018B

UNIVERISITY OF MELBOURNE

FACULTY OF LAWPublic Law and Legal Theory

Research Paper No. 33

2002

INTERNATIONAL LAW AS A TOOL OFCONSTITUTIONAL INTERPRETATION

Kristen Walker

This p'IJer can be downloaded without charge from the

Social Science Research Network Electronic L1bnary at:

http://ssm.comlab,tr4cUd=319921

018B

;l",~~~Fl~l'; THE UNIVERISITY OF MELBOURNE FACULTY OF LAW

Public Law and Legal Theory

Research Paper No. 33

2002

,INTERNATIONAL LAW AS A TOOL OF CONSTITUTIONAL INTERPRETATION

Kristen Walker

This P'Iler can be downloaded without charge from the

Social Science Research Network Electronic Libnary at:

http://ssmcomi.b,1r4cUd=319921

;~~ATIONAL LAW AS A TOOL OF CONSTITUTIONAL INTERPRETATION

i'";~"t' Kristen Walker'""'" ~

;;";1~0,i~; ,"i;';'RODU<;TION;&~~\;Y*\~;i';' '::";J;j~des of judgments in the past five years Justice Kirby has developed an

!{t.jt;J -;-~-,f':f~live principle concerning the use of international law in constitutional

~~"0

~tion. He has adapted the words of Brennan J in Mabo v Queensland [No\},'

Il'lulate the proposition that:

"The common law, and constitutional law, do not necessarily conform withhiternalionallaw. However, international law is a legitimate and important'influence on the development of the common law and constitutionai law,

'tespecially when international law declares the existence of universai andfundamental rights?

~1~(."'·~i~ri'tie is very much alone in his endeavour, though as Kirby J himself has noted,

,,~:.p

"~~hElreSieS sometimes become tomorrow's orthodoxy"!

._;\~

.,~.•,,!•.~}~ paper I will explain and assess Kirby J's interpretive principle. I shall argue

~,~}~~~~}{~+;;~':"&'JQ~t[nternationallaw should, as Kirby J asserts, be considered a legitimate influence

""fit'''',,~51~hstitutionalinterpretation. I also argue that Kirby J'S approach is not entirely

,~; ;o~i;l;~~tstf'" '._"":'.i,::nie\'ii as there is support for the use of international law in constitutional Interpretation"-'.-"".i"~',;.",.c;,

. K{·!l,~q.i.LB(Hons) LLM (Melb). LLM (Columbia). Senior Lecturer In Law, The University of M~lbourne::i}~~t~~;~,~like to thank Simona Gory for research assIstance; all errors remain my own. A versIon of this" 'p,ap!r~was presented at the Public Law Weekend, ANU Law School, 2 November 2001.

't'.>,.':v,·:·.···';Ifi~!'.o,v Queensland [No 2] (1992) 175 CLR 1, 42.

.·1J.~wcr.st Mining (WA) v 7he Commonwealth (1997) 190 CLR 513, 657. And see Karlinyeri v TheQo,ml11onw••lth (1998) 195 CLR 337, 417-418, Sinanovi. v R (1998) 154 ALR 702, 708; Re Minister

:.i,-:,5,jj0t: !mmlgration and Multiculturel Affairs; Ex parte Epeabaka (2001) 179 ALR 296, 314; Levy v Vicforia7:J%;*,q~,m 189 CLR 589. 644-5; R. East; Ex parle Nguyen (1998) 196 CLR 354. 380-1; Michael Kirby,Q'2\);~/!f!t,~rfliitionat Law: Down in the Engineroomn

, ANZSIUASIL Joint Meeting, 26 June 20001 6-7,~~5,}3;~~,~~~~.hcourt.gov.au/speeches/klrbyj/kirbYLinteUaw.hlm; Michael Kirby, "Domestic_i~\~(::r)~pJementat;on of Human Rights Norms" ANU Conference on Implementing International Human'?l:~;:;si:.mRh.ts,: 6 December 1997, 29-32, http://www.hcourt.gov.au/speeches/kirbyj/kirbYLinthrts.htm.;_"\":"<Z;:-~··-';':'.' ~'ll;k}(~?t~l.rby,. Domestic Implementation", 32.

~I

tIN,II.TI~JNJ~L LAW AS A TOOL OF CONSTITUTIONAL INTERPRETATION

Kristen Walker'

of judgments in the past five years Justice Kirby has developed an

principle concerning the use of international law in constitutional

He has adapted the words of Brennan J in Mabo v Queensland [No

';;,"""I~IIp. the proposition that:

common law, and constitutional law, do not necessarily conform with ;\c"fnt,,,n,aticlnallaw. However, international law is a legitimate and important

;"flllP-11ce on the development of the common law and constitutional law, when international law declares the existence of universal and

rights?

is very much alone in his endeavour, though as Kirby J himself has noted,

heresies sometimes become tomorrow's orthodoxy"!

I paper I will explain and assess Kirby J's interpretive principle. I shall argue

:rht.ernlation'~llaw should, as Kirby J asserts, be considered a legitimate influence

\ID'1SllIUIIIOnal interpretation. I also argue that Kirby J's approach is not entirely

there is support for the use of international law in constitutional Interpretation

,~~~~~~~~~L~L~M~(~M~e~lb~)'~L~LM (Columbia). Senior Lecturer In law I The University of Melbourne. to thank Simona Gory for research assistance; aU errors remain my own. A version of this

presented at the Public Law Weekend, ANU Law School, 2 November 2001 .

. v Queensland [No 2] (1992) 175 CLR 1, 42.

~'~;;'~(f~~~,SM~i~nl,ng (WA) v The Commonwealth (1997) 190 CLR 513, 657. And see Kartinyeri v The

(1998) 195 CLR 337, 417-418. Sinanov!c v R (1998) 154 ALR 702. 708; Re Minister . • Multicullurel Affairs; Ex part. Epaabaka (2001) 179 ALR 296, 314; Levy v Victoria

589.644-5; Re East; Ex parte Nguyen (1998) 196 CLR 354, 380-1; Michael Kirby,

~:~i~~~~2~~~~'~D~;or~w;~n~i~~n:!lh~e;;~i' ;~.~~, ~A~N~ZS;I~U~A~S~~IL~;J~Oinl Meeling, 26 June 2000, 6-7, t Michael Kirby. "Domestic on Implementing International Human

http://www.hcourt.gov.au/speeches/kirbyj/kirbYUnthrts.htm.

t:W;;,i',Wirti'i', IIDomestic Implementation", 32.

~Vcases over the course of the last century. What is new about Kirby J's,,\ii~;'.

'K';;~~B'iS that he has articulated en explicit interpre~ve principle, whereas previousWpr,,,;,:·'·:,~~'r«~dlnvolved the ad hoc and unexplained use of interna~onallaw. It might

;;;";~~i<s;;;b¥:~r9ued that Kirby J's approach is not new in that he is merely extending an

::'1;S'§~\~~'~'::':' .':+;:§~~§''prihciple of statutory interpretation to the Constitution. I disagree with such a

"':'''~~:;/

:~risation, however, as I do not consider the Cons~tution to be the equivalentJ}:,: ...- .

~@i::Qlainary statute. Rather, the Constitution is a "special" statute' - that is,'_£~;~X:~~/ -"liilb'ugtnechnicallyan Imperial statute, it is our foundational legal document,

&q§Kr~a~;;~lOped in Australia and adopted after referenda in each colony, It stands in a

>·~':'¢}~\h~/> ..:i~~alil'position,5 subject to a distinct body of jurisprudence concerning its\:.>~~:\\~;r: '

·pretetlon. Thus aithough it is correct to say that Kirby J has extended an existing

~/'.,;<\ipl~irllo the constitutlonal arena, I regard this extension as novel- and indeed,

~;t~Y~s{;t:-~-, -,... ''C9.9troversial, as the discussion of judicial responses to Kirby J's approach in Part

i'M'arll of this article, I shall briefly outline the cases in which members of the High,~:~~~{K@~:, :,cc'Ctiurfhave, over the years, drawn on international law in interpreting therIg~nt~~N'-~-_TC;)IQstltution. In Part III shall explore in greater detail Kirby J's approach to the use of::(·,('W~;i"';:'/" :

),lnf~ri1aiionallaw in constitutional interpretation and consider the reaction to that/:iW~~B~d~'> ,~

>::<',app(p.ach by other members of the present High Court. In Part 11I1 shall provide a~~</d~;:i~~P:'f'~.di"i";~H])~!i.ve argument concerning the interaction of international law and constitutional

.,\~~i-'\:~~r:1':'~~~'\:'i' ," ::,(~'~~f.l conclude that, while international law has had and should have a role to play in

-<r>"";::;:

'~t;~~M·litptional interpretation, a robust role for international law is unlikely to be';;,:':c;-':.f:;''<-\

't\;~;~~Pted by a majority of the Court as presently constituted.

j~:~:~~~~ ..';' , ..iP!,:bl:,Kartlnyeri 419

'). ,

~\,ii:ii\; ~a,ses over the course of the last century. What is new about Kirby J's

is that he has articulated an explicit interpre~ve principle, whereas previous

Involved the ad hoc and unexplained use of international law. It might

;~~:q~lf~~r'guEld that Kirby J's approach is not new in that he is rnerely extending an

;"',,,ihcinle of statutory interpretation to the Constitution. I disagree with such a

;:'r~bleris~ltion, however, as I do not consider the Constitution to be the equivalent

m:<iidinaIY statute. Rather, the Constitution is a "special" statute' - that is,

Ih'lI,chnicialivan Imperial statute, it is our foundational legal document,

.;el:6pEld in Australia and adopted after referenda in each colony. It stands in a

"n,.itil,n." subject to a distinct body of jurisprudence conceming its

jO\I~iplfetlltlon. Thus aithough it is correcl to say that Kirby J has extended an existing

"';'!Ei" .. ~~ into the constitutlonal arena, I regard this extension as novel - and indeed,

,'as·coIOtre.ve'rsilll, as the discussion of judicial responses to Kirby J's approach in Part

reveals,

. of this article, I shall briefly outline the cases in which members of the High

;~'il.lrj:,halve, over the years, drawn on international law in interpreting the

In Part III shall explore in greater detail Kirby J's approach to the use of

r3~n~j~m!!'tiDmlllaw in constitutional interpretation and consider the reaction to that

iZ~~r~;('h by other members of the present High Court. In Part 1111 shall provide a

~;~~:;;j~~.~!i.\le argument concerning the interaction of international law and constitutional

conclude that, while international law has had and should have a role to play in

fl,(~~;£gti~;!it'ltio:nal interpretation, a robust role for international law is unlikely to be

by a majority of the Court as presently constituted,

'419.

2

3

'S"A";!~~~?,'·'.'f~tjthis point that I will not be dealing in ailydetail with the more general~J~~~" ,€fi~t\(ll the relationship between international law and domestic law - that is, the

