The Growing Impact of International Law on Australian Domestic Law (Option
2) - Implications for the Procedures of Ratification and Parliamentary Scrutiny
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Organisation: Australian Law Journal - International Legal Notes
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OPTION 2
AUSTRALIAN LAW JOURNAL
INTERNATIONAL LEGAL NOTES
The growing impact of international law on Australian domestic law.
Implications for the procedures of ratification and Parliamentary scrutiny
No Australian lawyer could fail to observe the growing debate about the use
of international treaties as a foundation for Federal legislation, expanding
the area of Federal law-making into matters hitherto regulated by State law.
In a recent speech, delivered as an Occasional Lecture for the Senate
Department of the Australian Parliament, Justice Michael Kirby, who is
President of the Court of Appeal of
Because of the significance of this debate, extracts adapted from Justice
Kirby's lecture follow. After listing criticisms of Federal use of human rights
treaties, voiced by commentators of different political affiliation in
Inevitable and beneficial impact of international law
"The following are reasons why some of the criticisms of the growing
use of treaties in Federal law-making in
1. The international committees which are frequently criticised stand as a
source of international legal obligations in an entirely different relationship
to the Australian legal system than the Privy Council in
2. The United Nations committee has, it is true, members from a number of
states which do not share all of our perspectives on human rights. But they are
states of the world we live in. The members of the committee are elected for
their individual expertise. When serving, they do not act as representatives of
their country but in a personal capacity. They must make a solemn and public
declaration to that effect. The Toonen decision was unanimous. This suggests
that, even in a matter as controversial in some countries as the rights of
homosexuals, nationality and legal tradition had little final influence.2 The
decision of the committee may be criticised on its merits, as it has been, by
experts in international law who think that it went too far3 or not far enough.4
Some criticism was directed to the inability of Tasmania, as such, to be heard
directly by the committee. But that was simply the result of the fact that, by
the Australian constitution, the Commonwealth is the international
representative of
3. The notion that Tasmania's democratically elected Parliament should have
the right to over-ride fundamental rights, globally declared and relevantly
held applicable, begs an important question. It would have been preferable for
the people of
4. The democratic argument, and the complaint about loss of
"sovereignty" have an undoubted appeal. But I think it is
increasingly recognised that democracy is not simple majoritarian votes.
Democracy, as it is now practised, is a system of government which accords
power to persons elected by the majority of citizens but upon the condition
that they will respect the fundamental rights and dignity of minorities.
Professor Ronald Dworkin has explained that human rights are promises to
minorities that their dignity and equality be respected by the majority.6 It
seems unlikely to me that Australians would accept a State law that criminally
punished people because they were of Jewish or Chinese ethnicity or because
they were women or because their skin was dark. Seen in this light, the limits
of democracy are reached. Far from being a surrender of "sovereignty",
measures taken to uphold minority rights, authoritatively declared by an expert
international committee, may be seen as an exercise of sovereignty. To talk of
"sovereign States", or for that matter "the sovereign
Federation", is to indulge in metaphors which are not sustained by the
Australian Constitution as it has been interpreted.
5. A little known change that has come about in recent years parallels the
passage of legislation through Parliament to give effect to international
standards. This is the impact of international human rights jurisprudence upon
6. For those who say that Australia has nothing to learn from these
international developments, which may be useful enough to the poor people of
Cambodia and to the oppressed in Cuba, Sudan, Burma and elsewhere, the response
comes back. Recent history denies it. In the matter of the human rights of
homosexuals, the law stood as an oppression to that section of our community in
all parts of
Lessons for the future
This said, the concerns of many Australians about respect for democracy, the
preservation of the Federal compact and local responsibility for human rights
matters must not be lightly dismissed. They are views sincerely held, strongly
argued and they have a foundation which is legitimate.
