Module 4 – International Law and Australian Law Flashcards
Describe the conflicts between international law and domestic law.
There is no defence to a breach of international law for conflict with domestic laws (Alabama Claims). In Polites v Cth (1945) it was held that valid legislation is not invalidated for conflict with international law.
Describe the influence of international law on domestic law.
International law is not binding unless specifically incorporated by legislation, but a universally recognised principle would be applied by the courts (Chung Chi Cheung and Chow Hung Ching cases).
Describe the influence of domestic law on international law.
International tribunals will look to domestic law for general principles where international law is unclear (Barcelona Traction Case, 1970)
What is the ‘monist’ approach to international law?
The ‘monist’ approach requires customary law and international treaty automatically become part of domestic law.
What is the ‘dualist’ approach to international law?
The ‘dualist’ approach (reflecting the positivist approach) requires international law only become part of domestic law after it has been consented to by the State. This is the view in Australia, where international law and domestic law are seen as two different systems existing side-by-side.
Describe the ‘incorporation’ doctrine.
The ‘incorporation’ doctrine holds that international laws are automatically part of domestic law (in line with monist approach)
Describe the ‘transformation’ doctrine.
The ‘transformation’ doctrine holds that international law must be transformed into domestic law through legislation (shared with ‘dualist’ approach).
Describe the effect of international custom on Australian domestic law.
Customary international law is not adopted into the common law but may become a source of common law (for example, Chung Chi Cheung or Chow Hung Ching). This is in contrast to the position in the UK.
Describe the effect of treaties on Australian domestic law.
Without legislation an action for breach of a treaty cannot be brought (see Tasmanian Wilderness Society Inv v Fraser, 1982)
Describe how treaties are used to interpret Australian domestic law.
International law and domestic law are seen to exist side-by-side (dualist approach) and international law can be used to interpret the common law.
Provide some examples of legislation indirectly shaped by international treaties.
Examples of legislation shapes by international treaty - Australia is not a signatory to any human rights treaties, however it has enacted: Racial Discrimination Act 1975, Sex Discrimination Act 1984, Crimes (Torture) Act 1988, Disability Discrimination Act 1992.
Describe the significance of Chow Hung Ching v The King.
(Chow Hung Ching v The King, 1948) involving Chinese soldiers who assaulted a man in PNG. Appealed PNG SC decision as Chinese soldiers were admitted to PNG with consent of government, SC no jurisdiction. Appeal dismissed. Dualist approach - international law is separate, but universally recognised principle will be applied domestically.
Describe the significance of Chung Chi Cheung v The King.
(Chung Chi Cheung v The King, 1938, Hong Kong) criminal offence by crew on foreign armed ship in Australian territory subject to domestic jurisdiction. PC upheld jurisdiction in accordance with international custom.
Describe the significance of Mabo v Qld.
(Mabo v Qld, 1981) test case to determine indigenous legal rights, held contrary to Racial Discrimination Act. Rejected terra nullius - pre-existing system of laws assimilated during settlement.
Describe the significance of Minister for Immigration v Teoh.
(1995) Malaysian resident refused ‘natural justice’ to be heard following rejection of residence due to prior criminal history. Rights of child - admin officials expected to inform themselves of treaty obligations.
