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French, Justice Robert --- "Australian nationhood and the interaction between international and domestic law" (FCA) [2005] FedJSchol 12

FIRST ASIAN FORUM FOR CONSTITUTIONAL LAW

College of Law, Seoul National University

Korea Legislation Research Institute

Seoul, Korea

22-24 September 2005



Australian Nationhood and the Interaction between International and Domestic Law



Justice RS French

Federal Court of Australia



Introduction

  1. Australia has probably the oldest Constitution in this region. For many of you it will seem to be the strangest. In form, we are a constitutional monarchy. In substance, we are a Republic. There is no Bill of Rights in the Constitution. Yet international human rights and freedoms are generally respected. As aspects of the rules of international law they have effects, direct and indirect, upon Australian domestic law.
  2. This paper presents an overview of Australian constitutional history, the shape of its Constitution and its evolution to full, independent nationhood. Against that background the interaction between international law and Australian domestic law, particularly in the area of human rights, is considered.
  3. Australia came into existence as a national polity on 1 January 1901. The international community and Australia’s position in it has changed radically since that time. Its Constitution was informed by a 19th century view of the world and Australia’s status as a Dominion of Great Britain. Today there are some interesting and challenging questions about the ways in which international law and treaty obligations interact with Australia’s domestic law, its Constitution, its statutes and its common law. These questions invite reflection upon Australia’s constitutional history and structure which include the following:
    1. Australia’s beginnings as a self-governing colony of the United Kingdom.
    2. Its stepwise evolution into a fully independent nation state in the world community.
    3. The division of legislative powers between the Commonwealth and the States of the federation and the power in the Commonwealth to make laws with respect to external affairs.
    4. The exclusive power of the Commonwealth Government to enter into treaties.
    5. The division between the Executive and Legislative power in the Constitution.
  4. Because of the division of powers in the constitution and as a matter of established common law doctrine, international law and treaty obligations in Australia do not have any direct legal effect unless given such effect by a law enacted by the Parliament. Nevertheless there are other ways in which international law and treaty obligations have important indirect effects. They can affect the interpretation of statutes. They can also affect the development of the judge-made or common law. There is an ongoing debate about whether and, if so, how much they can affect the interpretation of the Constitution itself.

The Constitutional History of the Australian Colonies

  1. In 1768 the Royal Society of London for the Improvement of Natural Knowledge engaged Captain James Cook to lead a scientific expedition to observe the transit of Venus across the Sun from a vantage point in Tahiti. After the observations were made on 3 June 1768, Cook continued his voyage in search of a postulated southern continent of Terra Australis. On that voyage Cook found New Zealand and, in April 1770, the south eastern coast of Australia. He mapped the eastern coast of Australia to Cape York and claimed it for the British Crown.
  2. Following the loss of Britain’s American colonies, New South Wales was designated, in 1786, as a place to which British convicts might be transported.[1] On 12 October 1786 Arthur Phillip was commissioned by the British Government as Governor of the proposed new colony of New South Wales. He arrived at Sydney Cove on 26 January 1788 as the embodiment of the authority of the British Crown. It was the same year that 13 American colonies voted on the Constitution of the United States. The fleet that accompanied Governor Phillip brought with it 717 convicts. Australia was, of course, already occupied by Aboriginal people. However under common law doctrine of the times they were not recognised as having any legal rights or entitlements to the land which they inhabited. This is sometimes summed up by the words terra nullius – the country belonged to no-one. This was a doctrine not overturned until 1992 by the High Court in Mabo v Queensland (No 2)[2] – a common law judgment of great importance influenced by principles of international law.
  3. One constitutional historian has written that European Australia began as a gaol which covered half a continent. New South Wales covered all of Australia east of the 135th meridian together with the adjacent islands.[3] It was of course much more than a prison and much larger than was necessary to constitute a prison. In 1823 the first appointed local legislative body was created and a Supreme Court established. In 1825 Tasmania was carved out of New South Wales as a distinct colony. In 1842 the Australian Constitutions Act 1842 (UK) created a representative Legislative Council for New South Wales.[4] The transportation of convicts continued in Tasmania until it acquired representative government in 1854.
  4. In 1850 the Australian Constitutions Act 1850 (UK) was passed by the British Parliament. It followed a report by a committee of the Privy Council in 1849 which had inquired into the constitutional position of the Australian colonies. Under that Act colonial legislatures were empowered to make and alter their own constitutions. The 1850 Act also provided for the colony of Victoria to be separated out from New South Wales. That separation took effect in January 1851.
  5. The Legislative Council of Tasmania, which was established in 1854, passed a Constitution Act in the same year. Constitutions were enacted for New South Wales and Victoria in 1855. Those Constitutions required express statutory authorisation by the United Kingdom Parliament because they conferred on the colonial legislatures powers in respect of the waste lands of the Crown which had not been conferred by the Australian Constitutions Act 1850 (UK). As a matter of convention these Constitutions adopted a framework of responsible government.
  6. Queensland was created out of New South Wales as a separate colony in 1859. This was done by an Order in Council under the Australian Constitutions Act 1850 (UK). So the colony began its life with a Constitution defined by the Order in Council which was similar in terms to the 1855 New South Wales Constitution. South Australia came into existence as a province in 1834 by direct Imperial statute. In 1851 a representative government with a Legislative Council was established in South Australia and in 1855 the South Australian Constitution Act 1855 was passed by the South Australian legislature.
  7. Western Australia, which was never part of the colony of New South Wales, was established as a colony in 1829. It achieved representative government in 1890 following the authorisation of the Constitution Act 1889 (WA) by an Imperial statute. It set up a bicameral legislature which included a nominated Legislative Council. This was replaced by an Elective Council in 1893. A Constitution Act 1899, passed by the West Australian Parliament, consolidated the earlier enactments.
  8. It can be seen from this brief history that the legal legitimacy of the Constitutions of the Australian colonies depended directly or indirectly upon Acts of the British Parliament. Importantly the colonies did not have any legal personality which was capable of recognition at international law. International law at the time dealt only with sovereign states. Australia was not a sovereign state. It was a collection of colonies.
  9. Professor Leslie Zines summarised the operation of colonial rule in relation to self-governing colonies in the late 19th century thus:
‘The colonial parliaments and ministers were to be left to manage matters of merely local concern without interference from the Imperial authorities. Generally speaking in all such matters the Governor was to act on the advice of the local ministers who in turn were responsible to the colonial parliament. In all matters affecting foreign nations or other parts of the Empire, the Imperial Government and Parliament alone were responsible. [5]


