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French, Justice Robert --- "Australian nationhood and the interaction between international and domestic law" (FCA) [2005] FedJSchol 12
FIRST ASIAN FORUM FOR
CONSTITUTIONAL LAW
College of Law, Seoul National
University
Korea Legislation Research Institute
Seoul,
Korea
22-24 September 2005
Australian Nationhood and the Interaction between
International and Domestic Law
Justice RS French
Federal Court of
Australia
Introduction
- Australia
has probably the oldest Constitution in this region. For many of you it will
seem to be the strangest. In form, we are a constitutional monarchy. In
substance, we
are a Republic. There is no Bill of Rights in the Constitution.
Yet international human rights and freedoms are generally respected. As aspects
of the rules of international law they have effects,
direct and indirect, upon
Australian domestic law.
- This
paper presents an overview of Australian constitutional history, the shape of
its Constitution and its evolution to full, independent nationhood. Against
that background the interaction between international law and Australian
domestic law, particularly in the area of human rights, is considered.
- Australia
came into existence as a national polity on 1 January 1901. The international
community and Australia’s position
in it has changed radically since that
time. Its Constitution was informed by a 19th century
view of the world and Australia’s status as a Dominion of Great Britain.
Today there are some interesting and challenging
questions about the ways in
which international law and treaty obligations interact with Australia’s
domestic law, its Constitution, its statutes and its common law. These
questions invite reflection upon Australia’s constitutional history and
structure
which include the following:
- Australia’s
beginnings as a self-governing colony of the United Kingdom.
- Its
stepwise evolution into a fully independent nation state in the world community.
- The
division of legislative powers between the Commonwealth and the States of the
federation and the power in the Commonwealth to
make laws with respect to
external affairs.
- The
exclusive power of the Commonwealth Government to enter into treaties.
- The
division between the Executive and Legislative power in the Constitution.
- Because
of the division of powers in the constitution and as a matter of established
common law doctrine, international law and treaty
obligations in Australia do
not have any direct legal effect unless given such effect by a law enacted by
the Parliament. Nevertheless
there are other ways in which international law
and treaty obligations have important indirect effects. They can affect the
interpretation
of statutes. They can also affect the development of the
judge-made or common law. There is an ongoing debate about whether and,
if so,
how much they can affect the interpretation of the Constitution itself.
The Constitutional History of the Australian Colonies
- In
1768 the Royal Society of London for the Improvement of Natural Knowledge
engaged Captain James Cook to lead a scientific expedition
to observe the
transit of Venus across the Sun from a vantage point in Tahiti. After the
observations were made on 3 June 1768,
Cook continued his voyage in search of a
postulated southern continent of Terra Australis. On that voyage Cook found New
Zealand
and, in April 1770, the south eastern coast of Australia. He mapped the
eastern coast of Australia to Cape York and claimed it for
the British Crown.
- Following
the loss of Britain’s American colonies, New South Wales was designated,
in 1786, as a place to which British convicts
might be
transported.[1] On 12
October 1786 Arthur Phillip was commissioned by the British Government as
Governor of the proposed new colony of New South
Wales. He arrived at Sydney
Cove on 26 January 1788 as the embodiment of the authority of the British Crown.
It was the same year
that 13 American colonies voted on the Constitution of the
United States. The fleet that accompanied Governor Phillip brought with it 717
convicts. Australia was, of course, already
occupied by Aboriginal people.
However under common law doctrine of the times they were not recognised as
having any legal rights
or entitlements to the land which they inhabited. This
is sometimes summed up by the words terra nullius – the country
belonged to no-one. This was a doctrine not overturned until 1992 by the High
Court in Mabo v Queensland (No
2)[2] – a
common law judgment of great importance influenced by principles of
international law.
- One
constitutional historian has written that European Australia began as a gaol
which covered half a continent. New South Wales
covered all of Australia east
of the 135th meridian together with the adjacent
islands.[3] It was of
course much more than a prison and much larger than was necessary to constitute
a prison. In 1823 the first appointed
local legislative body was created and a
Supreme Court established. In 1825 Tasmania was carved out of New South Wales
as a distinct
colony. In 1842 the Australian Constitutions Act 1842 (UK)
created a representative Legislative Council for New South
Wales.[4] The
transportation of convicts continued in Tasmania until it acquired
representative government in 1854.
- In
1850 the Australian Constitutions Act 1850 (UK) was passed by the British
Parliament. It followed a report by a committee of the Privy Council in 1849
which had inquired into
the constitutional position of the Australian colonies.
Under that Act colonial legislatures were empowered to make and alter
their own constitutions. The 1850 Act also provided for the colony of Victoria
to be separated out from New South Wales. That separation took effect in
January 1851.
- The
Legislative Council of Tasmania, which was established in 1854, passed a
Constitution Act in the same year. Constitutions were enacted for New
South Wales and Victoria in 1855. Those Constitutions required express
statutory
authorisation by the United Kingdom Parliament because they conferred
on the colonial legislatures powers in respect of the waste
lands of the Crown
which had not been conferred by the Australian Constitutions Act 1850
(UK). As a matter of convention these Constitutions adopted a
framework of responsible government.
- Queensland
was created out of New South Wales as a separate colony in 1859. This was done
by an Order in Council under the Australian Constitutions Act 1850
(UK). So the colony began its life with a Constitution defined by
the Order in Council which was similar in terms to the 1855 New South Wales
Constitution. South Australia came into existence as a province in 1834 by
direct Imperial statute. In 1851 a representative government with
a Legislative
Council was established in South Australia and in 1855 the South Australian
Constitution Act 1855 was passed by the South Australian legislature.
- Western
Australia, which was never part of the colony of New South Wales, was
established as a colony in 1829. It achieved representative
government in 1890
following the authorisation of the Constitution Act 1889 (WA) by an
Imperial statute. It set up a bicameral legislature which included a nominated
Legislative Council. This was replaced
by an Elective Council in 1893. A
Constitution Act 1899, passed by the West Australian Parliament,
consolidated the earlier enactments.
- It
can be seen from this brief history that the legal legitimacy of the
Constitutions of the Australian colonies depended directly
or indirectly upon
Acts of the British Parliament. Importantly the colonies did not have any
legal personality which was capable
of recognition at international law.
International law at the time dealt only with sovereign states. Australia was
not a sovereign
state. It was a collection of colonies.
- Professor
Leslie Zines summarised the operation of colonial rule in relation to
self-governing colonies in the late 19th century thus:
‘The colonial parliaments and ministers were to be left to manage
matters of merely local concern without interference from
the Imperial
authorities. Generally speaking in all such matters the Governor was to act on
the advice of the local ministers who
in turn were responsible to the colonial
parliament. In all matters affecting foreign nations or other parts of the
Empire, the
Imperial Government and Parliament alone were responsible.
[5]
Against this background it is helpful briefly to overview the role of
colonial parliaments in relation to treaties.
