and content of that legislation. The power of federal Parliament includes, in s51(xxix) of the Constitution, the capacity to pass laws with respect to ‘external affairs’. This power has been interpreted broadly by the High Court to enable the Commonwealth to pass laws that implement any obligation that the federal executive assumes under an international treaty or convention.[139] The proliferation of treaties and conventions at the international level has made this power useful to the Commonwealth in a range of areas including industrial relations,[140] human rights[141] and the environment.[142] Even apart from its treaty implementation aspect, members of the High Court have suggested that the external affairs power allows the Commonwealth to legislate for the criminalisation of certain offences, such as piracy, arising under international law that are recognised as being part of the ‘universal jurisdiction’ of all nations.[143] It is also arguable that the power enables the Commonwealth to legislate to implement international customary law in so far as it binds Australia. While the High Court has not made a finding to this effect, customary law, like treaties and conventions to which Australia is a party, also imposes binding obligations under international law.

Notwithstanding its power under s51(xxix), however, the legislature’s level of influence over the implementation of international obligations, through scrutiny and debate processes, has depended largely on the will of the executive. While Parliament does not itself draft the legislation, it exercises considerable control over the terms of that legislation through the debate and amendment process. The government’s stated position with respect to the timing of implementing legislation is as follows:

[T]he normal practice is to require that [the legislation] be passed before seeking Executive Council approval to enter the treaty. This is because subsequent parliamentary passage of the necessary legislation cannot be presumed, entailing a risk that Australia could find itself legally bound by an international obligation which it could not fulfil.[144]

This position is in line with executive and parliamentary practice until the late 1970s, when bulk tabling meant that many treaties were ratified before they were tabled. It is unclear how closely the government currently adheres to this process. The passage of the legislation implementing Australia’s obligations under the Rome Statute on the International Criminal Court (ICC Statute), for example, did occur before ratification, but only just. On 25 June 2002, the House of Representatives had to debate 353 pages of implementing legislation in three hours because the government had committed to ratifying the ICC Statute by the date it came into force, 1 July 2002.[145]

Evidence on this issue from the National Interest Analyses is equivocal. In some cases, the implementation sections of an NIA identify the relevant bill and describe how it will implement the terms of the particular treaty. The NIA for the International Convention for the Suppression of the Financing of Terrorism, for example, states that the Convention will be implemented by the Suppression of the Financing of Terrorism Bill 2002 (Cth) and describes the amendments to the Criminal Code Act 1995 (Cth) effected by this Bill.[146] In contrast, the NIA for the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas notes that a number of obligations under the Agreement will require new legislation and identifies the nature of the necessary amendments to the Fisheries Administration Act 1991 (Cth).[147] It does not identify a bill through which the proposed amendments will be made, raising the possibility that the amendments may not have passed by the time the Agreement is ratified.

JSCOT has recently raised concerns that legislation implementing treaties is being introduced or passed before JSCOT has completed its inquiries into the relevant treaties. In its report into the Singapore–Australia Free Trade Agreement,[148] JSCOT noted a DFAT comment that ‘it is not unusual for relevant legislation to be introduced to the Parliament before JSCOT has completed its review of a proposed treaty action.’[149] The members of JSCOT were critical of this approach, stating that such action ‘is not conducive to the proper functioning of the Committee’s process’.[150]

The inconsistencies in practice in relation to parliamentary scrutiny and implementing legislation leave Parliament with an uncertain role. Despite Parliament’s formal powers of scrutiny, both through treaty tabling and JSCOT, it is open to the executive to ignore the recommendations of JSCOT and the parliamentary process in general. If the executive also consistently fails to put implementing legislation in place before taking binding treaty action, or if it introduces implementing legislation before JSCOT has completed its inquiries, the impact of any parliamentary scrutiny is undermined.

6. The Judiciary and International Law

The Australian judiciary’s approach to international law manifests a range of anxieties, some implicit and some articulated. They include the preservation of the separation of powers through maintaining the distinctiveness of the judicial from the political sphere; the fear of opening the floodgates to litigation; the sense that the use of international norms will cause instability in the Australian legal system; and the idea that international law is essentially un-Australian.

The following principles are generally accepted:

1. Treaties ratified by Australia have no direct effect in Australian law, unless given effect to by an Act of Parliament. A limited exception is that individuals are entitled to a ‘legitimate expectation’ that Commonwealth decision-makers will take account of international treaties ratified by Australia but not implemented by legislation when a decision is made that affects their private rights.

2. Customary international law and treaties reflecting customary international law are a source for the development of the common law.

3. In the interpretation of legislation:

(a) Courts favour a construction that accords with Australia’s international obligations, as set out in customary international law and treaties ratified by Australia prior to the enactment of the legislation. No regard is had to treaties ratified subsequent to the entry into force of the legislation unless the legislation was enacted in contemplation of Australia’s ratification of that treaty. Courts refer to international law to confirm the meaning of a statutory provision, to construe general words, or to resolve ambiguity or uncertainty.
(b) Courts will not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms (including those set out in international law) unless such an intention is manifested by unmistakable and unambiguous language.

The extent to which international law may be used in interpretation of the Australian Constitution remains the subject of debate.

A. Treaties Have No Direct Effect

In the absence of any constitutional provision or legislative statement by the Australian Parliament,[151] the common law regulates the effect of treaties in domestic law. It is a well-established principle of Australian law 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 municipal law by statute.[152] There are numerous statements of the principle to this effect in the judgments of Australian courts.[153]

Earlier case law shows that this principle was not formulated as clearly and directly as more recent decisions suggest. It appears to leave open the possibility that there were some treaties that could operate domestically without parliamentary sanction.[154] Indeed, writing in 1984, James Crawford and Bill Edeson tentatively concluded that ‘treaties should be regarded as directly applicable in national law except where their terms would, if enforced, affect the private rights of persons within the national territory, or necessitate a change in existing legislation (including the imposition of extra charges), or a change in the common law’.[155]

The distinction referred to between treaties affecting private rights and other treaties was drawn from the 1879 English decision of The Parlement Belge,[156] but was carried through into Australian law in only a few judgments. Indeed, while certain Australian decisions reflect a potentially narrower principle applicable to treaties which affect ‘private rights’ or ‘individual rights and duties’,[157] it is clear from cases such as Bradley v Commonwealth,[158] which discussed Australia’s obligations under the United Nations Charter and Security Council resolutions, and cases such as Bertran v Vanstone,[159] which concerned Australia’s obligations under an extradition treaty vis-à-vis Mexico, that the principle requiring legislative implementation is no longer confined to treaties related to individual rights and duties, and is fairly comprehensive in its application to all treaties. The only recognised exceptions derive from historic prerogative exceptions such as treaties of peace and war or recognition of a foreign State or government.[160]

As Stephen Donaghue notes, later shorthand formulations of the rule have tended to obscure the existence of exceptions by implying that no treaties directly apply, resulting in what he describes as an ill-considered extension of the rule to all treaties.[161] Nevertheless, the principle denying the direct application of treaties to Australian law has now been repeated so often in Australian judgments that it can be regarded as settled. This broader rule is apparently based upon the separation of powers doctrine, a rationale also relied upon in the English cases. The position was explained in AG for Canada v AG for Ontario[162] as follows:

Within the British Empire, there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes. To make themselves as secure as possible they will often in such cases before final ratification seek to obtain from Parliament an expression of approval. But it has never been suggested, and it is not the law, that such an expression of approval operates as law, or that in law it precludes the assenting Parliament, or any subsequent Parliament from refusing to give its sanction to any legislative proposals that may subsequently be brought before it.

In Simsek v MacPhee,[163] Stephen J of the Australian High Court expressly relied upon the separation of powers as the basis for extending the principle:

[The] authorities are not confined to the case of treaties which seek to impose obligations upon individuals; they rest upon a broader proposition. The reason of the matter is to be found in the fact that in our constitutional system treaties are matters for the Executive, involving the exercise of prerogative power, whereas it is for Parliament, and not for the Executive to make or alter municipal law.[164]

Minister for Immigration v Teoh[165] modified the general principle that treaties entered into by Australia have no effect in domestic law (such as through the creation of new legal obligations) unless implemented by statute. A majority of the High Court held that Commonwealth decision-makers, when making decisions affecting private rights, may need to take account of international treaties and conventions ratified by Australia but not implemented by legislation.