Against this background it is helpful briefly to overview the role of colonial parliaments in relation to treaties. [6]



The Australian Colonies under International Law

  1. The colonies, not being sovereign states at international law, could not enter into treaties on their own account. But the question of treaties affecting them was agitated as early as 1870. A Victorian Royal Commission in 1870 recommended that Victoria be given the power to enter into treaties so that it could remain neutral in any war involving Great Britain. Not surprisingly this was not accepted by the British Government. The colonies were more realistically concerned about trade and shipping treaties which affected them. The British Government agreed in 1877 that commercial treaties would not automatically apply to colonies which had responsible government. Such colonies were given the option of adhering to such treaties within a period of two years. Opt-in provisions of this kind were found in British commercial treaties in the 1880s with Montenegro and Italy. A right for colonies to withdraw from treaties into which Great Britain had entered and which bound them was only granted in the late 1890s.
  2. An international organisation known as the Universal Postal Union was founded in 1874. The Australian colonies initially acquired a single vote in the Union in 1885 and one vote per colony (save for Queensland) later on. Some of the colonies also made bilateral postal agreements, such as the Postal Convention between the United States and New South Wales in 1874.[7]
  3. In 1895 the British Colonial Secretary wrote to the governors of Britain’s self-governing colonies stating that dealings with foreign powers could only be conducted through the British government. To authorise colonies to negotiate treaties in their own right would have conferred upon them the status at international law of independent states. The negotiation of any treaty involving a colony would have to be undertaken by the British Government which could be assisted by a delegate coming from the colony.[8]
  4. Colonial statutes which were inconsistent with Britain’s treaty obligations generally did not receive the Royal assent and so did not come into effect. As Dr Ann Twomey has observed:
‘... during the colonial era, treaties entered into by the United Kingdom government had an immediate effect on the Australian Colonies, regardless of whether or not the Treaty was implemented by legislation of the United Kingdom government. This was because colonial governors were required to reserve any legislation that conflicted with a British Treaty for the assent of Her Majesty. And Her Majesty’s assent was ordinarily not given.’ [9]


By way of example, legislation made in New South Wales and Victoria to restrict Japanese immigration was not assented to because it contravened Britain’s obligations under an Anglo-Japanese Treaty. Queensland negotiated a separate Protocol to the Treaty so that it would be consistent with legislation which it wanted to introduce.

The Commonwealth of Australia – A New Self-Governing Colony

  1. Although there were some attempts by British officials in the 1840s to promote the formation of an inter-colonial General Assembly to deal with matters of common Australian interest, the proposals did not meet with support from the colonists. The movement towards the formation of a single Australia ultimately came from the colonists themselves. It was driven by concern about foreign affairs, immigration, defence, trade and commerce and industrial relations. There was also concern in the 1880s about the colonising activities of France and Germany in the region. In 1883 Queensland tried to annex Papua with a view to heading off its German colonisation. The attempted annexation was disclaimed by the British Government.
  2. The concerns about foreign affairs, including colonising powers, immigration and the like could not be addressed under a system comprising six colonial governments. As Professor RD Lumb has written:
‘The coexistence of six colonies on the Australian continent independent of each other in local policies, although united by common law, nationality and similar institutions of government, could not be the basis for a permanent constitutional system.’ [10]


There also developed in the 1890s a perception of people or race embedded in the idea of nationality. Australians of the 19th century used the term ‘people’ and ‘race’ interchangeably.[11] In 1890 one of the founding fathers of the Australian Constitution, Henry Parkes, said rather floridly:



‘The crimson thread of kinship runs through us all.’


  1. In the 1890s conventions of colonial representatives met to discuss and draft an Australian Federal Constitution. A Constitutional Conference in 1890 led to a Constitutional Convention in 1891. A Constitution Bill was adopted by that Convention but did not gain any popular acceptance. For a short time the move towards federation lost its momentum.
  2. The move was started again with a conference held in Corowa in 1893, organised by the Australian Federation League. That conference proposed that the legislature of each Australian colony pass an Act providing for the election of representatives to attend a statutory convention or congress to consider and adopt a Bill to establish a Federal Constitution for Australia. That plan was considered by a Conference of the colonial Premiers held in Hobart in 1895. The Premiers decided that each colony would pass enabling Acts to choose ten delegates each to meet at a Convention to draft a Federal Constitution for consideration by each colonial parliament.
  3. The new Convention met in Adelaide in March 1897 and then in Sydney in September 1897 and finally in Melbourne in January 1898. A proposed Constitution Bill was reconsidered and revised during that time by a drafting committee. It was adopted by the Convention in March 1898. Referendums were subsequently held in each of the colonies and ultimately a majority of people in a majority of the colonies approved the proposed Constitution. Western Australia’s referendum was not held until July 1900, but it ended up supporting the Constitution.
  4. A Constitution Bill incorporating the proposed Constitution was submitted to the United Kingdom Parliament. Subject to some changes, relating to appeals to the Privy Council from the High Court, the Bill was passed by both the House of Commons and the House of Lords and on 9 July 1900 received the Royal assent. The proclamation establishing the Commonwealth was signed by Queen Victoria on 17 September 1900 to take effect from 1 January 1901.
  5. The Australian Constitution came into existence as a section of an Act of the United Kingdom Parliament. One of Australia’s great jurists of the twentieth century, Sir Owen Dixon, described the Constitution thus:
‘It is not a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s dominions.’ [12]


The Shape of the Australian Constitution

  1. The Commonwealth of Australia Constitution Act 1900 (UK) is an Act of the British Parliament. Section 3 authorised the Queen to declare by proclamation that the ‘people’ of the Australian colonies:
‘... shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia.’


Section 4 provided that the Commonwealth would be established and the Constitution of the Commonwealth take effect on a day appointed by the proclamation. That day was 1 January 1901. Section 5 provided that the Act and all laws made by the Parliament of the Commonwealth under the Constitution ‘... shall be binding on the courts, judges and people of every State and of every part of the Commonwealth, ...’. The former colonies became and were designated the ‘Original States of the Commonwealth’ (s 6).

  1. Section 9 of the Act set out the text of the Constitution of the Australian Commonwealth. It has eight chapters which deal with the following topics:

Chapter 1 – The Parliament

Chapter 2 – The Executive Government

Chapter 3 - The Judicature

Chapter 4 – Finance and Trade

Chapter 5 – The States

Chapter 6 – New States

Chapter 7 – Miscellaneous

Chapter 8 – Alteration of the Constitution

The Constitution comprises altogether 128 sections.