[6]
The Australian Colonies under International Law
- The
colonies, not being sovereign states at international law, could not enter into
treaties on their own account. But the question
of treaties affecting them was
agitated as early as 1870. A Victorian Royal Commission in 1870 recommended
that Victoria be given
the power to enter into treaties so that it could remain
neutral in any war involving Great Britain. Not surprisingly this was not
accepted by the British Government. The colonies were more realistically
concerned about trade and shipping treaties which affected
them. The British
Government agreed in 1877 that commercial treaties would not automatically apply
to colonies which had responsible
government. Such colonies were given the
option of adhering to such treaties within a period of two years. Opt-in
provisions of
this kind were found in British commercial treaties in the 1880s
with Montenegro and Italy. A right for colonies to withdraw from
treaties into
which Great Britain had entered and which bound them was only granted in the
late 1890s.
- An
international organisation known as the Universal Postal Union was founded in
1874. The Australian colonies initially acquired
a single vote in the Union in
1885 and one vote per colony (save for Queensland) later on. Some of the
colonies also made bilateral
postal agreements, such as the Postal Convention
between the United States and New South Wales in
1874.[7]
- In
1895 the British Colonial Secretary wrote to the governors of Britain’s
self-governing colonies stating that dealings with
foreign powers could only be
conducted through the British government. To authorise colonies to negotiate
treaties in their own
right would have conferred upon them the status at
international law of independent states. The negotiation of any treaty
involving
a colony would have to be undertaken by the British Government which
could be assisted by a delegate coming from the
colony.[8]
- Colonial
statutes which were inconsistent with Britain’s treaty obligations
generally did not receive the Royal assent and so
did not come into effect.
As Dr Ann Twomey has observed:
‘... during the colonial era, treaties entered into by the United
Kingdom government had an immediate effect on the Australian
Colonies,
regardless of whether or not the Treaty was implemented by legislation of the
United Kingdom government. This was because
colonial governors were required to
reserve any legislation that conflicted with a British Treaty for the assent of
Her Majesty.
And Her Majesty’s assent was ordinarily not given.’
[9]
By way of example, legislation made in New South Wales and Victoria to
restrict Japanese immigration was not assented to because it
contravened
Britain’s obligations under an Anglo-Japanese Treaty. Queensland
negotiated a separate Protocol to the Treaty
so that it would be consistent with
legislation which it wanted to introduce.
The Commonwealth of Australia – A New Self-Governing Colony
- Although
there were some attempts by British officials in the 1840s to promote the
formation of an inter-colonial General Assembly
to deal with matters of common
Australian interest, the proposals did not meet with support from the colonists.
The movement towards
the formation of a single Australia ultimately came from
the colonists themselves. It was driven by concern about foreign affairs,
immigration, defence, trade and commerce and industrial relations. There was
also concern in the 1880s about the colonising activities
of France and Germany
in the region. In 1883 Queensland tried to annex Papua with a view to heading
off its German colonisation.
The attempted annexation was disclaimed by the
British Government.
- The
concerns about foreign affairs, including colonising powers, immigration and the
like could not be addressed under a system comprising
six colonial governments.
As Professor RD Lumb has written:
‘The coexistence of six colonies on the Australian continent
independent of each other in local policies, although united by
common law,
nationality and similar institutions of government, could not be the basis for a
permanent constitutional system.’
[10]
There also developed in the 1890s a perception of people or race embedded in
the idea of nationality. Australians of the 19th
century used the term ‘people’ and ‘race’
interchangeably.[11]
In 1890 one of the founding fathers of the Australian Constitution, Henry
Parkes, said rather floridly:
‘The crimson thread of kinship runs through us
all.’
- In
the 1890s conventions of colonial representatives met to discuss and draft an
Australian Federal Constitution. A Constitutional Conference in 1890 led to a
Constitutional Convention in 1891. A Constitution Bill was adopted by that
Convention but did not gain any popular acceptance. For a short time the move
towards federation lost its
momentum.
- The
move was started again with a conference held in Corowa in 1893, organised by
the Australian Federation League. That conference
proposed that the legislature
of each Australian colony pass an Act providing for the election of
representatives to attend a statutory
convention or congress to consider and
adopt a Bill to establish a Federal Constitution for Australia. That plan was
considered by a Conference of the colonial Premiers held in Hobart in 1895. The
Premiers decided that
each colony would pass enabling Acts to choose ten
delegates each to meet at a Convention to draft a Federal Constitution for
consideration by each colonial parliament.
- The
new Convention met in Adelaide in March 1897 and then in Sydney in September
1897 and finally in Melbourne in January 1898. A
proposed Constitution Bill was
reconsidered and revised during that time by a drafting committee. It was
adopted by the Convention in March 1898. Referendums
were subsequently held in
each of the colonies and ultimately a majority of people in a majority of the
colonies approved the proposed
Constitution. Western Australia’s
referendum was not held until July 1900, but it ended up supporting the
Constitution.
- A
Constitution Bill incorporating the proposed Constitution was submitted to the
United Kingdom Parliament. Subject to some changes, relating to appeals to the
Privy Council from the High
Court, the Bill was passed by both the House of
Commons and the House of Lords and on 9 July 1900 received the Royal assent.
The
proclamation establishing the Commonwealth was signed by Queen Victoria on
17 September 1900 to take effect from 1 January 1901.
- The
Australian Constitution came into existence as a section of an Act of the United
Kingdom Parliament. One of Australia’s great jurists of the twentieth
century, Sir Owen Dixon, described the Constitution thus:
‘It is not a supreme law purporting to obtain its force from the direct
expression of a people’s inherent authority to
constitute a government.
It is a statute of the British Parliament enacted in the exercise of its legal
sovereignty over the law
everywhere in the King’s dominions.’
[12]
The Shape of the Australian Constitution
- The
Commonwealth of Australia Constitution Act 1900 (UK) is an Act of
the British Parliament. Section 3 authorised the Queen to declare by
proclamation that the ‘people’ of the
Australian colonies:
‘... shall be united in a Federal Commonwealth under the name of the
Commonwealth of Australia.’
Section 4 provided that the Commonwealth would be established and the
Constitution of the Commonwealth take effect on a day appointed by the
proclamation. That day was 1 January 1901. Section 5 provided that the Act 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, ...’. The
former colonies became and
were designated the ‘Original States of the Commonwealth’ (s 6).
- Section
9 of the Act set out the text of the Constitution of the Australian
Commonwealth. It has eight chapters which deal with the following topics:
Chapter 1 – The Parliament
Chapter 2 – The Executive Government
Chapter 3 - The Judicature
Chapter 4 – Finance and Trade
Chapter 5 – The States
Chapter 6 – New States
Chapter 7 – Miscellaneous
Chapter 8 – Alteration of the Constitution
The Constitution
comprises altogether 128 sections.
- The
law-making power of the Commonwealth is vested in the Commonwealth Parliament
which is said to consist of ‘... the Queen,
a Senate, and a House of
Representatives,’. This reflects the fact that the Queen, through her
representative the Governor-General,
gives formal assent to legislation passed
by the Houses of Parliament. The Queen is represented by a Governor-General
appointed
by her. As a matter of convention the Governor-General is appointed
only upon the advice of the Prime Minister. The Governor-General
is effectively
Australia’s ceremonial Head of State, although in a formal sense he or she
represents the Queen of Australia.