Teoh challenges the traditional separation between states and individuals in the international community, which sees states as the only actors on the international plane. In his dissenting judgment, McHugh J relied on this traditional conception of the international community, which he expressed as follows:

In international law, conventions are agreements between States .... The ratification of a treaty is not a statement to the national community. It is, by its very nature, a statement to the international community. The people of Australia may note the commitments of Australia in international law, but, by ratifying the Convention, the Executive government does not give undertakings to its citizens or residents. The undertakings in the Convention are given to the other parties to the Convention. How, when or where those undertakings will be given force in Australia is a matter for the federal Parliament. This is a basic consequence of the fact that conventions do not have the force of law within Australia.[166]

Mason CJ and Deane J, on the other hand, rejected this traditional view;

[R]atification 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.[167]

Successive governments have attempted to disarm the Teoh approach by making formal executive statements to limit its effect.[168] However, doubt has been expressed about the effectiveness of these statements.[169] Legislative attempts to overcome the decision at the federal level have not been successful.[170]

It may be, however, that the current High Court will overrule Teoh. The decision, although not directly under consideration, was the subject of critical discussion in the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; ex parte Lam.[171] McHugh and Gummow JJ expressed concern with the apparent breach of the divide between the three branches of government:

Basic questions of the interaction between the three branches of government are involved. One consideration is that, under the Constitution (s 61), the task of the Executive is to execute and maintain statute law which confers discretionary powers upon the Executive. It is not for the judicial branch to add to or vary the content of those powers by taking a particular view of the conduct by the Executive of external affairs. Rather, it is for the judicial branch to declare and enforce the limits of the power conferred by statute upon administrative decision-makers, but not, by reference to the conduct of external affairs, to supplement the criteria for the exercise of that power.[172]

Callinan J also considered that Teoh distorted the separation of powers inherent in the Australian legal system, but for different reasons. He found that, in giving the international convention the effect that it did, the Court in Teoh ‘elevate[d] the Executive above the parliament’.[173] An additional concern was that Teoh did not require knowledge of the convention by the individual affected by the decision:

[I]f a doctrine of “legitimate expectation” is to remain part of Australian law, it would be better if it were applied only in cases in which there is an actual expectation, or that at the very least a reasonable inference is available that had a party turned his or her mind consciously to the matter in circumstances only in which that person was likely to have done so, he or she would reasonably have believed and expected that certain procedures would be followed.[174]

Hayne J also suggested that Teoh might need to be re-examined.[175]

B. Customary International Law and Australian Law

The development of international custom is a far less visible or tangible process than treaty law. Customary international law is formed when there is uniform and consistent state practice across a wide range of states and where there is evidence that this practice is maintained out of a sense of legal obligation.[176] Custom usually takes a number of years to crystallise into law and there can be dispute about the customary status of particular rules. Even when particular customary laws are clear, questions may remain about their scope and precise applicability. Nevertheless, the nature of customary international law may make it, in certain respects, more appropriately adapted to incorporation into the Australian legal system. Unlike treaty law, the binding nature of customary international law does not derive from executive action, but rather from the collective action of states making up the international community. Accordingly, the separation of powers objection to the direct incorporation of treaty obligations does not arise in the same way in the case of customary international law. Perhaps for this reason, courts have exhibited less reluctance to recognize principles of customary international law without the need for statutory implementation.

(i) Incorporation or Transformation?

Under English law, the debate has focused, not on the question whether international law can be incorporated into domestic law by the courts, but on the manner of this incorporation (specifically, whether international law is automatically part, or merely a source, of the common law). We see in this debate the contest between the ‘incorporation’ and ‘transformation’ approaches. According to the former approach, the rules of international law are incorporated into domestic law automatically and considered to be part of the domestic law unless they are in conflict with an Act of Parliament. According to the latter approach, the rules of international law are not to be considered as part of domestic law except in so far as they have been adopted and made part of domestic law by the decisions of the courts, or by Act of Parliament. The significance of the differing approaches becomes clear in the event of a change in the rules of international law. Whereas, under the incorporation approach, domestic law will automatically change to incorporate changes in international law, automatic change will not occur under the transformation approach, and domestic courts would be bound by precedent to apply those rules of international law which had been accepted and adopted in the past.[177]

Blackstone’s Commentaries state that ‘the law of nations (whenever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land’.[178] This ‘incorporation’ approach held sway during the 18th and for a large part of the 19th centuries, but is said to have been qualified by the decision in R v Keyn.[179] In this decision, Cockburn CJ held:

For writers on international law, however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it... Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorise the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing, we should be unjustifiably usurping the province of the legislature...The assent of nations is doubtless sufficient to give the power of parliamentary legislation in a matter otherwise within the sphere of international law; but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas.[180]

While some authors consider this case to be authority for the principle that rules of international law can only be incorporated into domestic law by legislation, later authority suggests that the judgment deals only with the degree of proof required before a rule of customary international law will be received into English law by the courts.[181] Indeed, English cases have wavered between the incorporation and transformation approaches since the decision in R v Keyn.[182]

(ii) Customary International Law in Australian Law

In Chow Hung Ching v The King,[183] Latham CJ rather cryptically stated that ‘[international] law is not as such part of the law of Australia ..., but a universally recognized principle of international law would be applied by our courts’.[184] In the same case, Starke J endorsed the statement of the Judicial Committee in Chung Chi Cheung v The King[185] that ‘[t]he Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statues or finally declared by their tribunals.’[186]

The most influential judgment in the case, which articulates the view reflected most often in subsequent cases, was that of Dixon J. Quoting the celebrated international lawyer, Brierly, Dixon J held that ‘international law is not a part, but is one of the sources, of English law’.[187] His Honour’s view has been referred to in a number of decisions,[188] including Mabo (No 2) in which Brennan J made the much-quoted statement:

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.[189]

Brennan J was careful to qualify this with a warning that the Court was not, however, ‘free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency’.[190]

These broad statements of principle have been the subject of detailed consideration in only two cases: the High Court’s decision in Dietrich v The Queen[191] and the decision of the Full Federal Court in Nulyarimma v Thompson.[192] These decisions exhibit the judicial caution that often marks discussion of the impact of international law upon the domestic legal system.

In Dietrich, the applicant sought recognition of a common law right to legal representation at public expense. The Court was referred to the ICCPR, which provides that those facing criminal charges are entitled ‘to have legal assistance assigned to [them], in any case where the interests of justice so require, and without payment by [them] in any such case if [they do] not have sufficient means to pay for it’.[193] The applicant acknowledged that the ICCPR had not been implemented into domestic law, but argued for the development of the common law in conformity with conventions ratified by Australia.

The reasoning of Mason CJ and McHugh J hinged on the question whether the applicant was asking the Court to resolve an uncertainty or ambiguity in the common law, or whether the Court was being asked to declare the existence of a right which had not previously been recognised. They considered that the right sought by the accused fell within the latter category such that recognition of the right ‘would be to declare that a right which has hitherto never been recognised should now be taken to exist’.[194] Similarly, Dawson J (who expressed some hesitation at extending the use of international law from statutes to the common law) held that, even if the principle could be extended to the common law, it could only be used to resolve ambiguities or uncertainties, and not to effect a fundamental change.[195]

The decision of Brennan J also found that the common law had not previously recognised the right to counsel at public expense.[196] His decision focused in some detail on the capacity of courts to develop the common law to correspond with the contemporary values of society. Brennan J acknowledged there were constraints on this power, referring once again to ‘the skeleton of principle which gives the body of our law its shape and internal consistency’.[197] He stated:

Where a common law rule requires some expansion or modification in order to operate more fairly or efficiently, this Court will modify the rule provided no injustice is done thereby. ... And, in ... exceptional cases where a rule of the common law produces a manifest injustice, this Court will change the rule so as to avoid perpetuating the injustice.[198]

Brennan J acknowledged that the ICCPR was a concrete indication of contemporary values and recognised it to be ‘a legitimate influence on the development of the common law’,[199] even though it had not been implemented into Australian domestic law. However, he was concerned that recognition of the right in question, which he identified as the right to legal aid, would see the courts crossing ‘the Rubicon that divides the judicial and the legislative powers’.[200] In this case, he considered that the remedy did not lie with the courts, but with the legislature and the executive who bore the responsibility of allocating and applying public resources.

Toohey J also referred to the use of international instruments in the development of the common law. He acknowledged that, where the common law is unclear, an international instrument could be used by the court as a guide to that law. Moreover, he recognised that certain English authority tended to support an argument that a court may, perhaps must, consider the implications of an international instrument where there is a lacuna in the domestic law.[201] However, in his view, the ICCPR did not support the recognition of an absolute right to counsel.[202]

Ultimately, the Court relied on the existing common law right to a fair trial, and found that lack of legal representation may, depending on the circumstances of the case, mean that an accused is unable to receive, or did not receive a fair trial. The members of the High Court who considered the issue were unanimous in their decision not to recognise an extension of the common law by reference to international law to incorporate an absolute right to counsel. However, the articulation of the principle underlying their respective decisions not to recognise such a right varied. Toohey J thought that customary international law could be used to address lacunae in the common law, as well as ambiguities. Brennan J held that the common law could be expanded or even modified to correspond to contemporary values reflected in customary international law, however, he recognised limits based on separation of powers and policy grounds. Mason CJ, McHugh J and Dawson J expressed the narrowest approach, finding that customary international law could only be used to address ambiguities or uncertainties in the common law.