~"'i":/;'~;;!;;1'~'&iiio~ationltransformationdebate. Although this is a constitutional question, it is:·,{~f~tAi@:.j€i'~lh;;:,'qlj'estion on which I wish to focus, and it has been dealt with extensively.1)0 •.•

~~~'~<1:1~~:

:~'M\~re.' Briefly, however, it may be noted that in our legal system treaties are not:>(:{j~{":

';~ilj~t\caIlY "part of' domestic law. Rather, an act of transformation is required to".-,,,_i#tW.i(~:~;\:.~if~K~alies direct effect in Australian law.' In relation to customary international law,,."-.-'>.,<,,,,--,,,,,,:,

J~~~1!'~~~ition ;s more complex. It is still possible to argue that customary international::,~ti,~~~j.0('P~;..ii·'iaw:1s{'part of' the Australian common law without requiring legislation to transform:;?£:~~:l";~:';;~~~~·;:·;'.:,.\r.:cil~j(;iharY international law into Australian law, based on English authorities (such as'~.'\,~;~:~~~~ji$:\, _1·.lifffi~et v Bath" and Trendtex Trading Corporation v Central Bank ofNigeria") and;)'1·~-i~;'~;' '::',~;+;::_ .',

c::::\:~t~~[older Australian cases (such as Polites v The Commonwealth'· and Chow':~.~t,

,Jig"Chlng v R"). However, such a proposition was rejected by Dixon CJ in Chow,,;;\~y

.j'(/CWng12 and, more recently, impliedly rejected by a majority of the Full Federal'~-,~l1:1h~2,:GqlJ'i'fih NUlyarimma v Thompson." There is no recent High Court support for an

\~~;<

~':"iP~$a4 (Gummow and Hayne JJ). Polites 78 (Dixon J).

:~',$~~t~9.;:KristenWalker, "Treaties and the Internationalisation of Australian Law" in Cheryl Saunders,.;~/'ed;'qouits,of Final Jurisdiction (1995); Andrew Mitchell, "Genocide, Human Rights Implementation~;}:A:rl(r~e Relationship Between International And Domestic Law: Nulyarlmma v Thompson" (2000) 24FMPLR,(,.15;,James Crawford and William Edeson, "Internatlonal Law and Australian Law" in KW Ryan:',.X~d);"Jn'temafiOnaJ Law in Australia (2nd ed, 1984) 71; C Alexandrowlcz, "International Law in the;~1,~~~I~_lpal Sphere According to Australian Decisions" (1964) 13 International and Comparative Law,ii9uBijeriY78.

,f~~~;~J:~l~,(u.II>er discussion of the relationship between treaties and Australian law, see Kristen Walker,<·~:x;~n;,mi!~I~~, and the Internationalisation of Australian Law" in Cheryl Saunders, ed, Courts ofFinal';~S~Ud.fd~ljon(1995)204.

'£;::1Jij~) ~Burr 1478 [97 ER 777].

";}Jj~?!I1 ~B 529.

:{';~"i1h~i;)70 CLR 60.

%.'i';i,f(194Ii) 77 CLR 449..,:,;;~~' iiF, ~,:,;/c:,'?<,:Ibld477­;g\"~1F";)"~:':-,:",

l~\'J1~991 FCA 1192 (1 Sept 1999). paras 24, 52.

1

point that I will not be dealing in any detail with the more general

.. of the relationship between international law and domestic law - that is, the

nsforn1ation debate. Although this is a constitutional question, it is

on which I wish to focus, and it has been dealt with extensively

.• Briefly, however, it may be noted that in our legal system treaties are not

"part of' domestic law. Rather, an act of transformation is required to

'iii'Vif!J'el~Ue,s direct effect in Australian law.' In relation to customary international law,

~}~t;~~l~~illion is more complex. It is still possible to argue that customary international

'f~,,;,;i1;71;;"~'o" of' the Australian common law without requiring legislation to transform

international law into Australian law, based on English authorities (such as

:'!i"~¥;:;;ij';;.iv· Bath" and Trendtex Trading Corporation v Central Bank of Nigeria") and

Australian cases (such as Polites v The Commonwealth'O and Chow

v R"). However, such a proposition was rejected by Dixon CJ in Chow

111(~hjng'" and, more recently, impliedly rejected by a majority of the Full Federal

GOIUiliihNulyarimma v Thompson." There is no recent High Court support for an

(Gummow and Hayne JJ). polite. 78 (Dixon J).

,1. ,." .,,,~,,~~- Kristen Walker, "Treaties and the Internationalisation of Australian Law" in Cheryl Saunders, Jurisdiction (1995); Andrew Mitchell, "Genocide, Human Rights Implementation

Re.lati"nship Between Internationel And Domestic Law: Nulyarlmma v Thompson" (2000) 24 1:i)~~';:~~';;:;;~:,c"",vfo'rd and William Edeson, "International Law and Australian Law" in KW Ryan

_:~ Law in Australia (2nd ed, 1984) 71; C Alexandrowlcz, "International Law in the According to AUstralian Decisions" (1964) 131ntematlonal and Comparative Law

discussion of the relationship between treaties and Australian law, see Kristen Walker, :;~~'4~;~i~t~~n~ the Internationalisation of Australian Law" in Cheryl Saunders, ed, Courts of Final l; (1995) 204.

1192 (1 Sept 1999), paras 24, 52.

3

ii~tipn approach to customary international law and Sir Anthony Mason, in his

idal writings, has noted that in Australia we seem to prefer the ..

.;ation approach to customary international iaw.'4 However, both treaties,'N::;~iJ~ary international law have been used quite frequently by the Courts in the

,~;4~~:': ,"%jbl~ent of the common law and in the interpretation of legislation.'s More

';;treaties have been used in the area of legitimate expectations in

:\';'.'"INTERNATIONAL LAW IN CONSTITUTIONAL CASES: 1901-1996';\"

~tional law has been raised in various constitutional cases over the years in

hlo diverse issues, including:

(a) international law as a limitation on legislative power;17

(b) international law as a source of legislative power;'·

'. (c) the determination of the existence of a sufficient nexus between a Stateand the sUbject matter of a Slale law;19

(d) the interpretation of section 44 of the Constitution;2o

':A~ihl;my Mason, "International Law as a Source of Domestic Law" In Brian Opeskin (ed),im~rionaJ Law and Australian Federalism (1997) • 218. And see generally the discussion in:9,~:~1I! .above n 6.

~~:discussion in Walker, above n 6, 209~218; Rosalie Balkin, "International Law and Domestic_,.~:{nSam Blay, Ryszard Piotrowicz and Martin Tsamenyl (ads), Public International Law: An

.~it~i~lian PerspecUve (1991) 119, 122, 132-135

ffl\~~~':~{~is_terfor Im:nlgration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

;'J;Y;'i"p!ites v The Commonwealth (1945) 10 CLR 60; Horta v The Commonwealth (1994) 181 CLR 183;::.;;,:t:g)~,!khovichv The Commonwealth (1991) 112 CLR 501.

:\t;;'l:iliiche v Kronhelmer(1921) 29 CLR 329; R v Burgess; Ex parte HenlY (1936) 55 CLR 608; R v;c'/'cOflIf';Ex perte HenlY ([No 2] (1939) 61 CLR 634; Airlines of New South Wales Pty Ltd v New South",iW~le~INo 2] (1965) 113 CLR 54; The Commonwealth v Tasmania (1983) 158 CLR 1; Klrmani v·<Capl~ln Cook Cruises Ply Ltd (1985) 158 CLR 351; Gerhardy v Brown (1985) 159 CLR70;S8lc~ardsonv Forestry Commissfon (1988) 164 CLR 261; Queens/and v The Commonwealth (1989)f(1a?"CLR 232 (The Queensland Rainforest Case); Victoria v The Commonweelth (1996) 181 CLR 416"J1?~;'industria/Relations case).

'·~,yNon Steamship Co ofAustralia Ply Ltd v King (1988) 166 CLR 1.

,~~~!B,~?"

4

approach to customary international law and Sir Anthony Mason, in his

writings, has noted that in Australia we seem to prefer the ..

approach to customary internationallaw. '4 However, both treaties

custom,ary international law have been used quite frequently by the Courts in the

Velc)llinentofthe common law and in the interpretation of legislation.'s More

V': t:re"tie.s have been used in the area of legitimate expectations in

st,,~tl~'e law. ' • The question that remains Is whether and how international law

in constitutional cases.

'.IN·rE~tNA,TICINA,L LAW IN CONSTITUTIONAL CASES: 1901-1996

natinnallaw has been raised in various constitutional cases over the years in

to diverse issues, including:

(a) international law as a limitation on legislative power;17

(b) international law as a source of legislative power;'·

< (c) the determination of the existence of a sufficient nexus between a State and the subject matter of a State law; 19

(d) the interpretation of section 44 of the Constitution;2o

i;;j~~J;l~~~.~ I "International Law as a Source of Domestic Law" In Brian Opeskin (ed), ~,~: Law and Australian Federalism (1997). 218. And see generally the discussion in

I above n 6,

!G:Sle~dis(:u"'ionin Walker, above n 6, 209~218; Rosalie Balkin, "International Law and Domestic Blay, Ryszard Piotrowicz and Martin Tsamenyl (ads), Public International Law: An

;S:;,Ai~iraliian Persp~cUve (1991) 119, 122, 132·135

for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 213.

v The Commonwealth (1945) 70 CLR 60; Hart. v The Commonwealth (1994) 181 CLR 183; v The Commonwealth (1991) 172 CLR 501.

),S::',~locl,e v Kronhelmer(1921) 29 CLR 329; R v Burgess; Ex parte HenlY (1936) 55 CLR 608: R v HenlY ([No 2] (1939) 61 ClR 634; Airlines o(New South Wales Pty Ltd v New South

113 CLR 54; The Commonwealth v Tasmania (1983) 158 CLR 1; Kirmani v

~c;r~u:i,s,~e0s~p;ty~:~Lr.td~~(~1.~98~5) 158 CLR 351: Gerhardy v Brown (1985) 159 CLR70;

(1988) 164 CLR 261; Queensland v The Commonwealth (1989) Rainforest Case); Victon'a v The Commonwealth (1996) 167 CLR 416

case).

:','i;,U,i11on Sle.em"hip Co of Australia Ply Ltd v King (1988) 166 CLR 1.

4 I.:

5

~--------_ ...._--

(e) the determination of the constitutionality of legislation regulating NewGuinea (and later Papua and New GUinea) under the League ofNations mandate system (and later the United Nations trusteeshipsystem);'l and

(I) the freedom of political communication cases; and the interpretation ofCh III of the Constitution. 22

consider all of these areas in detail - suffice it to say that international lawj~';;,- -

~$we know, rejected as a limitation on legislative power in both Polites and

~':t:th the exception of some legislation enacted under the external affairs:~'I:\~ .

.. _P' Evatt J's attempts to confine the Commonwealth's power over trust and

1~~1;ed territories failed. 24 Constitutionally, of course, international law has provedh~~~~:~ijjc!lnt as a source of legislative power because of the Commonwealth""iA-'.( ;

.i~J;glTlent·s capacity to legislate to give effect to Australia's international obligations,~~ff;-.;

'jot has been rnuch written about elsewhere" and thus will not be addressed.'»' ,..".'"l1er~~.t· Rather, I will focus on two areas where international law has been used in;1:~i:~~lt,' '%,lermining a constitutional issue: Ch III of the Constitution and the implied freedom~i'G'~:¥'~',~'tbt'Pii!itical communication.,'~\~~S,,)

';~l;~~;;s v Cleary (1992) 176 CLR 77.

i~t~i~;' v Meinka(1993) 49 CLR 243; Ffrost v Slevenson (1937) 58 CLR 528; Fishwick v Cieland'(1960) 106 CLR 186."..:&<~,;;. ,,;~~N8t;onwlde News v Wills (1992) 177 ClR 1; Australian Capital Television pty Ltd v The

":l!oiiUhonweailh (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd 11994) 124 ALR 1.

~~Th1riS.' legislation enacted in reliance on a treaty must be "reasonably capable of being considered'appt9prlate and adapted" to implementing the treaty: Industrial Relatfons case, (1996) 187 ClR 416,

,.,?~~;?:.,~(C14:""",it,-

,;~/£Seen 21 1 above.-J':",\,}";~:,,

i '~:~~,,'eg, Andrew Byrnes and Hilary Charlesworth, "Federalism and the International Legal Order:R,e~~~!Developments In Australia" (1985) 79 American Journal of International Law 622; Kidwai,;·,~.~mal Affairs Power and the Constitutions of British Dominions" (1976) 9 University of QueenslandfJi"r',Journa/167; JT LUdeke. "The External Affairs Power. Another Province for Law and Order"Jl@~4)68 Australian Law Jouma/250; Brian Opeskln and Don Rothwell, "The Impact of Treaties on

;~'~~~~falian Federalism" (1995) 27 Case Western Journal of International Law 1; Don RothweiJ, "The~.ljlg~,,<?ourt and the External AffaIrs Power: A Consideration of its Inner and Outer Limits" (1993) 15,E:~R~~ifllde Law Review 209; James Crawford and William Edeson, "International Law and Australian,,;,La!'1'.i~ KW Ryan (ed), International Law in Australia (2nd ed. 19B4) 71; Geoffrey Sawer. "Auslralian';,:,,~,9~~btutional Law in Relation to International Relations and International Law" in KW Ryan,~:'t',t.ntw!,atfonal Law in Australia (2nd ed, Sydney) 35; Leslie Zines, The High Court and the Constitution.:;Prp"ed, 1992).

~ii;~.~~<;

(e) the determination of the constitutionality of legislation regulating New Guinea (and later Papua and New Guinea) under the League of Nations mandate system (and later the United Nations trusteeship system);'1 and

. (I) the freedom of political communication cases; and the interpretation of Ch III of the Constitution,22

consider all of these areas in detail - suffice it to say that intemationallaw

. y!e know, rejected as a limitation on legislative power in both Polites and

the exception of some legislation enacted under the external affairs

Evatt J's attempts to confine the Commonwealth's power over trust and

territories failed,"' Constitutionally, of course, international law has proved

as a source of legislative power because of the Commonwealth

,ie~~~lmlent's capacity to legislate to give effect to Australia's international obligations,

\,."\~, •. ,,gO been much written about elsewhere" and thus will not be addressed

, I will focus on two areas where international law has been used in

detJermilnirlQ a const'ltutional'lssue: Ch III of the Consfitut'lon and the 'Implied freedom

::bfiil\llitical communication,

. v Cleary (1992) 176 CLR77.

Meinka(1993) 49 CLR 243; Ffrost v Stevenson (1937) 58 CLR 528; Fishwick v Cleland CLR 186,

~'~;'f;)~~~~~;I~News v Wills (1992) 177 CLR 1; Australian Capital Television Ply Ltd v The ;) (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd (1994) 124 ALR 1,

o 'legislation enacted in reliance on a treaty must be "reasonably capable of being considered :;~:~lg'~:'~teand adapted" to implementing the treaty: Industrial Relations case, (1996) 187 ClR 416,

~~1~~\~~';;;~~~~;~ and Hilary Charlesworth, ~Federalism and the International Legal Order: '~ In Australia" (1985) 79 American Journal of International Law 622; Kidwai,

Power and the Constitutions of British Dominions" (1976) 9 University of Queensland WJ'ourna/167~ JT Ludeke, "The External Affairs Power. Another Province for law and Order"

~~~~l~~~~~~::~~:~"~~;L;aw Joumal 250; Brian Opeskin and Don Rothwell, "The Impact of Treaties on ;.~:: (1995) 27 Case Western Journal of International Law 1; Don Roihweii. "The i1:~~.'l;~d~'Z and th~ External Affairs Power: A Consideration of its Inner and Outer Limits" (1993) 15 f: RevJBw 209; James Crawford and William Edeson, "International Law and Australian

(ed), International Law in Australia (2nd ed, 19B4) 71; Geoffrey Sawer, "AUstralian ':'~~~h:~~"~~~:~[~ in Relation to International Relations and International Law" in KW Ryan, ~~t Law in Australia (2nd ed. Sydney) 35; Leslie Zines, The High Court and the Constitution , .. '" .,0.1992),

5

.__ oftne Constitution:1·.:, .

