International Law: Australian Domestic Law's Global Influence

International law is the system of rules and principles that govern the relations between sovereign states and international organisations such as the United Nations. Australia, as a sovereign state, is able to enter into treaties with other states. However, the ratification of international treaties does not involve handing over sovereignty to an international body. Instead, it gives rise to international legal rights and obligations.

The process of implementing an international treaty in Australia involves several steps, including obtaining a mandate to enter a treaty, obtaining ministerial and executive council approval, and review by Parliament. Once a treaty is ratified, it must be implemented at the domestic and international levels. At the domestic level, this involves introducing legislation in Federal Parliament to incorporate the treaty into Australian law. This is because international law and domestic law are considered separate legal orders in Australia, and international treaties do not automatically become part of domestic law.

The position was outlined in the case of Minister for Immigration and Ethnic Affairs v Teoh, where the High Court of Australia stated that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been incorporated into domestic law by statute. This means that treaties can only impose obligations on individuals or create rights in domestic law once they have been incorporated through legislation.

International law and domestic law are separate bodies of law in Australia

In Australia, international law is not automatically incorporated into domestic law. Instead, it operates in tandem with domestic law but remains a separate and independent system. This means that international treaties and their articles do not have a direct effect on Australia's domestic legal system unless they are incorporated into domestic laws through law-making or reform processes carried out by Parliament.

The separation of powers under the Australian Constitution is a key factor in this dualist approach. While the Executive (the Government) has the power to agree to be bound by the articles of a treaty, the power to make laws regarding external affairs is expressly given to Parliament under Section 51 (xxix) of the Constitution. Therefore, any articles from international law that the Executive or people wish to see enacted must go through the law-making or reform processes in Parliament at the federal and/or state levels.

The process of implementing an international agreement or treaty in Australia involves several steps. First, Australia agrees in principle to the terms of the treaty but is not legally bound. Second, ratification occurs, which is a binding agreement to implement the treaty. Finally, Parliament implements some or all of the treaty's articles as an Act of Parliament.

It is important to note that the treaty-making process in Australia also includes checks on the decision-making power of the Executive, such as mandate approval, ministerial and executive review, and review by Parliament. While not legally required, treaties are typically tabled in both Houses of Parliament for a minimum of 15 sitting days before any binding actions are taken.

In summary, while international law and domestic law address similar issues and may overlap in some areas, they remain separate bodies of law in Australia due to the country's dualist system and the separation of powers outlined in the Constitution.

International law becomes part of Australian domestic law through ratification and accession

International law can become part of Australian domestic law through the processes of ratification and accession. These are two distinct methods by which Australia can become a party to a treaty and be bound by its provisions.

Ratification

Ratification is the process by which a state indicates its consent to be bound by a treaty. It usually follows the signing of a treaty, which merely indicates the signatory state's support for the treaty's objectives and provisions, as well as its intention to become a party to the treaty in the future. The ratification process grants states the necessary time to seek approval for the treaty domestically and to enact the necessary legislation to give effect to the treaty. In the case of bilateral treaties, ratification is typically accomplished by exchanging the requisite instruments, while in the case of multilateral treaties, a depositary collects the ratifications of all states, keeping all parties informed.

Accession

Accession is similar to ratification in that it represents a state's consent to be bound by a treaty. However, accession occurs when a state accepts the offer to become a party to a treaty that has already been negotiated and signed by other states. Accession usually takes place after the treaty has entered into force. The conditions and procedures for accession depend on the provisions of the treaty. A treaty may provide for the accession of all other states or a limited number of states. In the absence of such provisions, accession can only occur if the negotiating states agree to it.

International Law in Australia

In Australia, the rules of international law are not automatically incorporated into domestic law. Instead, international law can become part of Australian domestic law through the process of transformation, which requires a positive act of the state, such as ratification or accession. This approach reflects the theory of dualism, which posits that international law and domestic law are separate legal orders. Therefore, international law must be transformed into domestic law through legal acts, such as the ratification or accession of treaties.

The Australian Parliament implements international law through legislation

After receiving approval from the Federal Executive Council, the treaty may be signed, indicating Australia's intention to be bound by it. This step does not impose legal obligations but creates an obligation for Australia to refrain from acts that would defeat the treaty's purpose. Both Houses of Parliament then review the treaty, along with a national interest analysis, for at least 15 sitting days. The Joint Standing Committee (JSCOT) also reviews the treaty, holding public hearings and presenting a report to Parliament with advice on ratification.

