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.