  1. The law-making power of the Commonwealth is vested in the Commonwealth Parliament which is said to consist of ‘... the Queen, a Senate, and a House of Representatives,’. This reflects the fact that the Queen, through her representative the Governor-General, gives formal assent to legislation passed by the Houses of Parliament. The Queen is represented by a Governor-General appointed by her. As a matter of convention the Governor-General is appointed only upon the advice of the Prime Minister. The Governor-General is effectively Australia’s ceremonial Head of State, although in a formal sense he or she represents the Queen of Australia.
  2. Section 51 of the Constitution sets out the subjects upon which the Parliament of the Commonwealth is authorised to make laws. Powers relevant to Australia’s status in the international community include the powers to make laws with respect to:

(i) Trade and commerce with other countries, and among the States.

(vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.

(xix) Naturalisation and aliens.

(xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.

(xxvii) Immigration and emigration.

(xxviii) The influx of criminals.

(xxix) External affairs.

(xxx) The relations of the Commonwealth with the Islands of the Pacific.

  1. Chapter 2 of the Constitution deals with the Executive Government. The key provision of that chapter is cl 61 which provides:
‘The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth.’


By Convention the Governor-General acts upon the advice of the Australian Ministers of the Crown through the Federal Executive Council which is established under s 62 of the Constitution. The section locates the effective executive power in the Ministers of the Crown. It was that section which the Australian Government relied upon in a well-known incident in 2001 when it prevented a Norwegian vessel, the Tampa, from bringing more than 400 asylum seekers on to the Australian mainland.[13]

  1. Chapter 3 of the Constitution deals with the federal judicature. Each colony which became a State already had in place a court system. Those court systems continued after federation and continue today. The judicial power of the Commonwealth is vested in the High Court of Australia, such other Federal Courts as are created by the Parliament and such other courts (eg Courts of the States) as it invests with Federal jurisdiction. The Constitution directly confers upon the High Court original jurisdiction in some important areas including:
‘75. In all matters –


(i) Arising under any treaty;

(ii) Affecting consuls or other representatives of other countries;

(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

(iv) Between States or between residents of different States, or between a State and a resident of another State;

(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;


the High Court shall have original jurisdiction.’


  1. Section 76 of the Constitution gives the Parliament authority to confer additional original jurisdiction on the High Court. Under s 77 the Parliament can confine the jurisdiction of any other federal court which it creates or confer federal jurisdiction on any court of a State. The judges of the High Court and of Federal Courts are protected against removal from office except on the ground of proved misbehaviour or incapacity. In that event removal can only be upon a resolution of both Houses of the Parliament to the Governor-General in Council (s 72). The High Court is the final Court of Appeal in Australia.

Australia’s Evolution as an Independent Nation State

  1. The six Australian colonies which federated in 1901 together constituted the new Commonwealth of Australia. But Australia did not become an independent nation state in the world community at that time. Although there is no doubt, within Australian constitutional theory, that it now has that status, there was no clear and unambiguous moment at which the transition to full nationhood can be said to have occurred. Australia came into existence and entered the 20th century as a self-governing colony of the United Kingdom. Sir Ninian Stephen, a judge of the High Court of Australia who later became Governor-General, wrote in a judgment in 1979:
‘The History of the Constitution Conventions leading to federation is, I think, consistent only with a contemplation by those who were, in the last decade of the 19th century, concerned to bring about Federation that the establishment of the Commonwealth would not of itself involve either the ending of the application to Australia of existing Imperial laws or the denial to the Parliament at Westminster of continued competence to legislate for Australia.’ [14]


Australia was not legislatively independent in 1901. It remained subject to paramount British legislation. This was specifically provided for in a British Statute known as the Colonial Laws Validity Act 1865.

  1. Nor did Australia gain executive independence in the conduct of its foreign relations at the time of federation. These were effectively carried on through the British Government. A question agitated between the Commonwealth and the State Governments and the British Government in the early years of the federation was whether the British Government should deal with the Commonwealth Government in connection with all matters affecting treaties and foreign affairs or whether it could continue in certain cases to deal with the governments of the former colonies, now the States of Australia. Alfred Deakin, the first Attorney-General of the Commonwealth, asserted firmly that the Commonwealth was the only government with which the British Government should deal. In a letter of advice to the Australian Prime Minister dated 28 May 1901 he said:
‘The power to pass laws relating to external affairs certainly carries with it the authority to provide by statute for adherence to treaties and for all other relations with the Home Government and through it with foreign powers.’


And further:



‘The whole scope and spirit of the Constitution require that save for the purposes of their domestic policies within their own domains the States shall be blended and absorbed into one political entity. They may still appear in some respects as a body of allied states but to the Empire of which they form a part and to the world without it they have become and must remain a nation and a Commonwealth one and indivisible.’ [15]


  1. The competing roles of the States and the Commonwealth in dealing with foreign relations came to a head in 1901 when the Dutch Government complained to the British Government about the treatment, by South Australian officials, of Dutch seamen deserting from a Dutch ship called the Vondel. After some debate about appropriate lines of communication the British Colonial Secretary, Chamberlain, made the following pronouncement:
‘So far as other communities of the Empire or foreign nations are concerned, the people of Australia form one political community for which the Government of the Commonwealth alone can speak. For everything affecting external affairs or communities which takes place within its boundaries, that government is responsible. The distribution of powers between the Federal and State authorities is a matter of purely internal concern of which no external country or community can take any cognisance.’ [16]


Despite the primacy of the Commonwealth in dealing with matters affecting foreign relations it was still seen as obliged to deal through the British Government rather than as a nation state in its own right.

  1. The British Government maintained for some time after federation that the Australian Parliament could not pass laws inconsistent with treaties entered into by the United Kingdom. The question was never directly tested judicially although there was always the possibility that royal assent might be refused to a Bill which conflicted with treaty obligations. In the early years of its existence the Commonwealth Parliament avoided legislating in a manner that was inconsistent with British treaty obligations.[17]
  2. In 1909 the British Government made a declaration called ‘The London Declaration’ without consulting any of the Dominions including Australia. At a colonial conference in 1911, Australia took objection to this course. Sir Edward Grey, on behalf of the UK Government, said he was ‘quite prepared that in future the Dominions should be consulted, and that representatives would take part in any inter-departmental conference which might be held to discuss such questions’. This was not honoured in respect of all types of treaties. In the first decades of the 20th century Great Britain made and renewed extradition treaties on behalf of the whole of the Empire without consultation with its Dominions. Most extradition treaties binding on the Dominions were entered into by Britain without consultation and without the inclusion of any separate rights for its Dominions to adhere to or to withdraw from them. Ann Twomey, in making that observation, said:
‘As far as the international community was concerned, the Dominions were not sovereign and, as Professor Oppenheim wrote in 1912, “have no international position whatever”.’ [18]


  1. Eventually executive independence in the conduct of foreign relations was recognised for all Dominions at an Imperial Conference held in 1926. That Conference declared that Britain and the Dominions were:
‘Equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of nations.’


