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International Law and Domestic Law

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					International Law and
    Domestic Law
Australia and International Law
   Australia and International Law

• Direct effect when treaties are transformed
  into Australian law.
• Indirect effect of international law on
  Australian law.
• Go back to 4 models of relationship
  between int law and domestic law.
  – what is the model which best describes this in
    Australian law?
• Treaty making reform.
 Australia and International Law

Australia: ‘transformation theory holds sway’
‘It is well established that the provisions of an
international treaty to which Australia is a party do not
form part of Australian law unless those provisions have
been validly incorporated into our municipal law by
statute.’ Mason CJ and Dean J (Teoh cited in
Nulyarimma Outline 52).
‘ "... the difficulties associated with the incorporation
theory and proof of customary international law suggest
that, in Australia, the transformation theory holds sway”
(Mason). Statements made in Chow Hung Ching v R
(1948) 77 CLR 449 … seem to justify that conclusion.’
(Nulyarimma Outline 52)
 Australia and International Law
Australia: ‘transformation theory holds sway’
• Note Merkel ‘adoption’ model : minority view (CB
  408)
• Courts’ cautious approach on transformation
   – ICCPR annexed to HREOC Act but ICCPR
     not transformed into Australian law because
     no ‘specific legislation’ to that effect: Dietrich
     (1992) 177 CLR 292, 306 (CB 465).
 Australia and International Law
• Treaties which have been transformed into Australian
  domestic law
  Human rights conventions
• CEDAW: Sex Discrimination Act
• CERD: Race Discrimination Act
• Convention on the Rights of Persons with Disabilities
  (adopted by UNGA 2006)
   – Australia signed 30/3/2007 (ratification subject to ‘usual
     processes’)
   – implications for interpretation of Disability Discrimination Act
     1992 ?
• Definition of refugee (Refugee Convention Art A(2)
  incorporated into Migration Act s 91R).
 Australia and International Law
  Treaties which have been transformed into
  Australian domestic law
• Apply VCLT rules to interpretation (not
  common law rules) – Shearer CB 474
  – also apply previous interpretation of
    international courts – Kirby P (Shearer CB
    474)
• Applied in Applicant A case (CB 315).
 Australia and International Law
     The indirect effect of international law on
     Australian law (Tobin 30 AltLJ 164)
a)   Resolve ambiguities in legislation
b)   Assist in development of the common law
c)   Give rise to the principle of legitimate
     expectation in administrative decision making:
d)   Influence on constitutional interpretation: NOT
     ‘heretical!’ (Justice McHugh in Al Kateb).
e) Australia and the human rights treaty bodies.
 Australia and International Law
(a) Statutory interpretation
The basic principle
    ‘It must be held that legislation otherwise within
    the power of the Commonwealth Parliament
    does not become invalid because it conflicts
    with a rule of international law, though every
    effort should be made to construe
    Commonwealth statutes so as to avoid
    breaches of international law and of
    international comity’. Polites v Cth (Latham CJ)
    (CB 467).
 Australia and International Law
(a) Statutory interpretation
i) Treaties
   ‘If the language of the legislation is susceptible
   of a construction which is consistent with the
   terms of the international instrument [treaty] and
   the obligations which it imposes on Australia,
   then that construction should prevail.’ Teoh
   (1995) 183 CLR 273, 287 (Mason CJ and Deane
   J). (CB 473)
• ‘Broad and purposive approach’ to treaty
   interpretation’ (Mason CB 472-3).
 Australia and International Law
Statutory interpretation
a) Treaties
• Note limits
   ‘[I]t is legitimate for a court to interpret the law, so far as
   its language permits, to avoid departures from Australia's
   international obligations [under a treaty]. However,
   where, as here, the law is relevantly clear and valid … a
   national court, such as this, is bound to give it effect
   according to its terms. It has no authority to do
   otherwise.’ Re Woolley (2004) 210 ALR 369, 423 (Kirby
   J).
 Australia and International Law
(a) Statutory interpretation
(ii) Customary international law
• In cases of doubt about interpretation, statutes
     should be interpreted to accord with customary
     international law: Kartinyeri (Gummow and
     Hayne JJ).
• But: … ‘the implication [that the legislature is
     taken not to have intended to legislate in
     violation of the rules of international law] must
     give way where the words of the statute are
     inconsistent with the implication’ (Al Kateb v
     Godwin (2004) 208 ALR 124, 140 (McHugh J).
 Australia and International Law
  (b) Influence on the development of the common
  law
  ‘ [I]nternational 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.’ Mabo v
  Queensland [No. 2] (1992) 175 CLR 1, 42