~(III of the Constitution may not appear at first glance to be fertile ground for~-J:-~',

'~~rlts based on international law. However, international law has had some

'~:~<::~. !

,lice in determining whether Ch 111 preciudes the enactment of ex post facto

;'~;~',,>, 'r~ilaws and, if it does, precisely what amounts to such a law. These issues

~l~ed in Pofyukhovich, which concerned the validity of the Commonwealth War

~iJ~:Act. Deane J concluded that Ch III did preclude ex post facto criminallaws26

:0~~t~-,>: ,,dii~lthoUgh his Honour's decision was based primarily on his conception of the

;t*~li;;,:', ~.n~liJ't~ of the judicial process, he aiso drew support from international human rights

t~;~'&~~t~~>-','cori\i~ntions, such as the European Convention for the Protection of Human Rightsi;W~~~i~y:.,~'j(~E"¢I:!R") and the American Convention on Human Rights, which prOVided protection~~~1~:')';: ~ ;';:, :,', -"'rist the imposition of retrospective criminal guilt?' Australia is not a party to

,,"

{~i ~hese conventions, but Deane J used them to support his conclusion that "ex

:dll~t~ criminal legislation lies outside the proper limits of Ihe legislative function"'l';i:;. ~_2

(matter of principle. 211

~', Both Deane J and Gaudron J also made use of principles of inlernationallaw

i~irapPlicationof the prohibition on ex post facto criminal laws stemming from Chi~~

ltMe Constitution. Because they concluded that such a prohibition existed, it was()-'"~:'~:~ -

(neqeSsary for them to establish whether the War Crimes Act violated the prohibition."·~;::{~i:~.' ' , ~

Wa~ accepted that Ihe conduct criminalised by the Act was not criminal in domestic.""-,.''-;-.,',

~~~1,lhe time of its commission; however, both judges considered it necessary to

Gii~~:,".:'.}'H991) 172 CLR 501,611-2.<;"-".\<"~"i6Id612.

f\f~611.

6

III of the Constitution

of the Constitution may not appear at first glance to be fertile ground for

based on international law. However, international law has had some

'in determining whether Ch III precludes the enactment of ex post facto

and, if it does, precisely what amounts to such a law. These issues

;~-;i~r~isEld in Pofyukhovich, which concerned the validity of the Commonwealth War

Deane J concluded that Ch III did preclude ex post facto criminal laws2

'

althoulln his Honour's decision was based primarily on his conception of the

.. oithe judicial process, he also drew support from international human rights

'c6ri~~nti(ms such as the European Convention for the Protection of Human Rights

and the American Convention on Human Rights, which provided protection

the imposition of retrospective criminal guilt.2' Australia is not a party to

these conventions, but Deane J used them to support his conclusion that "ex

criminal legislation lies outside the proper limits of the legislative function"

01 prinCiple. '"

.. :: Both Deane J and Gaudron J also made use of principles of international law

. application of the prohibition on ex post facto criminal laws stemming from Ch

.:~';~'.".'. Constitution. Because they concluded that such a prohibition existed, it was

~ne,c.e,;sary for them to establish. whether the War Crimes Act violated the prohibition .

. accepted that the conduct criminalised by the Act was not criminal in domestic

time of its commission; however, both judges considered it necessary to

172 CLR 501,611-2.

6

'nine whether the conduct was criminal at international law at that time, in order"':.,

,~'hnine whether the legislation was truly retrospective,29 They concluded that

'~I~yantconduct was not criminalised in international law at the time it occurred,"""~}:,~,'

·,;:tffosthe legislation was retroactive in nature,:~Y.

~.y.vorth mentioning, too, are some obiter comments of Deane J to the effect

~rAustralia was participating in the establishment and functioning of an

_:,<J~,r:·jre'7il~1i9nal tribunal for the trial and punishment of international crimes, Ch III of the',¥{~l·::"'''Stitution would be inapplicable because the judicial power of the international

i?;~~" -

;W~nity, rather than that of the Commonwealth, would be involved.'o In addition,f·"'e~hedowed a po~~ible further exception to the applicability of Ch III, where a-;-'

tribunal is vested with jurisdiction in relation to an alleged crime against

;{,"

':'I.t may be arguable that, in such a case, the judicial power of the.Commonwealth is not involved for so long as the alleged crime againstintemationallaw is made punishable as such in the local court. Alternatively,

'at least where violations of the laws and customs of war are alone involved,. 'analogy with the disciplinary powers of military tribunais and largely pragmatic.considerations might combine to dictate recognition of a special jurisdiction"standing outside Ch 111,31

~;:

/c1Jrnment on the potential for international law to take a criminal prosecution

_."i~e ihe protection afforded by Ch III is surprising, as Deane J has been one of~:2~W2i:,_:'.!Il~leadersof the Court in developing Ch III as a protective mechanism, particularly>"f:~~~~-"

;1hJ area of military court~-martiaI.32 These comments will be of particular interest~i"r;~""'eXpected, Australia ratifies the Statute of the International Criminal Court.

7

whether the conduct was criminal at international law at that time, in order

",iirmir,e whether the legislation was truly retrospective.29 They concluded that

'Ciil"va,nt conduct was not criminalised in international law at the time it occurred,

the legislation was retroactive in nature.

"&\rvorth mentioning, too, are some obiter comments of Deane J to the effect

i.ll,AU:S!r<'"'' was participating in the establishment and functioning of an

'r~ti'h)~I/!o,~a/tribunal for the trial and punishment of international crimes, Ch III of the

would be inapplicable because the judicial power of the international

,," ._" •. rather than that of the Commonwealth, would be involved.3o In addition,

lei,5f(l!lha,dovved a possible further exception to the applicability of Ch III, where a

:V;~ll'tril,un,al is vested with jurisdiction in relation to an alleged crime against

nati,onallaw;

may be arguable that, in such a case, the judicial power of the Comnnorlw,.alth is not involved for so long as the alleged crime against intem;ati,on;allaw is made punishable as such in the local court. Alternatively,

where violations of the laws and customs of war are alone involved, Cal1alllOV with the disciplinary powers of military tribunals and largely pragmatic .' ,might combine 10 dictate recognition of a special jurisdiction . standing outside Ch 111.31

!','tiClmlne,nt on the potential for international law to take a criminal prosecution

. ihe protection afforded by Ch III is surprising, as Deane J has been one of

~lel!del'sof the Court In developing Ch III as a protective mechanism, particularly

of military courts-martial." These comments will be of particular interest

"'l):pected, Australia ratifies the Statute of the International Criminal Court.

631,699-700,707.

Re Tylar; Ex parle Foley (1994) 181 CLR 18; Re Nolan; Ex parle Young (1991) 172 CLR n,o"".".v;Ex parle Ryan (1989) 166 CLR 518.

7

~W~ 'Implied Freedom of Political Communication';i:"

;~veral members of the Court have also referred to International conventions:-~~¢'/

1d{;~ns concerning the implied freedom of political communication. In Australian--i:~'

'IiNe/evisian and Nationwide News, Mason CJ, Brennan J and Gaudron J used1-~\""~: -

~~~bP~an Convention on Human Rights in support of the fundamental

~l~~nce of freedom of communication to representative democracy." These,did not engage in any In depth discussion or analysis of freedom of

.:cil~c~$~l':,"""1'§siim as guaranteed by the ECHR; rather, they merely used the ECHR (to

[of course, Australia Is not a party) to demonstrate that other representative):~

""Iacies value freedom of expression.

,'the ECHR \"Jas also used by Brennan J in Australian Capital Television in his

~1rneill of whether the freedom of political communicalion had been violated•

. .....6i~d that in X and the Association ofZ v United Kingdom a challenge under thef.~~~~_' - '''CHR'lo'a ban on political advertisements on British television had failed."" Brennan~~~~~>':'~~\~some attention to this case, which was directly on point although not referred

:\~~~ason CJ or Gaudron J. Ultimately, Brennan J concluded that the ban on paid~i"'::- :. ;~I advertising did not violate the implied right to freedom of political expression,

~~.~-'.6~'th~ European case, although not decisive, was influential in reaching that~.;"r"~-'

""[blusion.:~'"~]t. McHugh J, too, considered the ECHR , but found it unnecessary to discuss X

'M~'the Association ofZ, because he concluded that the constitutional context inJ,,?g~: -', _ .}IXhich the guarantee of freedom of expression operated in Australia meant that there;~~~~,~,:>:

¥.jW~S no valid analogy between the international instruments and the Commonwealth.,,',.:';",.

,_::~~~tlonWideNews Ply Ltd v Wills (1992) 177 CLR 1, 47 (Brennan J); Australian Capital TelevisioniU;'I¥;L/d v The Commonwealth (1992) 177 CLR 106, 140 (Mason J), 211 (Gaudron J).,"·U"S,.

7,:);;(1992) 177 CLR 106, 154.

.:.T:;i11::8

, 'Implied Freedom of Political Communication

members of the Court have also referred to International conventions

concerning the implied freedom of pOlitical communication. In Australian

Teliwi11ion and Nationwide News, Mason CJ, Brennan J and Gaudron J used

convention on Human Rights in support of the fundamental

;t!o:tt~lnce of freedom of communication to representative democracy." These

:jijdll:@~did not engage in any in depth discussion or analysis of freedom of

as guaranteed by the ECHR; rather, they merely used the ECHR (to

course, Australia is not a party) to demonstrate that other representative

nocirac:ies value freedom of expression.

ECHR \"Jas also used by Brennan J in Australian Capital Television in his

of whether the freedom of political communication had been violated.

that in X and the Association of Z v United Kingdom a challenge under the

'a ban on political advertisements on British television had failed."" Brennan

some attention to this case, which was directly on point although not referred

, , iAason CJ or Gaudron J. Ultimately, Brennan J concluded that the ban on paid

advertising did not violate the implied right to freedom of political expression,

European case, although not decisive, was influential in reaching that

, McHugh J, too, considered the ECHR , but found it unnecessary to discuss X

Association of Z, because he concluded that the constitutional context in

the guarantee of freedom of expression operated in Australia meant that there

valid analogy between the international instruments and the Commonwealth

News Ply Ltd v Wills (1992) 177 CLR 1, 47 (Brennan J); AUstralian Capital Television ;;":",'r;~fav The Commonwealth (1992) 177 CLR 106,140 (Mason J). 211 (Gaudron J).

1t~;t;i;;i'!l92) 177 CLR 106. 154.

8

;libn.35 Curiously, in the next freedom of expression case, Theophanous v::,;.)(:'

'~WeekIY Times Ltd:" Brennan J approached the relevance of the EpHR in

~~'way as McHugh J had in Australian Capital Te/evision.37 1\ is difficult to ..i'A~".,')'v

~0'~~~ilii13rennan J's use of the ECHR in Australian Capital Television and hisre~ ~ ...' .;.~tl;if;~>' , .

i,krei~~l~~:of it in Theophanous.<.;"

'Up to 1996 the High Court had referred to intemationallaw in various cases{c"'·-, "

i~i~g yonstitutional issues, though such references have not been frequent.':~~1;'<"

'r"er, it cannot be said that there was any coherent approach to the use ofn·>:·)

,,,~tionallaw in constitutional interpretation, other than in relation to the externals':)i0:;·~~~.':~

;;"""'~,po\Ver. There was no in-depth discussion of the role that international law,{:,'.?

