INTERNATIONAL (HUMAN RIGHTS) LAW AND DOMESTIC LAW

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INTERNATIONAL (HUMAN RIGHTS) LAW AND DOMESTIC LAW

• Kristen Walker
• Barrister
• Associate Professor of Law, The University of
  Melbourne

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Relationship Between International Law and
Domestic Law

• Basic rule treaties (and probably customary
  international law) are not directly enforceable
  in domestic law
• Teoh, per Mason Deane JJ
• 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. So, a treaty
  which has not been incorporated into our
  municipal law cannot operate as a direct source
  of individual rights and obligations under that
  law.

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International Law as a Source of Commonwealth
Legislative Power

• International law can be used to support
  legislation enacted under the external affairs
  power
• If a treaty is used in this way, then the
  legislation must conform to the treaty must be
  reasonably appropriate and adapted to giving
  effect to the treaty
• But partial implementation is ok.

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Uses of International Law in Domestic Courts
Tribunals

1. As a tool of statutory interpretation
2. As an influence on development of the common law
3. As a basis of judicial review in administrative
   law (controversial)
4. As a tool of constitutional interpretation
   (controversial)

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International law as a tool of statutory
interpretation

• If a statute is clearly in conflict with
  international law, then the statute prevails.
• But if there is any ambiguity in the statute,
  then international law may be used to assist in
  resolving the ambiguity (Teoh)
• Where a statute or subordinate legislation is
  ambiguous, the courts should favour that
  construction which accords with Australia's
  obligations under a treaty or international
  convention to which Australia is a party, at
  least in those cases in which the legislation is
  enacted after, or in contemplation of, entry
  into, or ratification of, the relevant
  international instrument. That is because
  Parliament, prima facie, intends to give effect
  to Australia's obligations under international
  law.

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International law in statutory interpretation in
Victoria

• In Victoria there is express legislative
  authority for using international human rights
  law in interpreting statutes.
• Section 32(2) of the Charter provides
• International law and the judgments of domestic,
  foreign and international courts and tribunals
  relevant to a human right may be considered in
  interpreting a statutory provision.

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Limits on use of international law in statutory
interpretation

• It is permissible to use a treaty at least in
  those cases in which the legislation is enacted
  after, or in contemplation of, entry into the
  treaty.
• What of legislation enacted well before a treaty
  is entered into? (See Dawson McHugh JJ in
  Kruger)
• Ambiguity in the statute is required.

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International law as an influence on development
of the common law

• Courts may develop the common law in two key
  ways
• They may fill a gap in the common law
• They may change the common law by overruling an
  earlier decision.
• In either case they may use international law as
  an influence on their decision.
• The second is more controversial than the first.

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Eg Dietrichs case

• In Dietrich the Court declined to change the
  common law to recognise a new right to counsel at
  public expense, notwithstanding international
  human rights law.
• But the Court did develop the common law in light
  of international human rights law to recognise a
  power to stay proceedings if the absence of legal
  representation would render the trial unfair.

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The use of treaties in administrative law

• Teoh introduced the idea that treaties could
  provide a ground of judicial review of executive
  action.
• Previously, the Court had rejected the notion
  that treaties might be a relevant consideration
  so that if a decision-maker failed to take the
  treaty into account would be a ground of review.

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The Teoh doctrine

• In Teoh a majority of the Court concluded that
  entry into a treaty by Australia generated a
  legitimate expectation that the federal executive
  would abide by the terms of the treaty when
  making decisions.
• If the executive failed to do so, the person
  affected by the decision had to be given an
  opportunity to put submissions on the issue (ie a
  natural justice requirement).

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The Teoh doctrine ctd

• The Teoh doctrine was based on the pre-existing
  administrative law doctrine of legitimate
  expectations about executive decision-making.
• Notably, the person affected by the decision did
  not have to have, subjectively, an expectation
  about compliance with treaty obligations.
• However, the doctrine did not require the
  decision-maker to conform to the treaty
  obligations.

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The Teoh doctrine ctd

• Teoh was very controversial.
• There were federal attempts to override it
  legislatively, which did not pass.
• There were executive statements that attempted to
  negate all treaty-based legitimate expectations,
  which appears to have been ineffective (eg Tien).
• There was debate about the extent to which it
  applied to the State governments, several of
  which legislated to negate the doctrine

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The Teoh doctrine ctd

• More recently, McHugh Gummow JJ cast doubt on
  the Teoh doctrine, in Lam
• If Teoh is to have continued significance at a
  general level for the principles which inform the
  relationship between international obligations
  and the domestic constitutional structure, then
  further attention will be required to the basis
  upon which Teoh rests.
• Teoh was not overruled, but its status is weak,
  at best.

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Treaties and constitutional interpretation

• One final area where human rights treaties may be
  relevant in domestic law is in constitutional
  interpretation.
• Kirby J has championed the use of treaties in
  this area.
• But other judges (eg McHugh J) have indicated
  concern about using treaties in this way.
• Note, however, that historically judges have used
  treaties in constitutional interpretation,
  although without extended discussion.

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Kartinyeri Kirby J

• 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.
• 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.

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Al-Kateb v Godwin McHugh J

• This Court has never accepted that the
  Constitution contains an implication to the
  effect that it should be construed to conform
  with the rules of international law. The
  rationale for the rule and its operation is
  inapplicable to a Constitution -- which is a
  source of, not an exercise of, legislative power.
  
• No doubt from time to time the making or
  existence of (say) a Convention or its
  consequences may constitute a general political,
  social or economic development that helps to
  elucidate the meaning of a constitutional head of
  power. But that is different from using the rules
  in that Convention to control the meaning of a
  constitutional head of power.

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AMS v AIF Gleeson CJ, McHugh Gummow JJ

• As to the Constitution, its provisions are not
  to be construed as subject to an implication said
  to be derived from international law

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Treaties and the Victorian Charter

• Finally, human rights treaties, and decisions
  that elucidate their meaning, will be relevant to
  the way in which the Victorian courts go about
  interpreting and applying the Victorian Charter
  of Rights.
• Section 32 (previously referred to) makes this
  tolerably clear.

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Conclusion

• International (human rights) law is not a source
  of rights and duties in domestic law without
  legislation.
• But international law has certain accepted uses
• Statutory interpretation (especially now in
  Victoria)
• Development of the common law
• And treaties have certain more controversial
  uses
• In judicial review of administrative action
• In constitutional interpretation

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Select references

• Minister for Immigration Ethnic Affairs v Teoh
  (1995) 183 CLR 273
• Kruger v Commonwealth (1997) 190 CLR 1
• Dietrich v The Queen (1992) 177 CLR 292
• Tien v Minister for Immigration Ethnic Affairs
  (1998) 89 FCR 80
• Lam v Minister for Immigration Ethnic Affairs
  (2003) 214 CLR 1
• Kartinyeri v Commonwealth (1998) 195 CLR 337
• Al-Kateb v Godwin (2004) 219 CLR 562
• AMS v AIF (1999) 199 CLR 160
• "International Law as a Tool of Constitutional
  Interpretation" (2002) 28 Monash University Law
  Review 77-92
• Treaties and the Internationalisation of
  Australian Law in Cheryl Saunders (ed), Courts
  of Final Jurisdiction The Mason Court in
  Australia (1996) 204-235