How can we reconcile what seems to be the natural tide of history, one that
is often, if not usually, beneficial, with the constitution of this country
drawn up for utterly different international circumstances and for a
significantly different Australian people? That is a challenge which is before
us now.
The Minister for Foreign Affairs (Senator Evans) who has done a great deal
to support the United Nations work in human rights has rejected the proposal
that
It is certainly our tradition that the Executive Government, succeeding to
the prerogative powers of the Crown, has reserved to itself the right, and the
duty, to subscribe to international treaties in the name of
Some important treaties have been ratified with little Parliamentary or
public debate.12 The Government's action of depositing the instrument of
accession to the First Optional Protocol to the ICCPR before the tabling of the
instrument in Parliament was described as "extraordinary" ...
"without any public debate or even public awareness of its existence, let
alone its scope and significance". The growing body of treaty law has an
increasing impact on Australian law. It therefore seems legitimate, in some
way, now to involve the national Parliament in the superintendence of Executive
action in respect of treaties. The old rule may have been apt for a time when
international law was in its infancy. But nowadays, in economic matters as well
as those relevant to human rights, the growth of international treaty law is
extremely significant and growing even more important. In 1961 Prime Minister
Menzies announced that, in general, the Australian Government would not proceed
to ratify or accede to a treaty until it had lain on the table of both Houses
of Federal Parliament for twelve sitting days.13 Whilst I fully understand the
politics of resistance to Parliamentary scrutiny and would regret a move to the
United States requirement of advice and consent of the legislature, which has
proved such a reinforcement of isolationism, there is surely an intermediate
position. Parliamentary scrutiny is not the same as Parliamentary approval.
Scrutiny could be part of the larger function of raising Australian awareness
of the growing body and importance of international law. As that law comes to
sustain Australian statutes (such as the Sexual Conduct Act), Australian
Executive action (such as the Tasmanian Dams regulations) and Australian court
decision (such as, in part, Mabo), it is appropriate that the actions of
the Federal Executive in ratifying treaties should be assisted by the
consideration of the representatives of the Australian people. I do not believe
that Australians favour an isolationist country. Still less do I believe that
they are unaware of the important moves which I have described, in the
international community, for the better protection of human rights everywhere.
The Australian people can be trusted as can their representatives in Parliament,
to understand that it is possible to reconcile our Federal constitution and the
growing province of international law. In their genius, the Founders provided
the means to do so. It takes legislators and judges of understanding to ensure
that the constitution continues to serve
The external affairs power in the Australian constitution appears, both by
express terms and by its location in the document, are an element of a
constitution which is Federal in its basic character. Although the grant of
power is large indeed, it is not uncontrolled. It is the function of successive
Parliaments and of the High Court, to chart the boundaries of the power in new
circumstances. Amongst the new circumstances are the growing sense of national
identity of Australians, the changing role of
FOOTNOTES
* President of the Court of Appeal of
1. United Nations, Human Rights Committee, Communication No 688/1992.
Nicholas Toonen and
2. H Charlesworth "Protecting Human Rights" (1994) 68 Law Inst
J (Vic) 462 at 463.
3. See eg A Funder "The Toonen Case" (1994) 5 Public Law Rev
156.
4. See eg G Selvaner "Gays in Private, the Problems with the Privacy
Analysis in Furthering Human Rights" (1994) 16
5. See Dudgeon v
6. R Dworkin Taking Rights Seriously, 1977, 205.
7. See eg M D Kirby, "The Bill of Rights Debate", Australian
Lawyer, vol 29, December 1994, 16.
8. (1992) 175 CLR 1, 42.
9. See M D Kirby, "The Australian Use of International Human Rights
Norms" (1991) 16 UNSWLJ 363.
10. See for Amnesty's criticism of
11. See Australian Senate, Estimates Committee, Hansard,
12. See A Twomey, Parliamentary Research Service Bkgrd Paper No 27, 1995 Procedure
and Practice of Granting and Implementing International Treaties
13.