In Teoh, Mason CJ, writing with Deane J, defined the principle further. Their Honours recognised that international conventions declaring ‘universal fundamental rights’[203] could be used as a legitimate guide in developing the common law, though judicial development of the common law in this way ‘must not be seen as a backdoor means of importing an unincorporated convention into Australian law’.[204] Mason CJ and Deane J noted:

Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law.[205]

In Nulyarimma v Thompson,[206] the Full Federal Court was provided with the opportunity to consider the principle further. In Nulyarimma, the Court was asked to consider whether the prohibition of genocide, a peremptory norm of customary international law, formed part of the law of Australia. Wilcox J was reluctant to make a general statement covering all the diverse rules of international customary law. He held that domestic courts were ultimately faced with a policy issue in deciding whether or not to recognise and enforce a rule of (customary) international law. He distinguished between principles of civil law, and principles of criminal law, and held that in the latter case, the policy issue should be resolved by declining, in the absence of legislation, to enforce the international norm.[207] He acknowledged that he was unable to point to much authority for his conclusion.[208]

Whitlam J concurred with Wilcox J in holding that the crime of genocide is not an offence under the common law of Australia. He disposed of the question on two grounds. First, he dealt with the issue of universal jurisdiction, a principle of international law not yet the subject of universal acceptance,[209] which recognises that all states are entitled to exercise jurisdiction in respect of a certain category of crimes (including genocide) which may be regarded as so heinous that they are an attack on the international legal order as a whole. Citing the High Court’s decision in Polyukhovich v Commonwealth,[210] Whitlam J appeared to adopt the view expressed by Brennan J in the latter case that ‘a statutory vesting of the jurisdiction would be essential to its exercise by an Australian court’.[211] In other words, his Honour did not regard international legal principles relating to jurisdiction to be automatically incorporated into domestic law. Secondly, he relied on s1.1 of the Criminal Code (Cth), which abolished common law offences under Commonwealth law. He held that, since the date of the entry into force of that provision, ‘genocide cannot be recognised as a common law offence under Commonwealth law’.[212]

The dissenting decision of Merkel J reflects the most thorough exploration of the issue in the case law to date. He formulated the position as follows:

1. A recognised prerequisite of the adoption in municipal law of customary international law is that the doctrine of public international law has attained the position of general acceptance by or assent of the community of nations ‘as a rule of international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decisions’....
2. The rule must not only be established to be one which has general acceptance but the court must also consider whether the rule is to be treated as having been adopted or ‘received into, and so become a source of English law’....
3. A rule will adopted or received into, and so a source of, domestic law if it is ‘not inconsistent with rules enacted by statutes or finally declared by [the courts]’....
4. A rule of customary international law is to be adopted and received unless it is determined to be inconsistent with, and therefore ‘conflicts’ with domestic law in the sense explained above. In such circumstances no effect can be given to it without legislation to change the law by the enactment of the rule of customary international law as law.[213]

The approach of Merkel J to the integration of customary international law differed from that of his judicial colleagues in that his Honour’s approach relied neither on broad judicial consideration of policy (as Wilcox J did) nor on the narrow requirement for express parliamentary approval of the relevant principle (as Whitlam J did). His Honour recognised customary international law as a source of the common law, to be incorporated in the absence of conflicting domestic law. While his Honour preferred the transformation approach to the incorporation approach, he recognised that, in practical terms, the distinction between the approaches did not have great significance. Indeed, if, as stated by Brennan J in Theophanous v Herald and Weekly Times Ltd, [214] it is accepted that the common law is amenable to development by judicial decision to correspond with the contemporary values of society, subject to the Constitution and statutes, it follows that changes in international legal principles could be reflected in development of the common law. Once a rule of international law is accepted as part of domestic law there would be no great difficulty in recognising, and therefore accepting, a change in that rule provided that the change was established by evidence and was not inconsistent with legislation, the common law or public policy.[215]

The inconsistent approaches to customary international law represented in the Federal Court’s judgment in Nulyarimma continue to be reflected in the case law. In Western Australia v Ward,[216] Callinan J of the High Court held that ‘[t]here is no requirement for the common law to develop in accordance with international law’. He objected to:

[t]he proposition that international law – itself often vague and conflicting – demands that the common law of Australia be moulded in a particular way, apparently without regard for precedent, the conditions in this country, or the fact that governments and individuals may have reasonably relied on the law as it stands is unacceptable’.[217]

By contrast, in Dow Jones v Gutnick,[218] Kirby J held that any development of the common law to address legal issues arising in the ‘digital millennium’ (in this case, the publication of defamatory matter on the Internet) should be consistent with relevant principles in the ICCPR.[219]

C. International Law as an Aid to Interpretation of Statutes

There are two principles of statutory construction that invite reference to international legal principles by the judiciary. The first encourages the construction of legislation to accord with Australia’s international obligations. The second invokes a presumption against legislative intention to abrogate or curtail fundamental rights and freedoms.

(i) Construction in Accordance with International Obligations

A standard principle of statutory construction is that, in the case of ambiguity in a statute, the courts should favour a construction that accords with international law. The extent to which the courts should favour a construction that accords with international law has been the subject of conflicting views. In particular, debate remains on:

(i) the nature of legislation to which the principle applies;
(ii) the principles of international law to which the courts may refer; and
(iii) the level of uncertainty required before courts can have recourse to international law.

(ii) Nature of Legislation

While certain judges appear to extend the principle of interpretation to statutes in general, other judges articulate the principle in limited terms to apply merely to legislation enacted pursuant to, or in contemplation of the assumption of international obligations under a treaty or international convention. Mason J articulated the narrowest conception of the principle in Yager v R:

There is no basis on which the provisions of an international convention can control or influence the meaning of words or expressions used in a statute, unless it appears that the statute was intended to give effect to the convention, in which event it is legitimate to resort to the convention to resolve an ambiguity in the statute.[220]

Notwithstanding Justice Mason’s formulation, the principle has been applied on numerous occasions to interpret statutes that do not purport to implement Australia’s international obligations. In Zachariassen v Commonwealth,[221] the High Court relied on the principle to interpret the Customs Act 1901 (Cth) in light of a principle of international commerce that all merchants had a right of departure. In Polites v Commonwealth,[222] the Court applied the principle to consider whether the National Security Act 1939 (Cth) could be interpreted to comply with the international legal principle that aliens cannot be compelled to serve in the military forces of a foreign State in which they happen to be. Neither of these Acts purported to give effect to Australia’s obligations under international law. In Teoh, Mason CJ himself, writing with Deane J, rejected a conception of the principle that was limited to ‘legislation ... enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument’ in favour of a version which extended to statutes in general.[223] Conversely, Gleeson CJ in Plaintiff S157/2002 v Commonwealth merely contemplated its application to ‘legislation ... enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention’.[224]

(iii) Relevant Principles of International Law

At its broadest, the interpretative principle entitles courts to have reference to ‘established rules of international law’[225] to assist with the interpretation of a statute, including within the ambit of interpretative material both treaties to which Australia is a party and customary international law. However, in some cases, judicial statements of the principle merely invite reference to ‘international obligations under a treaty or international convention to which Australia is a party’.[226] At its narrowest, the principle permits reference to ‘any treaty or other international agreement that is referred to in the [legislation being interpreted]’.[227]

When one considers that the principle is based on a presumption that the Parliament does not intend to violate obligations by which it is bound under international law, it would follow that the principle should apply regardless of whether such binding obligations are found in treaties to which Australia is a party or in customary international law. Indeed, most statements of the principle permit reference to both sources.[228]

Nevertheless, there are two possible limitations on the sources of international law to which the Court may refer. In Kruger v Commonwealth, Dawson J stated that the presumption would not arise where the obligation arose under a treaty which entered into force after the legislation was enacted.[229] However, this statement cannot be given broad application without risking inconsistency with previous and subsequent case law. Other cases have held that, where a statute is enacted in contemplation of international obligations to be assumed by Australia through subsequent ratification of a treaty, it is permissible to refer to the Convention to which the statute is intended to give effect.[230]

The second limitation was referred to in the judgment of Gleeson CJ, McHugh and Gummow JJ in AMS v AIF.[231] In that case, their Honours, while acknowledging the principle of statutory construction, held that it did not apply in relation to the international instruments referred to in that case because they were ‘as to some of their provisions, aspirational rather than normative and, overall, reveal but do not resolve the conflicting interests which, as a matter of municipal law, attend a case such as the present’.[232] This alludes to a further possible limitation on the sources of international law to which courts may refer, involving courts in a precarious assessment as to whether the relevant treaty imposes direct obligations on States parties, or is merely expressed in terms of aspiration.

