HPL Research Essay


International law is the laws that govern relations between nation-states. It is generally accepted in Australia that international law is not part of the domestic law unless it is specifically implemented by the legislature. However, as Justice Brennan said in Mabo:

"The common law does not necessarily conform with the international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights."

International law in increasingly becoming a significant factor when judges decide cases regarding human rights norms in which Australia is a party to a relevant treaty. Until recently, most judges appeared content with the role of interpreter/applier of law created by legislature as can be seen in Lim. Though recently, judges are demonstrating greater acceptance of their role as declarers of law through the interpretative process, together with a willingness to protect human rights. This change in policy is particularly evident in cases such as Teoh, Dietrich and Mabo.

The Lim Case:

Prior to Teoh’s case, attempts to rely upon non-incorporated international conventions in challenging administrative decisions had been mostly unsuccessful. In 1992, in Lim v Minister for Immigration and Ethnic Affairs, arguments based on the ICCPR were yet again unsuccessful.

The plaintiffs, Cambodian asylum-seekers, challenged amendments to the Migration Act 1958 (Cth) which provided for mandatory detention of "boat people" who had not obtained a visa for entry into Australia. Most controversial was the inclusion in the amending legislation of section 54R (now section 183) which provided that "courts shall not order the release of [detained boat people]". The challenge was that the legislation conflicted with Australia’s international legal obligations, specifically the 1951 Convention Relating to the Status of Refugees and the ICCPR and rejected the challenge.

While the Court in its finding noted that normally administrative detention of Australian citizens would not be allowed for a moment, detention of aliens for the purposes of deportation or exclusion was permitted since Australia has a sovereign to protect its borders.

The case demonstrates that the Court was reluctant to interfere with matters not intrinsically concerning the Australian community and in relation to which the legislature and executive have acted within their constitutional province.

Teoh’s Case:

The Teoh decision was a landmark decision in terms of courts’ approach to international law. On 7 April 1995 the High Court handed down a decision of considerable importance relating to the significance in Australia on the Convention of the Rights of the Child. The case involved a man, Mr Teoh, a Malaysian citizen who came to Australia in 1988 and married an Australian citizen while on a temporary entry permit who was going to be deported due to drug related offences who had had his permanent residency application refused. However, his deportation would mean that his wife and children would be left without a ‘bread winner’. Mr Teoh applied to the Federal Court to have the decision reviewed and was successful on appeal to the Full Court. In the Federal Court, Lee and Carr JJ had held that Australia’s ratification of the Convention on the Rights of the Child; in particular Article 3, required that the child’s best interests be a primary consideration, and Article 9 which guards against separation of children and parents unless it is in the best interests of the child. The High Court upheld the Federal Court’s decision by a majority of 4 to 1.

The High Court’s decision was surprising for several reasons. Firstly, it was 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 Australia’s municipal law by statute. Also, Australian courts preferred to interpret statutes that accord with Australia’s obligations under an international treaty. Teoh’s case appeared to alter the position by giving ratified but non-incorporated conventions a legal effect well beyond that of guidance in statutory interpretation. Second, attempts in cases before Teoh to argue that non-incorporated treaties have some limited legal effect, drawing upon existing principles of administrative law, had been unsuccessful.

Thus, the High Court established a mechanism by which international law may be referred to by administrative decision-makers additional to the techniques of statutory interpretation and development of the common law which are available to the judiciary. The case confirms the trend towards greater use of international human rights in Australia by the courts. However, Teoh raises a tension between notions of sovereignty, particularly the constitutional boundaries separating the three arms of government, and frustration with the failure of the legislature to exercise its constitutional powers to act on the right issues.

The Mabo Decision:

The Mabo decision, in which the High Court recognised native title, is the leading example off the development where the Courts have been more willing to look to international legal standards and practice concerning human rights to guide their judgements. The clearest indication of change in Australia can be found in the remarks of Brennan J (with the concurrence of Mason CJ and McHugh J). In the course of explaining why a discriminatory doctrine, such as that of terra nullius (which refused to recognise the rights and interests in land of the indigenous inhabitants of a settled colony such as Australia) could no longer be accepted as part of law in Australia, Brennan J said:

"Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of the international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports… A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of out common law to entrench a discriminatory rule…"

The Court in Mabo reversed the long-held understanding of the Australian common law. It decided that the form of native title of the Australian native title of the Australian Aboriginals was recognised by common law. The international customary doctrine of terra nullius exploded.

Thus, Justice Brennan’s comments noted Australia’s international obligations under the UN Covenant and the more intense spotlight to which its human rights record is now exposed following acceptance of the Protocol procedure. Although they were not directly part of domestic law, those obligations were ‘a legitimate and important influence on the development of the common law’. It pointed the way to the future development of the Australian common law parallel with developing principles of international law. The Mabo decision is another where the courts did not hesitate used international law as a "legitimate influence" on the common law in order to reach its decision, showing the acceptance that international law should be considered where human rights norms are concerned.

Dietrich v R:

The opportunity to reapply the approach adopted in Mabo occurred in the case of Dietrich concerning the right to a fair trial. Dietrich was convicted on drug charges after a trial for which, poverty-stricken, he had been unable to secure legal representation. On appeal, he attempted to rely on Article 14 of the ICCPR which provides for legal representation to be assigned "in any case where the interests of justice so require" and provided at public expense if necessary. The Court found that the common law does not know any right to legal representation, but that it does comprehend a right to a fair trial.

Justice Brennan in dissent, said that the courts cannot compel the provision of legal representation and the "remedy" of adjournment is not open to the courts because it would constitute a breach of the constitutional duty to exercise jurisdiction and an impediment to the administration of justice. Thus, Justice Brennan believed that it was not within the power of the courts to force the provision of legal representation even though international law required it.