The Conference recognised that it was a consequence of this equality of status that the Governors-General of the Dominions would no longer represent the British Commonwealth but act solely as ‘the representative of the Crown, holding in all essential respects the same position in ... the Dominion as is held by ... the King in Great Britain’.[19] As Professor Winterton has said:



‘These resolutions sufficed to secure the independence of Dominion executives, in the conduct of both domestic and foreign affairs, even if Dominions such as Australia and New Zealand were tardy in conducting foreign relations.’ [20]


An Imperial Conference held in 1930 completed the conferral of executive independence on the Dominions by its resolution that advice to the King on the appointment of a Dominion Governor-General would come only from Dominion ministers.[21]

  1. Legislative independence from Great Britain did not arise until the adoption by the Australian Parliament in 1942, retrospective to 1939, of the Statute of Westminster 1931 (UK). The Statute of Westminster was a British statute which gave effect to the wishes of the Dominions to lift the fetters on their legislative powers imposed by the Colonial Laws Validity Act 1865 (UK). It affirmed the power of Dominion Parliaments to make laws having extra territorial effect. It repealed the Colonial Laws Validity Act in relation to Dominion law. It also declared that Dominion Parliaments had power to repeal or amend any Acts of the United Kingdom Parliament to the extent that they were part of the law of the Dominion. It also provided that no law of the United Kingdom Parliament would extend to a Dominion otherwise than at the request and consent of the Dominion.
  2. The Statute of Westminster was expressed not to extend to Australia unless it was adopted by the Australian Parliament. This happened in 1942 when the Commonwealth Parliament passed the Statute of Westminster Adoption Act 1942 with effect from 3 September 1939. The Colonial Laws Validity Act did continue to apply to the States of Australia. Even then it remained theoretically possible for the United Kingdom Parliament to make laws affecting Australia. The final severance of legislative dependence on the United Kingdom did not occur until 1986 with the passage of the Australia Act 1986 (UK) by the United Kingdom Parliament and the corresponding Australia Acts of the Commonwealth and the State Parliaments. It was then, also, that the last vestige of judicial dependence disappeared. Until 1986 a litigant in a State Supreme Court could seek leave of that Court to appeal to the Privy Council in England. Such appeals were not permitted where they involved matters arising under the Constitution or involving its interpretation. However there were for many years effectively two final appellate courts for Australia, the High Court and the Privy Council.

British Subjects become Aliens

  1. The rather complicated history of Australia’s development as a truly independent nation in the global community is further complicated by the history of the idea of Australian citizenship.
  2. There is no concept of Australian citizenship in the Australian Constitution. In an early decision of the High Court in 1907 the Court said:
‘We are not disposed to give any countenance to the novel doctrine that there is an Australian nationality as distinguished from a British nationality, ...’ [22]


  1. In 1948 however the Commonwealth Parliament enacted the Nationality and Citizenship Act 1948 (Cth) which provided a statutory basis for defining Australian citizenship. Laws were also passed in the United Kingdom and other countries of the former British Empire which had become the British Commonwealth of Nations, to give effect to an agreed principle that the people of those countries would enjoy common status as British subjects but separate citizenships. The 1948 Act defined the term ‘alien’ as ‘a person who is not a British subject, an Irish citizen or a protected person’. That definition was not removed until 1987.[23]
  2. In 1973 the title of the Queen of the United Kingdom, in her capacity as Constitutional Head of Australia, was changed to ‘Queen of Australia’ by the Royal Style and Titles Act 1973 (Cth). The Citizenship Act was amended at the same time so a person being an Australian citizen would pledge allegiance to the Queen as ‘Queen of Australia’. It was therefore recognised that there could be different allegiances to the Queen of the United Kingdom and the Queen of Australia. On that basis it was possible that a British subject could be an alien in Australia.
  3. This new reality was reflected in a decision of the High Court in 1988, Nolan’s case, concerning the deportation from Australia of a British subject who had been convicted of a number of criminal offences. The man in question had come to Australia with his family in 1967 at age 10. He had never become an Australian citizen. Even though he was a British subject and no longer an immigrant in the constitutional sense, he was held to be an alien and therefore within the reach of the power of the Commonwealth to deport aliens.
  4. The High Court acknowledged that the term ‘alien’ could not have been used at the time of federation to draw any distinction between British and Australian subjects of the Crown. It acknowledged that even after federation Australia did not immediately enjoy the international status of an independent nation. But Australia’s emergence as an independent sovereign nation changed its relationship to the United Kingdom:
‘The fact that a person who was born neither in Australia nor of Australian parents and who had not become a citizen of this country was a British subject or a subject of the Queen by reason of his birth in another country could no longer be seen as having the effect, so far as this country is concerned, of precluding his classification as an “alien”.’ [24]


The Court held that the mere fact that the Constitution referred to ‘the Crown of the United Kingdom’ in the preamble and to ‘subject of the Queen’ could not alter or avoid the consequences of the emergence of Australia as an independent nation. Nor could it affect the acceptance in Australia that the country was divisible. This was implicit in the development of the British Commonwealth as an association of independent nations and the creation of a distinct Australian citizenship.[25]

  1. The authority of Nolan was called into question in 2001 when a majority of the High Court overruled it in a case involving another British subject, Mr Taylor, who had come to Australia as a child in 1966. He had resided continuously in this country from that time. However in 2000 his visa was cancelled under the Migration Act 1958 (Cth) because of his criminal convictions. He argued, in the High Court, that he was beyond the reach of the Commonwealth power with respect to immigration because he was no longer a migrant. He also argued that he was not an alien within the reach of Commonwealth legislative power. A majority of the High Court upheld his contention and overruled Nolan. There was a variety of reasons for this in the majority judgments. No consistent and binding principle emerged between them to support that conclusion.[26] The judgment was, in any event, effectively overturned in another case in 2003. That case also involved a British subject. His name was Shaw. Mr Shaw migrated to Australia with his family at the age of 2 in 1974. He made no application for citizenship. He was made the subject of a deportation order in 2001 because of criminal offences he had committed. The High Court held that he had entered Australia as an alien and, not having obtained citizenship, remained so and was therefore amenable to deportation. [27]

Britain Declared a Foreign Country

  1. In 1999 the High Court held that, for constitutional purposes, the United Kingdom is a foreign country vis a vis Australia.
  2. Section 44 of the Constitution sets out a number of grounds upon which a person is disqualified from being elected to the Australian Parliament. It provides in part:
‘Any person who:


(i) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or
...


shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.’