(iv) Level of Uncertainty

The interpretative principle is most often articulated as being applicable in the case of ambiguity or uncertainty in a statute.[233] However, some cases reflect a broad construction of ambiguity, approving application of the principle to limit the scope of general words[234] and to favour a construction in conformity with international law ‘as far as the language [of the statute] permits’.[235] In Minister of Foreign Affairs v Magno,[236] Gummow J noted that, in cases where the international obligation is referred to in the statute, consideration may be given to it, ‘not only to determine provisions which are ambiguous or obscure, but for the wider purposes spelled out in subsection 15AB(1)’.[237] In Northern Territory v GPAO, [238] Kirby J proposed a similar distinction between general legislation and legislation purporting to implement Australia’s obligations, holding that, in the latter case, the ambiguous concept is not to be applied in a narrow sense. In such a case, ‘this Court should construe any ambiguity in the Act arising in the text of the amended law in favour of the construction which would uphold international law and ensure Australia’s conformity with it’.[239]

In Teoh, Mason CJ and Deane J discussed the possible construction of the principle, and rejected a narrow conception of ambiguity. Their Honours did not appear to confine the broad approach to the circumstance where the treaty was referred to in the Act:

If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.[240]

This broad approach to ambiguity was referred to and applied by Dawson J in Kruger v Commonwealth,[241] although his Honour did not indicate which approach should be favoured in future case law. In Western Australia v Ward, Callinan J rejected the broad approach, stating that, ‘where legislation is not genuinely ambiguous, there is no warrant for adopting an artificial presumption as the basis for, in effect, rewriting it’.[242]

(v) Presumption Against Abrogation of Fundamental Rights and Freedoms

There is a connected, but distinct, presumption that courts will not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language.[243] General words will rarely be sufficient for that purpose. Courts look for a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.[244] Traditionally, this presumption was directed to the protection of common law rights.[245] However, a number of recent cases have extended the presumption to the protection of fundamental human rights,[246] and it is likely that courts will have regard to international human rights norms when applying this presumption in future.

D. Constitutional Interpretation

The High Court commonly refers to a range of extrinsic material, such as the debates at which the Constitution was drafted, in its interpretation of the Constitution. However, Kirby J is the only current member of the High Court to have made general reference to international norms. He has developed a distinctive ‘interpretive principle’ in relation to international law.[247] In Newcrest Mining (WA) Ltd v Commonwealth, Justice Kirby argued:

[I]nternational law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. To the full extent that its text permits, Australia’s Constitution, as the fundamental law of government in this country, accommodates itself to international law, including in so far as that law expresses basic rights. The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their governance. It also speaks to the international community as the basic law of the Australian nation which is a member of that community.[248]

Kirby J then applied this approach to support his conclusion that s51(xxxi) of the Constitution, which requires that the Commonwealth provide ‘just terms’ in any acquisition of property, applies to laws passed by the Commonwealth for the territories under s122. Though other judges reached the same conclusion, Kirby J was alone in relying on international law. More recently, he has suggested that international law may assist in clarifying what will amount to ‘just terms’ in relation to a particular Commonwealth acquisition.[249]

Kirby J also applied his interpretative principle in his dissent in Kartinyeri v Commonwealth.[250] He referred to the prohibition in international law of ‘detrimental distinctions on the basis of race’.[251] He applied this principle to underpin his conclusion that the Commonwealth Parliament’s races power ‘does not extend to the enactment of laws detrimental to, or discriminatory against, the people of any race (including the Aboriginal race) by reference to their race’.[252] Kirby J justified his approach by noting that the High Court had already allowed the use of international law in the resolution of ambiguity in the common law or a statute. He argued that use of an international law interpretative principle:

does not involve the spectre, portrayed by some submissions in these proceedings, of mechanically applying international treaties, made by the Executive Government of the Commonwealth, and perhaps unincorporated, to distort the meaning of the Constitution. It does not authorise the creation of ambiguities by reference to international law where none exist. It is not a means for remaking the Constitution without the “irksome” involvement of the people required by s128.[253]

Kirby J also defined the circumstances when reference might be had to international law principles:

There is no doubt that, if the constitutional provision is clear and if a law is clearly within power, no rule of international law, and no treaty (including one to which Australia is a party) may override the Constitution or any law validly made under it. But that is not the question here .... Where there is ambiguity, there is a strong presumption that the Constitution, adopted and accepted by the people of Australia for their government, is not intended to violate fundamental human rights and human dignity .... In the contemporary context it is appropriate to measure the prohibition by having regard to international law as it expresses universal and basic rights.[254]

In Kartinyeri, the Human Rights and Equal Opportunity Commission, intervening in the proceedings, relied on Justice Kirby’s interpretative principle and contended that the Court should adopt it as a canon of constitutional interpretation.[255] Gummow and Hayne JJ, while accepting that international law principles have a role to play in statutory interpretation,[256] considered those principles, at least in the context of limiting legislative power, to be inappropriate for use in constitutional interpretation. In their view, the use of international law in Kartinyeri would have involved a sleight of hand as it would have meant applying ‘a rule for the construction of legislation passed in the exercise of the legislative power to limit the content of the legislative power itself’.[257] Gummow and Hayne JJ placed heavy reliance on the unanimous view expressed in Polites v Commonwealth[258] that Commonwealth legislative power cannot be read down to bring it into conformity with principles of international law. Similarly, in AMS v AIF,[259] Gleeson CJ, McHugh and Gummow JJ observed that ‘reliance ... upon several international instruments to which this country is a party did not advance [the] arguments ... As to the Constitution, its provisions are not to be construed as subject to an implication said to be derived from international law.’ Callinan J in Western Australia v Ward has most strongly rejected the approach of Kirby J and the premise that the Constitution speaks not only to the Australian people but also to the international community. His anxiety appears based on a legal nationalism, wary of the un-Australian character of international law:

The provisions of the Constitution are not to be read in conformity with international law. It is an anachronistic error to believe that the Constitution, which was drafted and adopted by the people of the colonies well before international bodies such as the United Nations came into existence, should be regarded as speaking to the international community. The Constitution is our fundamental law, not a collection of principles amounting to the rights of man, to be read and approved by people and institutions elsewhere. The approbation of nations does not give our Constitution any force, nor does its absence deny it effect. Such a consideration should, therefore, have no part to play in interpreting our basic law.[260]

7. Conclusion

The interaction of international law and the Australian domestic legal system is a major issue in the twenty-first century. On the one hand, international law is regarded as a type of universal safety net for a national legal system. On the other hand, international law is regularly depicted as a source of chaotic and capricious norms that are at odds with those of Australian law. For this reason, it can create considerable anxiety.

Both images of international law are caricatures and wrongly attribute it to a fixed character. International law contains many gaps. Because it is the product of negotiation between actors of diverse social and cultural identities, international law tends to be conservative and aimed at the preservation of the status quo. At the same time, however, it can highlight shortcomings in national legal systems.

The drafters of the Australian Constitution had considered some aspects of international law but left their resolution to the executive, legislature and judiciary. Over the past century, the three arms of Australian government have developed a range of positions with respect to international law. For example, the executive branch has had a shifting attitude towards international legal norms. It has become sceptical about the applicability of international human rights law to Australia, yet it has been prepared to embrace its commitments under international trade law. Some members of the legislature echo the executive’s suspicion of aspects of international law, arguing that international law infringes Australian ‘sovereignty’. Still others demonstrate a keen desire to embrace international law, often in an attempt to buttress Australian law against perceived weaknesses. Members of the judiciary hold sharply contrasting views on international law; and these lead in turn to the creation of considerable uncertainty on the position of international law within the Australian legal system. Adding further complexity to this picture are the Australian states, whose attitude towards international law is tempered, to varying degrees, by their concern to preserve the ‘federal balance’. The relationship of Australian law to international law is not static. It responds to pressures including those produced by the globalisation process and the domestic debate that surrounds international law and international and domestic institutions.

The negative view of international law has been particularly influential over the past decade. It was a feature of Pauline Hanson’s political platform[261] and has now become part of mainstream Australian politics. The apprehension about international law seems an aspect of larger anxieties about threats to Australia from outside. As Ghassan Hage argues, the disquiet may be read as a sign of a worrying citizenry in a society in which hope is severely rationed.[262]

A flawed assumption in Australian debates about the role of international law is that taking international law seriously will import foreign and undemocratic norms into our legal system. A more fruitful analysis may be to understand the domestic incorporation of international law as a process of translation.[263] As Karen Knop has pointed out, ‘[j]ust as we know that translation from one language to another requires more than literalness, we must recognize the creativity, and therefore the uncertainty, involved in domestic interpretation [of international law].’[264] In other words, the outcome of the translation of international law may not always be the same in different legal cultures: ‘translation owes fidelity to the other language and text but requires the assertion of one’s own as well.’[265] Such an approach to international law understands it, not as a threatening discourse from outside the Australian legal system, but one that connects us to the rest of world.

['] Professor and Director, Centre for International and Public Law, Faculty of Law, Australian National University.

[''] Research Fellow, Centre for International and Public Law, Faculty of Law, Australian National University.

['''] Director, International Law Project, Gilbert + Tobin Centre of Public Law and Lecturer, Faculty of Law, University of New South Wales.

[''''] Anthony Mason Professor and Director, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales; Barrister, New South Wales Bar. This project is supported by the Australian Research Council. We thank Tracey Stevens for her research assistance.

[1] Murray Gleeson, ‘Global Influences on the Australian Judiciary’ (2002) 22 Australian Bar Review 1.

[2] Id at 4.

