6: International Law in Australia

Question 1

Monism vs Dualism:

Answer 1

Monist nations = international and municipal (domestics) are part of one system, international prevails if conflict.

Dualist nations = aus, two systems have a complex realtionship but they are not the same. often dysfunction between the two.

Question 2

Treaties & the Executive/Legislative:

Answer 2

• entering a treaty = executive
• prerogative power vested by s61 of th constitution.
• parliamentary control & federal consultation was enchanted in 1996 treaty reforms: treaties tabled in both houses, scrutiny by joint standing committee on treaties, consultations with treaty council.

Question 3

Direct influence of International law:

Answer 3

External Affairs power:
power to make laws with external affairs (s51 xxix).
encompasses: CIL, non-binding recommendations of int. organisations, includes the geography externality limb.

• limitations on power relatively lenient.
  likely to only fall outside power if: a device to attract domestic legislative power, or is substantially inconsistent with an international obligation.

does not fall outside the power merely because it only implements part of an obligation.

Question 4

Consequences of External Affairs power:

Answer 4

• overriding state laws: inconsistent rule
• expanding areas of commonwealth power beyond s51 Placita.

Question 5

Application of international law:

Answer 5

general principle: if a statute transposes the text of a treaty so as to enact it as domestic law, the prima facie legislative intention =

• text should bear the same meaning in the domestic statute that it bears in the treaty.
• rules applicable to the interpretation of treaties must be applied to the transposed text.

VCLT - Arts 31 & 32.

Question 6

Case examples: interpreting law that has implemented treaties?

Answer 6

Zentai:
did treaty conditions prevent AG from allowing Zentai to be surrendered to Hungary for questioning?

Issues: At the time of the offence, would his actions have been an offence in AUS: yes, murder.
but was this a crime in Hungary? murder as a war crime specifically did not exist at the time in Hungary.

so, judges looked at the object & purpose. therefore beyond the minister’s power to determine this.

Povey case too.

Question 7

Incorporation vs. Transformation:

Answer 7

No direct effect of CIL without legislative transformation.

Nulyarimma v Thompson:
could the customary law of AUS pick up the crime of genocide out of CIL?
Answer: No, must have been incorporated/implemented already via legislation.

Question 8

Legislation implementing international law:

Answer 8

some examples: Cth
extradition act
human rights act
racial discrimination act
carriers liability act

Question 9

Indirect Influence of International Law:

Answer 9

• presumption of statutory interpretation, principle of inconsistency with International law.
  limitations: every effort should be made to avoid breaches, must favour a construction of Cth statute which accords with obligations under treaty.
• development of the common law: international law is a relevant and legitimate influence on AUS CL - particularly with human rights.
• influencing leeways for judicial choice
• executive discretion?
• constitutional interpretation?