Quasi-Incorporation of International Law in Australia: Broadcasting Standards, Cultural Sovereignty and International Trade
| Published date | 01 September 1999 |
| Date | 01 September 1999 |
| DOI | 10.22145/flr.27.3.7 |
| Author | Donald R. Rothwell |
| Subject Matter | Article |
QUASI-INCORPORATION
OF
INTERNATIONAL
LAW
IN
AUSTRALIA:
BROADCASTING STANDARDS,
CULTURAL
SOVEREIGNTY
AND
INTERNATIONAL TRADE
Donald
R.
Rothwell*
INTRODUCTION
Public
awareness
of
the
consequences
of
international law
for
Australians
was
highlighted
during
the
battle
in
the
1980s to
save
the Franklin
River
in
south-west
Tasmania. That battle,
which eventually
resulted
in
the
Commonwealth
Parliament
relying
upon
the provisions
of
the
1972
Convention
for
the
Protection
of
the
World
Cultural and
Natural
Heritage
to
enact
the
World
Heritage Properties Conservation
Act
1983
(Cth), was finally
resolved when
the
High
Court
of
Australia
in
the
Tasmanian
Dain
case
2
upheld
the
validity
of
the
legislation on
the
basis
of
the
Constitution,
s
51(xxix),
the
Commonwealth's
external
affairs
power.
This
decision
set
off
a
sequence
of
events which
resulted
in
subsequent
High
Court
decisions
that
gave
further
scope
to
the
external
affairs
power
3
and
which
also
gave
the Hawke
ALP
government
great
confidence
as
to
its
ability
to
rely
upon
conventions
and
treaties,
both
bilateral
and
multilateral,
as
a
source
of
legislative
power.
Throughout
the
1990s
this
trend
has
continued, resulting
in
substantial
public
debate
regarding
the
role
of
international law
in
Australia.
4
Much
of
that
debate
has
centred
around
the
impact
of
treaties,
which,
through
either
direct
or
indirect
incorporation,
are
having
an
ever-increasing
influence
on
Australian
law.
5
This,
........................................................................................................................................................................................................
*
Associate
Professor
and
Associate
Dean,
Faculty
of
Law,
University
of
Sydney.
The
assistance
of
Marion
Jacka
of
the
Australian
Film
Commission
in
the
preparation
of
this
article
is
acknowledged,
as
is
the
comment
of
an anonymous
reviewer.
However
all
errors
or omissions
remain
the
responsibility
of
the
author.
1
1037
UNTS
151;
Australian
'Treaty
Series
1975
No
47.
2
Commonwealth
v
Tasmania
(1983)
158
CLR
1.
3
For
review
see
D
R
Rothwell,
"International
Law
and
Legislative
Power"
in
B R
Opeskin
and
D
R
Rothwell
(eds),
International
Law
and
Australian
Federalism
(1997)
at
104-131.
4
See
the
discussion
throughout
Opeskin
and
Rothwell,
ibid.
See
also
P
Alston
and
M
Chiam
(eds), Treaty-Making
and
Australia:
Globalisation
verses
Sovereignty?
(1995).
5
For
a broader
analysis
of
t1e
relationship between international
and
municipal
law
in
Australia
see
I
A
Shearer,
"The
Relationship
Between
International
Law
and
Domestic
Law"
in
B
R
Opeskin
and
D
R
Rothwell, above
n
3
at
34-68;
J
Crawford and
W
R
Edeson,
"International
Law
and
Australian
Law"
in
K
W
Ryan
(ed),
International
Law
in
Australia
(2nd ed,
1984)
at
71-135.
Federal
Law
Review
essentially,
was the
issue at
stake in
the
Project
Blue
Sky
case.
6
Here
the
High
Court
was
faced
with
having
to
interpret
the
effect of
the
1988
Protocol
on
Trade
in Services to
the
Australian
New
Zealand
Closer
Economic
Relations
Trade
Agreement
(CER)
7
upon
the
operation
of
the Australian
Broadcasting
Authority
(ABA)
under
the
provisions
of
the
Broadcasting
Services
Act
1992
(Cth)
(BSA).
The
BSA
directly
provided
that
the
ABA
was
to
perform
its
functions
in
a
manner consistent
with
"Australia's
obligations
under
any
convention
to
which Australia
is
a
party
or
any
agreement
between
Australia
and
a
foreign
country".
8
It
was
this
direct
application
of
international
law
to
the operation
of
the
ABA
which
was
the
focus of
the
legal
challenge
launched
by
the
New
Zealand
based
Project
Blue
Sky
group.
9
The
High
Court's
decision,
allowing
the
appeal
and
agreeing
that the
ABA
was
bound
to
follow
the
CER,
is
now
the latest
development
in
the
continuing
dance
which
is
taking
place
between
treaties
and
Australian
law.
This
article
will.
review
the
High Court's
decision
in
Project
Blue
Sky,
the subsequent
responses
by
the Australian
Broadcasting
Authority and
the
government,
and
assess
the implications
for
the
interpretation
of
statutes
which
make
reference
to
international
law obligations.
To
begin, it
is
appropriate
briefly to
review
developments
in the
relationship
between
international
law and
Australian
law
in
the
1990s.
INTERNATIONAL
LAW
AND
AUSTRALIAN
LAW
The
expansion
in
the
reliance
by the
Commonwealth
government
upon
international
law
in
enacting
municipal
legislation
became
a
significant
political
issue
throughout
the
1990s
when
the then
Opposition
Liberal-National
Party
promised
a
review
of
the
treaty-making
power
on
their
election.
To
a
degree,
this
review
had
in
fact
already
been
completed
by the
time
that
John
Howard
became
Prime
Minister
in
March
1996.
In
late
1995
the
Senate
Legal
and Constitutional
References
Committee
published
its
report
Trick
or
Treaty?
10
in
which recommendations
were
made
for
an
overhaul
of
the
role
played
by
the
Parliament and
the executive in the
treaty-making
process.
Following
its
election
the
new
government
put
into
effect
a
number
of
the reforms
proposed
in
Trick
or
Treaty?
in
addition
to
those
which
were
a
part
of
its
election
platform).11
During
this time
the
Australian
courts have
continued
to
develop their
interest
in
international
law.
Throughout
the
1990s,
various
members
of
the High
Court
have
made
reference
to
international
law
as a
possible
source
for
understanding
6
Project
Blue
Sky
Inc
v
Australian
Broadcasting
Authority
(1998)
153
ALR
490.
7
Australian
Treati
Series
1988
No
20.
For
the
principal Agreement,
see
Australia
New
Zealand
Closer
Economic
Relations-
lrade
Agreement, Australian
Jreatyf Series 1983
No
2.
8
Broadcasting
Services Act
1992
(Cth),
s
160(d).
9
Project
Blue
Sky
comprised
a
group
of
like-minded
individuals
and
associates
who had
the
objective
of
encouraging
the
profitable
growth
of
the
New Zealand
film
and
television
industry.
10
Senate
Legal
and
Constitutional
References
Conunittee,
Trick
or
Treaty?
Conmonwealth
Power
to
Make
and
Implement
Treaties
(1995).
For
discussion
of
some
of
these
reforms
see
A
Twomey,
"International
Law
and
the
Executive"
in
B
R
Opeskin
and
D
R
Rothwell, above
n
3
at
69-103;
B
Campbell,
"The
Implementation
of
Treaties
in
Australia"
in
B R
Opeskin
and
D
R
Rothwell, above
n
3
at
132-159.
Volume
27
To continue reading
Request your trial