[3] Janet Albrechtson, ‘Justices Leave the Door Wide Open to Killers’ The Australian (4 December 2002): <,5942,5608786,00.html> (7 July 2003). A similar attitude was evident in the judgment of Justice Scalia of the United States Supreme Court in Atkins v Virginia [2002] USSC 3164; 536 US 304 (2002), where he described his colleague Justice Stevens’s reference to the critical views of the ‘world community’ on the death penalty for mentally disabled offenders as deserving a ‘Prize for the Court’s most feeble effort to fabricate “national consensus” ’.

[4] Case Concerning the Arrest Warrant of 11 April 2000 (Congo v Belgium) [2002] ICJ Rep 121.

[5] Ghassan Hage, Against Paranoid Nationalism: Searching for Hope in a Shrinking Society (2003).

[6] Id at 47.

[7] Id at 3.

[8] Id at 77.

[9] The website for the project ‘International Law and the Australian Legal System’ can be found at: <> .

[10] D P O’Connell (ed), International Law in Australia (1965); Charles Alexandrowicz, ‘International Law in the Municipal Sphere According to Australian Decisions’ (1964) 13 International and Comparative Law Quarterly 78.

[11] For example, Koowarta v Bjelke Peterson [1982] HCA 27; (1982) 153 CLR 168; Commonwealth v Tasmania (Tasmanian Dams Case) [1983] HCA 21; (1983) 158 CLR 1; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.

[12] Senate Legal and Constitutional References Committee, Parliament of Australia, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (1995); Federal State Relations Committee, Parliament of Victoria, International Treaty-Making and the Role of States (1997). See also Parliamentary Approval of Treaties Bill 1994 (Cth) and Vicki Bourne, Commonwealth, Parliamentary Debates (Hansard), Senate, 29 June 1994 at 2206.

[13] ‘Australia’s Treaty-making Processes: Industry’s Reform Proposals’ (1994) 109 Business Council Bulletin 6.

[14] International Law Association Committee on International Law in National Courts, ‘Report of the Australian Branch’ [1994] AUYrBkIntLaw 8; (1994) 15 Australian Yearbook of International Law 231.

[15] Kevin Ryan (ed), International Law in Australia (2nd ed, 1984); Philip Alston & Madelaine Chiam (eds), Treaty-Making and Australia (1995); Sam Blay, Ryszard Piotrowicz & B Martin Tsamenyi, Public International Law: An Australian Perspective (1997); Brian Opeskin & Donald Rothwell, International Law and Australian Federalism (1997); David Kinley (ed), Human Rights in Australian Law (1998).

[16] For example, Stephen Bouwhuis, ‘International Law by the Back Door?’ (1998) 72 Australian Law Journal 794; Hilary Charlesworth, ‘Dangerous Liaisons: Globalisation and Australian Public Law’ [1998] AdelLawRw 6; (1998) 20 Adelaide Law Review 57; Sam Blay & Ryszard Piotrowicz, ‘The Awfulness of Lawfulness: Some Reflections on the Tension Between International Law and Domestic Law’ [2000] AUYrBkIntLaw 1; (2001) 21 Australian Yearbook of International Law 1; David Kinley & Penny Martin, ‘International Human Rights Law at Home: Addressing the Politics of Denial’ [2002] MelbULawRw 24; (2002) 26 Melbourne University Law Review 466; Shane S Monks, ‘In Defence of the Use of Public International Law by Australian Courts’ [2002] AUYrBkIntLaw 6; (2003) 22 Australian Yearbook of International Law 201.

[17] For example, James Crawford & WR Edeson, ‘International Law and Australian Law’ in Ryan, above n15 at 71; Henry Burmester, ‘Is International Law Part of Australian Law? Impact of Treaties’ (1989) 24(6) Australian Law News 30; Stephen Donaghue, ‘Balancing Sovereignty and International Law: The Domestic Impact of International Law in Australia’ [1995] AdelLawRw 6; (1995) 17 Adelaide Law Review 213; Penelope Mathew, ‘International Law and the Protection of Human Rights in Australia: Recent Trends’ [1995] SydLawRw 15; (1995) 17 Sydney Law Review 177; Margaret Allars, ‘One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh’s Case and the Internationalisation of Administrative Law’ [1995] SydLawRw 16; (1995) 17 Sydney Law Review 204; Anthony Mason, ‘The Influence of International and Transnational Law on Australian Municipal Law’ (1996) 7 Public Law Review 20; Ivan Shearer, ‘The Relationship between International Law and Domestic Law’ in Opeskin & Rothwell, above n15 at 34; Anthony Mason, ‘International Law as a Source of Domestic Law’ in Opeskin & Rothwell, above n15 at 210; Margaret Allars, ‘International Law and Administrative Discretion’ in Opeskin & Rothwell, above n15 at 232; Charlesworth, ibid; John Perry, ‘At the Intersection – Australian and International Law’ (1997) 71 Australian Law Journal 841; Michael Kirby, ‘Domestic Implementation of International Human Rights Norms’ (1999) 5 Australian Journal of Human Rights 109; Andrew Mitchell, ‘Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson [2000] MelbULawRw 2; (2000) 24 Melbourne University Law Review 15; Amelia Simpson & George Williams, ‘International Law and Constitutional Interpretation’ (2000) 11 Public Law Review 205; Glen Cranwell, ‘Treaties and Australian Law: Administrative Discretions, Statutes and the Common Law’ [2001] QUTLawJJl 5; (2001) 1 Queensland University of Technology Law and Justice Journal 49; Gavan Griffith and Carolyn Evans, ‘Teoh and Visions of International Law’ [2000] AUYrBkIntLaw 5; (2001) 21 Australian Year Book of International Law 75; Kristen Walker, ‘International Law as a Tool of Constitutional Interpretation’ [2002] MonashULawRw 4; (2002) 28 Monash University Law Review 85; Christopher Ward, International Dispute Resolution: The Influence of International Jurisprudence on Domestic Law (PhD thesis, Australian National University, 2002); David Jackson, ‘Internationalisation of Rights and the Constitution’ in Geoff J Lindell, Cheryl Saunders and Robert French (eds), Reflections on the Australian Constitution (2003); Shane S Monks, above n16.

[18] Roderick Meagher, ‘Civil Rights and Other Impediments to Democracy’, (1999) 11 Upholding the Australian Constitution 72 <> (7 July 2003); Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 47 Quadrant 9 at 18.

[19] Shearer, above n17 at 61.

[20] See discussion at section 6(B)(i).

[21] Donaghue, above n17; Mitchell, above n17.

[22] See, for example, Crawford & Edeson, above n17; Shearer, above n17; Donaghue, above n17; Cranwell, above n17.

[23] Anne Twomey, ‘International Law and the Executive’ in Opeskin & Rothwell, above n15 at 82; Twomey, above n23 at 69; Brian Galligan & Ben Rimmer, ‘The Political Dimensions of International Law in Australia’ in Opeskin & Rothwell, above n15 at 306.

[24] Galligan & Rimmer, ibid.

[25] See, for example, Henry Burmester, ‘National Sovereignty, Independence and the Impact of Treaties and International Standards’ [1995] SydLawRw 13; (1995) 17 Sydney Law Review 127; Cheryl Saunders, ‘Articles of Faith or Lucky Breaks? The Constitutional Law of International Agreements in Australia’ [1995] SydLawRw 14; (1995) 17 Sydney Law Review 150; Anne Twomey, ‘International Law and the Executive’ in Opeskin & Rothwell, above n15 at 69; James Crawford, ‘International Law and Australian Federalism: Past, Present and Future’ in Opeskin & Rothwell, above n15 at 325.

[26] See text below at n108 and following.

[27] Twomey, above n23; Crawford, above n25.

[28] Official Record of the Debates of the Australasian Federal Convention (1891–1898, reprinted 1986)

[29] Foster v Neilson, 27 US [1829] USSC 16; (2 Pet) 253 at 314 (1829) (Marshall CJ).

[30] Laurence Tribe, American Constitutional Law (3rd ed, 2000), vol 1 at 644.

[31] Official Record of the Debates of the Australasian Federal Convention (Sydney, 1897) at 240.

[32] John Quick & Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 770.

[33] Official Record of the Debates of the Australasian Federal Convention (Melbourne, 1898) at 30. Mr Glynn of South Australia expressed his disagreement with the policy behind the striking out of the reference to treaties, and requested an opportunity to reconsider the matter.

[34] John Quick & Robert Garran, above n32 at 770.

[35] See text accompanying n31.

[36] Official Record of the Debates of the Australasian Federal Convention, above n31 at 320.

[37] Ibid.

[38] R v Burgess; ex parte Henry [1936] HCA 52; (1936) 55 CLR 608.

[39] Re East & Ors; ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354.

[40] Luzius Wildhaber, ‘Sovereignty and International Law’ in Ronald Macdonald & Douglas Johnston (eds), The Structure and Process of International Law (1983) at 438.

[41] See Burgess, above at 644 (Latham CJ).

[42] Department of Foreign Affairs and Trade, Australia and International Treaty Making Information Kit: <> (7 July 2003).