- Section
51 of the Constitution sets out the subjects upon which the Parliament of the
Commonwealth is authorised to make laws. Powers relevant to Australia’s
status in the international community include the powers to make laws with
respect to:
(i) Trade and commerce with other countries, and among
the States.
(vi) The naval and military defence of the Commonwealth and of the several
States, and the control of the forces to execute and maintain
the laws of the
Commonwealth.
(xix) Naturalisation and aliens.
(xx) Foreign corporations, and trading or financial corporations formed
within the limits of the Commonwealth.
(xxvii) Immigration and emigration.
(xxviii) The influx of criminals.
(xxix) External affairs.
(xxx) The relations of the Commonwealth with the Islands of the Pacific.
- Chapter
2 of the Constitution deals with the Executive Government. The key provision of
that chapter is cl 61 which provides:
‘The executive power of the Commonwealth is vested in the Queen and is
exercisable by the Governor-General as the Queen’s
representative, and
extends to the execution and maintenance of this Constitution and of the laws of
the Commonwealth.’
By Convention the Governor-General acts upon the advice of the Australian
Ministers of the Crown through the Federal Executive Council
which is
established under s 62 of the Constitution. The section locates the effective
executive power in the Ministers of the Crown. It was that section which the
Australian Government
relied upon in a well-known incident in 2001 when it
prevented a Norwegian vessel, the Tampa, from bringing more than 400 asylum
seekers on to the Australian
mainland.[13]
- Chapter
3 of the Constitution deals with the federal judicature. Each colony which
became a State already had in place a court system. Those court systems
continued
after federation and continue today. The judicial power of the
Commonwealth is vested in the High Court of Australia, such other
Federal Courts
as are created by the Parliament and such other courts (eg Courts of the States)
as it invests with Federal jurisdiction.
The Constitution directly confers upon
the High Court original jurisdiction in some important areas including:
‘75. In all matters –
(i) Arising under any treaty;
(ii) Affecting consuls or other representatives of other countries;
(iii) in which the Commonwealth, or a person suing or being sued on behalf
of the Commonwealth, is a party;
(iv) Between States or between residents of different States, or between a
State and a resident of another State;
(v) In which a writ of Mandamus or prohibition or an injunction is sought
against an officer of the Commonwealth;
the High Court shall have original
jurisdiction.’
- Section
76 of the Constitution gives the Parliament authority to confer additional
original jurisdiction on the High Court. Under s 77 the Parliament can confine
the jurisdiction of any other federal court which it creates or confer federal
jurisdiction on any court
of a State. The judges of the High Court and of
Federal Courts are protected against removal from office except on the ground of
proved misbehaviour or incapacity. In that event removal can only be upon a
resolution of both Houses of the Parliament to the Governor-General
in Council
(s 72). The High Court is the final Court of Appeal in Australia.
Australia’s Evolution as an Independent Nation
State
- The
six Australian colonies which federated in 1901 together constituted the new
Commonwealth of Australia. But Australia did not
become an independent nation
state in the world community at that time. Although there is no doubt, within
Australian constitutional
theory, that it now has that status, there was no
clear and unambiguous moment at which the transition to full nationhood can be
said to have occurred. Australia came into existence and entered the
20th century as a self-governing colony of the United
Kingdom. Sir Ninian Stephen, a judge of the High Court of Australia who later
became
Governor-General, wrote in a judgment in 1979:
‘The History of the Constitution Conventions leading to federation is,
I think, consistent only with a contemplation by those who were, in the last
decade of the
19th century, concerned to bring about
Federation that the establishment of the Commonwealth would not of itself
involve either the ending
of the application to Australia of existing Imperial
laws or the denial to the Parliament at Westminster of continued competence
to
legislate for Australia.’
[14]
Australia was not legislatively independent in 1901. It remained subject to
paramount British legislation. This was specifically
provided for in a British
Statute known as the Colonial Laws Validity Act 1865.
- Nor
did Australia gain executive independence in the conduct of its foreign
relations at the time of federation. These were effectively
carried on through
the British Government. A question agitated between the Commonwealth and the
State Governments and the British
Government in the early years of the
federation was whether the British Government should deal with the Commonwealth
Government in
connection with all matters affecting treaties and foreign affairs
or whether it could continue in certain cases to deal with the
governments of
the former colonies, now the States of Australia. Alfred Deakin, the first
Attorney-General of the Commonwealth,
asserted firmly that the Commonwealth was
the only government with which the British Government should deal. In a letter
of advice
to the Australian Prime Minister dated 28 May 1901 he
said:
‘The power to pass laws relating to external affairs certainly carries
with it the authority to provide by statute for adherence
to treaties and for
all other relations with the Home Government and through it with foreign
powers.’
And further:
‘The whole scope and spirit of the Constitution require that save for
the purposes of their domestic policies within their own domains the States
shall be blended and absorbed into
one political entity. They may still appear
in some respects as a body of allied states but to the Empire of which they form
a part
and to the world without it they have become and must remain a nation and
a Commonwealth one and indivisible.’
[15]
- The
competing roles of the States and the Commonwealth in dealing with foreign
relations came to a head in 1901 when the Dutch Government
complained to the
British Government about the treatment, by South Australian officials, of Dutch
seamen deserting from a Dutch ship
called the Vondel. After some debate about
appropriate lines of communication the British Colonial Secretary, Chamberlain,
made
the following pronouncement:
‘So far as other communities of the Empire or foreign nations are
concerned, the people of Australia form one political community
for which the
Government of the Commonwealth alone can speak. For everything affecting
external affairs or communities which takes
place within its boundaries, that
government is responsible. The distribution of powers between the Federal and
State authorities
is a matter of purely internal concern of which no external
country or community can take any cognisance.’
[16]
Despite the primacy of the Commonwealth in dealing with matters affecting
foreign relations it was still seen as obliged to deal through
the British
Government rather than as a nation state in its own right.
- The
British Government maintained for some time after federation that the Australian
Parliament could not pass laws inconsistent with
treaties entered into by the
United Kingdom. The question was never directly tested judicially although
there was always the possibility
that royal assent might be refused to a Bill
which conflicted with treaty obligations. In the early years of its existence
the Commonwealth
Parliament avoided legislating in a manner that was
inconsistent with British treaty
obligations.[17]
- In
1909 the British Government made a declaration called ‘The London
Declaration’ without consulting any of the Dominions
including Australia.
At a colonial conference in 1911, Australia took objection to this course. Sir
Edward Grey, on behalf of the
UK Government, said he was ‘quite prepared
that in future the Dominions should be consulted, and that representatives would
take part in any inter-departmental conference which might be held to discuss
such questions’. This was not honoured in respect
of all types of
treaties. In the first decades of the 20th century
Great Britain made and renewed extradition treaties on behalf of the whole of
the Empire without consultation with its Dominions.
Most extradition treaties
binding on the Dominions were entered into by Britain without consultation and
without the inclusion of
any separate rights for its Dominions to adhere to or
to withdraw from them. Ann Twomey, in making that observation, said:
‘As far as the international community was concerned, the Dominions
were not sovereign and, as Professor Oppenheim wrote in
1912, “have no
international position whatever”.’
