Applicant a V Minister for Immigration and Ethnic Affairs (1997) 142 Alr 331: Principles of Interpretation Applicable to Legislation Adopting Treaties
| Author | Christopher Ward |
| Published date | 01 March 1998 |
| Date | 01 March 1998 |
| DOI | http://doi.org/10.22145/flr.26.1.9 |
| Subject Matter | Article |
APPLICANT
A V
MINISTER
FOR
IMMIGRATION
AND
ETHNICAFFAIRS
(1997)
142 ALR
331:
PRINCIPLES
OF
INTERPRETATION APPLICABLE
TO
LEGISLATION
ADOPTING
TREATIES
Christopher Ward*
INTRODUCTION
The
question of the
status
of international
law
in
Australian
law
has recently
been
the
subject of close examination
in
a
number
of contexts. Following
the
important
decision
of
the
High
Court
in
Teoh
vMinister
for
Immigration
and
Ethnic Affairs,! the process of
treaty
adoption
and
implementation
was
the subject of review
by
the Senate, resulting
in
the creation of the Joint Parliamentary Committee
on
Treaties
and
a
new
focus
on
Australia's international obligations.
The decision of the
High
Court
in
Applicant A v Minister
for
Immigration
and
Ethnic
Affairs3
provided
an
opportunity
for the
Court
to clarify the interpretative rules to
be
used
when
construing legislation which
adopts
the provisions of multilateral treaties.
This examination is to be welcomed
in
view
of the dualistic relationship
in
Australia
between
international
law
(as evidenced
by
bilateral or multilateral treaties)
and
Australian law.
The
fundamental
principles of the relationship between international treaty-based
law
and
domestic Australian
law
are clear.
Numerous
judicial statements attest to
the
general principle
that
provisions of international treaties to which Australia is a
party
do
not
have
any
direct applicability
and
do
not
give rise to
any
enforceable rights
in
the
Australian legal system unless
and
until they are
adopted
or
implemented
by
way
of
legislation4.
1
2
3
4
BSc/LLB (Hons) (Syd) LLM (Cantab). Solicitor,
Supreme
Court
of NSW, Barrister
and
Solicitor
Supreme
Court
of the ACT,
PhD
Candidate
at
the
Australian
National University.
The
author
wishes
to
thank
Alison
Duxbury
for
her
helpful
comments
on
a
previous
draft
of this note.
(1995) 183 CLR 273.
Report
by
the
Senate Legal
and
Constitutional References Committee, Trick or Treaty:
Commonwealth Power
to
Make and Implement Treaties (1995).
(1997) 142 ALR 331.
See, eg, Bradley vCommonwealth (1973) 128 CLR 557
at
582
per
Barwick
CJ
and
Gibbs
J;
Kioa
v
West
(1985) 159 CLR 550
at
570-571
per
Gibbs
CJ;
Dietrich vR(1992) 177 CLR 292
at
305
per
Mason
CJ
and
McHugh
J.
Obviously,
where
atreaty provision is in accordance
with
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