[43] Department of Foreign Affairs and Trade, Signed, Sealed and Delivered. Treaties and Treaty Making: An Official’s Handbook (3rd ed, May 2003) at para 76.

[44] Department of Prime Minister and Cabinet, Federal Executive Council Handbook, [2.1.3]: < & ID=1> (7 July 2003).

[45] See text at n110 and following.

[46] Department of Foreign Affairs and Trade, above n43 at para 79. See also section 5 for discussion of this procedure.

[47] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, Part V (entered into force 27 January 1980).

[48] Department of Foreign Affairs and Trade, above n42.

[49] Joint Standing Committee On Treaties, Parliament of Australia, Australia’s Withdrawal from UNIDO and Treaties Tabled on 11 February 1997 (1997) at 5.

[50] See, for example, Alan Watt, The Evolution of Australian Foreign Policy 1938–1965 (1968) at 23–105.

[51] Id at 106–189.

[52] See Dominique De Stoop, ‘Australia’s Approach to International Treaties on Human Rights’ (1970– 73) Australian Year Book of International Law 27; Joseph Camilleri, ‘Foreign Policy’ in Allan Patience & Brian Head (eds), From Whitlam to Fraser: Reform and Reaction in Australian Politics (1979) at 251; see also Crawford, above n25 at 327.

[53] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976), ratified by Australia 13 August 1980; International Covenant on Economic, Social and Cultural Rights, opened for signature on 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976), ratified by Australia 10 December 1975; Crawford, above n25 at 368.

[54] See, for example, Spencer Zifcak, The New Anti-Internationalism: Australia and the United Nations Human Rights Treaty System, Discussion Paper No 54 (The Australia Institute, 2003).

[55] See Minister for Foreign Affairs, Government to Review UN Treaty Committees, Media Release FA–24, (30 March 2000).

[56] Ibid.

[57] See, for example, Australian Council for Overseas Aid, Statement by the NGO Roundtable on the Australian Government’s Review of the UN Human Rights System: <> (7 July 2003).

[58] The Minister for Foreign Affairs, the Attorney–General and the Minister for Immigration and Multicultural Affairs, ‘Improving the Effectiveness of United Nations Committees’ (Joint Media Release FA–97, 29 August 2000).

[59] Ibid.

[60] Ibid.

[61] Ibid.

[62] Evidence to Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia (Canberra, 22 March 2001) at 537.

[63] See, for example, Commonwealth, Review of the Treaty-Making Process (August 1999) at 10: < – General/Treaty – Making%20Process.htm> (7 July 2003).

[64] ABC Radio, ‘Australia Withholds Signature for International Criminal Court’ (5 June 2002) AM: <> (7 July 2003).

[65] Bronwyn Bishop, Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 25 June 2002 at 4353.

[66] Prime Minister of Australia, ‘International Criminal Court’ (Media Release, 20 June 2002). A copy of Australia’s Declaration upon ratification of the ICC Statute ‘reaffirms the primacy of its criminal jurisdiction’ and is appended to this media release.

[67] Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment UN Doc A/Res/57/199 (2002). For a report on the Australian government’s vote see, Australia Defends Torture Vote (26 July 2002): <> (7 July 2003).

[68], above n67.

[69] Optional Protocol, above n67 at Art 13.

[70] See, for example, Daryl Williams, ‘International Law and Responsible Engagement’ (paper presented at the meeting of The Australian and New Zealand Society of International Law Canberra, 26 and 28–29 June 2000); Alexander Downer, ‘Globalisation or Globaphobia: Does Australia have a choice?’ (speech delivered at the National Press Club, Canberra 1 December 1997).

[71] Downer, ibid.

[72] Alexander Downer, ‘Security in an Unstable World’ (speech delivered at the National Press Club, Canberra, 26 June 2003).

[73] As at 1 September 2003, Australia has been complainant in six disputes before the WTO, seven as a respondent and has participated in a further 19 cases as a third party. Statistics on Australia’s participation are available at: <> .

[74] For example, the federal government put public pressure on the Tasmanian government to comply with the decision in Australia: Measures Affecting Importation of Salmon, WTO Doc WT/DS18/RW (2000) (Report of the Appellate Body). See ABC News Online, ‘Federal Govt Considering Legal Action Against Tasmania’ (21 March 2000): <> (7 July 2003).

[75] Singapore–Australia Free Trade Agreement, 17 February 2003, [2003] ATNIF 4 (not yet in force).

[76] Minister for Trade, ‘Vaile Announces Objective for Australia – US FTA’ (Media Release, MVT 13/2003, 3 March 2003).

[77] See Bill Campbell, ‘The Implementation of Treaties in Australia’ in Opeskin & Rothwell, above n15 at 132 and following.

[78] Hilary Charlesworth, ‘Australia’s Split Personality: Implementation of Human Rights Treaty Obligations in Australia’ in Alston and Chiam, above n15 at 129.

[79] Ibid.

[80] Department of Foreign Affairs and Trade, Signed Sealed and Delivered, above n43 at para 92.

[81] For a discussion of the uses and limits of the external affairs power, See, for example, George Winterton, ‘Limits to the Use of the “Treaty Power”’ in Alston & Chiam (eds), above n15 at 29.

[82] See Department of the Prime Minister and Cabinet, Principles and Procedures for Commonwealth–State Consultation on Treaties (1996): <> (7 July 2003).

[83] Campbell, above n77 at 150.

[84] Toonen v Australia (No 488/1992) 30 March 1994, UN Doc CCPR/C/50/D/488/1992.

[85] Human Rights (Sexual Conduct) Act 1994 (Cth).

[86] A v Australia, (No 560/1993) 3 April 1997, UN Doc CCPR/C/59/D/560/1993.

[87] J MacDonald, ‘Australia Rejects Ruling on Asylum Seekers’ The Age (Melbourne) 18 December 1997 at A10.

[88] Hagan v Australia (No 26/2002) 20 March 2003, UN Doc CERD/C/62/D26/2002.

[89] Reported in Ashleigh Wilson, ‘Canberra to Defy UN on “Nigger’ Sign”, The Australian (24 April 2003).

[90] Teoh, above n11. See also text at n142 and following.

[91] See Joint Statement by the Minister for Foreign Affairs and the Attorney–General, International Treaties and the High Court Decision in Teoh (10 May 1995) and Joint Statement by the Minister for Foreign Affairs and the Attorney–General and Minister for Justice, The Effect of Treaties in Administrative Decision-Making (25 February 1997).

[92] See text at n170.

[93] Senate Legal and Constitutional Legislation Committee, Report on the Administrative Decisions (Effect of International Instruments) Bill 1997 (1997) at 2 (hereinafter Report on the Administrative Decisions Bill).

[94] Lam v Minister for Immigration and Multicultural Affairs [2003] HCA 6.

[95] See, for example, Long v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 218; Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 82 FCR 374; Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5; (1998) 150 ALR 608.

[96] See discussion in section 3. For a comprehensive discussion of Parliament’s role in relation to international law, see Anne Twomey, Federal Parliament’s Changing Role in Treaty Making and External Affairs (Canberra: Department of the Parliamentary Research Library, Paper 15 1999–2000); and Crawford, above n25.

[97] Statute of Westminster 1931 (UK) as adopted by the Statue of Westminster Adoption Act 1942 (Cth). A B Keith, The Dominions as Sovereign States (1938).

[98] The doctrine of inter-se held that Britain and its dominions had a special relationship that was not international nor governed by international law, but rather was constitutional in character. See D P O’Connell, International Law (2nd ed, 1970) at 350.

[99] Twomey, above n96 at 19.

[100] Agreement between His Majesty’s Government in London and the Government of the Commonwealth of Australia and the Government of the Dominion of New Zealand concerning the Mandate for the Administration of the Island of Nauru, opened for signature 2 July 1919, [1920] ATS 16 (entered into force 4 August 1920, termination 23 June 1988).

[101] Twomey, above n96 at 19.

[102] Ibid. Some examples of Commonwealth legislation approving the ratification of treaties include the Air Navigation Act 1920 (Cth) s3A, the Crimes (Biological Weapons) Act 1976 (Cth) s7 and the Racial Discrimination Act 1975 (Cth) s7.

[103] Robert Menzies, Prime Minister and Minister for External Affairs, Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 10 May 1961 at 1693.

[104] Senate Legal and Constitutional References Committee, above n12 at 96–102.

[105] See for example id at 104–105, 126–129 at chapter 14.

[106] See id at chapter 7.

[107] See, for example, Sir Ninian Stephen, ‘The Expansion of International Law: Sovereignty and External Affairs’, Sir Earle Page Memorial Trust Lecture (15 September 1994) quoted in ‘Making Rules for the World’, Australian Lawyer (March 1995) 14; and the Minister for Foreign Affairs and the Attorney–General, Government Announces Reform of Treaty-Making (Media Release FA–29, 2 May 1996).

[108] Senate Legal and Constitutional References Committee, above n12 at para 0.1.

[109] See id Recommendations 8, 9 and 10 at 266–268.

[110] Minister for Foreign Affairs and Attorney–General, above n107.