[18]
- Eventually
executive independence in the conduct of foreign relations was recognised for
all Dominions at an Imperial Conference held
in 1926. That Conference declared
that Britain and the Dominions were:
‘Equal in status, in no way subordinate one to another in any aspect of
their domestic or external affairs, though united by
a common allegiance to the
Crown, and freely associated as members of the British Commonwealth of
nations.’
The Conference recognised that it was a consequence of this equality of
status that the Governors-General of the Dominions would no
longer represent the
British Commonwealth but act solely as ‘the representative of the Crown,
holding in all essential respects
the same position in ... the Dominion as is
held by ... the King in Great
Britain’.[19]
As Professor Winterton has said:
‘These resolutions sufficed to secure the independence of Dominion
executives, in the conduct of both domestic and foreign affairs,
even if
Dominions such as Australia and New Zealand were tardy in conducting foreign
relations.’
[20]
An Imperial Conference held in 1930 completed the conferral of executive
independence on the Dominions by its resolution that advice
to the King on the
appointment of a Dominion Governor-General would come only from Dominion
ministers.[21]
- Legislative
independence from Great Britain did not arise until the adoption by the
Australian Parliament in 1942, retrospective to
1939, of the Statute of
Westminster 1931 (UK). The Statute of Westminster was a British statute which
gave effect to the wishes
of the Dominions to lift the fetters on their
legislative powers imposed by the Colonial Laws Validity Act 1865 (UK).
It affirmed the power of Dominion Parliaments to make laws having extra
territorial effect. It repealed the Colonial Laws Validity Act in
relation to Dominion law. It also declared that Dominion Parliaments had power
to repeal or amend any Acts of the United Kingdom
Parliament to the extent that
they were part of the law of the Dominion. It also provided that no law of the
United Kingdom Parliament
would extend to a Dominion otherwise than at the
request and consent of the Dominion.
- The
Statute of Westminster was expressed not to extend to Australia unless it was
adopted by the Australian Parliament. This happened
in 1942 when the
Commonwealth Parliament passed the Statute of Westminster Adoption Act
1942 with effect from 3 September 1939. The Colonial Laws Validity Act
did continue to apply to the States of Australia. Even then it remained
theoretically possible for the United Kingdom Parliament
to make laws affecting
Australia. The final severance of legislative dependence on the United Kingdom
did not occur until 1986 with
the passage of the Australia Act 1986 (UK)
by the United Kingdom Parliament and the corresponding Australia Acts of
the Commonwealth and the State Parliaments. It was then, also, that the last
vestige of judicial dependence disappeared. Until
1986 a litigant in a State
Supreme Court could seek leave of that Court to appeal to the Privy Council in
England. Such appeals
were not permitted where they involved matters arising
under the Constitution or involving its interpretation. However there were for
many years effectively two final appellate courts for Australia, the High
Court
and the Privy Council.
British Subjects become Aliens
- The
rather complicated history of Australia’s development as a truly
independent nation in the global community is further complicated
by the history
of the idea of Australian citizenship.
- There
is no concept of Australian citizenship in the Australian Constitution. In an
early decision of the High Court in 1907 the Court said:
‘We are not disposed to give any countenance to the novel doctrine that
there is an Australian nationality as distinguished
from a British nationality,
...’
[22]
- In
1948 however the Commonwealth Parliament enacted the Nationality and
Citizenship Act 1948 (Cth) which provided a statutory basis for defining
Australian citizenship. Laws were also passed in the United Kingdom and other
countries of the former British Empire which had become the British Commonwealth
of Nations, to give effect to an agreed principle
that the people of those
countries would enjoy common status as British subjects but separate
citizenships. The 1948 Act defined
the term ‘alien’ as ‘a
person who is not a British subject, an Irish citizen or a protected
person’. That
definition was not removed until
1987.[23]
- In
1973 the title of the Queen of the United Kingdom, in her capacity as
Constitutional Head of Australia, was changed to ‘Queen
of
Australia’ by the Royal Style and Titles Act 1973 (Cth). The
Citizenship Act was amended at the same time so a person being an
Australian citizen would pledge allegiance to the Queen as ‘Queen of
Australia’.
It was therefore recognised that there could be different
allegiances to the Queen of the United Kingdom and the Queen of Australia.
On
that basis it was possible that a British subject could be an alien in
Australia.
- This
new reality was reflected in a decision of the High Court in 1988,
Nolan’s case, concerning the deportation from Australia of a
British subject who had been convicted of a number of criminal offences. The
man in question had come to Australia with his family in 1967 at age 10. He had
never become an Australian citizen. Even though
he was a British subject and no
longer an immigrant in the constitutional sense, he was held to be an alien and
therefore within
the reach of the power of the Commonwealth to deport aliens.
- The
High Court acknowledged that the term ‘alien’ could not have been
used at the time of federation to draw any distinction
between British and
Australian subjects of the Crown. It acknowledged that even after federation
Australia did not immediately enjoy
the international status of an independent
nation. But Australia’s emergence as an independent sovereign nation
changed its
relationship to the United Kingdom:
‘The fact that a person who was born neither in Australia nor of
Australian parents and who had not become a citizen of this
country was a
British subject or a subject of the Queen by reason of his birth in another
country could no longer be seen as having
the effect, so far as this country is
concerned, of precluding his classification as an “alien”.’
[24]
The Court held that the mere fact that the Constitution referred to
‘the Crown of the United Kingdom’ in the preamble and to
‘subject of the Queen’ could not alter
or avoid the consequences of
the emergence of Australia as an independent nation. Nor could it affect the
acceptance in Australia
that the country was divisible. This was implicit in
the development of the British Commonwealth as an association of independent
nations and the creation of a distinct Australian
citizenship.[25]
- The
authority of Nolan was called into question in 2001 when a majority of
the High Court overruled it in a case involving another British subject, Mr
Taylor,
who had come to Australia as a child in 1966. He had resided
continuously in this country from that time. However in 2000 his visa
was
cancelled under the Migration Act 1958 (Cth) because of his criminal
convictions. He argued, in the High Court, that he was beyond the reach of the
Commonwealth power
with respect to immigration because he was no longer a
migrant. He also argued that he was not an alien within the reach of
Commonwealth
legislative power. A majority of the High Court upheld his
contention and overruled Nolan. There was a variety of reasons for this
in the majority judgments. No consistent and binding principle emerged between
them to
support that
conclusion.[26] The
judgment was, in any event, effectively overturned in another case in 2003.
That case also involved a British subject. His
name was Shaw. Mr Shaw
migrated to Australia with his family at the age of 2 in 1974. He made no
application for citizenship.
He was made the subject of a deportation order in
2001 because of criminal offences he had committed. The High Court held that
he
had entered Australia as an alien and, not having obtained citizenship, remained
so and was therefore amenable to deportation.
[27]
Britain
Declared a Foreign Country
- In
1999 the High Court held that, for constitutional purposes, the United Kingdom
is a foreign country vis a vis Australia.