,('play in the determination of constitutional issues or why international law might;-~j\:. '

'{'evant. Apart from section 51 (29), the Court has been largely reluctant to allow

~~;i~nal law to playa significant role, though there are some areas where it hasc'fi.:<-::,',' ,

~, "~

ih.drawn on in aid of particular conclusions. When international law was used, iti~r'>f

~1g~nerally as an indication of international values, to give added legitimacy to the';~T~-" "-" .:ht~Ting implied into the Constitution, rather than in any determinative way.

~~~41~'\,,;irB~)'s interpretative principle would give international law a greater role to play in

,";'.

, Itutional questions, and it Is to a discussion of that approach that I will now turn.

124ALR1.

9

Curiously, in the next freedom of expression case, Theophanous v

;& \lo/eE1K/y Times Ltd:" Brennan J approached the relevance of the ECHR in

as McHugh J had in Australian Capital Television.37 It is difficult to

Brennan J's use of the ECHR in Australian Capital Television and his

:{,;1 rejl~.c!!.~201 it in Theophanous.

1996 the High Court had referred to intemationallaw in various cases

constitutional issues, though such references have not been frequent.

it cannot be said that there was any coherent approach to the use of

:Q~~ionallaw in constitutional interpretation, other than in relation to the external

~."'u"a,. There was no in-depth discussion of the role that international law

in the determination of constitutional issues or why international law might

Apart from section 51 (29), the Court has been largely reluctant to allow

fi~!.ionallaw to playa Significant role, though there are some areas where it has

lalr"~m on in aid of particular conclusions. When international law was used, it

~~~g~nElrally as an indication of international values, to give added legitimacy to the

\l,b,ein,o implied into the Constitution, rather than in any determinative way.

interpretative principle would give international law a greater role to play in

l~stltutiol,all questions, and it Is to a discussion of that approach that I will now turn.

9

10

- .,', ,

. '~re 'competent, independent and impartial' and 'established by law'''.''

~f61 course, Kirby J could quite easily have obtained these principles from more'<.

~S"ICE KIRBY'S INTERPRETIVE PRINCIPLE

:;6~sein which Kirby J used internalionallaw in the resolution of a

;~rtal issue was Wilson v Minister for Aboriginal and Torres Strait Islander;.<~

'i'(The case concerned the separation 01 powers and the tasks that might

[~t~lybe conferred upon a judge olthe FederalCourt as a persona designata.

'}g~iion for the court was, in Kirby J's words, to "decide where 'the constitutional::t ",

heparates the exercise 01 judicial power from the other powers of,~f;?-':',:'t;;;;';ent stands".'· This task, he acknowledged, involved a question of

Z.~::::', ..ent drawing on the "language and design of the Constitution, past authority of

:'1~/

WOrt and an understanding 01 the legal principles and policy which that authoritylx{,

.aIB¥-'.'· He then used international law to assist in determining the content 01

~:!~i6>,. .iQ~$'''legal principles and policy" - speCifically, the Universal Declaration on';f;\Z~

\WI;WRights, the ICCPR and the Draft Universal Deciaration on the Independence"-'-'i',

..u~§~s. These were used to support the proposition that part of the "principles:~~.',

'~,!?'6l1cy" is the "fundamental right 01 every individual ... to have access to courts

L~~j\;;ources than intemationallaw - there are various domestic authorities in':~,i;~~~~\'"

-'·"'-',porlol the importance of judicial independence. However, he chose to use,''t.:;-,'.,'QT_,:

.etnationallaw to support his argument on this point. Thus, while not determinative~j~,'", ' .

,oLlfie outcome, international law played a role in legitimating Kirby J's approach. At~~; .

(f;\W'~p()int, however, he had not formulated any general statement about the use of

,"hit:·;;,,,:';;i;>~1996) 189 CLR 1•

.i'''I~id 40>t~~~~~;+· .;. Ibid.

~7~1!d.

~:}~~fi...<,>:""'~'-;~:~,':;.'(i~

O"iC,T'IC:E KIRBY'S INTERPRETIVE PRINCIPLE

in which Kirby J used international law in the resolution of a

issue was Wilson v Minister for Aboriginal and Torres Strait Islander

case concerned the separation of powers and the tasks that might

be conferred upon a judge of the FederalCourt as a persona designata.

for the court was, in Kirby J's words, to "decide where 'the constitutional

lat.sep'arales the exercise of judicial power from the other powers of

stands".'· This task, he acknowledged, involved a question of ", ..... _ .... drawing on the "language and design of the Constitution, past authority of

and an understanding of the legal principles and policy which that authority

He then used international law to assist in determining the content of

principles and policy" - specifically, the Universal Declaration on

hari,'Ri'Qht,s, the ICCPR and the Draft Universal Declaration on the Independence

These were used to support the proposition that part of the "principles

~1l;!PClllcy" is the "fundamental right of every individual ... to have access to courts

'competent, independent and impartial' and 'established by law'"."

Of course, Kirby J could quite easily have obtained these principles from more

~UL"~'" than intemationallaw - there are various domestic authorities in

of the importance of judicial independence. However, he chose to use

national law to support his argument on this point. Thus, while not determinative

_'.",.~,~,'~ outcome, international law played a role in legitimating Kirby J's approach. At

however, he had not formulated any general statement about the use of

189 CLR 1.

'.'.1 .. , """. 40.