  (Brennan J) (CB 472).
• The high noon of influence of int law on
  development of common law
Australia and International Law
(b) Influence on the development of the common
law: limitations
ICCPR ‘legitimate influence on the development
of the common law’ but limitations based on
separation of powers and policy grounds.
… The courts cannot, independently of the
legislature and the executive, legitimately
declare an entitlement to legal aid.’ Dietrich
(1992) 177 CLR 292, 321 (Brennan J).
 Australia and International Law
(b) Influence on the development of the common law
   Australia now finds that the common law countries
   whose jurisprudence has most influenced its
   common law, that is, the United Kingdom, the United
   States, Canada and New Zealand, have all adopted
   wide ranging constitutional or legislative
   declarations of human rights and freedoms. Those
   declarations directly affect the development of the
   common law in those countries. It is inevitable that
   they will have an indirect influence on the
   development of the common law in Australia.
   (Address by CJ Gleeson to Australian Bar Association
   Conference (2002) 22(3) Australian Bar Review)
  Australia and International Law
  The principle of legitimate expectation
(c)
  ‘[R]atification of a convention is a positive statement by the
  executive government of this country to the world and to the
  Australian people that the executive government and its
  agencies will act in accordance with the Convention. That
  positive statement is an adequate foundation for a legitimate
  expectation absent statutory or executive indications to the
  contrary .’ (Teoh CB 449) (Mason CJ and Deane J)
    – refer CROC Arts 3, 9
• Administrative decisions need to take account of treaties
  ratified by Australia even if they have not been enacted into
  Australian law
    – procedural application, not a substantive right (CB 450).
 Australia and International Law
(c) The principle of legitimate expectation: not
  so fast
• Evans-Lavarch statement 1995 (CB 455)
• 1997 joint statement Downer-Williams (CB 452)
   – Tien 457: not ‘statutory or executive
     indications to the contrary’ (Teoh) .
   – majority of the current members of the High
     Court have indicated in obiter dicta that they
     may not accept the ratio in Teoh: Ex Parte
     Lam (2003) 195 ALR 502.
 Australia and International Law
  (d) Influence on constitutional
  interpretation NOT: Al Kateb McHugh v
  Kirby (2004) 208 ALR 124
• Where the Constitution is ambiguous, this
  Court should adopt that meaning which
  conforms to the principles of universal and
  fundamental rights (Kirby 169).
• ‘heretical’ (McHugh 140).
Australia and International Law
‘Far from enhancing idiosyncratic decision-
making, the reference to such sources in
international law is a check against "strong
passion or momentary interest”. It is surely
preferable that judges should have regard to
such sources where they are relevant than that
they should rely solely upon their own personal
preferences and beliefs or on expositions written
decades before by judges having no
understanding of the society in which the law
must operate.’
 – Justice Kirby, Grotius lecture, Washington DC
   29/03/2005.
 Australia and International Law
(e) Australia and the Human Rights Treaty Bodies.
• Toonen case (CB 790): ‘entirely appropriate that the
   problem should be brought to our attention. ’(No Country
   is an Island 83).
   – Human Rights (Sexual Conduct) Act 1994 (CB 792)..
• ‘In response to almost every finding against Australia,
  the (Howard) Cth Govt has reiterated that the Human
  Rights Committee is not a Court and its views are not
  binding. … [T]he Govt is technically correct. … [B]ut the
  Aust’n Govt’s rejection of the views of the Human Rights
  Committee is … a denial of int’l obligations that Australia
  has … assumed.’(No Country is an Island 84).
 Australia and International Law
  The impact of int’l law on domestic law
  Models for the relationship between
  international law and domestic law
• Think about 4 models as we consider the
  relationship between int’l law on Australian
  domestic law
  – what is the model which best describes this?
 Australia and International Law
Treaty making and reform
• Executive power Constn s61.
• External affairs power s 51 (xxix) includes
  power to implement treaties (R v Burgess:
  ex Parte Henry (1936) 55 CLR 608).
• The problem of the democratic deficit
  – Sir Ninian Stephen ‘The expansion of
   international law – sovereignty and external
   affairs’ (1995) XXXIX Quadrant 20, 22.
 Australia and International Law
Treaty making and reform
• No parliamentary approval required before
  ratification (CB 438)
  – JSCOT window dressing?: ‘many of the public fears
    about Australia’s adoption of international obligations
    have eased’ No Country is an Island 47).
  – role CB 435-6
  – positive outcomes CB 440-442.
• Treaties Council (consultation with states).
• ALP platform commits to continuing.

				
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