- Section
44 of the Constitution sets out a number of grounds upon which a person is
disqualified from being elected to the Australian Parliament. It provides in
part:
‘Any person who:
(i) Is under any acknowledgement of allegiance, obedience, or adherence to a
foreign power, or is a subject or a citizen or entitled
to the rights or
privileges of a subject or a citizen of a foreign power;
or
...
shall be incapable of being chosen or of sitting as a senator or a member of
the House of Representatives.’
The High Court held that a citizen of the United Kingdom is to be regarded as
a subject or citizen of a foreign power within the meaning
of s 44(i) of the
Constitution. The Chief Justice and Justices Gummow and Hayne said:
‘Australia and the United Kingdom have their own laws as to nationality
so that their citizens owe different allegiances. The
United Kingdom has a
distinct legal personality and its exercise of sovereignty, for example in
entering military alliances, participating
in armed conflicts and acceding to
treaties such as the Treaty of Rome, themselves have no legal consequences for
this country.
Nor, as we have sought to demonstrate ... does the United Kingdom
exercise any function with respect to the governmental structures
of the
Commonwealth or the States.’
[28]
- The
curiosity is that although Australia is, at international law, an independent
nation state and regards itself as such under its
own constitutional theories,
it is not as yet a Republic. The Queen of Australia is the person who also
happens to be the Queen
of the United Kingdom. However her capacity as Queen of
Australia is constitutionally and legally distinct from her capacity as
the
Queen of the United Kingdom. The Queen can wear two crowns.
- Consideration
can now be given to the way in which international law interacts with Australian
domestic law at the levels of the Constitution, statutes and the common law or
judge-made law.
Making and Giving Effect to Obligations under
Treaties
- The
attainment of executive independence from the British Government meant that it
was the Commonwealth Government, in the exercise
of its Executive power under s
61 of the Constitution, that could enter into treaties with other nations. The
States of the Commonwealth did not have international personalities when
they
were colonies and they did not acquire international personalities when they
federated. As Professor Zines has written:
‘Executive power to engage in diplomatic relations, enter into
international treaties and conventions and declare war and peace
is therefore an
exclusive power of the Commonwealth.’
[29]
- It
is an important feature of the separation of executive, legislative and judicial
powers in the Australian Constitution that when Australia enters into an
international agreement it does so as an executive act within the framework of
that Constitution. It is not an act of domestic law making. In entering into a
treaty Australia, through its government, may assume obligations under
international law. The assumption of those obligations, by the Executive
Government, on behalf of Australia, does not give them
legislative effect.
- Sir
Anthony Mason expressed the basic principle in an important judgment in the High
Court in 1982:
‘It is a well settled principle of the common law that a treaty not
terminating a state of war has no legal effect upon the
rights and duties of
Australian citizens and is not incorporated into Australian law on its
ratification by Australia ... In this
respect Australian law differs from that
of the United States where treaties are self-executing and create rights and
liabilities
without the need for legislation by Congress.’
[30]
Even approval of a treaty by the Commonwealth Parliament does not transmute
it into Australian law. In 1945 the Commonwealth Parliament
passed the
Charter of the United Nations Act 1945 (Cth). By that Act it approved
the Charter of the United Nations. The mere fact of parliamentary approval did
not, however, incorporate
the provisions of the Charter into Australian law. To
do that the provisions would have had to have been enacted as part of the
domestic law.[31]
- Obligations
under an international treaty may be honoured in a variety of ways which do not
all require the passing of an Act of Parliament
to give effect to them.
International obligations can be met by executive or administrative policies
which are created within the
framework of the existing legal system and existing
statutes. It may be that the obligations relate to the conduct of governments
in a way that does not require legislation. It may also be the case that the
obligations assumed are covered by existing legislation
and administrative
practices.
International Human Rights in Australia
- Australia’s
Constitution does not contain a Bill of Rights. There is no national
legislation to give effect to fundamental
rights and freedoms contained in the
International Covenant on Civil and Political Rights (ICCPR) to which Australia
is a party.
Yet Australia would contend that its citizens enjoy the effective
protection of those human rights and fundamental freedoms by virtue
of the
Constitution, its institutional arrangements under the Constitution, its statute
law and the traditions of the common law. It would point to the primacy of the
rule of law under the Constitution, enforced by independent and impartial
courts. It is arguable that much of the fundamental human rights and freedoms
can be derived
from the rule of law coupled with the traditions of the common
law and effective mechanisms for their upholding and enforcement.
- Part
III of the ICCPR sets out a number of human rights and fundamental freedoms.
In short form they are:
Article 6 - The right to life
Article 7 – The prohibition against torture or cruel, inhuman or
degrading treatment or punishment.
Article 8 – The prohibition against slavery, servitude and forced or
compulsory labour.
Article 9 – The right to liberty and security of person and the
prohibition upon arbitrary arrest or detention.
Article 10 – The right of persons deprived of their liberty to be
treated with humanity and with respect for the inherent dignity
of the human
person.
Article 11 – The prohibition on imprisonment merely on the ground of
inability to fulfil a contractual obligation.
Article 12 – The right of everyone lawfully within the territory of a
State to liberty of movement and freedom to chose their
residence.
Article 13 – The prohibition on the expulsion of aliens from a State
otherwise than in pursuance of a decision reached in accordance
with law.
Article 14 – The right of all persons to equality before courts and
tribunals and the right of anyone the subject of a criminal
charge or involved
in civil litigation to a fair and public hearing by a competent, independent and
impartial tribunal established
by law.
Article 15 – The prohibition on retrospectivity in the creation of
criminal offences.
Article 16 – The right of everyone to recognition everywhere as a
person before the law.
Article 17 – The prohibition on arbitrary or unlawful interference with
privacy, family, home or correspondence or unlawful
attacks on honour and
reputation.
Article 18 – The right to freedom of thought, conscience and religion.
Article 19 – The right to hold opinions without interference.
Article 20 – The prohibition of propaganda for war.
Article 21 – The right of peaceful assembly.
Article 22 – The right of freedom of association, including the right
to form and join trade unions for the protection of persons’
interests.
Article 23 – Recognition of the family as the natural and fundamental
group unit of society entitled to protection by society
and the State.
Article 24 – The right of every child without discrimination to such
measures of protection as are required by the child’s
status as a minor on
the part of his family, society and the State.
Article 25 – The right of every citizen to take part in the conduct of
public affairs, to vote and be elected at genuine, periodic
elections held by
secret ballot and to have equal access to public service in the country.
Article 26 – The equality of all persons before the law and their
entitlements without any discrimination to the equal protection
of the law.
Article 27 – Where there are ethnic, religious or linguistic
minorities, the right of persons belonging to such minorities to
enjoy their own
culture, to profess and practice their own religion or to use their own
language.
- These
rights and freedoms are broadly expressed and subject to certain qualifications.