10

law in constitutional interpretation. This was to come in Newcrest

flo,XWflJ Limited v Commonwealth.42

/liewcrest concerned the operation of section 51(31) olthe Constitution: the

+'~Yi~ltiOnof property on just terms. The Commonwealth had enacted legislation

~~~~iionalParks and Wildlife Conservation Amendment Act 1987 (Cth» in reliance

\j~'the external affairs power and, in so far as the territories were concerned, on.'i;,

;~f the Constitution. Newcrest argued that the legislation amounted to an

"irJn of property other than on just terms and was thus invalid: One question

"Court was whether s 51 (31) feltered the Commonwealth's power under s 122.

~fK--e~\jiJdges - Gaudron, Gummow and Kirby JJ - concluded that it did., In":';:;:-"

'ng this conclusion, Kirby J called in aid international law and articulated his~{y;i~i:(:j~iE;hlretative principle.•>~.<~~~>- .-

\:ikirby J began with the proposition that, "where the Constitution is ambiguous,

Igl1 Court should adopt that meaning which conforms to the principles of

ndal1'lt)ntal rights rather than an interpretation which would involve a departure from-~~~~" .... :

_~ttrights".43 This proposition does not, of itself, relate specifically to international,:P.\~~l~\i .I.a~~;~~lthe context of Kirby J's discussion made it clear that international human

"';>~~>

I:Jt~ law was central to the issue. He acknowledged that, where the Constitution is~~;.-,:'

.ji'~the Court must (as in the interpretation of any legislation) give effect to its:)01;:,;::'

\[Jj;~~.44 'The Court should not "adopt an interpretative principle as a means of:-.\~*:~:;:

'6~ucing,by the backdoor, provisions of international treaties or other international,,'

:'i~ncerning fundamental rights not yet incorporated into domestic law".45

11

I law in constitutional interpretation. This was to come in Newcrest

Limited v Commonwealth.42

Newcres! concerned the operation of section 51(31) ofthe Constitution: the

of property on just terms. The Commonwealth had enacted legislation

itliEt&i!tionaIParks and Wildlife Conservation Amendment Act 1987 (Cth» in reliance

external affairs power and, in so far as the territories were concerned, on

the Constitution. Newcrest argued that the legislation amounted to an

of property other than on just terms and was thus invalid; One question

o "',JUf< was whether s 51 (31) fettered the Commonwealth's power under s 122.

lreE'lU'JY'" - Gaudron, Gummow and Kirby JJ - concluded that it did .. In

this conclusion, Kirby J called in aid international law and articulated his

jnft~(etaltive principle.

: Kirby J began with the proposition that, "where the Constitution is ambiguous,

Court should adopt that meaning which conforms to the principles of

f@~ij~r"irltal rights rather than an interpretation which would involve a departure from

·S~(:~:iig~lts"'.43 This proposition does not, of itself, relate specifically to international

the context of Kirby J's discussion made it clear that international human

. law was central to the issue. He acknowledged that, where the Constitution is

Court must (as in the interpretation of any legislation) give effect to its

. The Court should not "adopt an interpretative principle as a means of

09.1Jcllng, by the backdoor, provisions of international treaties or other international

,:c{lncern,inn fundamental rights not yet incorporated into domestic law".45

11

'"i, he went on to adapt Brennan J's comments from Mabo, quoted in the

ion to this paper, to recognise that international law, particularly international

5!~k~,1""rights law, is "a legitimate influence on the development of ... constitutional

'. Kirby J stated that, "to the extent that its text permits, Australia's Constitution,

'.(undamentallaw of government in this country, accommodates itself to

'In his judgment, Kirby J described the role of international law in the specific

"one final consideration which reinforces the view to which I am driven for

fY(easons".'· It is also an approach applicable only where there Is ambigUity in

,0.0: 8 of the Constitution - in that sense, international law does not contro/the

,lng to be given to the text of the Constitution.,.'

.;i Kirby J relied upon Art 17 of the Universal Declaration of Human Rights~';1;1>c ',>'ViJ14R) in support of an internationally recognised right to own property and not be

';~~~,;~::':

~ri"ed of it arbitrarily.4s This is an interesting, if not controversial, application of!f,};':K~', .

'l~~0J's interpretative principle, as the UDHR is not in its own terms binding on~:;;~~r'-;

~liPh~and there is no equivalent of Art 17 in the ICCPR or the ICESCR, which are.~~~+;::liiJai~g; And while much of the UDHR is now accepted as reflecting customary~~~~J.':'

ifuationallaw, it is by no means universally accepted that the property rights':t~:*:::'"ltloned in Art 17 have crystallised Into a norm of customary international Jaw,~.;.;

Wlarly given their absence from the ICCPR and ICESCR,s° although Kirby J"'i-',

;~I~~7-8."41i/657.;t:~,'':i, .

!£!1".~5B.}~<[~~;' eg, Richard B. Lillich. International Human Rights: Problems OfLaw, Policy And Practice (3rd':'~1' j';J9,95) 163ft; Richard B Lillich, "Civil Rights" in Theodor Meren, Human Rights in International Law:( 98,4)J-56, ff; Louis Henkin, Gerald Neuman, Diane Orentlicher and David Leebron, Human Rights~H~~.9):,1118, 1124. As Henkin et al note. the right to property is included in all the regional human

4>'>

12

, he went on to adapt Brennan J's comments from Mabo, quoted In the

iiOuctle," to this paper, to recognise that international law, particularly international ",

~;"';nhlls law, is "a legitimate influence on the development of ... constitutional

Kirby J stated that, "to the extent that its text permits, Australia's Constitution,

tli~'furlda,mEmtallaw of government in this country, accommodates itself to

his judgment, Kirby J described the role of international law in the specific

"one final consideration which reinforces the view to which I am driven for

"';"enn."'.'· It is also an approach applicable only where there Is ambiguity in

of the Constitution - in that sense, international law does not control the

to be given to the text of the Constitution.

:" 15irby J relied upon Art 17 of the Universal Declaration of Human Rights

in support of an internationally recognised right to own property and not be

of it arbitrarily.4s This is an interesting, if not controversial, application of

interpretative principle, as the UDHR is not in its own terms binding on

, and there is no equivalent of Art 17 in the ICCPR or the ICESCR, which are

, , " And while much of the UDHR is now accepted as reflecting customary

nation,allaw, it Is by no means universally accepted that the property rights

in Art 17 have crystallised into a norm of customary international law,

~~[I=uIElrly given iheir absence from the ICCPR and ICESCR:o although Kirby J

",,,,nM,,.R , __ I.e ~hard 8. Lillich. International Human Rights: Problems Of Law, Policy And Practice (3rd I Richard B Lillich, "Civil Rights" in Theodor Meren, Human Rights in International Law Louis Henkin, Gerald Neuman, Diane Orentlicher and David Leebron, Human Rights

1124. As Henkin et al note. the right to property is included in all the regional human

12

: confidently, but without international authority, that there is such a norm.51

?;:"

i'\¥btrd,~~ggest that, if international law is to be given a more robust role in(J~'?~~;t1:_~lr,ffigiilutional interpretation, then reliance on particular international legal norms

~\"'tr .,·;~~'d~.tobe rnore rigorous than this.;r~l~t'1~\/;,i1~ii~1I<irbY J also expounded his interpretalive principle in Kartinyeri v

~~onweallh, 52 concerning the interpretation of the races power in s 51 (26) of the1~\,·

:on~iitution. Again, he used international law to reinforce a conclusion he had:Jj},%"{t~i;a-g~~d on other grounds.53 The broad statement of the principle was similar to that~;.::~",>'.

'~cresl, and thus need not be set out in full. Kirby J also noted that to draw on

ationallaw in this way:

'i!\~!iooes not involve the spectre, portrayed by some submissions in thesei.~\'f4r proceedings, of mechanically appiying international treaties, made by the"''-;,~xecutive Government 01 the Commonwealth, and perhaps unincorporated,to

)'. distort the meaning of the Constnution. II does nol authorise the creation of\Wc~i;fJmbiguitiesby reference to international law where none exist It is not a(ill~·.means for remaking the Constitution without the "irksome" involvement 01 the"";Zpeople required by s 128.54

Ici~gain Kirby J emphasised the need for ambiguity before recourse toi&~;L-~;_<,

Y~fuationallaw is appropriate, but had no difficulty discerning ambiguity in relation'~;

"I!\eraces power.55 In this case, Kirby J's use of international law- specifically the;'~&:':_"

···tiltion of discrimination on the basis of race - was more rigorous, as he relied

._, ..,..._~;'.Instrumentsl and it may well be that such a rlght has now emerged as a norm of customaryTr,t~.rrf~tlonallaw, but this has certainly been controversial oVer the years.

'¥~~4~reSll 660. Kirby J cites the provision of various domestic constitutions in support of hiscc:mcJ!Jslpn. These might provide evidence of state practice, but this is not discussed in detail. and:m~r~~s,no evidence of opinio juris.

~:(1~9B)195 CLR 337.\~t7.

13

,~

J

.collfidently, but without international authority, that there is such a norm.51

t.i~~~!,%;"~81~~O' that, if international law is to be given a more robust role in

interpretation, then reliance on particular international legal norrns

'eu" .. 'U ww more rigorous than this.

J also expounded his interpretative principle in Kartinyeri v [~~j~~'~:.'.'''-'

,i'nalOnlWe"ltn,52 concerning the interpretation of the races power In s 51 (26) of the

Again, he used international law to reinforce a conclusion he had

on other grounds.53 The broad statement of the principle was similar to that

, and thus need not be set out in full. Kirby J also noted that to draw on

not involve the spectre, portrayed by some submissions in these t\\1;j' ip~~~,~dii~9IS, of mechanically applying international treaties, made by the AU"t:.xe,;uII'v" Government of the Commonwealth, and perhaps unincorporated, to

meaning of the ConstHution. It does not authorise the creation of .lj,~'i,ambliglliti.,s by reference to international law where none exist. It is not a

for remaking the Constitution without the "irksome" involvement of the ,:p.,oplle required by s 128.54

.

Kirby J emphasised the need for ambiguity before recourse to

._ .. _ .. _Iaw is appropriate, but had no difficulty discerning ambiguity in relation

'.~l!,,"'W<" power. 55 In this case, Kirby J's use of internalionallaw - specifically the

of discrimination on the basis of race - was more rigorous, as he relied

it may well be that such a right has now emerged as a norm of customary this has certainly been controversial OVer the years.

660. Kirby J cites the provision of various domestic constitutions in support of his c,o;'CI~silon. These might provide eVidence of state practice, but this is not discussed in detail. and

no evidence of opinio juris.

195 CLR 337.

13

In any event, they need not

14

l/(a6o _ Kirby J made passing reference to the role of international law in.:,:.~;-.,

~i.onal adjudication. These references might be termed simply "regard'':r',.'': "

alions of the role of international law in constitutional interpretation in Kirby J's~f~' .@!i'~ts that need to be considered. On the one had, there is the adaptation of(t;""',,-'~:ihe statement that international law is a "legitimate influence on constitutional."",,,'J

":-_W~:~i')aW;!(bunhat conslilutionallaw does not "necessarily conform with international law".,:r~~~J~~_-_:"'-:ltll~~pproach gives intemationallaw a role, but a relatively minor one in most cases

\{tJt~~fr

"-'From Kirby J's judgments, one can draw several conclusions about the't-,.~;:"~Z,.,

'lllllon of his interpretative principle. First, there are in my view two different";.;-,,;: "

'nuriierous international treaties and the decision of Judge Tanaka of the:'Z~~~i:t':" .'~tlon;ll Court of Ju§tice in the South West Africa Cases (Second Phase)."

;x;~:~':

Wa,series of other cases - Levy v Victoria,57 Re East; Ex parte Nguyen,56?~J ','"

JUc. V R59 and Re Minister for Immigration and Multicultural Affairs; Ex parte'd?,!~_":"

~-i1~~]-iCJR 3. Kirby J does not acknowledge, however, that Judge Tanaka was in dissent in that

-:{(-;~~;:t-:_;~~~~~{{~!)"_189 CLR 579, 644-5: "Wherever possible. Australian law on such SUbjects should be~~?::-_~'I/~l~p13.d in harmony with such universal international principles to which Aus1ralia has given itsrJ".';,;;concurrence:~~'~-:"~:";:'\'---:.~:f'':.~'X1~~~}196 CLR 354, 380-1: "Treaties may influence Australian domestIc law in other ways. This Is;:~(,)~~ffi~Vlarly so where they declare fundamental human rights as recognised by International law and

I~~p.ted by civilised countries. In such circumstances the provisions of treaties expressing.,J~ro~tk:mallaw may, by analogy, contribute to judicial reasoning to resolve ambiguities in the

,~~~~~~I:ian Constitution."

'if~((1~98) 154 ALR 702,708: "[C}ourts may be assisted by ... universal principles [of internalionallaw],,:.:~fj~rU:onstitutional or other rights are Involved which are ambiguous and which may be made claar by;;r!~:\~~~p.e to such principles."';'iti--"·:~2>;:J~_@1)179 ALR 296. 314: ..it it> inevitable as the iniluence of International law spreads, that;1:'-:~,~.c~~ilJns on the requirements of Ihuman rights] treaties (and like requirements of regional and"W!!~Il~llnstruments) will come to Influence the Interpretation of relevant Australian legislation and_."Y~nQfthe Constitution itself."

Jli':¥Y\~I

international treaties and the decision of Judge Tanaka of the

Court of Ju§tice in the South West Africa Cases (Second Phase)."

". o~ •••• - of other cases - Levy v Victoria,57 Re East; Ex parte Nguyen,56

.nllVTG. V R59 and Re Minister for Immigration and Multicultural Affairs; Ex parte

_ Kirby J made passing reference to the role of international law in

I adjudication. These references mightbe termed simply "regard

, to use Crawford's term." Or they might be viewed as an attempt to build

. of caselaw in support of Kirby J's approach. In any event, they need not

Kirby J's judgments, one can draw several conclusions about the

:a~p'j@~Jlc)n of his interpretative principle. First, there are in my view two different

of the role of international law in constitutional interpretation in Kirby J's

Igo:\ilnts that need to be considered. On the one had, there is the adaptation of

statement that international law is a "legitimate influence on constitutional

;'V .. ;.tth~t constitutional law does not "necessarily conform with international law".

;ap'Prc)ac:h gives international law a role, but a relatively minor one in most cases

3. Kirby J does not acknowledge, however, that Judge Tanaka was in dissent in that

•. 'l"';Qi'7\'89 CLR 579,644-5: "Wherever possible. Australian law on such sUbjects should be I harmony with such universal international principles to which Australia has given its

CLR 354, 380-1: "Treaties may influence Australian domestIc law in other ways. This Is where they declare fundamental human rights as recognised by Internationa\law and

{~~~;~~~:~~civmsed countries. In such circumstances the provisions of treaties expressing :;',~ law may, by analogy, contribute to judicial reasoning to resolve ambiguities in the

Constitution."

~f~~:8~:;';~54~~A~L~Ra~ 702, 708: "[C]ourts may be assisted by ... universal principles [of international law)

I or other rights are involved which are ambiguous and which may be made claar by such principles."

179 ALR 296, 314: "it it; ih6vitable as the iniluence of internationai law spreads, thai on the requirements of Ihuman rights] Irealies (and like requirements of regional and

i~lt~;:~::~II~li;i:l: come to Influence the Interpretation of relevant Australian legislation and 1 iii itself."

14

15

!;;f~'is no imperative to interpret the Constitution consistently with internationalt~,~'

