Kristen WalkerBarrister

Associate Professor of Law, The University of Melbourne

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.

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.

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)

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.

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.

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.

Courts may develop the common law in two key ways:1. They may fill a gap in the common law2. 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.

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.

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.

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).

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.

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

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.

The Teoh doctrine ctd

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.

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.

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.

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

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.

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

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