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International Treaties in Australian Domestic Law
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Current Australian law on the relevance of international instruments to the judicial review of administrative decisions is neither straightforward nor certain. Not only is it an area of judicial debate, it has also aroused much political controversy, and even engendered some contestation between the judiciary on the one hand and the executive and the legislature on the other. This paper will commence with initial consideration of the historical developments which have given rise to this controversy and subsequently focus on the issue of legitimate expectations arising from unincorporated international instruments- which remains the subject of considerable political debate, judicial dissent, and legislative action. Traditionally there are four grounds for judicial review of administrative decisions – ultra vires, jurisdictional error, error of law on the face of the record, and denial of natural justice. Lord Diplock identified three underlying principles, saying ‘[t]he first I would call “illegality”, the second “irrationality” and the third “procedural impropriety”.’ Although this simplification has not found acceptance in Australia, judicial review here remains focused upon issues of legality, and procedural fairness, and specifically excludes consideration of the merits. It follows from the first of these that international instruments may effect judicial review of administrative decisions firstly through any effect that they have within the Australian legal system. Ways in which International Law has effect in Australia There have traditionally been three ways in which international instruments have been recognised as having legal effects within Australia. Incorporation into domestic law The power of the Commonwealth to legislate to incorporate treaties and other international agreements into domestic law I derived from Section 51(xxix) (the ‘external affairs’ power) of the Constitution. It has been well established by a line of cases beginning with R v Burgess; ex parte Henry . However, in Burgess Dixon J declared that this power was limited to treaties or agreements “of international concern”. This position was accepted as a doctrine in Australian law until it was displaced by a majority of the High Court in Koowarta v Bjelke-Petersen & Ors, confirmed in Commonwealth v Tasmania . Since these cases, the external affairs power has been held to apply whether or not the content of the relevant treaties and laws have any intrinsic international dimension. Mere ratification of a treaty or other instrument does not, however, change Australian law unless the Commonwealth actually exercises its power and so legislates: 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. …This principle has its foundation in the proposition that in our constitutional system, the making and ratification of treaties falls within the providence of the Executive … and the alteration of the law falls within the providence of Parliament … This position is restated in the preamble to the Administrative Decisions (Effect of International Instruments) Bill 1999. However, the Honourable Elizabeth Evatt, a former Chief Justice of the Family Court, points out that this is not an exhaustive statement of the domestic legal effect of international instruments, because it fails to “..take into account the role of international instruments, even in the absence of legislative implementation, in influencing the development of the common law”. This is the first of two ways in which unincorporated international instruments have been accepted as having some legal effect within Australia. As an influence in formulating the common law As Brennan J stated in Mabo v Queensland (No 2): [I]nternational law is a legitimate and important influence on the development of common law, especially when international law declares the existence of universal human rights. As extrinsic materials assisting in statutory Interpretation In Kartinyeri v The Commonwealth, Gummow and Hayne JJ stated: [T]hat a statute of the Commonwealth or of a State is to be interpreted and applied, as far as its language permits, so that it is not in conflict with the established rules of international law”.
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