i~nnthe other hand, there is the strongerapp'iciach to the use ofinternational1~~t"j6?t, where there is an ambiguity, the Constitution should be interpreted

'/"'''n~~i;;ntlywith International law. This approach gives international law a more"·':i~,fg}:,:a.U:,.

i@f@~nt role to play, though it still does not allow international law to override the-'-'i'ht',,'J; .

'(lrds of the Constitution. Kirby J does not directly distinguish between these

;R~roaches, rather he uses them both together.

~:Second, Kirby J's approach is rights focused -that is, it is concerned with

i~g that, where the Constitution is ambiguous, it is interpreted so as to protect

~~ental human rights, not to violate them. The content of fundamental human~£<;~','~tS)sthen ascertained from examining international law, which "expresses.i;~~\

,tWisal and basic rights".62 This suggests that Kirby J's principle may not extend to;£'~;?

"u~eof general internalionallaw in constitutional interpretation, though this

:rel11iii~s·to be tested./\~:~~~.:>

'j,1'tf;,~~~iJhird, there needs to be an ambiguity before international taw can be used In:C:F::_~<:l'

'ay. The clear words or meaning of the Constitution cannot be displaced by).~)ational law. This is consistent with the approach to the uses of international lawT:;;'Mory interpretation and also with extensive High Court authority on the

';;'

~'ction between international law and domestic law beginning with Polites. The~~

'flj1~ili~ity cannot be created by reference to international law - it must be otherwise~~:Wli~':-:"apparent.

"~~!I:i:; Fourth, it seems to me that international law has not been the determining

\,.}~tl/,"" .

.~~"!9r in Kirby J's judgments - rather, it has been used as an additional legitimating~~:-·:~,~:~1~;",-'- ,:;::'.i~fl;"~~"'~

;~:')~a~~s Crawford, "Generallntemational Law and the Common Law: A Decade of Developments":~!~~~,~?6 Proceedings of the American Society of International Law 232.

c;~':Y'ri' 418.

_~~~~c;'-

J~1·J~~:2t{t

no imperative to interpret the Constitution consistently with international

.the other hand, there is the strongerap;Jiciach to the use of international

where there is an ambiguity, the Constitution should be interpreted

:i;"on'l" with international law. This approach gives international law a more

role to play, though it still does not allow international law to override the

'~';'Mi< of the Constitution. Kirby J does not directly distinguish between these

'n"'~r,h" •. rather he uses them both together.

:iJ,;&l\"S"cclnd, Kirby J's approach is rights focused - that is, it is concerned with

eOSIUD'lg that, where the Constitution is ambiguous, it is interpreted so as to protect

~rl;,m'mt;al human rights, not to violate them. The content of fundamental human

ascertained from examining international law, which "expresses

>'i,'", __ , and basic rights".62 This suggests that Kirby J's principle may not extend to

general international law in constitutional interpretation, though this

there needs to be an ambiguity before international law can be used In

The clear words or meaning of the Constitution cannot be displaced by

nJ~i'il,altionlal law. This is consistent with the approach to the uses of international law

.'i';:~jiliut,)ry interpretation and also with extensive High Court authority on the

between international law and domestic law beginning with Polites. The

cannot be created by reference to international law - it must be otherwise

it seems to me that international law has not been the determining

Kirby J's judgments - rather, it has been used as an additional legitimating

"General International Law and Ihe Common Law: A Decade of Developments" Proceed;ngs of the American Society of International Law 232.

~/(8J:tlnY"ri. 418.

15

rt~ntto support a conclusion already reached. In this respect, Kirby J's use of

~ifittionallaw is not dissimilar from the uses to which it has been put in previous'~;:i~~~!;J~~t "what is different is that Kirby J has articulated a principle to guide the use of

, .. ,;~{,/,,::;;~~;,.. I;

~ji~riWn~tionallaw, rather than simply referring to international law in an ad hoc fashion~:li:';',,~,{;S'(';.r"

·,~t~Y~convenient.<,~"';"'J,,;;,

·~~~-;.:r~~k

16

'."'''_._'to support a conclusion already reached. In this respect, Kirby J's use of

V;:i6i~TI~,tiona'llaw is not dissimilar from the uses to which it has beenput in previous

. .what is different is that Kirby J has articulated a principle to guide the use of

#;l~f~~~,tionaillaw, rather than simply referring to international law in an ad hoc fashion

Responses to Kirby J's Approach

"' "_I'",,'A been few direct responses to Kirby J's new interpretative principle from

judges of the High Court. However, in two cases other members of the

';'" "'''''have expressly rejected the proposition that the Constitution should be

i,j:,ii~;~I~t;\~~'led. so far as its language permits, in conformity with international law. In

~:;i,rj{,~rlil;·veri. Gummow and Hayne JJ spent several pages discussing the question.

that, although there is a principle to that effect where statutory

<r.,t.\"i>retatiion is concerned, "the legislative powers of the Parliament given by the

:,;,'~:it~~tit!uti(m itself stand in a special position".63 They quoted Dixon J in Polites on

~,~;~~~~~IIiCi~ticlO of the principle of statutory interpretation to the Constitution itself:

the matters placed under its authority, the power of the Parliament was intended to be supreme and to construe it down by reference to the presumption is to apply to the establishment of legislative power a rule for the

,\corlstr'uc1:ion of legislation passed in its exercise. It is nothing to the power that the Constitution derives its force from an Imperial enactment. It is nonetheless

Constitution.64

,'C' I h,'u also referred to the Court's rejection of International law as a limitation on

;~t~I~~;~alive power in Horta. Thus because of the special nature of the Constitution,

~.~g[1ilmo'w and Hayne JJ rejected any interpretative principle that requires the

{;:'J~~£J:,tillJtio'n to be interpreted consistently with international law. This does not seem

}'!:' ' •. :::;.!I'~r1ln.yeri, 384.

" ..• ,:"v"",.(1945) 70 CLR 60, 78.

16

11---'---~~r;~¥I~de judges from using international law in deciding on the meaning of the

,·:,<~:~~·:·?/,~~~~_~oi-~/> - --.''';;';6'diiWtution, and certainly Gummow and Hayne JJ did not suggest that earlier cases

!:)i~~~i\'::-:,t;)lfi,¢'judges used international law, discussed above, were incorrect in that respect.

"F~'~_'*:~\~~"-'?~f;t~WeycertainIY rejected a robust role for internalionallaw in the sense of a

::%~J~~Ption or rule of construction.

"l~~bsequently, In AMS v A/F,6s Gleeson CJ, McHugh and Gummow JJ,'aled, more briafly, the comments mada in Kart/nyer; by Hayne and Gummow JJ.

~W:_~~$)::

. ~1i~tated simply that:-}i{)I~~~r~:,,:

i$:.;t~\!:As to the Constitution, its provisions are not to be construed as subject to an:,:{r;j;~. implication said to be derived from international law.66

:~. ,~"t,;;~~~~~;:'':"'1i!-i,,¥i(e(Jagreed.::~:>'~0;;:;>:'~?>;::':;_:';C',' "i'~;<j,These comments indicate that it is unlikely that a majority of the Court will

<:~~~9-"::,o;l'do'p.! Kirby J's approach in the near future. However, in a recent speech McHugh J

j :f~'·'~f§&~};:~f>- .ft'i:m;;'ell'ffied to leave room for international law to influence the interpretation of Ch III of~~~;t,~~i4~~~r;;..".''i'\;ih~'Gb'nstitution in its protection of a right to a fair trial.67 Thus it may be that a

/~,1~~;~~~';~·,·:i:rrla)o.rtty could accept a less robust use for internalionallaw - as a legitimate::}}-':!:i/:",'tzi>.:.• ', .

.:~~~(~)rlce, but without a presumption of conformity. That is, Kirby J's approach may~t(~3'~5!;~;;i' - .":~i~lg~lhe caSe for international law too highly in so far as it suggests that internationalt~l~>~'~:~-;J~)'i;9Juld be used to compel a particular interpretation. But a lesser role, in simply

}";.';:<,t~·~~~1;,~~:;, , .i~l'1;'pffixi,~ing an additional reason for a particular interpretation, may be acceptable.~':':;"J~?111<~r'\" '"e];;Thi~'~ppears to be the way in which earlier judges, including Mason CJ, Deane J,~:'?~"':'~(?:\:' '-~,,~\;.)i&~~an J, Dawson J and Gaudron J, used international law in constitutional cases.

~,.,rff~~~~A"~:65;'"'''' ,.;:;,o.;;JW99] HCA 26 (17 June 1999).~ fc ,~.et'''~·''·,',:. ····,;,:16i~para 50.

'l:fF;:;~":'"

,.,;:~.~Ilce McHugh, "Does Chapter III of the Constitution pro1ect substantive as well as procedural

~'OOO""'"_"~~'=~'"

:;:i

~'::

j.~

~ ';':j, I

:.'

i-!iI;·j

1'.1:il,;!;Jdiii;;:~

~t't':';;:1i,_;

i'·-'j"

\!,<

!~jIiii',\n.,:~',­.':')

<,;

.~;,',j:,~

)i,';:i']::~

;;.':Ij

rj,·'i

; ~

'J

;J

'T~~tl,:~~~:~;;~:j.'udges from using international law in deciding on the meaning of the

" and certainly Gummow and Hayne JJ did not suggest that earlier cases

Irli,~\i.~it;~her~i:iudges used international law, discussed above, were incorrect in that respect.

r~~t:(~~~9,certailnIY rejected a robust role for international law in the sense of a

'Gi'i~!tli;1)r,ription or rule of construction,

$UllSequ.mtty, In AMS v A/F,6s Gleeson CJ, McHugh and Gummow JJ

more briefly, the comments made in Kart/nyer; by Hayne and Gummow JJ.

simply that:

to the Constitution, its provisions are not to be construed as subject to an ';~t~?~~~ implii( :ation said to be derived from international law, 66

.·',i·.,rh<'OD comments indicate that it is unlikely that a majority of the Court will

J's approach in the near future. However, in a recent speech McHugh J

"",'e.mod to leave room for international law to influence the interpretation of Ch III of

in its protection of a right to a fair triaJ.6l Thus it may be that a

.{,[Ia)?idty could accept a less robust use for international law - as a legitimate

, but without a presumption of conformity, That is, Kirby J's approach may

~,,""C/ .. '- case for international law too highly in so far as it suggests that international

be used to compel a particular interpretation. But a lesser role, in simply

~t(.'£~~~~li~g an additional reason for a particular interpretation, may be acceptable.

~:J!J)!!~;,~pp"arsto be the way in which earlier judges, including Mason CJ, Deane J,

"¥'-,Bre"m,nJ, Dawson J and Gaudron J, used international law in constitutional cases.

".V"'.·_,,' HCA 26 (17 June 1999).

f;:'.':.I~Wipara 50.

i'rioiiii:,;i,;M,:;;C;;H;ugh, "Does Chapter III of the Constitution pro1ectsubstantive as well as procedural 21 Australian Bar Review 235,241.

17

:-:,

, ·'1

;.i

in this way that Kirby J himseif appears to have used international law,

'h~n in the more robust way his formulation of principle seems to suggest.

ANORMATIVE ANALYSIS OF THE ROLE OF INTERNATIONAL LAW IN'CONSTITUTIONAL INTERPRETATION

tropriate to consider the normative question concerning the role that

himallaw should play in the interpretation of the Constitution, if any. Kirby J

~iJ!1age in extensive consideration of this issue. He primarily asserted that

'nationallaw is a legnimale influence on the development of constitutional law.;t;;;c:"

~~r,he also stated that::,,~..,,'

~i;,<,-;

l:tr;tlJ1he Constitution, which is a special statute, does not operate in a vacuum. It);S speaks to the people of Australia. But it also speaks to the International't!~~\,()mmunity as the basic law of the Australian nation which is a member of that

·Y'5community.6B,~~X\"- .~ppears to be offered as a justification for the use of international law in;0'~-"-

nsliilltional interpretation, although ultimately I do not find it particularly convincing.'-f-';',', _.-.-:t~f,-:o

::.~}~~l~~phat Australia's Constitution "speaks to" the international community as the'iis'i,;Y:i.·7~

;:b'il~ic'i~wofAustralia does not logically require that the Constitution be interpreted in"~':~:t~'~;::ffi9~gahce with international law. Rather, it seems to me, the question is to what"'::+~f:·

en.t,does International law "speak to" Australian constitutional law?~;_:_~~;?'§)i;:'~!;GFmmow and Hayne JJ, In their rejection of Kirby J's approach, did not deal,k1'~~·~/'~(ij~ly with the normative basis for rejecting International law as an interpretative

~}~6~tthey did make reference to comments of Scalia J in the US context.·· Scalia'~~<;;

§}ejected reliance upon international law in interpreting the US Constitution,

Al)~~~~Si~ing that it is American conceptions of decency, not International law or

':J~~~~~~;;~--,'419

18

, it is in this way that Kirby J himself appears to have used international law,

in the more robust way his formulation of principle seems to suggest.

ANALYSIS OF THE ROLE OF INTERNATIONAL LAW IN ITIC)NJIL INTERPRETATION

t~pprc,priate to consider the normative question concerning the role that

im~tii>nallaw should play in the interpretation of the Constitution, if any. Kirby J

~len!11Ige in extensive consideration of this issue. He prirnarily asserted that

law is a legnimale influence on the development of constitutional law.

':"",'n.,_ Constitution, which is a special statute, does not operate In a vacuum. It :~\i~~~~,;;:~,t;oi;;the people of Australia. But it also speaks to the international' c; I as the basic law of the Australian nation which is a member of that

oOlnrrlunlitv.6'

to be offered as a justification for the use of international law in

!s.!it~tio'nal interpretation, although ultimately I do not find it particularly convincing.

"ni'.~~'" ""Australia's Constitution "speaks to" the international comrnunity as the

of Australia does not logically require that the Conslilutlon be interpreted in

~gi(g,,~cewith international law. Rather, it seems to me, the queslion is to what

~\e!l!\.9",es International law "speak to" Australian constitutional law?

(,G"ummo,wand Hayne JJ, in their rejection of Kirby J's approach, did not deal

with the normative basis for rejecting international law as an interpretative

.!JloJI;.bl~tthey did make reference to comments of Scalia J in the US context.6• Scalia

ifi~i~;~i"r.t.'rl reliance upon international law in interpreting the US Constitution,

~~:~~il;si:'ing that it is American conceptions of decency, not International law or

419

18

·.....•. . E' hth Amendment\f" . "'" ... curt's approach to the .g'hat must inform the supreme a . arted"1,, ,70 In this regard, Scalia J In fact dep

",,,,,c""!'" I and unusual punishment).:-c"o'bitlng crue '!;\~~~~~~, ,. Court had used international standards 10.""""o""r!' r cases where the supreme>cea .. 1e, ;!'s~;1: ' g "evolving standards of decency".71 It is not clear, however, that

c'det~r1!',?,n'f3?f~,';' " H JJ c'lted Scal',a J with approval as they also referred to the

""'miriow and ayne ',y~.~,:

:f;~~~ting practice of the Canadian Supreme Court?'

.. , """What, then are the arguments for and against international law being used in

·':r:~;:~.~t,·::_",:,1;3','B~K~tit~tional interpretation? Arguments against include that made by Scalia J -

'§:'{;:\>, '':irt'What is paramount in constitutional interpretation are the values of the

':'triiunity whose consUlution is being interpreted, not those of outsiders. I will

,~J:~,-:\:~;,:r~turn to this issue - to whose values should judges look - later. In the Australian,:#,j"-~:::~KFP.ntext, there is also the fact that treaties are entered into by the executive without

"l1;~'substantiveparliamentary involvement73 and without the possibility of judicial\';§ri¢w.74 It is thus possible for Australia to enter into a treaty that is illegal under.:,;,' .international law, for example - an example being the Timor Gap Treaty between::,i~,: .

tindonesia and Australia, considered by the High Court in Horta. It does not seem to;~~>'---!rm~ to be appropriate that such a treaty should be used to inform constitutional

;:~.¥y:~:,(

4ii,lpterpretation. Indeed, the mere fact that the executive has chosen to enter into

%~~~\'"

.;$.!~'Stanfordv K.ntucky 492 US 361, 369 (1989).

,;~!(s••,eg, Trap v Dull.s 356 US 86 (1'958); Est.lI. v Gambl. 429 US 97 (1976), Thompson v!c,'.'dklahoma 108 S CI2687 (1988), cit.d in Richard LiiJich, "The United Slales Conslilulion and

0S';:i)~::,tntematjonal Human Rights Lawn (1990) 3 Harvard Human Rights Jouma/53, 77-8.

