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Legal Studies > The Constitution and Australia's Relationships with Other Countries > Flashcards

The Constitution and Australia's Relationships with Other Countries Flashcards

1
Q

What is sovereignty?

A

The government being the dominant power or having supreme authority.

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2
Q

What is the relationship with Australia’s sovereignty and international law?

A
  • Australian governments have generally been willing to comply with International Law.
  • However, they have made it very clear they will not tolerate international law impacting on Australian sovereignty.
  • International laws are not applicable in Australia unless the Australian Government agrees to it.
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3
Q

What does Section 51 (xxix) of the Constitution provide?

A

Section 51 (xxix) gives the Commonwealth Parliament specific powers with respect to ‘external affairs’.

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4
Q

What does Section 75 (i) of the Constitution provide?

A

Section 75 (i) gives the High Court original jurisdiction to hear matters ‘arising under a treaty’.

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5
Q

What does the constitution not detail in regard to international law?

A
  • How Australia can enter into treaties
  • The legal implication of treaties on Australian Law
  • Who is responsible for the enforcement of International obligations in Australia.
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6
Q

What does section 61 of the constitution detail?

A
  • Section 61- Executive power is vested in the Queen and exercised by the Governor General.
  • This power extends to the execution and maintenance of the Constitution and laws of the Commonwealth.
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7
Q

How does Australia enter treaties?

A

The federal government has used it’s executive power and specific powers regarding external affairs to use general executive power to sign and give formal consent to international treaties.

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8
Q

What has the High Court ruled in relation to treaties?

A
  • The High Court has ruled that the Federal governments power to enter into international treaties is protected under the constitution.
  • These High Court decisions have impacted on the operation of the Australian legal system and society.
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9
Q

What are the two forms of international agreements?

A

treaties and conventions

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10
Q

What is a treaty?

A

A ‘treaty’ is a formally concluded and ratified agreement between two or more nation States. The term is used generically to refer to instruments binding at international law, concluded between international entities (States or organizations). Under the Vienna Conventions on the Law of Treaties, a treaty must be (1) a binding instrument, which means that the contracting parties intended to create legal rights and duties; (2) concluded by states or international organizations with treaty-making power; (3) governed by international law and (4) in writing.

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11
Q

What is a convention?

A

A ‘convention’ is a formal agreement between States. The generic term ‘convention’ is synonymous with the generic term ‘treaty’. Conventions are normally open for participation by the international community as a whole, or by a large number of States. Usually the instruments negotiated under the auspices of an international organization are entitled conventions (e.g. the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations in 1989).

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12
Q

What is a bilateral treaty?

A
  • Two nations
  • Specific issues
  • Decided between themselves without
    UN influence
  • Generally in the areas of defence,
    extradition, social security payments,
    culture and trade.
    Examples include:
    -Air Services Agreement with the
    Peoples Republic of China 2004
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13
Q

What is a multilateral convention?

A
  • Three or more nations
  • Most commonly with other members
    of the UN
    -Usually in areas such as
    • Human rights
    • Environment
    • World trade
    • Non-proliferation of weapon
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14
Q

What are some reasons for signing international treaties?

A
  • Compliance with international
    standards (compliance with universally
    diplomatic rules and environmental
    standards).
  • Enhancement of economic interests
    (trade agreements with China &
    Japan).
  • Universal standards for citizen’s safety
    (air traffic control).
  • National Security (defence
    agreements).
  • Human rights and equality (children,
    racial).
  • Environmental concerns (whaling).
  • Where a problem cannot be
    adequately addressed by a country
    acting alone (for example, in relation
    to ozone depletion, global warming or
    the depletion of migratory fish stocks)
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15
Q

What are some examples of treaties?

A
  • ANZUS
  • Timor Sea Treaty
  • United States/Australia Free Trade Agreement
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16
Q

What are some examples of conventions?

A
  • International Civil Aviation
    Organisation
  • World health Organisation
  • International Covenant on Civil and
    Political Rights
  • Convention on the Elimination of all
    Forms of Discrimination
  • Convention on the Rights of the Child
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17
Q

Do treaties ratified by the executive affect Australian law?

A

Treaties ratified by the executive have no effect in Australian law unless given effect by the Legislature

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18
Q

How does customary international law influence Australian law?