The High Court held that a citizen of the United Kingdom is to be regarded as a subject or citizen of a foreign power within the meaning of s 44(i) of the Constitution. The Chief Justice and Justices Gummow and Hayne said:



‘Australia and the United Kingdom have their own laws as to nationality so that their citizens owe different allegiances. The United Kingdom has a distinct legal personality and its exercise of sovereignty, for example in entering military alliances, participating in armed conflicts and acceding to treaties such as the Treaty of Rome, themselves have no legal consequences for this country. Nor, as we have sought to demonstrate ... does the United Kingdom exercise any function with respect to the governmental structures of the Commonwealth or the States.’ [28]


  1. The curiosity is that although Australia is, at international law, an independent nation state and regards itself as such under its own constitutional theories, it is not as yet a Republic. The Queen of Australia is the person who also happens to be the Queen of the United Kingdom. However her capacity as Queen of Australia is constitutionally and legally distinct from her capacity as the Queen of the United Kingdom. The Queen can wear two crowns.
  2. Consideration can now be given to the way in which international law interacts with Australian domestic law at the levels of the Constitution, statutes and the common law or judge-made law.

Making and Giving Effect to Obligations under Treaties

  1. The attainment of executive independence from the British Government meant that it was the Commonwealth Government, in the exercise of its Executive power under s 61 of the Constitution, that could enter into treaties with other nations. The States of the Commonwealth did not have international personalities when they were colonies and they did not acquire international personalities when they federated. As Professor Zines has written:
‘Executive power to engage in diplomatic relations, enter into international treaties and conventions and declare war and peace is therefore an exclusive power of the Commonwealth.’ [29]


  1. It is an important feature of the separation of executive, legislative and judicial powers in the Australian Constitution that when Australia enters into an international agreement it does so as an executive act within the framework of that Constitution. It is not an act of domestic law making. In entering into a treaty Australia, through its government, may assume obligations under international law. The assumption of those obligations, by the Executive Government, on behalf of Australia, does not give them legislative effect.
  2. Sir Anthony Mason expressed the basic principle in an important judgment in the High Court in 1982:
‘It is a well settled principle of the common law that a treaty not terminating a state of war has no legal effect upon the rights and duties of Australian citizens and is not incorporated into Australian law on its ratification by Australia ... In this respect Australian law differs from that of the United States where treaties are self-executing and create rights and liabilities without the need for legislation by Congress.’ [30]


Even approval of a treaty by the Commonwealth Parliament does not transmute it into Australian law. In 1945 the Commonwealth Parliament passed the Charter of the United Nations Act 1945 (Cth). By that Act it approved the Charter of the United Nations. The mere fact of parliamentary approval did not, however, incorporate the provisions of the Charter into Australian law. To do that the provisions would have had to have been enacted as part of the domestic law.[31]

  1. Obligations under an international treaty may be honoured in a variety of ways which do not all require the passing of an Act of Parliament to give effect to them. International obligations can be met by executive or administrative policies which are created within the framework of the existing legal system and existing statutes. It may be that the obligations relate to the conduct of governments in a way that does not require legislation. It may also be the case that the obligations assumed are covered by existing legislation and administrative practices.

International Human Rights in Australia

  1. Australia’s Constitution does not contain a Bill of Rights. There is no national legislation to give effect to fundamental rights and freedoms contained in the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a party. Yet Australia would contend that its citizens enjoy the effective protection of those human rights and fundamental freedoms by virtue of the Constitution, its institutional arrangements under the Constitution, its statute law and the traditions of the common law. It would point to the primacy of the rule of law under the Constitution, enforced by independent and impartial courts. It is arguable that much of the fundamental human rights and freedoms can be derived from the rule of law coupled with the traditions of the common law and effective mechanisms for their upholding and enforcement.
  2. Part III of the ICCPR sets out a number of human rights and fundamental freedoms. In short form they are:

Article 6 - The right to life

Article 7 – The prohibition against torture or cruel, inhuman or degrading treatment or punishment.

Article 8 – The prohibition against slavery, servitude and forced or compulsory labour.

Article 9 – The right to liberty and security of person and the prohibition upon arbitrary arrest or detention.

Article 10 – The right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person.

Article 11 – The prohibition on imprisonment merely on the ground of inability to fulfil a contractual obligation.

Article 12 – The right of everyone lawfully within the territory of a State to liberty of movement and freedom to chose their residence.

Article 13 – The prohibition on the expulsion of aliens from a State otherwise than in pursuance of a decision reached in accordance with law.

Article 14 – The right of all persons to equality before courts and tribunals and the right of anyone the subject of a criminal charge or involved in civil litigation to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Article 15 – The prohibition on retrospectivity in the creation of criminal offences.

Article 16 – The right of everyone to recognition everywhere as a person before the law.

Article 17 – The prohibition on arbitrary or unlawful interference with privacy, family, home or correspondence or unlawful attacks on honour and reputation.

Article 18 – The right to freedom of thought, conscience and religion.

Article 19 – The right to hold opinions without interference.

Article 20 – The prohibition of propaganda for war.

Article 21 – The right of peaceful assembly.

Article 22 – The right of freedom of association, including the right to form and join trade unions for the protection of persons’ interests.

Article 23 – Recognition of the family as the natural and fundamental group unit of society entitled to protection by society and the State.

Article 24 – The right of every child without discrimination to such measures of protection as are required by the child’s status as a minor on the part of his family, society and the State.

Article 25 – The right of every citizen to take part in the conduct of public affairs, to vote and be elected at genuine, periodic elections held by secret ballot and to have equal access to public service in the country.

Article 26 – The equality of all persons before the law and their entitlements without any discrimination to the equal protection of the law.

Article 27 – Where there are ethnic, religious or linguistic minorities, the right of persons belonging to such minorities to enjoy their own culture, to profess and practice their own religion or to use their own language.