~~~l"\,~"(artlnyeri, 383, referring to R v Rahey [1987] 1 SCR 588 al 633 and to two academic':1'~?Ef:,~om.mentators. Notably, the Canadian use of intemationallaw in constitutional interpretation has';o't,~'~"!argely been confined to interpretation of the Charter, which was enacted in part to give effect to

;:~~};~:Canada's intemational human rights obligations. The use of international law in this way is thus not of~~~~~Irect relevance to the Australian position.

Q~~~'P'Alth.ough the Parliament no~ has a much gr~~ter role In t~ea1y-making th~n it once had, via the Jointj;~;;'Standl~g Committee on Treaties (see Daryl WillIams, "TreatIes and the Parhamenlary Process" (1996).!;:,;]PUbIIC Law Review 199), that role does nol extend to a power to veto an executive decision to enter}-f,~)~to a treaty.

i{'J'~,~' See discussion in Thorpe v Commonwealth ofAustralia [No 3] (1997) 144 ALR 677,690."\-'"iY

19

the Eighth Amendment . '" - . . .. curt's approach to

must inform the supreme 0 . d Scalia J in fact departed . hment) 70 In thiS regar ,

el and unusual punls . . cru C rt had used international standards tn

%:':il~~,;E'i.arlier cases where the supreme ou

f d ncy" 71 It is not clear, however, that

'Vd~!~fri:\iinirlg "evolving standards 0 ece . ;" . I they also referred to the

H JJ cited Scalia J with approva , as and ayne 72

l!ia.stirlg practice of the Canadian Supreme Court.

VI/hat, then are the arguments for and against international law being used in

Corls.IIIUIIO","" interpretation? Arguments against include that made by Scalia J -

,."wn,.,· is paramount in constitutional interpretation are the values of the

,m'lInitv whose consUlution is being interpreted, not those of outsiders. I will

t~ this issue - to whose values should judges look - later. In the Australian

?fb(;nt'~xt. there is also the fact that treaties are entered into by the executive without

\nysubsl:antive parliamentary involvement" and without the possibility of judicial

It is thus possible for Australia to enter into a treaty that is illegal under

'int,ernatilom,llaw, for example - an example being the Timor Gap Treaty between

Ind,onesia and Australia, considered by the High Court in Horta. It does not seem to '"~:";;)".

';~\~f/;lrt~,to be appropriate that such a treaty should be used to inform constitutional

Indeed, the mere fact that the executive has chosen to enter into

,':'7'Stanfo,rd v Kentucky 492 US 361, 369 (1989).

,eg, Trap v Dulles 356 US 86 (1'956); Estelle v Gamble 429 US 97 (1976), Thompson v ~~~~;i~:~~I~~~~~11106 5 CI2667 (1988), ciled in Richard LilHch, "The United Slates Constitution and ~ i HUman Rights Law" (1990) 3 Harvard HUman Rights Jouma/53, 77-8.

i~~i~;~~~~;:'~~~~~~3;~63, referring 10 R v Rahey [1987] 1 SCR 586 al 633 and to two academic i. Notably, the Canadian use of intemationallaw in constitutional interpretation hes . confi!1ed to interpretation of the Charter, which was enacted in part to give effect to

i~'\;(;ana;h,'. mternational human rights obligations. The use of international law in this way is thus not of relevance to the AUslralian position.

~~f~\:'~'~~~:;~IL~~th~e~p:~a::r:li~ament now has a much greater role In treaty-making than it once had, via the Joint

on Treaties (see Daryl Williams, "Treaties and the Parliamentary Process" (1996) 199). that role does nol extend to a power to veto an executive decision to enter

a treaty.

See discussion in Thorpe v Commonwealth of Australia [No 3] (1997) 144 ALR 677, 690.

19

: i

20

,iGhtractual arrangements75 with another nation or nations does not seem oft%~:!;-~>

}~quire any strong principle that the Constitution should be interpreted in~~~tj\',',

'orJiiiiY wi.lil such arrangements. It is possible to argue that ratification of a treaty~;:;.?;."'i2:::'\~I;:;' ,

i~~1~~lues accepted in Australian society and thus a treaty may be relevant toLt;;_;J{i,r~:\ 'M~lduii()nal interpretation in that way. This was the approach taken by Gaudron J't'%;~~~,,-,-::·

B~Jij§ioflheConvention on the Rights of the Child in Teoh in the area of'~}±;)l~(j,:,'~'c

.. stratiye law. There her Honour stated that:~,\

IH~significance of the Convention, in my view, is that it gives expression to a'undamental human right which is taken for granted by Australian society, in\hesense that it is valued and respected here as in other civilised countries.And if there were any doubt whether that were so, ratification would tend toconfirm the significance of the right within our society. Given that the

"ie'Convention gives rise to animporlant right valued by the Australian'~Z"ommuhity, It is reasonable to speak of an expectation that the Convention

!4,'@fii01'would be given effect. However, that may not be so in the case of a treaty or'.·;ii§iN;convention that is not in harmony with community values and expectations?"

~ft~~l~·~\:..~;:'G'~U~ion J here seems to give primacy to Australian community values, using the

,-- "., \~1J~-::':

y\0' confirm those values. However, she acknowledges that some treaties may,%tii{~jf:-:-_ ' '<!!Xiifgeform Australian community values and, if so, they would not be of use in the

'&~~~~A::;,;'- "

i';iiii;i;ci~tractual arrangements75 with another nation or nations does not seem of

any strong principle that the Constitution should be interpreted in

';hi 'with such arrangements. It is possible to argue that ratification of a treaty

~i~~;~i~"s accepted in Australian society and thus a treaty may be relevant to

interpretation in that way. This was the approach taken by Gaudron J

:,'L'''' "ft",,,, Convention on the Rights of the Child in Teoh In the area of

There her Honour stated that:

r'~~~.~~.~i~:I~~~ of the Convention, in my view, is that it gives expression to a :':~ human right which is taken for granted by Australian society, in '''''~~''o~ that it is valued and respected here as in other civilised countries,

there were any doubt whether that were so, ratification would tend to

~til~[~::~th~e~,SigniflCance of the right within our society, Given that the

gives rise to an important right valued by the Australian It is reasonable to speak of an expectation that the Convention

effect. However, that may not be so in the case of a treaty or that is not in harmony with community values and expectations?"

J here seems to give primacy to Australian community values, using the

. confirm those values. However, she acknowledges that some treaties ma~

. form Australian community values and, if so, they would not be of use in the ·.'''.'C,,,·,'

are often described as a "source" of International law as a result of being included in Art Statute of the International Court of Justice (ICJ). This, it might be argued, means that

simply contractual arrangements between states. However, I disagree with Article 38(1 lea) directs the ICJ to apply various rules of law, including "international

general or particular, eslabJlshing rules expressly recognised by the parties". Art that treaties are a "source" of law in any general sense. as opposed to a source

I legal obligation adopted by states through mutual agreement. ThUS some have that use of the term "source" be abandoned: Georg Schwarzenberger,

Law 1957). vol 1. 27, cited in David Harris, Cases and Materials on International 24. Sir Gerald Fitzmaurice also took the view that treaties "are a source of

~!,,[~! y~0;~;::~·~~rat~ler than law. The law is that the obligation must be carried out, but the obligation is not, ; .": "Some Problems Regarding the Formal Sources of International law" (1958) Symbo/ae

cited in HarriS, ibid, 46.

Art 38(1)(a) does not negate the fundamental principles governing Ireaties - in particular, that I;i~:;'.i;:~'~~:i~ bInd only the parties to the Irealy and create obligations for a state only vis·a-vis other parties.

a treaty is aptly described as a contractual obligation bet-.-vesn states (See Vienna on the law of Treaties (Vel T), Art 34). A treaty to which a stale is not a party cannot be

" by the ICJ to a dispute involving that stale under Art 38(1 lea). It is of course possible that a reflects customary jnternationallaw and thus non-parties may be bound by a rule included in a (VClT, Art 38) - but then non-parties are bound nol by the treaty qua treaty, but by the rule of

international law.

20

21

, -<;.,~. ",'

~ii~~, Which will include not only executive action but also parliamentary and judicial':.";,\'"',',,

a~ti~n. Thus the relevance of customary international law Is in its reflection of-i~~~ ..e~s~ntially universal values, rather than simply (a) the decision of the executive or (b)W~t,

,~~.values olthe Australian community.~",,;

·th the use of treaties. fthe problems WI

. . Th"polOtsuP one 0 , , .

'tr~tiVe laW area. IS . _ ratification of a treaty by the~,,,., " . I 'nterpretatlon~."ift'u'ence on cons\ltutlona I lues of the Australiann . . I fleet the va~'" e that the treaty wll re , .

;\Jtl~e is no guarante t 'nvolvement of the parhamentlO the.. ".". 'bl that the grea en'~""c"~-"t~,<-", .... h ·t 'IS POSSI e

:;;_J_!;~~~l',_.'''' 'ty thoU9 1,.rortJunl , . b'ng so.(;0",<.,,,,. 77 ' s the chances of thiS el

" " cess Improve."aking pro between bilateral treaties, or

b too that a distinction should be drawnmay e, , I'

f tates and multilateral treaties invo vlOg, volving only a small number 0 s ,sIn .

'ii b Id to represent the views of the International community,,~nY states that can e sa

%t,~;!··, t thereof I suggest that this distinction wlll not always easily be,'a'signlficant sec or .

~)f'< d that even multilateral treaties are, in a technical sense, simply contractualIrawn, an,~$~::,:;:, . .

,,4ii~ffil';jgements between states. What a multilateral treaty will often do, however, IS-~'$:::~·t:,Ai~ -:".'

~~a~di or generate customary International law, and it Is to the use of customary{t~ik?"::)

{i!i!~i6ationallawIn constitutional interpretation that I now turn.

·..:~~;i'1"1 argue that a stronger case for the use of international law in constitutional:,~:i~'fi>,\; "';'liMrpretation may be made with respect to customary international law than for~~~~~",~;" " . .. lies. Customary Internahonallaw - be It 10 the area of human rights or

:;.20;,

;;'il~rwhere- is more than a mere contractual arrangement between naiions.

;;~~I~e;, It consists of principles of near universal acceptance, principles derived not~"f-,,/;

" the mere decision of the executive but from state practice demonstrated over

i¥i:_P'!~~~~W-~' ;'VlJ

":~'';J\~t;Oiscussed at n 73. above.~1~t:~:l~~2~'

f s ·th the use of trea Ie f the problems WI

. . ointsup one 0 . . .

'~::,i~ir~,tive iaw area. This p . _ ratification of a treaty by the I 'nterpretatlon

on constitutiona lithe Australian '11 rellect the values 0

. that the treaty WI th ' is no guarantee . ment of the parliament in e

'bl that the greater Involve though it is POSSI e .

"-"'"'''''''' . 77 im roves the chances 01 this being so.

'. process p b tween bilateral treaties, or , .. b too that a distinction should be drawn e .

may e, , f t t and multilateral treaties involving involving only a small number 0 s a es, .

t the views of the international community, that can be said to represen

i'sl!lnlflcant sector thereof. I suggest that this distinction will not always easily be

, and that even multilateral treaties are, in a technical sense, simply contractual

"iif1~ncleiT,enlts between states. What a multilateral treaty will often do, however, is

or generate customary international law , and it is to the use of customary

it'liinationallaw in constitutional interpretation that I now turn.

- ".'1 argue that a stronger case for the use of international law in constitutional ::'iii3~'<;i'.'

I .. ,." ... t~ti(\n may be made with respect to customary intemationallaw than for

Customary intemationallaw - be it in the area of human rights or

.... ""h,,, ... _ is more than a mere contractual arrangement between naiions.

it consists of principles of near universal acceptance, principles derived not

"~",,Jrg!,lIthe mere decision of the executive but from state practice demonstrated OYer

will inclUde not only executive action but also parliamentary and judicial

Thus the relevance of customary intemationallaw is in its reflection of

'~;j~en!i,.lIv universal values, rather than simply (a) the decision 'of the executive or (b)

ofthe Australian community.

tM:Pi'icussed at n 73, above.

21

The question remains, of course, as to why internationaJiy accepted values

:i't~\i~::

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22

~<',

$~'~~':.s~Ould be relevant, particularly if they connict with Australian community values.';~:,:~~),'-

lr\t~rnational law is that it is not developed through the unilateral action of the:;f$~}'~' ";"";';cutiYe and is thus more apt for direct application in Australian iaw without

,;j",_,c" '

'X.'-e>

,~••, 't might be argued that the use of treaties in the domestic legalOf course, I

.'fr''''';j,< f greater legitimacy than the use ofcustomary international law, as

sy:~~~g,}I~; 0*"~'~\J?:' t out obligations voluntarily assumed by Australia, For exampie, in'@~ll~.~seJal~f)1ma, when dealing with the question whether customary international law

1~t~irectly incorporated into Australian law, Wilcox J thought it would be 'curious" if

S:;"\?1'~,".'}ii\i"rnational obligation incurred pursuant to customary international law has

"~,~,'-, 1~!lrdOmestic consequences than an obligation incurred, expressly and

.:,~~:~Jlt~ri1Y, by Australia signing and ratifying an international convention".78 With

:">'R~~'> 0-{t~.~~e,ct, his Honour seems to have overlooked the fact that th th '.,,"-"" e reason at treaties

;l~q~J(elegislation to have direct effect in Australian law is precl'sely be th;,,:;,F ,cause ey are

r~ij)!lr!ld into by the executive an ar f '","Vi. I'. ' m 0 government that In our constitutional system

',hi? independent law-making power The cr 'I' uCla aspect of customary

~i~lative transformation, Furthermore, in the context of constitutional interpretation,¥:'(Hil,question is not one of direct application but of influence, My argument is that it is,frJ\

"jl~i~rable to rely on customary international law as a tool of constitutional~i':':·"

,.ihlerpretation, as it will reflect the near universal values of the international~*;:,,:'gB,tlJ,r!1unity. On the other hand, those treaties that do not reflect customary

~{.%:;if __'-;'i:!i1.\ernational law

79will reflect only the values of Ihe parties - which could be as few

!~W+N~:"" .asMo states.