A

Customary international law and treaties reflecting customary international law can influence the common law in Australia

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19
Q

How do international obligations influence Australia?

A

International obligations can influence the way an Australian Court interprets legislation

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20
Q

What are the 3 ways to incorporate international agreements into domestic law?

A
  • Legislative Action
  • Cooperative federal agreements
  • Executive action
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21
Q

What is an example of ratification?

A

Executive negotiates and signs a treaty under s61

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22
Q

What is an example of incorporation?

A

Legislature incorporates this treaty into Australian Law by passing legislation

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23
Q

What is legislative action?

A

Government drafts a bill for parliament to enact.

Can be done under a specific head of power, or using external affairs power under section 51 xxix.

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24
Q

What is an example of legislative action?

A

The Racial Discrimination Act 1975 (Cth) implements the Convention for the Elimination of Racial Discrimination

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25
Q

What is an example of cooperative federal agreement?

A

Federal government entering into agreement with the states to pass uniform legislation.

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26
Q

What is the role of the executive in international law?

A

Power to negotiate treaties
S61

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27
Q

What is executive action?

A
  • Use of a regulatory power under an enabling act.
  • Restricted to implementing international law into domestic law.
  • High Court has held the Executive has exclusive power to enter treaties, however, only parliament can incorporate the obligations into domestic law.
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28
Q

What is an example of executive action?

A

Example –Racial Discrimination Act 1975
Federal Government signed and ratified the United Nations Convention on Elimination of all Forms of Racial Discrimination.
This was put into effect when the Parliament passed the Racial Discrimination act 1975.

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29
Q

How does a treaty become law?

A
  • Executive government/cabinet enters into treaty
  • Ministers & departments negotiate terms
  • Government signs a treaty with at least one other nation
  • Minister for international affairs tables an intention to take treaty action
  • Joint Standing Committee on Treaties (JSCOT) conducts an inquiry and submits report
  • Government creates ratifying legislation to incorporate treaty into legislation
  • Bill is introduced to parliament who debate the bill. Bill is voted on (Must pass both houses in same form)
  • Executive Government/Cabinet enters into treaty
  • Governor General gives royal assent. The act is proclaimed, and commencement date published in the government gazette
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30
Q

What is the role of the Joint Standing Committee on Treaties (JSCOT)?

A

Inquires into and reports on:-
- matters arising from treaties and related
National Interest Analyses (NIAs) and
proposed treaty actions and related
Explanatory Statements presented or
deemed to be presented to the parliament;
- any question relating to a treaty or other
international instrument, whether or not
negotiated to completion, referred to the
committee by:
- either house of the parliament, or
- a minister; and
- such other matters as may be referred to
the committee by the Minister for Foreign
Affairs and on such conditions as the
minister may prescribe

31
Q

How do High Court Decisions impact International Law?

A
  • S75 (1) High Court has jurisdiction over “all matters arising under a treaty”
  • Interpret/adjudicate disputes
32
Q

What are the two legal issues the High Court must decide on in its original jurisdiction?

A

Is the Commonwealth Parliament using a valid power in the Constitution to incorporate international law into Australian law?

Does the treaty have the international obligation in it that the enabling Act purports it to have?

33
Q

What are some High Court Cases that have impacted the Division of powers?

A
  • Commonwealth v Tasmania 1983 (Tasmanian Dams Case)
  • Minister for Immigration and Ethnic Affairs v Teoh (Teoh’s case)
  • Koowarta v Bjelke-Petersen 1982 (Koowarta case)
  • Mabo v Queensland (No 1) 1988 (Mabo No. 1)
34
Q

What are the two types of cases the High Court must deal with concerning international law?

A
  • Treaty ratified and obligations incorporated into Australian law
  • Treaty ratified by not incorporated
35
Q

In what case was a treaty ratified and incorporated?

A
  • Tasmanian Dams Case
36
Q

What was the Tasmanian Dams Case?

A
  • Australian as a member of the UN had
    ratified the UN Convention on World Heritage
  • 1982 Tasmanian Government proposes a
    dam on Franklin passes legislation to
    implement this
  • Public protest at this idea: Wilderness Society
  • In late 1982 UNESCO declared South West
    Tasmania a World Heritage Area
  • 1983 the Federal Labour Party prior to an
    election promises to legislate to prevent
    construction of the dam
  • Labour wins the election and legislates World
    Heritage Properties Conservation Act (Cth
    1983) which makes construction of the dam
    illegal
  • The Constitutional basis for this is the
    external affairs power
  • Tasmanian government challenges the
    validity of the Commonwealth law
37
Q

What are the implications of the Tasmanian Dams case?