  1. These rights and freedoms are broadly expressed and subject to certain qualifications. There is an extensive international jurisprudence about their content. There is room for debate about that content and about whether or not particular laws or administrative practices comply with them. Broadly speaking, in the Australian context, these rights and freedoms are respected and protected. Many of these are freedoms and the incidents of freedoms which cannot be abrogated except by law which will be subject to restrictive construction by the courts in accordance with established principles of common law. In so saying, it may be acknowledged that there is from time to time sharp debate about whether Australia is meeting its obligations in particular respects. In recent years the lengthy detention of asylum seekers who have been brought to Australia by people smugglers has been the subject of contention against the background of Australia’s obligations under the ICCPR. That debate has focussed on the mandatory character of the detention of what are called ‘unlawful non-citizens’, the conditions of that detention and its duration. There will no doubt be fresh debate in relation to the recently enacted anti-terrorism laws, particularly those involving preventive detention of persons suspected of being involved in, or having knowledge of, terrorist activities. Such debates are not unusual in modern democratic societies with a tradition of respect for individual liberty. However the fact that they occur does not undercut the general proposition that existing constitutional, legal and administrative arrangements within Australia provide protection for many of the human rights and fundamental freedoms guaranteed by the ICCPR.
  2. The human rights example illustrates the way in which Australia can argue that existing constitutional, legal and institutional arrangements may fulfil its obligations under an International Convention without the necessity for specific legislation to give legal effect to those obligations. It is, of course, important to point out that the Commonwealth Parliament and the State Parliaments have passed important statutes which gives specific effect to certain of Australia’s international obligations in this area by outlawing discrimination between people on grounds such as race, gender, age and disability. Australia also has a statutory authority, The Human Rights and Equal Opportunity Commission, which helps to enforce those statutes and also to examine administrative practices for compliance with human rights obligations.

The Interaction of International Law with the Interpretation of Statutes and of the Constitution

  1. There are ways, short of specific legislation, in which Australia’s obligations at international law may affect its domestic law. The High Court has accepted that the statute law should be interpreted and applied consistently with established rules of international law so far as the language of the statute permits.[32] As McHugh J explained in the recent decision of the High Court in Al-Kateb v Godwin:[33]
‘The rationale for the rule is that the legislature is taken not to have intended to legislate in violation of the rules of international law existing when the legislation was enacted. Accordingly, the rule is construed as containing an implication to that effect. But, as Polites decided, the implication must give way where the words of the statute are inconsistent with the implication.’


  1. That rule of construction is still in place. However, as McHugh J pointed out, it was developed at a time when the rules of international law could be found in the writings of a few well-known jurists. That is not the case today. Article 38 of the Statute of the International Court of Justice defines ‘international law’ as including:

1. International conventions establishing rules recognised by contesting states.

2. International custom, as evidence of a general practice accepted as law.

3. The general principles of law recognised by civilised nations.



There is a myriad of sources of international customary law. As McHugh J said:



‘Given the wide-spread nature of the sources of international law under modern conditions, it is impossible to believe that, when the parliament now legislates, it has in mind or is even aware of all the rules of international law. Legislators intend their enactments to be given effect according to their natural and ordinary meaning. Most of them would be surprised to find that an enactment had a meaning inconsistent with the meaning they thought it had because of a rule of international law which they did not know and could not find without the assistance of a lawyer specialising in international law or, in the case of a treaty, by reference to the proceedings of the Joint Standing Committee on Treaties.’


Although the rule of interpretation is still in place, the comments made by McHugh J may foreshadow some dilution of its application in future.

  1. There has been sharp debate on the High Court on the question whether the rules of international law can affect the interpretation of the Australian Constitution. The current and longstanding view is that they do not affect its interpretation. In Polites in 1945 Dixon J rejected the idea that there was anything in the Constitution which would prevent the Parliament from making laws contrary to international law. This debate was joined, particularly between McHugh J and Kirby J, in the Al-Kateb case which concerned the legality of the indefinite detention of an unlawful asylum seeker unable to be returned to a home country. The Australian Constitution, as already shown, is a statute of the British Parliament. It was enacted in 1900. As McHugh J pointed out, most of the rules now recognised as rules of international law are of recent origin. He said:
‘If Australian courts interpreted the Constitution by reference to the rule of international law now in force, they would be amending the Constitution in disregard of the direction in s 128 of the Constitution. Section 128 declares that the Constitution is to be amended only by legislation that is approved by a majority of States and “a majority of all the electors voting”. Attempts to suggest that a rule of international law is merely a factor that can be taken into account in interpreting the Constitution cannot hide the fact that, if that is done, the meaning of the Constitution is changed whenever that rule changes what would otherwise be the result of the case.’


  1. McHugh J acknowledged that many constitutional lawyers now accept that developments inside and outside Australia since 1900 may result in insights about the meaning of the Constitution that were not available to earlier generations. So the Constitution may have different meanings from those which it was thought to have in earlier times.
  2. Kirby J took the minority position. He pointed out that in 1945 when the Polites’ case was decided, the Australian Constitution was regarded as little more than a statute of the United Kingdom Parliament. The decisions of the High Court itself were subject in many cases to appeal to the Privy Council. He said:
‘Notions of national independence and distinctive legal thinking in Australia were obtained by these realities. Because of entirely new realities today our thinking is necessarily different.


He said:

‘Whatever may have been possible in the world of 1945, the complete isolation of constitutional law from the dynamic impact of international law is neither possible nor desirable today. That is why national courts, and especially national constitutional courts such as this, have a duty, so far as possible, to interpret their constitutional texts in a way that is generally harmonious with the basic principles of international law, including as that law states, human rights and fundamental freedoms. [34]


He went on to point to the constitutional courts of other countries which adopt an interpretive approach which takes account of international law and custom. He referred in particular to the Canadian, Indian and South African Constitutions.

  1. It is not necessary for present purposes to explore this debate in detail. It is sufficient to say that the High Court, as presently composed, is unlikely to expressly apply the rules of international law in its interpretation of the Australian Constitution. In particular, it is unlikely to find implied in the Australian Constitution human rights and freedoms derived from rules of international law.

International Law and the Common Law of Australia

  1. Unenacted treaties and customary international law may have a role to play in Australia in the development of the common law.
  2. The application of unenacted international obligations to common law development has been debated over a number of years. In Re Jago in New South Wales in 1988 an application was made to the Supreme Court to stay criminal proceedings because of the delay in bringing them. The President of the New South Wales Court of Appeal, then Kirby P, who is now a judge of the High Court, took the view that international law was relevant to the development of Australian common law. The Australian common law was inherited from the English common law. After acknowledging that heritage he said:
‘But where the contested common law is uncertain, Australian judges, after the Australia Act 1986 (Cth) at least, do well to look for more reliable and modern sources for the statement and development of the common law. One such reference point may be an international treaty which Australia had ratified and which now states international law.’


