Does international law fit within our constitutional democracy today?

One of the phrases now frequently heard in public debate in Australia is that some conduct of a government, usually the federal government, is “contrary to international law”.

This allegation is often made in the context of government policies in relation to boat arrivals and offshore detention centres. Most recently it has been employed by Julian Assange’s legal team about the conduct of the British and Swedish governments that has led to his taking refuge for several years in the Ecuadorean embassy in London, where he remains. Michael Sexton SC the Australian Newspaper 11 February 2016.

In a globalised world that was unimaginable at federation, this week at the CCF we explore how international law and domestic law function together under the Australian Constitution.

The Constitution

International law is covered by Section 51xxix of the Australian Constitution, which means that external affairs as it was called back in 1901, is a federal government legislative power.

Legislative powers of the Parliament
51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxix) external affairs;

As you can see the 51xxix is quite brief. In the earlier drafts of the Constitution it was slightly longer, being “external affairs and treaties”

Before federation, Australia was mostly included in International treaties as a colony or dependent government of the United Kingdom.

In Parliamentary Government in the British Colonies by Alpheus Todd 1880, the author writes about foreign relations; through the operation of treaties:

It is a rule of international law, that none but supreme and independent sovereign powers are competent to contract treaties with foreign nations. The only exception to this rule is where the right to conclude treaties in its own behalf, with other states or foreign powers, has been expressly delegated to a subordinate government by the Crown and Parliament of the mother country. But responsibility for the exercise of such delegated power continues to rest upon the imperial authority, to the same extent as for the acts of any other accredited public agents of the Crown.

In 1873 her Majesty’s government in the United Kingdom granted the Australian colonies and New Zealand the power to make laws and impose duties on trade between each other, by passing the Australian Colonies Duties’ Act 1873. But this Act expressly forbid imposing duties on goods from foreign countries or Great Britain.

When the Commonwealth of Australia was formed not long after this, we could not imagine what life would be like more than 100 years later. And so, being such a brief section of the Constitution, section 51xxix has been further defined over the years by the High Court. Notable cases include the Koowarta v Bjelke-Petersen case which upheld that the Racial Discrimination Act 1975 was valid because the federal government had signed the United Nations Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Franklin Dam in Tasmania where the federal government had signed the Convention Concerning the Protection of the World Cultural and Natural Heritage which thus prevented the Tasmanian government from building a hydroelectric dam system.

What is international law?

International law is the body of law that governs the legal relations between or among states or nations. It is made up of accords, agreements, charters, conventions, memorandums, protocols, treaties, tribunals and understandings. 

Nation states join up to international agreements and treaties for many different reasons (trade, extradition, military alliances etc.). There is arbitration available for countries that are involved in disputes about international law. But quite often there are no penalties that these international courts and bodies can impose. In many aspects of international laws, nation States do what they can get away with. A couple of breaches of treaties that a country has signed up to might be frowned upon, a few more and the country might be excluded from new negotiations (How many negotiations about human rights do you think Australia is involved with at the moment in the International community?), more again and sanctions might be imposed (like what is happening to Russia at the moment).

The UN refugee convention

Australia signed the UN refugee convention back in the 1950’s. However, in the last few years Australia had been criticised by the UN and the Australian Human Rights Commission many times for alleged human rights abuses within our refugee detention program. And just this week a report was issued by the UN human rights committee stating that the Australian Government had violated the rights of David Hicks when they held him in prison in Australia. But should we as citizens be concerned about this?

And a further debate issue goes along the lines of:

Why should a country like Australia take any notice of a few alleged breaches of human rights by the UN when there are other countries that are much worse than us?

What are your thoughts on this issue of debate?

The future of international law in Australia

International laws are becoming more binding. The Trans-Pacific Partnership (TPP) agreement that Australia and 11 other nations have recently signed up to could create one of the biggest challenges to Australian domestic law.

The main problematic inclusions are the Investor-State Dispute Settlement (ISDS) clauses which allow companies to sue Australian federal and state governments if they make or change laws that threaten the company’s investment. Some carve outs for certain areas of domestic law has been included in the text of the document, but it is disputed that these will be enforceable.

The commenters warning us about these ISDS inclusions are not being hysterical either. The federal government was recently sued by Philip Morris over plain-packaging laws. After what some describe as legal trickery by Philip Morris, who moved their operations to a jurisdiction from where they could sue the government, they failed to win the case. But not before the Australian Government had to fork out a reported $50M in legal fees. That $50M would allow CEFA to reach every child, in every Australian classroom, every year of their schooling. It would fund our programs for the next 20 years, working to restore faith in democracy in the youth of Australia.

And we can look forward to more of this. It’s happening all over the world. Canada has already faced 35 ISDS challenges from US companies and paid out over $170M, not including the legal fees. And on top of that, Canada has had to overturn several domestic laws.

The globalised world is changing and international law is becoming more prevalent. When the Constitution was written over 100 years ago it was hard to imagine the impact of international law upon Australia. It is equally hard to imagine the impact in another 100 years.

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