A

High Court ruled both laws are constitutionally valid but inconsistent. Therefore, due to Section 109, the Commonwealth law prevails.

The Commonwealth does have the power to make laws which affect states by implementing international treaties using the External Affairs power.

38
Q

What is an example of a case where treaties have been ratified but not incorporated?

A

Teoh’s case

39
Q

What was the Minister for Immigration and Ethnic Affairs v Teoh 1995?

A
  • The case concerned the validity of a
    deportation order.
  • Mr Teoh, a Malaysian citizen, entered
    Australia on a temporary entry permit and
    married an Australian citizen, who already
    had four children. Mr Teoh and his Australian
    wife had three more children.
  • Mr Teoh applied for a permanent entry
    permit.
  • Mr Teoh, an alien (not an Australian citizen)
    was convicted of heroin importation offences
    and sentenced to six years’ imprisonment
    (these offences occurred whilst his
    application was being considered).
  • His application for permanent residence was
    denied by the Minister of Immigration and
    Ethnic Affair’s delegate on the ground that he
    was not of good character.
  • Orders were made for him to be deported to
    his Native country.
  • Teoh challenged this order through the
    Administrative Appeals Tribunal and various
    courts arguing that it was harsh and unjust as
    his children who were Australian would be
    denied the parental care, love and guidance
    of their father.
40
Q

What was held in Teoh’s Case?

A
  • Australia had signed the Convention of the Rights of the Child.
  • It had not passed any legislation incorporating this convention into Australian Law.
  • The High Court held that ratification of a convention is a positive statement by the Australian government to the world and its people that it will act in accordance with the Convention.
  • This positive statement creates an expectation that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children in proceedings that involve them as “a primary consideration.”
  • Reviewing the Immigration Minister’s decision, it is clear that the best interests of the children were not treated as a primary consideration and that there was no opportunity to contest his decision.
  • The appeal from the Federal Court’s decision, seeking to sustain the Immigration Minister’s recommendation that Teoh be deported, was dismissed.
  • The case was important as it means that the government is expected to act in accordance with international treaties ratified by Australia even if they have not been implemented in legislation.
40
Q

What are the seven core international human rights treaties Australia is a party to?

A
  • theInternational Covenant on Civil and Political Rights- external site(ICCPR)
  • theInternational Covenant on Economic, Social and Cultural Rights- external site(ICESCR)
  • theInternational Convention on the Elimination of All Forms of Racial Discrimination- external site(CERD)
  • theConvention on the Elimination of All Forms of Discrimination against Women- external site(CEDAW)
  • theConvention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment- external site(CAT)
  • theConvention on the Rights of the Child- external site(CRC)
  • theConvention on the Rights of Persons with Disabilities- external site(CRPD).
40
Q

Has Australia met its obligations in relation to the the international covenant on civil and political rights?

A

the Human Rights (Sexual Conduct) Act 1994 is a partial compliance

40
Q

Has Australia met its obligation with the convention on the elimination of all forms of racial discrimination?

A

Yes the Racial discrimination act 1975 is a direct compliance with this treaty

41
Q

Has australia met its obligation with the convention against torture and other cruel, inhuman or degrading treatment or punishment?

A

Whilst there is no specific legislation, the Crimes (Torture) Act condemns torture that happens outside of Australia. However there is no domestic legislation incorporating this treaty. As a result, the UN in 2015 found that by detaining children in Immigration detention centres and holding asylum seekers in dangerous and violent conditions on Manus Island, Australia is systematically violating this convention. Therefore, there is no compliance with this treaty.

42
Q

Has Australia met its obligation with the convention of the elimination of all forms of discrimination against women?

A

Whilst the sex discrimination act 1984 is in place, there are to many exceptions or commissions in this act for Australia to fully comply. Therefore we have partially complied

43
Q

Has Australia met its obligation with the convention on the rights of the child?

A

Whilst there is no specific legislation, the family law reform act 1995 complies with some articles in the treaty. (partial compliance)

44
Q

Has Australia met its obligations regarding the international covenant on economic, social and cultural rights?