He referred to Article 14.3 of the ICCPR under which a person charged with an offence has the right ‘to be tried without undue delay’.[35] However another of the judges of the Court of Appeal, Samuels JA, took a somewhat different view. He pointed out that the ICCPR is not part of the law of Australia and restated the well-established proposition that:



‘Accession to a treaty or international covenant or declaration does not adopt the instrument into municipal law in the absence of express stipulation...’


He accepted however that the problem before the Court offered a choice of solutions, there being no clear rule of common law or statutory ambiguity, consideration of an international convention might be of assistance. So perhaps in practical terms he and Kirby P were not that far apart.

  1. In another case decided about the same time, the former Chief Justice of the Family Court of Australia said:
‘I think that the better view of the law is that whilst it may be open to have regard to such instruments as an aid to determining what the common law is in the event of doubt about, for example, the existence of a particular right, they are not by their terms incorporated into Australian domestic law.’ [36]


  1. Australian courts have been reluctant to regard customary international law as part of the common law of Australia although prepared to accept that it may be a source for its development. As one recent Australian text has suggested, the reason for this may be related to the difficulty of determining what are the rules of customary international law:
‘In times past, there may have been a general lack of familiarity on the part of practitioners and courts with principles of international law, but nowadays it is more likely a recognition of the complexity of the task of ascertaining relevant customary international law rules in a given case. The latter is often a matter of some difficulty, even for seasoned international lawyers.’ [37]


  1. International law norms were taken into account when the High Court decided, in 1999, that the common law of Australia could recognise and give effect to the rights and interests of indigenous people in land and waters which arise under their traditional laws and customs. The decision was Mabo v Queensland (No 2). [38]
  2. Prior to the Mabo decision the common law relating to native title in Australia was governed by a decision of the Privy Council in 1889. That decision had held, in effect, that when New South Wales was first settled it was ‘... a colony which consisted of a tract of territory practically unoccupied without settled inhabitants or settled law at the time when it was peacefully annexed to the British Dominion’.[39] This was a statement applicable to colonisation of the whole of Australia. What it meant, in effect, was that the Aboriginal peoples of Australia did not have any law or customs which could give rise to rights and interests cognisable by the common law. This statement of the law for Australia was applied in a case in 1971 in which Aboriginal people in the Northern Territory argued that leases granted to an alumina company were invalid because they were granted over land to which they had a customary title.[40]
  3. The refusal of the claim in that case led to the enactment by the Commonwealth of statutory land rights for Aboriginal people in the Northern Territory of Australia. An inquiry which recommended the creation of a system of statutory land rights had regard to the need to maintain and perhaps improve ‘... Australia’s standing among the nations of the world by demonstrating fair treatment of an ethnic minority’.
  4. It was not, however, until the High Court decision in Mabo (No 2) that the common law was changed for the whole of Australia. In the judgments international norms were expressly linked to contemporary, social and community values. Brennan J, with whom Mason CJ and McHugh J agreed, aligned the ‘expectations of the international community’ and the ‘contemporary values of the Australian people’ and said:
‘[i]t is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.’


  1. Other members of the majority, Deane, Gaudron and Toohey JJ, did not invoke international norms of conduct. However Deane and Gaudron JJ relied upon principles of ‘natural law’ set out in the works of early international law jurists such as Wolff, Vattel, de Vittoria and Grotius. They cited authorities applicable in a wide range of British colonies including New Zealand and Canada and accepted as correct the Privy Council’s statement that:
‘[t]he courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected.’[41]


In the joint judgment of Dean and Gaudron JJ their Honours characterised the terra nullius doctrine and the proposition that ownership of land in the Australian colonies vested in the crown at annexation as ‘the legal basis for the dispossession of the Aboriginal peoples of most of their traditional lands’. In a frequently cited passage they said:



‘[t]he acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from those passed injustices.’


International Law and the Exercise of Statutory Discretions

  1. A further development of significance in the way in which international law has affected Australian municipal law concerns the exercise of statutory powers by public officials. Minister for State for Immigration and Ethnic Affairs v Teoh [42] concerned a man who was denied residency in Australia and was to be deported because he had a conviction for the importation and possession of heroin. He argued that in making the decision to deny him a permanent resident visa, the relevant immigration official had not given consideration to the best interests of his children as a matter of primary importance. This is required by Article 3 of the United Nations Convention on the Rights of the Child which was ratified but not legislatively implemented by Australia.
  2. In upholding the quashing of the official’s decision, the High Court held that the official was not required to comply the Convention obligations in her decision-making. However there was a legitimate expectation which the Court imputed to Mr Teoh that the immigration official would not make a decision in disregard of Australia’s international obligations. On that basis it was held procedurally unfair to go ahead and make the decision disregarding the Convention obligations without first giving Mr Teoh an opportunity to be heard on whether those obligations should be taken into account.
  3. In their joint judgment, Mason CJ and Deane J, with whom Toohey J agreed, pointed to the ways in which international conventions could affect Australian law even though they were not part of it. They referred to the effect of such conventions on the interpretation of a statute where the statute is ambiguous. They also accepted that international conventions could affect the development of the common law. In so saying however they entered a caution:
‘But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials. Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to swerve and its relationship to the existing principles of our domestic law.’ [43]


  1. Their Honours held however that the ratification of an international convention by Australia is a positive statement by the Executive Government of Australia to the world and to the Australian people that it will act in accordance with the Convention. Such a positive statement provided an adequate foundation for a legitimate expectation that administrative decision makers would act in accordance with the Convention and in the case before them heed the best interests of the children affected by their decision as ‘a primary consideration’.
  2. There was much public controversy about this decision. It was criticised by Ministers on the basis that Australia was a party to so many different unenacted treaties and conventions that no official decision maker could be expected to know them all and to assess whether they should be taken into account in the decision making process. At the time that the decision was made Australia was party to some 920 treaties which, it was said, might or might not give rise to a relevant legitimate expectation.
  3. The decision has now been called into question recently by the High Court, the composition of which has now changed, in a case called Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam [44]. One aspect of the criticism is the artificiality of imputing a legitimate expectation to a person affected by a decision in cases where that person is unlikely to have heard of the treaty or convention which it is later sought to invoke.
  4. McHugh and Gummow JJ said (at 33):
‘... in the case law a line has been drawn which limits the normative effect of what are unenacted obligations upon discretionary decision-making under powers conferred by statute and without specification of those obligations. The judgments in Teoh accepted the established doctrine that such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error. The curiosity is that, nevertheless, such matters are to be treated, if Teoh be taken as establishing any general proposition in this area, as mandatory, relevant considerations for that species of judicial review concerned with procedural fairness.’