[111] The Minister for Foreign Affairs, Greater Transparency for Treaty-Making Process (Media Release FA114, 20 August 2002).

[112] Commonwealth, Review of the Treaty-Making Process, above n63 at 10.

[113] Id at 3.

[114] Department of the Prime Minister and Cabinet, Treaties Council Meeting Communique (7 November 1997): <> (7 July 2003).

[115] See, generally, Joint Standing Committee on Treaties, Parliament of Australia, Report 24: A Seminar on the Role of Parliaments in Treaty-Making (Canberra: The Committee 1999).

[116] See generally Department of Prime Minister and Cabinet, Principles and Procedures, above n82.

[117] Ibid.

[118] Joint Standing Committee on Treaties, Report 24, above n115 at 47.

[119] Commonwealth, Review of the Treaty-Making Process, above n63 at 2.

[120] Twomey, above n96 at 26.

[121] The Committee’s resolution of appointment is reproduced in its reports.

[122] Commonwealth, Review of the Treaty-Making Process, above n63.

[123] Joint Standing Committee on Treaties, Parliament of Australia, The Statute of the International Criminal Court (Canberra: The Committee 2002) (hereinafter The Statute of the International Criminal Court).

[124] Joint Standing Committee on Treaties, Parliament of Australia, Multilateral Agreement on Investment: Final Report (Canberra: The Committee 1999) (hereinafter MAI).

[125] Joint Standing Committee on Treaties, Parliament of Australia, Who’s Afraid of the WTO? Australia and the World Trade Organisation (Canberra: The Committee 2001) (hereinafter Who’s Afraid of the WTO?).

[126] Joint Standing Committee on Treaties, Parliament of Australia, Extradition – A Review of Australia’s Law and Policy (Canberra: The Committee 2001) (hereinafter Extradition).

[127] Joint Standing Committee on Treaties, Parliament of Australia, The Kyoto Protocol – Discussion Paper (Canberra: The Committee 2001) (hereinafter The Kyoto Protocol).

[128] But see the dissenting/minority reports of Democrat Senator Andrew Bartlett in Joint Standing Committee on Treaties, Parliament of Australia, Four Nuclear Safeguards Treaties Tabled in August 2001 (Canberra: The Committee 2002) at 26 and Joint Standing Committee on Treaties, Parliament of Australia, The Timor Sea Treaty (Canberra: The Committee 2002) at 47.

[129] But see, Joint Standing Committee on Treaties, Extradition – A Review of Australia’s Law and Policy, above n126, where the Committee expresses dissatisfaction with the default ‘no evidence’ model in relation to requests for extradition from Australia and recommends that the Australian Law Reform Commission conduct an inquiry into the question.

[130] Joint Standing Committee on Treaties, Multilateral Agreement on Investment, above n124 at 140.

[131] Id at 142.

[132] Joint Standing Committee on Treaties, Parliament of Australia, Two Treaties Tabled on 6 June 2000 (Canberra: The Committee 2000) at 10.

[133] Id at 12.

[134] Minister for Foreign Affairs, ‘Treaties and Community Debate: Towards Informed Consent’, (speech delivered at the Launch of the Australian Treaties Database, Canberra, 20 August 2002).

[135] Minister for Foreign Affairs, Greater Transparency for Treaty-Making Process (Media Release FA114, 20 August 2002).

[136] Ann Capling & Kim Richard Nossal, ‘Square Pegs and Round Holes: Australia’s Multilateral Economic Diplomacy and the Joint Standing Committee on Treaties’, paper presented at the annual meeting of the International Studies Association, Chicago, 20–24 February 2001: <> (7 July 2003).

[137] Id at 10.

[138] Using a crude comparison, the federal Labor government signed 361 treaties between 1990 and 1995. The current Coalition government signed 304 treaties between 1997 and 2002.

[139] Tasmanian Dam Case, above n11.

[140] See, for example, the provisions dealing with parental leave in Division 5 of Part VIA of the Workplace Relations Act 1996 (Cth). They give effect to Australia’s obligations under the Workers with Family Responsibilities Convention 1981 and the Workers with Family Responsibilities Recommendation 1981.

[141] See, for example, the Racial Discrimination Act 1975 (Cth) (implements the International Convention on the Elimination of All Forms of Racial Discrimination) the Sex Discrimination Act 1984 (Cth) (implements Convention on the Elimination of All Forms of Discrimination Against Women) and the Disability Discrimination Act 1992 (Cth) (implements International Labour Organisation Convention 111 — Discrimination (Employment and Occupation) Convention, the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966).

[142] See, for example, the World Heritage Properties Conservation Act 1983 (Cth) which gives effect to the Convention for the Protection of the World Cultural and Natural Heritage.

[143] Polyukhovich v Commonwealth (War Crimes Act Case) [1991] HCA 32; (1991) 172 CLR 501 (Brennan and Toohey JJ).

[144] Department of Foreign Affairs and Trade, Australia and International Treaty-Making, above n42.

[145] Kevin Rudd, Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 25 June 2002 at 4334.

[146] See, for example, National Interest Analysis, International Convention for the Suppression of the Financing of Terrorism (tabled on 18 June 2002) paras 21–24.

[147] National Interest Analysis, Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (tabled on 25 June 2002) paras 27–28.

[148] Singapore–Australia Free Trade Agreement, above n75.

[149] Joint Standing Committee on Treaties, Parliament of Australia, Treaties Tabled 4 March 2003 (2003) at 54 (hereinafter Treaties Tabled 4 March 2003).

[150] Id at 55.

[151] With the exception of Acts Interpretation Act 1901 (Cth) s15AB, discussed below n227.

[152] Teoh, above n11 at 287 (Mason CJ and Deane J; Gaudron J concurring).

[153] Burgess, above n38 at 644 (Latham CJ); Chow Hung Ching v The King [1948] HCA 37; (1948) 77 CLR 449 at 478 (Dixon J); Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 582 (Barwick CJ and Gibbs J); Simsek v Macphee (Minister for Immigration and Ethnic Affairs) [1982] HCA 7; (1982) 148 CLR 636 at 641–642 (Stephen J); Tasmanian Wilderness Society v Fraser [1982] HCA 37; (1982) 153 CLR 270 at 274 (Mason J); Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 570–571 (Gibbs CJ); Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 55 (Brennan J, Mason CJ and McHugh J concurring), 79 (Deane and Gaudron JJ); Chu Kheng Lim v Commonwealth (Minister for Immigration, Local Government and Ethnic Affairs) (1992) 176 CLR 1 at 74 (McHugh J); Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at 305 (Mason CJ and McHugh J), 359–60 (Toohey J); Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193 at 200–201 (Mason CJ); Teoh, above n11 at 287 (Mason CJ and Deane J, Gaudron J concurring), 370 (Toohey J), 384 (McHugh J); Kruger v Commonwealth [1997] HCA 27; (1997) 146 ALR 126 at 161 (Dawson J); Bertran v Vanstone [2000] FCA 359; (2000) 173 ALR 63 at 104 (Kenny J).

[154] See, for example, Chow Hung Ching, id at 478 (Dixon J); Simsek, above n153 at 641 (Stephen J); Koowarta, above n11 at 193 (Gibbs CJ), 224 (Mason J); Mabo, above n153 at 55 (Brennan J; Mason CJ and McHugh J concurring), 79 (Deane and Gaudron JJ); Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193 at 200–201 (Mason CJ).

[155] Crawford and Edeson, above n17 at 134.

[156] The Parlement Belge [1879] UKLawRpPro 12; (1879) 4 PD 129.

[157] See, for example, Chow Hung Ching, above n153 at 478 (Dixon J); Simsek, above n153 at 641 (Stephen J); Koowarta, above n11 at 193 (Gibbs CJ), 224 (Mason J); Mabo, above n153 at 55 (Brennan J; Mason CJ and McHugh J concurring), 79 (Deane and Gaudron JJ); Coe, above n154 at 193 (Mason CJ).

[158] Bradley, above n153.

[159] Bertran, above n153.

[160] Chow Hung Ching, above n153 at 479 (Dixon J).

[161] Donaghue, above n17 at 216.

[162] [1937] AC 326.

[163] Simsek, above n153 at 636.

[164] Id at 642.

[165] Teoh, above n11 at 272.

[166] Id at 316.

[167] Id at 291.

[168] See text at n90 and following.

[169] See, for example, Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431 at 437–8 (Hill J); Browne v Minister for Immigration & Multicultural Affairs & Chappell [1998] 566 FCA (unreported, 29 May 1998) (Wilcox J); Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552; (1998) 89 FCR 80 at 103–105 (Goldberg J).

[170] The Administrative Decisions (Effect of International Instruments) Bill 1995 (Cth) Administrative Decisions (Effect of International Instruments) Bill 1997 (Cth) and Administrative Decisions (Effect of International Instruments) Bill 1999 (Cth) all lapsed before being passed by the Federal Parliament. South Australia is the only state parliament to pass legislation to counter the effect of the Teoh decision: Administrative Decisions (Effect of International Instruments) Act 1996 (SA).