A

No, there is no compliance

45
Q

What is Australia’s response to criticism regarding its non-compliance and delays in implementing treaties it has signed?

A
  • As a country we have an excellent human rights record
  • Common law and parliamentary democracy address the human rights issues addressed by these treaties
46
Q

What are the reasons behind human rights conventions?

A
  • They provide consistent and universal application of human rights
  • Developed countries provide leadership to other nations
  • They improve human rights and provide a guide for protection of human rights
  • With increased travel, people need confidence in the universal protection of rights
  • They provide mechanisms to monitor compliance and to report and address violation of human rights
47
Q

What are some examples of the non-human rights conventions Australia has signed?

A
  • Adopting the Constitution of the World Health Organisation (WHO).
  • WHO acts to improve health standards and serve vulnerable people.
  • Paris Agreement 2012- Sets standards to address climate change- Carbon growth set at 1.5% pa.
48
Q

Has Australia met the standards of the paris agreement?

A
  • Australia has fallen well behind the emissions and projection targets set out in the Paris Agreement
  • One of the goals of the Paris Agreement is to limit global heating to 2C and 1.5C respectively
  • To achieve this goal, Australia would need to set a 2023 emissions reduction target of between 50% and 74%
49
Q

What is the International Criminal Court?

A
  • Prosecutes and sanctions offenders who commit an offence in the ICC international agreement.
  • These offences are considered unacceptable by basic international standards.
  • Established under the UN’s Rome Statute in 1998.
  • It is an independent international organisation
  • The ICC is limited to hearing matters concerning crimes committed between 1 July 2002 and mid-2004.
50
Q

What are some examples of the offences the ICC prosecutes and sanctions against?

A
  • Genocide
  • Crimes against humanity
  • War crimes
51
Q

How has Australia responded to the ICC?

A
  • Australia signed and ratified the Rome Statue as one of the original 60 nations.
  • Federal parliament passed the International Criminal Court (Consequential Amendments) Act 2002 to exercise the principle of “complementarity”
52
Q

What does the International Criminal Court (Consequential Amendments) Act 2002 mean for Australia?

A
  • This means anything that the ICC has jurisdiction to hear (such as genocide cases), Australian courts will also have jurisdiction. (i.e. criminal cases that can be heard in the ICC will be tried in Australian courts by the Commonwealth) maintaining Australia’s sovereignty.
  • The Act also establishes mechanisms to facilitate Australia’s compliance with the Rome Statute, including the provision of investigative assistance and the arrest and surrender of suspects.
53
Q

What are Australia’s points of clarification to the Rome statute?

A
  • Cases being investigated/prosecuted by a State(Nation) not admissible before ICC.
  • Australia’s criminal jurisdiction takes priority in relation to crimes within the jurisdiction of the ICC.
  • Australia will not surrender an individual to the court until its had the opportunity to investigate or prosecute alleged crimes.
  • No individual can be arrested on an ICC warrant or surrendered to the court by Australia without the consent of the Attorney-General
  • Genocide, crimes against humanity and war crimes will be interpreted and applied ‘in a way’ that accords with their implementation in Australian domestic law.
54
Q

What is the Rome Statute?

A
  • Provides a list of offences of genocide, crimes against humanity and war crimes-uses other conventions such as the 1949 Geneva Convention, as a model.
  • The Australian Commonwealth Parliament passed the International Criminal Court Act 2002 to incorporate it’s obligations.
  • The Australian Commonwealth Parliament also enacted the International Criminal Court Act 2002 (Consequential Amendment) Act 2002, and amended the Criminal Codes Act to allow Australian courts to try these claims
55
Q

What is the Consequential Amendments Act 2002?

A
  • Creates offences equivalent to those the ICC has jurisdiction to hear such as genocide, crimes against humanity and war crimes.
  • This allows Australia to exercise the it enables Australian courts to hear international crimes that the ICC has the jurisdiction to decide.
56
Q

What is the JSCOT’s relation to the ICC?

A

JSCOT has endorsed the Commonwealth’s right to exercise the principle of complementarity and to include these crimes in Australian law.

57
Q

What are the 5 offences of genocide as laid out in the elements of crime adopted by the Consequential Amendment Act 2002?