The Power to Give Statutory Effect to International Conventions

  1. The entry by Australia into an international treaty or convention is an Executive act. As noted, that Executive act does not give legal force to the provisions of the treaty or convention in Australia. To give legal effect to such provisions it is necessary that the Commonwealth Parliament pass a law doing so. A power to pass laws giving effect to international treaties derives from s 51(xxix) of the Constitution. That confers power on the Commonwealth Parliament to make laws with respect to ‘external affairs’. If Australia enters into a treaty with another nation or nations then, subject to certain qualifications and express constitutional limitations, the Parliament may make laws to give effect to it. An issue of some contention within Australia concerns the extent to which the Parliament can make laws implementing treaty or convention obligations even though they deal with matters on which it would not otherwise have legislative power under s 51 of the Constitution.
  2. In 1975 the Parliament enacted the Racial Discrimination Act 1975 (Cth) giving effect to provisions of the Convention for the Elimination of all Forms of Racial Discrimination. The validity of the Act was challenged in the High Court on the basis that it was not supported by the external affairs power because race discrimination was not a matter external to Australia. It was also attacked on the basis that a wide application of the external affairs power would alter the federal balance by allowing the Commonwealth to intrude upon matters which the Constitution had left to the Australian States.
  3. These arguments were rejected by a majority of judges in the High Court, which upheld the validity of the Act. There were some qualifications on the external affairs power. The power could not be used to give effect to a treaty which was on a topic of no special concern to the relationship between Australia and the other parties, nor a matter of legitimate international concern generally.
  4. Australia has enacted many laws which give effect to obligations under international conventions and treaties. There is still, however, room for debate about the scope of the power of the Parliament in this respect. The limits upon the power are not precisely defined.

Conclusion

  1. The interaction of international law with Australian domestic law is affected by Australia’s Constitution and the division of the powers of the Commonwealth Government between the Executive and the Legislature. The impact upon the Constitution itself is likely to be a matter of ongoing debate although it seems unlikely that the High Court will construe the Constitution by reference to rules of international law. It is well established that international law and treaty obligations do not translate directly into the law of the land in Australia. Nevertheless they can have important influences upon the ways in which statutes are interpreted and the common law is developed. This is a consequence not only of Australian legal doctrine but also of its status as a member of the global community of nations.

[1] Declaration by Order in Council in 1786 pursuant to 24 Geo III c 56 (1784)

[2] [1992] HCA 23; (1992) 175 CLR 1

[3] McMinn, A Constitutional History of Australia, Oxford University Press (1979) at 1.

[4] 5 & 6 Vic c 76 (1842)

[5] L Zines, ‘The Growth of Australian Nationhood and its Effect on the Powers of the Commonwealth, Zines (ed) Commentaries on the Australian Constitution, Butterworths (1977) at 1

[6] I draw some of what follows from the helpful paper by Dr A Twomey, see A Twomey ‘Federal Parliament’s Changing Role in Treaty Making and External Affairs’ in Lindell and Bennett (eds) Parliament The Vision in Hindsight The Federation Press (2001) at 38-42.

[7] Zines op cit at 7; Twomey op cit at 35

[8] Zines op cit at 9

[9] Twomey, op cit at 41

[10] RD Lumb, Australian Constitutionalism, Butterworths (1983) at 47

[11] Bob Birrell, Federation: The Secret Story, Duffey and Snellgrove 2001 at 287

[12] O Dixon, The Law and the Constitution (1935) 51 LQR 590 at 597

[13] Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491.

[14] China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172 at 211 (Stephen J, Barwick CJ and Aickin J concurring).

[15] Opinions of Attorneys-General of the Commonwealth of Australia, Australian Government Publishing Service 1981 at 304.

[16] See the discussion of the Vondel incident in Zines op cit at 16-19.

[17] See Twomey op cit at 51.

[18] Twomey op cit at 51 and 52 and references there cited.

[19] Winterton, ‘The Acquisition of Independence’ in French, Lindell and Saunders (eds), Reflections on the Australian Constitution, Federation Press (2003) at 34-35.

[20] Winterton, op cit at 35.

[21] Winterton, The Evolution of a Separate Australian Crown[1993] MonashULawRw 1; , (1993) 19 Monash University Law Review 1 at 8-12.

[22] Attorney-General for the Commonwealth v Ah Sheung [1906] HCA 44; (1907) 4 CLR 949 at 951 (Griffiths CJ, Barton and O’Connor JJ)

[23] Australian Citizenship Amendment Act 1984

[24] Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 at 184.

[25] See also Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

[26] Re Patterson; Ex parte Taylor (2001) 182 ALR 657.

[27] Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 203 ALR 143.

[28] Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 at 503

[29] Zines, The High Court and the Constitution 4th ed at 275.

[30] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 224.

[31] Koowarta at 224.

[32] Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68-9, 77 and 80-1.

[33] [2004] HCA 37; (2004) 208 ALR 124 at 140

[34] Al-Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124 at 169.

[35] Jago v District Court of New South Wales (1988) 12 NSWLR 558.

[36] Re Jane [1988] FamCA 57; (1988) 94 FLR 1.

[37] R Balkin, ‘International Law and Domestic Law’ in Blay, Piotrowicz and Tsamenyi (eds), Public International Law – An Australian Perspective Oxford University Press (2d Edition) 2005 at 119

[38] [1992] HCA 23; (1992) 175 CLR 1.

[39] Cooper v Stuart [1889] UKLawRpAC 7; [1889] 14 App Cas 286 (PC) at 291 per Lord Watson).

[40] Milirrpum People v Nabalco Pty Ltd (1971) 17 FLR 141.

[41] Adeyinka Ayeakn v Musendiku Adele [1957] 1 WLR 876 (PC) 880.

[42] [1973] HCA 31; (1995) 128 CLR 353

[43] McGinley and Reicher, ‘The Relationship of International Law to Australian Law, in Reicher (ed), Australian International Law- Cases and Materials, Law Book Company Ltd at 92.

[44] (2003) 214 CLR 1.