There is an extensive international jurisprudence
about their content. There is
room for debate about that content and about whether or not particular laws or
administrative practices
comply with them. Broadly speaking, in the Australian
context, these rights and freedoms are respected and protected. Many of
these
are freedoms and the incidents of freedoms which cannot be abrogated except by
law which will be subject to restrictive construction
by the courts in
accordance with established principles of common law. In so saying, it may be
acknowledged that there is from time
to time sharp debate about whether
Australia is meeting its obligations in particular respects. In recent years
the lengthy detention
of asylum seekers who have been brought to Australia by
people smugglers has been the subject of contention against the background
of
Australia’s obligations under the ICCPR. That debate has focussed on the
mandatory character of the detention of what are
called ‘unlawful
non-citizens’, the conditions of that detention and its duration. There
will no doubt be fresh debate
in relation to the recently enacted anti-terrorism
laws, particularly those involving preventive detention of persons suspected of
being involved in, or having knowledge of, terrorist activities. Such debates
are not unusual in modern democratic societies with
a tradition of respect for
individual liberty. However the fact that they occur does not undercut the
general proposition that existing
constitutional, legal and administrative
arrangements within Australia provide protection for many of the human rights
and fundamental
freedoms guaranteed by the ICCPR.
- The
human rights example illustrates the way in which Australia can argue that
existing constitutional, legal and institutional arrangements
may fulfil its
obligations under an International Convention without the necessity for specific
legislation to give legal effect
to those obligations. It is, of course,
important to point out that the Commonwealth Parliament and the State
Parliaments have passed
important statutes which gives specific effect to
certain of Australia’s international obligations in this area by outlawing
discrimination between people on grounds such as race, gender, age and
disability. Australia also has a statutory authority, The
Human Rights and
Equal Opportunity Commission, which helps to enforce those statutes and also to
examine administrative practices
for compliance with human rights obligations.
The Interaction of International Law with the Interpretation of
Statutes and of the Constitution
- There
are ways, short of specific legislation, in which Australia’s obligations
at international law may affect its domestic
law. The High Court has accepted
that the statute law should be interpreted and applied consistently with
established rules of international
law so far as the language of the statute
permits.[32] As
McHugh J explained in the recent decision of the High Court in Al-Kateb v
Godwin:[33]
‘The rationale for the rule is that the legislature is taken not to
have intended to legislate in violation of the rules of
international law
existing when the legislation was enacted. Accordingly, the rule is construed
as containing an implication to
that effect. But, as Polites decided,
the implication must give way where the words of the statute are inconsistent
with the implication.’
- That
rule of construction is still in place. However, as McHugh J pointed out, it
was developed at a time when the rules of international
law could be found in
the writings of a few well-known jurists. That is not the case today. Article
38 of the Statute of the International
Court of Justice defines
‘international law’ as including:
1. International conventions establishing rules recognised by
contesting states.
2. International custom, as evidence of a general practice
accepted as law.
3. The general principles of law recognised by civilised
nations.
There is a myriad of sources of international customary law. As McHugh J
said:
‘Given the wide-spread nature of the sources of international law under
modern conditions, it is impossible to believe that,
when the parliament now
legislates, it has in mind or is even aware of all the rules of international
law. Legislators intend their
enactments to be given effect according to their
natural and ordinary meaning. Most of them would be surprised to find that an
enactment
had a meaning inconsistent with the meaning they thought it had
because of a rule of international law which they did not know and
could not
find without the assistance of a lawyer specialising in international law or, in
the case of a treaty, by reference to
the proceedings of the Joint Standing
Committee on Treaties.’
Although the rule of interpretation is still in place, the comments made by
McHugh J may foreshadow some dilution of its application
in future.
- There
has been sharp debate on the High Court on the question whether the rules of
international law can affect the interpretation
of the Australian Constitution.
The current and longstanding view is that they do not affect its interpretation.
In Polites in 1945 Dixon J rejected the idea that there was anything in
the Constitution which would prevent the Parliament from making laws contrary to
international law. This debate was joined, particularly between
McHugh J and
Kirby J, in the Al-Kateb case which concerned the legality of the
indefinite detention of an unlawful asylum seeker unable to be returned to a
home country.
The Australian Constitution, as already shown, is a statute of
the British Parliament. It was enacted in 1900. As McHugh J pointed out, most
of the rules now
recognised as rules of international law are of recent origin.
He said:
‘If Australian courts interpreted the Constitution by reference to
the rule of international law now in force, they would be amending the
Constitution in disregard of the direction in s 128 of the Constitution.
Section 128 declares that the Constitution is to be amended only by legislation
that is approved by a majority of States and “a majority of all the
electors voting”.
Attempts to suggest that a rule of international law is
merely a factor that can be taken into account in interpreting the Constitution
cannot hide the fact that, if that is done, the meaning of the Constitution is
changed whenever that rule changes what would otherwise be the result of the
case.’
- McHugh
J acknowledged that many constitutional lawyers now accept that developments
inside and outside Australia since 1900 may result
in insights about the meaning
of the Constitution that were not available to earlier generations. So the
Constitution may have different meanings from those which it was thought to have
in earlier times.
- Kirby
J took the minority position. He pointed out that in 1945 when the
Polites’ case was decided, the Australian Constitution was regarded
as little more than a statute of the United Kingdom Parliament. The decisions
of the High Court itself were subject
in many cases to appeal to the Privy
Council. He said:
‘Notions of national independence and distinctive legal thinking in
Australia were obtained by these realities. Because of
entirely new realities
today our thinking is necessarily different.
He said:
‘Whatever may have been possible in the world of 1945, the complete
isolation of constitutional law from the dynamic impact
of international law is
neither possible nor desirable today. That is why national courts, and
especially national constitutional
courts such as this, have a duty, so far as
possible, to interpret their constitutional texts in a way that is generally
harmonious
with the basic principles of international law, including as that law
states, human rights and fundamental freedoms.
[34]
He went on to point to the constitutional courts of other countries which
adopt an interpretive approach which takes account of international
law and
custom. He referred in particular to the Canadian, Indian and South African
Constitutions.
- It
is not necessary for present purposes to explore this debate in detail. It is
sufficient to say that the High Court, as presently
composed, is unlikely to
expressly apply the rules of international law in its interpretation of the
Australian Constitution. In particular, it is unlikely to find implied in the
Australian Constitution human rights and freedoms derived from rules of
international law.
International Law and the Common Law of
Australia
- Unenacted
treaties and customary international law may have a role to play in Australia in
the development of the common law.
- The
application of unenacted international obligations to common law development has
been debated over a number of years. In Re Jago in New South Wales in
1988 an application was made to the Supreme Court to stay criminal proceedings
because of the delay in bringing
them. The President of the New South Wales
Court of Appeal, then Kirby P, who is now a judge of the High Court, took the
view that
international law was relevant to the development of Australian common
law. The Australian common law was inherited from the English
common law.
After acknowledging that heritage he said:
‘But where the contested common law is uncertain, Australian judges,
after the Australia Act 1986 (Cth) at least, do well to look for more
reliable and modern sources for the statement and development of the common law.
One such
reference point may be an international treaty which Australia had
ratified and which now states international
law.’