It is on this point that the majority of the Court disagreed, finding that an adjournment of the trial where the absence of the legal representation causes unfairness is an appropriate remedy. Deane J used the ICCPR to indicate that community values recognise the need for representation in serious cases as part of a fair trial. Similarly, Gaudron J using the ICCPR, the European Convention for the Protection of Human Rights and Fundamental Freedoms and common law precedents to demonstrate that the law in "advanced" countries requires representation to secure a fair trial in such cases.

The legitimate influence of ICCPR Article 14(3)(d) assisted the High Court in reaching the conclusion that in the circumstances of the case Dietrich had been denied the common law right of an accused to a fair trial.

Thus, the High Court held that whilst there was no absolute right at common law to legal representation at public expense in a criminal trial, the trial of an unrepresented impecunious accused would be considered as ‘unfair’ under international standards and would therefore be adjourned in order to ensure a fair trial.

What should be the approach of Australian courts to the role of international law in developing the common law?

As the common law courts of this country continues to adopt international norms and policies in the development of the municipal law, many advantages and disadvantages of this "remarkable rapprochement" can be observed.

With no express Bill of Rights in the Australian Constitution, it should be expected that international law should have some role in shaping human rights jurisprudence in this country. Just as Justice Brennan said in Mabo, "international law is an important and legitimate influence in the development of the common law". The use of international law in Australia’s common law is certainly an extremely important one as seen in the cases discussed above.

As the Bangalore Principles stated:

"If an issue of uncertainty arises, as by a lacuna in the common law, obscurity in its meaning or ambiguity in a relevant statute, a judge may seek guidance in the general principles of international law, as accepted by the community of nations. From this source material, the judge may ascertain and declare what the relevant rule of domestic law is. It is the action of the judge, incorporating the rule into domestic law, which makes it part of domestic law."

Judges are able to use international law to resolve domestic disputes where the common law is insufficient to deal with the matter. In Mabo, the High Court found that the common law doctrine of terra nullius could not longer be accepted as a legitimate doctrine in today’s society as it was discriminatory under international human rights standards. The court appropriately referred to international human rights treaties such as the ICCPR to seek out how to resolve the dispute. International law is an important asset to the courts and should be used whenever the courts feel that municipal law is either out of date or inadequate to deal with the matter on hand.

The Court in Mabo acknowledged the impact of the "powerful influence of the Covenant". The reasoning behind its decision to reverse past judicial holdings and upholding the claim, was the serious break that would otherwise arise in respect of Australia’s international human rights obligations. Without the aid of international law, the courts would be forced to follow precedent. Given there is no Bill of Rights in Australia, it would have been very difficult to reject the discriminatory doctrine of terra nullius and Australia would still be stuck with out of date and unacceptable norms. The use of international law in Mabo is an example of the usefulness of international human rights in domestic ambiguity or conflict.

In the case of Dietrich v R, the Court used the ICCPR, which stated that a trial couldn’t be deemed as fair unless a defendant is legally represented and an accused person who could not afford legal representation shall be supplied with representation funded by the State. The Court found that although it was not within their power to force upon legal representation for the defendant, they were allowed to force an adjournment in the trial if there would be an injustice caused as a result of not having legal representation. This case is another example where the High Court appropriately used international standards in its administration of justice.

However, there have also been critics of the developments of international law within the common law. The expressed concerns include:

    1. Treaties are typically negotiated by the executive government. They may, or may not reflect the will of the people as expressed in parliament…
    2. In federal countries, such as Australia, special concern may be expressed that the ratification of international treaties could be used as a means to undermine the constitutional distribution of powers…
    3. Judicial introduction of human rights norms may sometimes divert the community from the more open, principled and democratic adoption of such norms in constitutional or statutory amendments which have the legitimacy of popular endorsement.
    4. The people sitting on international courts, tribunals and committees which pronounce upon human rights are often from legal regimes very different from ours…

Even taking these concerns into concern, "effective international law cannot be dismissed", the sharing of research and knowledge and the pooling of ideas will contribute to global standards and effective action.

"A most important development has occurred in Australia in the use that is being made of international human rights norms. It is a development new in a country which was hitherto adhered strictly to the ‘dualist’ notion." The importance of international law cannot be underestimated. The current position of Australian courts whilst is happy to adopt international law for advice and guidance, does not go over the top in incorporating the international law. For example in Mabo, Justice Brennan identifies the "skeletal principles" of the Australian legal system that the courts cannot "fracture" under any circumstances. The court also stops short of forcing State funded legal representation in Dietrich.

Thus, it seems that the court’s current approach to the use international law in common law decisions is a very sustainable and fair approach. It not only satisfies Australia’s human rights obligations under international treaties, but also advances the common law by making it fairer and more just.


Perhaps Mason CJ and Deane J summed up the courts’ position the best:

"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."

One of the most remarkable developments of developments of international law in recent decades has been the growing impact of international human rights treaties on municipal law and practice. In Australia, examples of these developments can be seen in the cases of Mabo, Teoh and Dietrich as well as many others not mentioned in this essay. This current position in the approach of the courts to the use of international law, in contrast to more conservative decisions of the past, for example in Lim, shows that the courts have identified the need for a country like Australia, who is party to over 900 international treaties, to take responsibility for them at common law level.

A need to develop Australia’s law in harmony with international developments is increasingly recognised by judges of this country. Hopefully, as the judiciary gain more experience in interpreting and adopting international law in future cases, our common law can advance further and become a better instrument of justice.