A
  • Killing
  • Causing serious bodily or mental harm, including torture, rape, sexual intercourse, or inhumane or degrading treatment
  • Inflicting conditions of life calculated to bring about physical destruction, including depriving people of essential resources such as food or medical services, or systematic expulsion from homes
  • Imposing measures to prevent births
  • Forcibly transferring children to different national, ethnical, racial or religious groups
58
Q

Where are crimes against humanity listed in Australian law?

A

Consequential Amendment) Act 2002 mirrors crimes against humanity Article 7 of the Rome Statue.

59
Q

What are crimes against humanity as outlined by the consequential amendment act 2002?

A
  • Crimes against humanity may not be
    committed in isolation or by an
    individual. Evidence of a link between
    the perpetrator and a state or
    organisational policy must be
    established. It’s also necessary to
    demonstrate:
  • The acts must be a widespread and
    systematic attack against a civilian
    population (the perpetrator must have
    intended the attack).
  • Crimes are a result of the policy of a
    state or organisation
  • The perpetrator knew that the attack
    was , or intended the act to be, part of
    a larger attack on the civilian
    population (doesn’t have to be a
    military attack).
  • Examples include murder,
    extermination, enslavement, sexual
    slavery, enforced prostitution and
    apartheid.
60
Q

What are the background facts about Taylor v Attorney-General [2019] HCA 30?

A
  • 5 Australian lawyers, including a former federal court judge, filed a private application in the Melbourne magistrates court seeking prosecution of Aung San Suu Kyi over crimes against humanity committed against the Rohingya ethnic and religious minority in Myanmar.
  • More than 650,000 Rohingya have crossed the Myanmar border to Bangladesh since August, fleeing systemic violence from the country’s military, including murder, rape, and the deliberate torching of villages. The UN has said the persecution “bears all the hallmarks of genocide”.
  • The decision concerned the attempted prosecution of Aung Sun Suu Kyi under Division 268 of theCriminal Code Act 1995 (Cth) (Criminal Code) which represents Australia’s implementation of the Rome Statuteand the source of our universal jurisdiction over international crimes.
61
Q

What was the decision handed down in Taylor v Attorney-General [2019] HCA 30?

A
  • A 4:3 majority dismissed the application.
  • The application was dismissed as Aung San Suu Kyi’s position as state counsellor, makes her the de facto, leader of the government. She is also foreign minister, a position that attracts immunity.
  • “Aung San Suu Kyi has complete immunity, including from being served with court documents because under customary international law, heads of state, heads of government and ministers of foreign affairs are immune from foreign criminal proceedings and are inviolable – they cannot be arrested, detained, or served with court proceedings.”
62
Q

What are the implications of Taylor v Attorney-General [2019] HCA 30?

A
  • The case highlights some complex questions– about the significant procedural hurdles facing the prosecution of international crimes in Australia.
  • It also raised important questions about the status and content of the rules of customary international law surrounding head of state immunity for international crimes – a topic at the forefront of international debate.
63
Q

What are the elements of war crimes?

A
  • Crimes that breach the Geneva Convention of 1949
  • Wilful killing, torture to obtain information, biological experiment, taking hostages, causing great physical or mental suffering.
64
Q

Where are war crimes tried?

A

The Australian Federal Government wants to try as many of these cases in Australian courts using the principle of complementarity.
Generally, decisions of foreign courts, including the ICC, are only persuasive on Australian courts.
The ICC’s decisions are only binding on Australian courts if the Australian Government allows an Australian citizen to be prosecuted.

65
Q

What is the international court of justice (ICJ)?

A
  • Judicial body of the united nations - sits in the Hague
  • Settles international disputes about international law
66
Q

What is the function of the ICJ?

A

Two roles, both civil:
- Settle disputes in accordance with international law brought by member states
- To give advisory opinion on legal questions referred to it by authorised international organisations and agencies

67
Q

What is involved in ICJ cases?

A
  • They do not hear cases regarding individual complaints
  • Both parties must agree about the decision
  • Decision is binding but no powers to enforce it
68
Q

What is the composition of the ICJ?

A
  • 15 judges elected for 9 year terms by the general assembly and the security council
  • elections every 3 years for one-third of the states
  • judges do not represent their country, judge in accordance with international law
69
Q

What is the relation of the ICJ with Australian courts?

A
  • Not binding on Australian courts, but are persuasive
  • Often have no direct relevance to Australian law
70
Q
A

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