[171] Lam, above n94 at 6.

[172] Id at 102.

[173] Id at 147.

[174] Id at 145.

[175] Id at 122.

[176] North Sea Continental Shelf Case [1969] ICJ Rep 3.

[177] Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529 at 553–554.

[178] William Blackstone, Commentaries on the Laws of England (15th ed, 1809) vol 4 at 66–67. This view was based on the idea that ‘such rules must necessarily result from those principles of natural justice, in which all the learned of every nation agree ... in the construction of which there is also no judge to resort to, but the law of nature and reason, being the only one in which all the contracting parties are equally conversant, and to which they are equally subject’.

[179] R v Keyn [1876] UKLawRpExch 73; (1876) 2 Ex D 63.

[180] Id at 202–203.

[181] For example, in West Rand Central Gold Mining Co Ltd v R [1905] UKLawRpKQB 116; [1905] 2 KB 391, Lord Alverstone CJ delivering the judgment of the Judicial Committee held that international law will not be applied unless it can be shown ‘that the particular proposition put forward has been recognised and acted upon by our own country or that it is of such an age and has been so widely and generally accepted, that it can hardly be supposed that any civilised state would repudiate it.’ See also JH Rayner Ltd (Mincing Lane) v Department of Trade and Industry [1990] 2 AC 418 at 512–513 (Lord Oliver).

[182] See, for example, Chung Chi Cheung v The King [1938] UKPC 75; (1939) AC 160 at 167, 168; R v Secretary for the Home Department; ex parte Thakrar [1974] 1 QB 684; Thai-Europe Tapioca Service v Government of Pakistan [1975] 1 WLR 1485; Trendtex, above n177 at 553–554; R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] UKHL 17; [1999] 2 All ER 97.

[183] Chow Hung Ching, above n153 at 449.

[184] Id at 462.

[185] Chung Chi Cheung, above n182 at 167–168.

[186] Chow Hung Ching, above n153 at 470–471

[187] Id at 477.

[188] See, for example, Jago v District Court of New South Wales (1988) 12 NSWLR 558 at 569; Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 at 498–499 (Mason CJ and Toohey J); Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 709–710; Teoh, above n11 at 287–288 (Mason CJ and Deane J, Gaudron J agreeing); Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 486 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[189] Mabo (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 42 (Brennan J, Mason CJ and McHugh J agreeing).

[190] Id at 43.

[191] Dietrich, above n153.

[192] Nulyarimma v Thompson [1999] FCA 1192; (1999) 96 FCR 153.

[193] International Covenant on Civil and Political Rights, above n53, art 14(3)(d).

[194] Dietrich, above n153 at 306.

[195] Id at 348–349.

[196] Id at 318–319.

[197] Id at 320.

[198] Id at 319.

[199] Id at 321.

[200] Id at 320.

[201] Id at 360.

[202] Id at 360–361.

[203] Teoh, above n11 at 287–288 (Mason CJ and Deane J).

[204] Ibid.

[205] Ibid.

[206] Nulyarimma, above n192.

[207] Id at 164.

[208] Ibid.

[209] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 121.

[210] Polyukhovich, above n143.

[211] Nulyarimma, above n192 at 171.

[212] Id at 172.

[213] Id at 190.

[214] Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 142–143.

[215] Nulyarimma, above n192 at 184 (Merkel J).

[216] Western Australia v Ward (2002) 191 ALR 1.

[217] Id at 958.

[218] Dow Jones v Gutnick (2002) 194 ALR 433.

[219] Id at 116.

[220] Yager v R [1977] HCA 10; (1977) 139 CLR 28 at 43–44.

[221] Zachariassen v Commonwealth, [1917] HCA 77; (1917) 24 CLR 166.

[222] Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60.

[223] Teoh, above n11 at 287 (Mason CJ and Deane J).

[224] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 195 ALR 24.

[225] Zachariassen, above n221; Polites, above n222; Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298; Teoh, above n11 at 273; Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1.

[226] Plaintiff S157/2002, above n224 at 34 (Gleeson CJ); X v Minister for Immigration and Multicultural Affairs, (2002) 116 FCR 319 at 319 (Gray, O’Loughlin and Moore JJ); Magno, id at 304 (Gummow J).

[227] Acts Interpretation Act 1901 (Cth) s15AB.

[228] Zachariassen, above n221 at 166; Polites, above n222 at 60; Magno, above n225 at 298; Teoh, above n11 at 273; Kruger, above n225 at 1.

[229] Kruger, above n225.

[230] Magno, above n225 at 304 (Gummow J); D & R Henderson Pty Ltd v Collector of Customs for the State of NSW (1974) 48 ALJR 132 at 135; Barry R Liggins Pty Ltd v Comptroller–General of Customs (1991) 31 FCR 112 at 120.

[231] AMS v AIF (1999) 199 CLR 160.

[232] Id at 180.

[233] Zachariassen, above n221 at 166; Polites, above n222 at 60; Chu Kheng Lim, above n153 at 1; Magno, above n225 at 298; Teoh, above n11 at 273; Kruger, above n225 at 1; Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority & Fraser [1995] FCA 1188; (1995) 56 FCR 406; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331; Durham Holdings Pty Ltd v State of New South Wales (2001) 205 CLR 399; Northern Territory of Australia v GPAO (1999) 196 CLR 553; X, above n226 at 319; Plaintiff S157/2002, above n224 at 24.

[234] Polites, above n222 at 60, 81 (Williams J).

[235] Teoh, above n11 at 273 (Mason CJ and Deane J); Minister for Immigration and Multicultural Affairs v VFAD [2002] FCAFC 390 [114] (Black CJ, Sundberg and Weinberg JJ); Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 197 ALR 241 [138-155]; B and B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] Fam CA 451 [363].

[236] Magno, above n225 at 304.

[237] At its broadest, this would enable courts ‘to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act’: Acts Interpretation Act 1901 (Cth) s15AB.

[238] Northern Territory of Australia v GPAO, above n233.

[239] Id at 642.

[240] Teoh, above n11 at 287.

[241] Kruger, above n225.

[242] Ward, above n216 at 273

[243] Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, 304 (O’Connor J); Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36 at 93 (Isaacs J); Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281, 289–290 (Gibbs CJ), 309, 311 (Mason, Wilson and Dawson JJ); Re Bolton; ex parte Bean [1987] HCA 12; (1987) 162 CLR 514, 523; Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625, 635–636; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 17–18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319, 322 (Brennan J), 331 (Dawson J), 338 (Gaudron J), 348 (McHugh J); Chu Kheng Lim, above n153 at 12 (Mason CJ); Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 (Deane, Dawson, Toohey and Gaudron JJ); Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ), 446 (Deane and Dawson JJ); Kruger, above n225 at 1, 407 (Gaudron J); Kartinyeri v Commonwealth of Australia [1998] HCA 22; (1998) 195 CLR 337, 417–718 (Kirby J); Durham Holdings, above n233 at 399 (Kirby J); Plaintiff S157/2002, above n224 at 34 (Gleeson CJ); Al Masri, above n235 [82-132]; B and B, above n235 [357].

[244] Coco, id at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ); Plaintiff S157/2002, above n224 at 34 (Gleeson CJ); Al Masri, above n235 [118].

[245] For example, the right to trial by jury (Tassell v Hayes [1987] HCA 21; (1987) 163 CLR 34, 41, 50), the right to personal liberty (Re Bolton, above n243 at 523), legal professional privilege (Baker v Campbell (1983) 153 CLR 52 at 96–97, 104, 116–117, 123 and Yuill, above n243 at 322, 331, 338, 348–349).

[246] Magno, above n225 at 298 (Einfeld J); Kruger, above n225 at 1, note 407 (Gaudron J); Kartinyeri, above n243 at 417–718 (Kirby J); Plaintiff S157/2002, above n224 at 34 (Gleeson CJ); Al Masri, above n235 [86].

[247] Kirby, above n17 at 121–124.

[248] [1997] HCA 38; (1997) 190 CLR 513 at 657–658.

[249] Commonwealth of Australia v State of Western Australia [1999] HCA 5; (1999) 196 CLR 392 at 461.

[250] Kartinyeri, above n243.

[251] Id at 418.

[252] Ibid.

[253] Id at 417–418.

[254] Id at 418.

[255] Id at 384.

[256] Ibid.

[257] Id at 386.

[258] Polites, above n222 at 69 (Latham CJ), 74 (Rich J), 75 (Starke J), 78 (Dixon J), 79 (McTiernan J), 82–83 (Williams J). The notion in Polites v Commonwealth that the Commonwealth Parliament can pass laws that are inconsistent with international law was emphatically re-affirmed by the High Court in Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183.

[259] AMS v AIF, above n231 at 180.

[260] Ward, above n216 at 275.

[261] Pauline Hanson, Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 10 September 1996 at 3860.

[262] Hage, above n5 at 3.

[263] Karen Knop, ‘Here and There: International Law in Domestic Courts’ (2000) 32 New York University Journal of International Law and Policy 501.

[264]Id at 506.


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