The next step is ratification, which occurs at both the domestic and international levels. At the domestic level, legislative changes are introduced and passed by both Houses of Parliament, followed by approval from the Governor-General. At the international level, Australia expresses its consent to be bound by depositing an instrument of ratification, legally binding the state to implement the treaty.

The final step is implementation, where the Parliament enacts legislation to incorporate the treaty into Australian domestic law. This step ensures that the treaty's provisions become enforceable under domestic law.

The process outlined above reflects Australia's dualist system, where international law and domestic law operate separately but in tandem. This means that international treaties do not automatically become part of Australian law and require legislative action to be incorporated.

An example of this process is the Racial Discrimination Act 1975 (Cth), which implements the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Australia signed the CERD in 1966 and ratified it in 1975, demonstrating its commitment to racial equality and establishing a legal framework to address racial discrimination.

In summary, the Australian Parliament plays a crucial role in implementing international law through legislation, ensuring that treaties are incorporated into domestic law and enforceable within Australia.

International law is recognised by Australia's legal system

Australia's legal system recognises international law, but the two operate as separate entities. International law is only incorporated into Australian domestic law when it is passed by the Australian Parliament.

International law is a system of rules and principles that govern the relations between sovereign states and international organisations such as the United Nations. It covers a wide range of areas, including human rights, international trade, international security, and international disputes.

Australia, as a sovereign state, has the ability to make laws for its citizens without external interference. This is known as state sovereignty. However, when Australia enters into international treaties, it agrees to be bound by a set of international rights and responsibilities that govern the actions of sovereign states.

The process of incorporating international law into Australian domestic law involves several steps. First, the relevant minister must seek permission from the Minister of Foreign Affairs or Cabinet to negotiate the treaty. Once the terms are finalised, the minister must obtain approval from the Minister for Foreign Affairs, the Attorney-General, and any other relevant ministers. The matter is then reviewed by the Federal Executive Council. After receiving approval, the treaty is signed, indicating Australia's intention to be bound by it. This is followed by a review by both Houses of Parliament, where the treaty and a national interest analysis are tabled for at least 15 sitting days. The treaty is then ratified, which involves two steps: ratification at the domestic level, where any necessary changes to domestic law are made through legislation passed by both Houses of Parliament and approved by the Governor-General; and ratification at the international level, where Australia expresses its consent to be bound by depositing an instrument of ratification.

It is important to note that international treaties do not automatically become part of Australian domestic law. The High Court of Australia has affirmed that international treaties do not form part of Australian law unless they are incorporated into domestic law by statute. This was established in the case of Minister for Immigration and Ethnic Affairs v Teoh, where the Court held that international treaties cannot operate as a direct source of individual rights and obligations unless they are incorporated into domestic law.

While Australia's Constitution allows the country to enter into treaties as an exercise of executive power, the power to make laws regarding external affairs is expressly given to the Parliament under Section 51 (xxix) of the Constitution. Therefore, international laws created by international bodies cannot automatically apply in Australia. Any articles from international law that the government wishes to enact must go through the law-making or reform processes in Parliament.

In summary, international law is recognised by Australia's legal system, but the two operate separately. International law becomes part of Australian domestic law through a process of treaty negotiation, approval, signing, ratification, and implementation. The recognition of international law in Australia's legal system demonstrates the country's commitment to upholding international agreements and its role as a responsible member of the international community.

Treaties are tabled in both Houses of Parliament

In Australia, treaties are tabled in both Houses of Parliament for a minimum of 15 sitting days before any binding actions are taken. This process is undertaken so that Parliament can act as a check on the power of the Executive. The Joint Standing Committee on Treaties (JSCOT) considers these treaties, and the Committee may also consider any other question relating to a treaty or international instrument referred to it by either House of Parliament or a Minister.

Treaties are generally tabled after they have been signed for Australia, but before any action is taken that would bind Australia under international law. This includes entering into a new treaty, negotiating an amendment to an existing treaty, or withdrawing from a treaty. Treaties are tabled in Parliament with a National Interest Analysis (NIA), which outlines the reasons why Australia should become a party to the treaty. The NIA includes a discussion of the foreseeable economic, environmental, social, and cultural effects of the treaty action, as well as the obligations imposed by the treaty, its direct financial costs, how the treaty will be implemented domestically, and whether the treaty provides for withdrawal or denunciation.

If the treaty action does not significantly impact the national interest and will have a negligible effect in Australia, it may be treated as a minor treaty action and subjected to a streamlined Parliamentary scrutiny process. After the treaty has been tabled and JSCOT has tabled its report, and prior to entry into force, any legislative changes required to implement the treaty domestically must have passed both Houses of Parliament.

Frequently asked questions