Kristen Walker
Barrister
Associate Professor of Law, The University
of Melbourne
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Basic rule: treaties (and probably customary
international law) are not directly enforceable in
domestic law
Teoh, per Mason & Deane JJ:
It is well established 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 validly incorporated into our
municipal law by statute. … So, a treaty which has
not been incorporated into our municipal law
cannot operate as a direct source of individual
rights and obligations under that law.
 International
law can be used to support
legislation enacted under the external
affairs power
 If a treaty is used in this way, then the
legislation must conform to the treaty:
must be “reasonably appropriate and
adapted to giving effect to the treaty”
 But partial implementation is ok.
1.
2.
3.
4.
As a tool of statutory interpretation
As an influence on development of
the common law
As a basis of judicial review in
administrative law (controversial)
As a tool of constitutional
interpretation (controversial)
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If a statute is clearly in conflict with international law, then
the statute prevails.
But if there is any ambiguity in the statute, then
international law may be used to assist in resolving the
ambiguity (Teoh):
Where a statute or subordinate legislation is ambiguous,
the courts should favour that construction which accords
with Australia's obligations under a treaty or international
convention to which Australia is a party, at least in those
cases in which the legislation is enacted after, or in
contemplation of, entry into, or ratification of, the relevant
international instrument. That is because Parliament,
prima facie, intends to give effect to Australia's
obligations under international law.
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In Victoria there is express legislative authority for
using international human rights law in interpreting
statutes.
Section 32(2) of the Charter provides:
International law and the judgments of domestic,
foreign and international courts and tribunals relevant
to a human right may be considered in interpreting a
statutory provision.
 It
is permissible to use a treaty “at
least in those cases in which the
legislation is enacted after, or in
contemplation of”, entry into the
treaty.
• What of legislation enacted well before a
treaty is entered into? (See Dawson &
McHugh JJ in Kruger)
 Ambiguity
in the statute is required.
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Courts may develop the common law in two
key ways:
1. They may fill a gap in the common law
2. They may change the common law by overruling
an earlier decision.
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In either case they may use international law
as an influence on their decision.
The second is more controversial than the
first.
 In
Dietrich the Court declined to
change the common law to recognise a
new right to counsel at public expense,
notwithstanding international human
rights law.
 But the Court did develop the common
law in light of international human
rights law to recognise a power to stay
proceedings if the absence of legal
representation would render the trial
unfair.
 Teoh
introduced the idea that treaties
could provide a ground of judicial
review of executive action.
 Previously, the
Court had rejected the
notion that treaties might be a “relevant
consideration” so that if a decisionmaker failed to take the treaty into
account would be a ground of review.
 In
Teoh a majority of the Court concluded that
entry into a treaty by Australia generated a
legitimate expectation that the federal
executive would abide by the terms of the
treaty when making decisions.
 If
the executive failed to do so, the person
affected by the decision had to be given an
opportunity to put submissions on the issue
(ie a natural justice requirement).
 The
Teoh doctrine was based on the preexisting administrative law doctrine of
legitimate expectations about executive
decision-making.
 Notably, the person affected by the
decision did not have to have, subjectively,
an expectation about compliance with
treaty obligations.
 However, the doctrine did not require the
decision-maker to conform to the treaty
obligations.
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Teoh was very controversial.
There were federal attempts to override it
legislatively, which did not pass.
There were executive statements that
attempted to negate all treaty-based legitimate
expectations, which appears to have been
ineffective (eg Tien).
There was debate about the extent to which it
applied to the State governments, several of
which legislated to negate the doctrine
The Teoh doctrine ctd
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More recently, McHugh & Gummow JJ cast doubt
on the Teoh doctrine, in Lam
If Teoh is to have continued significance at a general level
for the principles which inform the relationship between
international obligations and the domestic constitutional
structure, then further attention will be required to the
basis upon which Teoh rests.
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Teoh was not overruled, but its status is weak, at
best.
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One final area where human rights treaties may
be relevant in domestic law is in constitutional
interpretation.
Kirby J has championed the use of treaties in
this area.
But other judges (eg McHugh J) have indicated
concern about using treaties in this way.
Note, however, that historically judges have
used treaties in constitutional interpretation,
although without extended discussion.
There is no doubt that, if the constitutional
provision is clear and if a law is clearly within
power, no rule of international law, and no treaty
(including one to which Australia is a party)
may override the Constitution or any law validly
made under it.
…
Where there is ambiguity, there is a strong
presumption that the Constitution, adopted and
accepted by the people of Australia for their
government, is not intended to violate
fundamental human rights and human dignity.
This Court has never accepted that the Constitution
contains an implication to the effect that it should be
construed to conform with the rules of international law.
The rationale for the rule and its operation is
inapplicable to a Constitution -- which is a source of,
not an exercise of, legislative power.
…
No doubt from time to time the making or existence of
(say) a Convention or its consequences may constitute
a general political, social or economic development
that helps to elucidate the meaning of a constitutional
head of power. But that is different from using the rules
in that Convention to control the meaning of a
constitutional head of power.
As to the Constitution, its provisions
are not to be construed as subject to
an implication said to be derived
from international law
 Finally, human
rights treaties, and
decisions that elucidate their meaning,
will be relevant to the way in which the
Victorian courts go about interpreting
and applying the Victorian Charter of
Rights.
 Section
32 (previously referred to) makes
this tolerably clear.
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International (human rights) law is not a source
of rights and duties in domestic law without
legislation.
But international law has certain accepted uses:
• Statutory interpretation (especially now in Victoria)
• Development of the common law

And treaties have certain more controversial
uses:
• In judicial review of administrative action
• In constitutional interpretation

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
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Kruger v Commonwealth (1997) 190 CLR 1
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Dietrich v The Queen (1992) 177 CLR 292
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Tien v Minister for Immigration & Ethnic Affairs (1998) 89 FCR 80
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Lam v Minister for Immigration & Ethnic Affairs (2003) 214 CLR 1
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Kartinyeri v Commonwealth (1998) 195 CLR 337
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Al-Kateb v Godwin (2004) 219 CLR 562
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AMS v AIF (1999) 199 CLR 160
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"International Law as a Tool of Constitutional Interpretation" (2002)
28 Monash University Law Review 77-92
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“Treaties and the Internationalisation of Australian Law” in Cheryl
Saunders (ed), Courts of Final Jurisdiction: The Mason Court in
Australia (1996) 204-235