'-;0_,:t,~,1

NfJlyarimma, 162.:';::f<

·~f;?!;;~'T~ealies that do reflect customary inlernationallaw will of course be legitimately used under my:>pfoach.':t' ,:

. . h domestic legal d that the use of trealles 10 t e

't might be argue _n,.rs, •. 1 .' . ..' ternationallaw, as

itimacy than the use of customary In

greater leg ustralia. For example, in t obligations voluntarily assumed by A .

;~"tle' ~~' ou mary internattonallaw d 1'lng with the question whether custo

when ea . "'f .n,nmi., ht't would be 'cunous 1 '"i"ii,~dlv incorporated into Australian law, Wilcox J thoug 1

\~\'i~jennatiorla obligation incurred pursuan t to customary international law has

nces than an obligation incurred, expressly and 'ref d,omestic conseque ,a' r ,,78 With

by Australia signing and ratifying an international conven Ion.

>" .•..••. _~. his Honour seems to have overlooked the fact that the reason that treaties

i\{ujire .Ieglisli.ti<m to have direct effect in Australian taw is precisely because they are

;~~tt~[ii'red Into by the executive, an arm of government that in our constitutional system

' .. independent law-making power. The crucial aspect of customary

~rniaticlnal law is that it is not developed through the unilateral action of the

,,,,cum, .. and is thus more apt for direct application in Australian law without

aisl!atille transformation. Furthermore, in the context of constitutional interpretation,

~q!ue:sti<m is not one of direct application but of influence. My argument is that it is

Pfllfel'able to rely on customary international law as a tool of constitutional

j[i~lrplret"tion, as it will reflect the near universal values of the international

On the other hand, those treaties that do not reflect customary

f~lrl.terlJational law79

will reflect only the values of Ihe parties - which could be as few

The question remains, of course, as to why internationally accepted values

,;,;;t"""'UIO be relevant, particularly if they confiict with Australian community values. And

162.

N£~~\>,oa"h. that do reflect customary inlernationallaw will of course be legjtimatel~ used under my

22

-----"--

-------<:~~:~,

tn, 'h e may ask what customary';'.;;' • fI' t with Australian values, t en on.. .'00 not con IC .' .'..

,;?~~~~~C.,. 11 w adds to the argument. To these quesflOns, two answers may be>;(,tl~ij1ationa a··Vlp~;(t,,:. '.' . mun'lty values" will be notoriously difficult to. • .• ;•..•. " t "Australian com;~t·ade'. Firs ,,~?!1L,,($ ". " t·· c trast customary

....f;•.'.•c,'",,,.'..... 'f they Indeed eXist as a coherent concep ,In on ,......:" ..n'\onstrate, I<:_:'''~~i!~'~f;.'iA~~)t; I law while often difficult to prove, is nonetheless proved by way of

.. '"ema lona I

-;-'; t'lons undertaken by states, coupled with a requirement of opinio juris.BO

dlve ac .

ffi~:sense, the universal values of customary international law can be ascertained,

;~i~the values of the Australian community may not be able to be ascertained or, if,¥.:~~;6~n be, may be various and divergent. Second, if it can be satisfactorily

'~~i~oristrated that a norm of customary international law exists (and I do not deny

\~~,-,""..'h~fthis can be difficult), then the fact that there is near universal acceptance of such

'brm gives it, I argue, great moral weight that can translate into legal weight in

)istltutional interpretation (though only, of course, as an influence, not as a superior'f':

iil;o'flaw). Further, as Hughlett argues:

Because the interpretative norm has reached the level of an international ruleof la~, I~e use of t~~ norm decreases.the judge's subjectivity in interpretingconstitutional prOVIsions. The internatIonal norm Is lied to demonstrable· statepractice and agreements which articulate the principle.·'

,,&t1;~~,~~~::'" If one accepts this, there remains of course the difficulty of proving the norm of.F~'~~~,~~':0,:''·'.'iiM;(customary internalionallaw in question. Yet in many areas of international law, that

:~~2z~1%C/,;~;'ij(i~:not difficult. There is general acceptance that genocide is contrary to customary~"1\~~;l~~i_::,"

••t';;;i~t~rnationallaw, B2 Likewise there is general acceptance that many articles of the

;~i¥~)'"'~:~fiTh"'~jS-IS-th-e-C-la-s-si-c-fo-rrn-ul-a-tio-n-Of customary international law: see, eg, Continental Shelf (Libyan~",b Jamahiriya/Malia) [1985] ICJ Rep 1, para 27; Nicaragua v United Slates (Merits) [1986J ICJ RepJ4, para 184; JG Starke, Introduction to International Law(10lh ed, 1989),35-41.

:~:jJ:1~t~~r:T~m.elaHughlett, "lnlernatlonallaw: The Use of International Law as a Guide to Interpretation of;;J!;~i\Il'.~Unrted States ConsliluDon" (1992) 45 Oklahoma Law Review 169.182,':';'i:o;;~':/ni':':'

'~~~~!i~~:i:>NuJyarimmarabove n 13; Mitchell, above n 6, 24-5.~"'!:L"

23

!-';;iiXi

. may ask what customary . . f1' t w'lth Australian values, then one ·t=n 1c .' . '., no . .' To these quest'lons, two answers may be

;'Ot"nnal law adds to the argument.

.' . • t I' n community values" will be notoriously difficult to First, "Aus ra la

if they indeed exist as a coherent concept; in contrast, customary

law, while often difficult to prove, is nonetheless proved by way of

actions undertaken by states, coupled with a requirement of opinio juris,so

~"iiilliat,;enlse,the universal values of customary international law can be ascertained,

values of the Australian community may not be able to be ascertained or, if

be, may be various and divergent. Second, if it can be satisfactorily

., •. "" •• di~miln';tr'lted that a norm of customary international law exists (and I do not deny

'~;\t~)~~::h;~ can be difficult), then the fact that there is near universal acceptance of such

gives it, I argue, great moral weight that can translate into legal weight in

~stitution;al interpretation (though only, of course, as an influence, not as a superior

Further, as Hughlett argues:

Because the interpretative norm has reached the level of an international rule of law, the use of the norm decreases the judge's subjectivity in interpreting constitutional prOVisions, The International norm Is tied to demonstrable· state practice and agreements which articulate the principle,B1

If one accepts this, there remains of course the difficulty of proving the norm of

:1CtJi;t.,morv international law in question. Yet in many areas of international law, that

~t;r~:[;[~'not difficult. There is general acceptance that genocide is contrary to customary

int"rn"ti",nol law. B2 Likewise there is general acceptance that many articles of the

'~;~lj~;;;;;;;~;;';;;j;;;;;;;;;;;~of customary international law: see, eg, Continental Shelf (Libyan Jan,ahiriy.tlM"lla) l1985]ICJ Rep 1, para 27; Nicaragua v United Siaies (Merits) l1986]ICJ Rep

Introduction to Intemational Law(10lh ed, 1989),35-41.

Hughlett, "lnlernatlonallaw: The Use of International Law as a Guide to interpretation of """oil.~',"C'm",,, States ConstituUon" (1992) 45 Oklahoma Law Review 169, 182.

i!iJ,ipliily'arirnma, above n 13; Mitchell, above n 6, 24-5.

23

" II 1 ,

%t'. CCPR reflect customary international law." It is in this way that many~~I .''''c';,:_ ' t' become relevant to constitutionai interpretation - not as treaties

Iteral trea ,es

_, ,((' : b t as refiections of customary international law. Thus I argue it is",. a~il(eatles, u\Y~l'i.;;,\ d stic courts to have regard to many major international treaties -"'QRf9pnate for ome

~~~~i~gthe human rights treaties - in interpreting the Constitution.

There is also the question of how strong a role customary international law

~GI~ play in constitutional interpretation. That is, should customary international

.. 1itnplY be one tool of interpretation among many that can assist the Court in;')',.-","","1,')

fa'ching a conclusion, which seems to be the role that international law has played~~Ar-" _

.~~ate? 'Or should there be a stronger principle that, in the case of ambiguity, thet-ih\'1(

'~'1~g~urf should prefer the interpretation that is consistent with customary international;,t:!),{~J:;;::::'>;i;i _'.:'1'fl~:", as Kirby J suggests? I would suggest that the latter is an appropriate

'::~i;;:'-'

lterpretative principle, one that gives significant weight to customary intemational

;~ but does not allow international law to override the clear terms of the'y'

~6nstitution. If an ambiguity exists, then the judges need some tools to assist them

fdeCiding what interpretation to prefer. Rules of near universal acceptance in the~~.;.

~ternational community are a useful way to resolve such a problem _ and arguably

i;'~re useful that the views of the framers, which reflect views from the 19'h century.

Mff~1~:"i(%~tl CONCLUSION

~'~\;.S'-,

;~plernational law is of increasing importance in Australian law, though its relevance to

j~;f£bi1stitutional interpretation is only recently being articulated. Kirby J, in his'-''"'/~"'T;~''

eg, Henry Steiner and Philip A1ston,lnternafional Human Rights in Context {2nd ed, 2000} 143.

24

. I I law 83 It is in this way that many PR reflect customary mternat ona . .

ICC . t as treaties . b orne relevant to constitutional interpretation - no

treaties ec . .

fiect'lons of customary international law . Thus I argue It IS ,rei.tie.s, but as re .

. rt to have regard to many major international treaties -S.;.; ~ppioprliate for domestic cou s

human rights treaties - in interpreting the Constitution.

• " . Iso the question of how strong a role customary international law There IS a

" play in constitutional interpretation. That is, should customary international

be one tool of interpretation among many that can assist the Court in

a conclusion, which seems to be the role that international law has played

'Or should there be a stronger principle that, in the case of ambiguity, the

'.' should prefer the interpretation that is consistent with customary internationat

~~~:;t;\.~!;'as Kirby J suggests? I would suggest that the latter is an appropriate

:Iii,tenpre.tative principle, one that gives significant weight to customary international

..• but does not allow international law to override the clear terms of the

If an ambiguity exists, then the judges need some tools to assist them

deC:ldlrlO what interpretation to prefer. Rules of near universal acceptance in the

IntE>rm.tional community are a useful way to resolve such a problem _ and arguably

useful that the views of the framers, which reflect views from the 19'h century.

CONCLUSION

,;1.n1ter,naliorrallaw is of increaSing importance in Australian law, though its relevance to

:£br~stitutional interpretation is only recently being articulated. Kirby J, in his

'''f.interrp",tat:ive principle is, I argue, building on (though not expressly) existing uses of

'c)jillernaltional law in constitUtional cases. But he is the first judge to have explored in

'i·'t\'~"·" eg, Henry Steiner and Philip A1ston,lniernafjonal Human Rights in Context {2nd ed, 2000} 143.

24

i~? -i.>':S;~

the appropriate role· of international law. Other judges have remained

to Kirby J's approach, but I suggest that, in its weaker form, the modified

rt~l!;t tent that approach reflects what judges have been doing for many years. r~bgS a em ,

;~~aY yet gain explicit acceptance.~t\'"'~D I also Suggest that this is a positive development, at least in relation to

-~:.:It'$k,mary international law, which reflects near universal consensus on particular

k1t,·':.:gues. However, this approach is unlikely to give international law a decisive role in:~\,r':"i,iistitutional cases - rather, it may support conclusions reached on other grounds,;'Ti,,~as occurred to date. What seems unlikely to occur is the judicial acceptance of a

t··''{origer presumption that, in cases of ambiguity, the Constitution should be

~:.'Iterpreted consistently with international law,

25

propriate role· of international law. Other judges have remained

the ap

Kirby J's approach, but I suggest that, in its weaker form, the modified

t that approach reflects what judges have been doing for many years

statemen,

yet gain explicit acceptance.

I also Suggest that this is a positive development, at least in relation to

~·;";noo"internationallaw, which reflects near universal consensus on particular

However, this approach is unlikely to give international law a decisive role in

'no"'lIltlnnal cases - rather, it may support conclusions reached on other grounds,

occurred to date. What seems unlikely to occur is the judicial acceptance of a

presumption that, in cases of ambiguity, the Constitution should be

ten)(e'ted conSistently with international law.

25