He referred to Article 14.3 of the ICCPR under which a person charged with an
offence has the right ‘to be tried without undue
delay’.[35]
However another of the judges of the Court of Appeal, Samuels JA, took a
somewhat different view. He pointed out that the ICCPR
is not part of the law
of Australia and restated the well-established proposition that:
‘Accession to a treaty or international covenant or declaration does
not adopt the instrument into municipal law in the absence
of express
stipulation...’
He accepted however that the problem before the Court offered a choice of
solutions, there being no clear rule of common law or statutory
ambiguity,
consideration of an international convention might be of assistance. So perhaps
in practical terms he and Kirby P were
not that far apart.
- In
another case decided about the same time, the former Chief Justice of the Family
Court of Australia said:
‘I think that the better view of the law is that whilst it may be open
to have regard to such instruments as an aid to determining
what the common law
is in the event of doubt about, for example, the existence of a particular
right, they are not by their terms
incorporated into Australian domestic
law.’
[36]
- Australian
courts have been reluctant to regard customary international law as part of the
common law of Australia although prepared
to accept that it may be a source for
its development. As one recent Australian text has suggested, the reason for
this may be related
to the difficulty of determining what are the rules of
customary international law:
‘In times past, there may have been a general lack of familiarity on
the part of practitioners and courts with principles of
international law, but
nowadays it is more likely a recognition of the complexity of the task of
ascertaining relevant customary
international law rules in a given case. The
latter is often a matter of some difficulty, even for seasoned international
lawyers.’
[37]
- International
law norms were taken into account when the High Court decided, in 1999, that the
common law of Australia could recognise
and give effect to the rights and
interests of indigenous people in land and waters which arise under their
traditional laws and
customs. The decision was Mabo v Queensland (No 2).
[38]
- Prior
to the Mabo decision the common law relating to native title in Australia
was governed by a decision of the Privy Council in 1889. That decision
had
held, in effect, that when New South Wales was first settled it was ‘... a
colony which consisted of a tract of territory
practically unoccupied without
settled inhabitants or settled law at the time when it was peacefully annexed to
the British
Dominion’.[39]
This was a statement applicable to colonisation of the whole of Australia. What
it meant, in effect, was that the Aboriginal peoples
of Australia did not have
any law or customs which could give rise to rights and interests cognisable by
the common law. This statement
of the law for Australia was applied in a case
in 1971 in which Aboriginal people in the Northern Territory argued that leases
granted
to an alumina company were invalid because they were granted over land
to which they had a customary
title.[40]
- The
refusal of the claim in that case led to the enactment by the Commonwealth of
statutory land rights for Aboriginal people in the
Northern Territory of
Australia. An inquiry which recommended the creation of a system of statutory
land rights had regard to the
need to maintain and perhaps improve ‘...
Australia’s standing among the nations of the world by demonstrating fair
treatment
of an ethnic minority’.
- It
was not, however, until the High Court decision in Mabo (No 2) that the
common law was changed for the whole of Australia. In the judgments
international norms were expressly linked to contemporary,
social and community
values. Brennan J, with whom Mason CJ and McHugh J agreed, aligned the
‘expectations of the international
community’ and the
‘contemporary values of the Australian people’ and
said:
‘[i]t is contrary both to international standards and to the
fundamental values of our common law to entrench a discriminatory
rule which
because of the supposed position on the scale of social organisation of the
indigenous inhabitants of a settled colony,
denies them a right to occupy their
traditional lands.’
- Other
members of the majority, Deane, Gaudron and Toohey JJ, did not invoke
international norms of conduct. However Deane and Gaudron
JJ relied upon
principles of ‘natural law’ set out in the works of early
international law jurists such as Wolff, Vattel,
de Vittoria and Grotius. They
cited authorities applicable in a wide range of British colonies including New
Zealand and Canada
and accepted as correct the Privy Council’s statement
that:
‘[t]he courts will assume that the British Crown intends that the
rights of property of the inhabitants are to be fully
respected.’[41]
In the joint judgment of Dean and Gaudron JJ their Honours characterised the
terra nullius doctrine and the proposition that ownership
of land in the
Australian colonies vested in the crown at annexation as ‘the legal basis
for the dispossession of the Aboriginal
peoples of most of their traditional
lands’. In a frequently cited passage they said:
‘[t]he acts and events by which that dispossession in legal theory was
carried into practical effect constitute the darkest
aspect of the history of
this nation. The nation as a whole must remain diminished unless and until
there is an acknowledgment of,
and retreat from those passed
injustices.’
International Law and the Exercise of Statutory Discretions
- A
further development of significance in the way in which international law has
affected Australian municipal law concerns the exercise
of statutory powers by
public officials. Minister for State for Immigration and Ethnic Affairs v
Teoh [42]
concerned a man who was denied residency in Australia and was to be deported
because he had a conviction for the importation and
possession of heroin. He
argued that in making the decision to deny him a permanent resident visa, the
relevant immigration official
had not given consideration to the best interests
of his children as a matter of primary importance. This is required by Article
3 of the United Nations Convention on the Rights of the Child which was ratified
but not legislatively implemented by Australia.
- In
upholding the quashing of the official’s decision, the High Court held
that the official was not required to comply the Convention
obligations in her
decision-making. However there was a legitimate expectation which the Court
imputed to Mr Teoh that the immigration
official would not make a decision in
disregard of Australia’s international obligations. On that basis it was
held procedurally
unfair to go ahead and make the decision disregarding the
Convention obligations without first giving Mr Teoh an opportunity to be
heard
on whether those obligations should be taken into account.
- In
their joint judgment, Mason CJ and Deane J, with whom Toohey J agreed, pointed
to the ways in which international conventions could
affect Australian law even
though they were not part of it. They referred to the effect of such
conventions on the interpretation
of a statute where the statute is ambiguous.
They also accepted that international conventions could affect the development
of the
common law. In so saying however they entered a caution:
‘But the courts should act in this fashion with due circumspection when
the Parliament itself has not seen fit to incorporate
the provisions of a
convention into our domestic law. Judicial development of the common law must
not be seen as a backdoor means
of importing an unincorporated convention into
Australian law. A cautious approach to the development of the common law by
reference
to international conventions would be consistent with the approach
which the courts have hitherto adopted to the development of the
common law by
reference to statutory policy and statutory materials. 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 swerve and
its relationship
to the existing principles of our domestic law.’
[43]
- Their
Honours held however that the ratification of an international convention by
Australia is a positive statement by the Executive
Government of Australia to
the world and to the Australian people that it will act in accordance with the
Convention. Such a positive
statement provided an adequate foundation for a
legitimate expectation that administrative decision makers would act in
accordance
with the Convention and in the case before them heed the best
interests of the children affected by their decision as ‘a primary
consideration’.
- There
was much public controversy about this decision. It was criticised by Ministers
on the basis that Australia was a party to
so many different unenacted treaties
and conventions that no official decision maker could be expected to know them
all and to assess
whether they should be taken into account in the decision
making process. At the time that the decision was made Australia was party
to
some 920 treaties which, it was said, might or might not give rise to a relevant
legitimate expectation.
- The
decision has now been called into question recently by the High Court, the
composition of which has now changed, in a case called
Re Minister for
Immigration, Multicultural and Indigenous Affairs; Ex parte Lam
[44]. One aspect of
the criticism is the artificiality of imputing a legitimate expectation to a
person affected by a decision in cases
where that person is unlikely to have
heard of the treaty or convention which it is later sought to invoke.
- McHugh
and Gummow JJ said (at 33):
‘... in the case law a line has been drawn which limits the normative
effect of what are unenacted obligations upon discretionary
decision-making
under powers conferred by statute and without specification of those
obligations. The judgments in Teoh accepted the established doctrine
that such obligations are not mandatory relevant considerations attracting
judicial review for
jurisdictional error. The curiosity is that, nevertheless,
such matters are to be treated, if Teoh be taken as establishing any
general proposition in this area, as mandatory, relevant considerations for that
species of judicial
review concerned with procedural
fairness.’
The Power to Give Statutory Effect to International Conventions
- The
entry by Australia into an international treaty or convention is an Executive
act. As noted, that Executive act does not give
legal force to the provisions
of the treaty or convention in Australia. To give legal effect to such
provisions it is necessary
that the Commonwealth Parliament pass a law doing so.
A power to pass laws giving effect to international treaties derives from s
51(xxix) of the Constitution. That confers power on the Commonwealth Parliament
to make laws with respect to ‘external affairs’. If Australia
enters
into a treaty with another nation or nations then, subject to certain
qualifications and express constitutional limitations, the
Parliament may make
laws to give effect to it. An issue of some contention within Australia
concerns the extent to which the Parliament
can make laws implementing treaty or
convention obligations even though they deal with matters on which it would not
otherwise have
legislative power under s 51 of the Constitution.
- In
1975 the Parliament enacted the Racial Discrimination Act 1975 (Cth)
giving effect to provisions of the Convention for the Elimination of all Forms
of Racial Discrimination. The validity of the
Act was challenged in the High
Court on the basis that it was not supported by the external affairs power
because race discrimination
was not a matter external to Australia. It was also
attacked on the basis that a wide application of the external affairs power
would alter the federal balance by allowing the Commonwealth to intrude upon
matters which the Constitution had left to the Australian States.
- These
arguments were rejected by a majority of judges in the High Court, which upheld
the validity of the Act. There were some qualifications
on the external affairs
power. The power could not be used to give effect to a treaty which was on a
topic of no special concern
to the relationship between Australia and the other
parties, nor a matter of legitimate international concern generally.
- Australia
has enacted many laws which give effect to obligations under international
conventions and treaties. There is still, however,
room for debate about the
scope of the power of the Parliament in this respect. The limits upon the power
are not precisely defined.
Conclusion
- The
interaction of international law with Australian domestic law is affected by
Australia’s Constitution and the division of
the powers of the
Commonwealth Government between the Executive and the Legislature. The impact
upon the Constitution itself is likely to be a matter of ongoing debate although
it seems unlikely that the High Court will construe the Constitution by
reference to rules of international law. It is well established that
international law and treaty obligations do not translate
directly into the law
of the land in Australia. Nevertheless they can have important influences upon
the ways in which statutes
are interpreted and the common law is developed.
This is a consequence not only of Australian legal doctrine but also of its
status
as a member of the global community of nations.
[1] Declaration by
Order in Council in 1786 pursuant to 24 Geo III c 56 (1784)
[2] [1992] HCA 23; (1992) 175 CLR
1
[3] McMinn, A
Constitutional History of Australia, Oxford University Press (1979) at
1.
[4] 5 & 6 Vic
c 76 (1842)
[5] L
Zines, ‘The Growth of Australian Nationhood and its Effect on the
Powers of the Commonwealth, Zines (ed) Commentaries on the Australian
Constitution, Butterworths (1977) at
1
[6] I draw some
of what follows from the helpful paper by Dr A Twomey, see A Twomey
‘Federal Parliament’s Changing Role
in Treaty Making and External
Affairs’ in Lindell and Bennett (eds) Parliament The Vision in
Hindsight The Federation Press (2001) at 38-42.
[7] Zines op
cit at 7; Twomey op cit at
35
[8] Zines op cit
at 9
[9] Twomey, op
cit at 41
[10] RD
Lumb, Australian Constitutionalism, Butterworths (1983) at
47
[11] Bob
Birrell, Federation: The Secret Story, Duffey and Snellgrove 2001 at
287
[12] O Dixon,
The Law and the Constitution’ (1935) 51 LQR 590 at
597
[13]
Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR
491.
[14]
China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172 at 211
(Stephen J, Barwick CJ and Aickin J
concurring).
[15]
Opinions of Attorneys-General of the Commonwealth of Australia,
Australian Government Publishing Service 1981 at
304.
[16] See the
discussion of the Vondel incident in Zines op cit at
16-19.
[17] See
Twomey op cit at
51.
[18] Twomey
op cit at 51 and 52 and references there cited.
[19] Winterton,
‘The Acquisition of Independence’ in French, Lindell and
Saunders (eds), Reflections on the Australian Constitution, Federation
Press (2003) at 34-35.
[20] Winterton,
op cit at 35.
[21]
Winterton, The Evolution of a Separate Australian Crown[1993] MonashULawRw 1; , (1993) 19
Monash University Law Review 1 at 8-12.
[22]
Attorney-General for the Commonwealth v Ah Sheung [1906] HCA 44; (1907) 4 CLR 949 at 951
(Griffiths CJ, Barton and O’Connor
JJ)
[23]
Australian Citizenship Amendment Act 1984
[24] Nolan v
Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 at
184.
[25] See
also Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 176 CLR
1
[26] Re
Patterson; Ex parte Taylor (2001) 182 ALR
657.
[27] Shaw
v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 203 ALR
143.
[28] Sue
v Hill [1999] HCA 30; (1999) 199 CLR 462 at
503
[29] Zines,
The High Court and the Constitution 4th ed at
275.
[30]
Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at
224.
[31]
Koowarta at
224.
[32]
Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68-9, 77 and
80-1.
[33] [2004] HCA 37; (2004)
208 ALR 124 at
140
[34]
Al-Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124 at
169.
[35] Jago
v District Court of New South Wales (1988) 12 NSWLR
558.
[36] Re
Jane [1988] FamCA 57; (1988) 94 FLR
1.
[37] R Balkin,
‘International Law and Domestic Law’ in Blay, Piotrowicz and
Tsamenyi (eds), Public International Law – An Australian
Perspective Oxford University Press (2d Edition) 2005 at
119
[38] [1992] HCA 23; (1992)
175 CLR 1.
[39]
Cooper v Stuart [1889] UKLawRpAC 7; [1889] 14 App Cas 286 (PC) at 291 per Lord
Watson).
[40]
Milirrpum People v Nabalco Pty Ltd (1971) 17 FLR
141.
[41]
Adeyinka Ayeakn v Musendiku Adele [1957] 1 WLR 876 (PC)
880.
[42] [1973] HCA 31; (1995)
128 CLR 353
[43]
McGinley and Reicher, ‘The Relationship of International Law to Australian
Law, in Reicher (ed), Australian International Law- Cases and Materials,
Law Book Company Ltd at
92.
[44] (2003)
214 CLR 1.
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