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The Role of International Standardsin Australian Courts·

Han Justice Michael Kirby AC CMG-

,"-Ie'N perspectives

Over the past decade, r have had the privilege of working in a nwnber of theagencies of the United Nations. Necessarily. this work has given me apaspecIive of the weaknesses and inefficiencies of the United Nations. But ithas also made clear to me its utility in furthering the grand objectivesconceived during the Second World War and carried into effect by the UN

Charter in 1945.

Working for the United Nations has influenced my approach to the role ofintemational law both generally and in relation to Australian law. It hassharpened my perception both of the potential of international law to assistthe development of Australian law and of the difficulty which that potentialpresents for both legal theory and practical implementation.

In ways which I have described elsewhere, my eyes were opened to themethods by which intemational human rightS treaties could be utilised in thedaily work of the courts by my participation in a conference in Bangaiore.rndia. seven years ago. 1 The purpose of this paper is; [0 describe theBangalore Principles; to illustrate their growing acceptance in Australianccurts and in other countries of the common law; and to demonstrate themany practical instances in which international human rights law can be ofassistance in understanding and developing Australian common and stamtelaw.

Adapted. in ;:m;t. frGm :l paper presented by w1c :luthor to th~ N~w ZealandJudges' Conference. March 1995. "The Impact of International Human Rights:--.lorrns-Law Urjd~rgoing Evolution",President of the NSW Court of Appeal and Chainnan of the ExecutiveCommittee of the International Commission of Jurists.MD Kirby. "The Austraiian Use of International Human Rights Norms: FromBangalore to Balliol-A View from the Antipodes" (1993) 16 University ofN~w Sourh Wales Law JoumaJ.363.

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The Role of International Standards in Australian Courts·

Han Justice Michael Kirby AC CMG-

,"-Ie'N perspectives

Over the past decade, r have had the privilege of working in a nwnber of the 3<'encies of the United Nations. Necessarily. this work has given me a p~rspecIive of the weaknesses and inefficiencies of the United Nations. But it has also made clear to me its utility in furthering the grand objectives conc~ived during the Second World War and carried into effect by the UN

Charter in 1945.

Working for the United Nations has influenced my approach to the role of international law both generally and in relation to Australian law. It has sharpened my perception both of the potential of international law to assist the development of Australian law and of the difficulty wnich that potenrial presents for both legal theory and practical implementation.

In ways which I have described elsewhere, my eyes were opened to the methods by which international human rightS treaties could be utilised in the daily work of the courts by my participation in a conference in Bangaiore. India. seven years ago. 1 The purpose of this paper is; to describe the Bangalore Principles; to illustrate their growing acceptance in Australian courts and in other countries of the common law; and to demonstrate the many practical instances in which international human rights law can be of assistance in understanding and developing Australian common and stamte law.

Adapted. in ;:m .... " frGm :l paper presented by t..1e :luthot to th~ N~w Zealand Judges' Conference. March 1995. "The Impact of International Human Rights ~orrns-Law Urjd~rgoing Evolution". President of the NSW Court of Appeal and Chainnan of the Executive Committee of the International Commission of Jurists. :-AD Kirby, "The Austraiian Use of International Human Rights Nonns: From Bangalore to Balliol-A View from the Antipodes" (1993) 16 University of N~w Sourh Wales Law JoumoJ.363.

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2 Treaty-,\.{aldng and Australia

The Bangalore Principles

The traditional view of most common law countries has been thatintemationallaw is not part of domestic law. Blackstone in his Commentaries,

suggested that:The law of nations (whenever any question arises which is properly the objectof its jurisdiction) is here [in England] adopted in its full extent by thecommon law. and is held to be part of the law of the land2

Save for the United States, where Blackstone had a profound influence. thisview came to be regarded, virtually universally, as being "withoutfoundation"} In Australia, Mason J explained the .traditional position in 1982

in these terms:It is a well settled principle of the common law that a treaty not tennioating astate of war has no legal effect upon the rights and duties of Australiancitizens and is not incorporated into Australian law 00 its ratification byAustralia... To achieve this result the provisions have to be enacted as part ofour domestic law, whether by a Commonwealth or State statute, Section51(x:dx) [the external affairs power] arms the CommonweaJth Parliament... tolegislate so as to incorporate into our law the provisions of [internationalconventions]:~

More recently, however, a new recognition has come about of the use thatmay be made by judges of international human rights principles and theirexposition by the courts, tribunals and other bodies established to give themcontent and effect. This reflects both the growing body of international humanrights law and the instruments, both regional and international, which giveeffect to that law. It furthennore recognises the importance of the content ofthose laws. An expression that seems to encapsulate the modern approach wasgiven in February 1988 in Bangalore, India in the so-called Banga/orePrinciples.The Bangalore PrincipJes5 state, in effect, that:

(I) International law, whether human rights nonns or otherwise, is not, assuch, part of domestic law in most common law countries;

(2) Such law does not become part of domestic law until Parliament soenacts or the judges, as another source of law~making,declare the normsthereby established to be part of domestic law;

2J4

Quoted in Chow Hung Ching v The King (1948) 77 CLR 449 at 477.Note 2 above, at 477.Koowarta v Bjelke.Petersen and Drs (1982) 153 CLR 168 at 224f. Seecomment [1994] NZLJ 433.at 434.See Kirby, n 1 above, at 373f • A

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2 Treaty",\.{aking and Australia

The Bangalore Principles

The traditional view of most common law countries has been that intemationallaw is not part of domestic law. Blackstone in his Commentaries, suggested that:

The law of nations (whenever any question arises which is properly the object of its jurisdiction) is here [in England] adopted in its full extent by the common law. and is held to be part of the law of the Jand2

Save for the United States, where Blackstone had a profound influence. this view came to be regarded, virtually universally, as being "without foundation"} In Australia, Mason J explained the .traditional position in 1982 in these terms:

It is a well settled principle of the common law that a treaty not tennioating a sute of war has no legal effect upon the rights and duties of Australian citizens and is not incorporated into Australian law 00 its ratification by Australia ... To achieve this result the provisions have to be enacted as part of our domestic law, whether by a Commonwealth or State statute, Section 51(xxix) [the external affairs power] arms the Commonwealth Parliament."to legislate so as to incorporate into our law the provisions of [international conventions]:~

More recently, however, a new recognition has come about of the use that may be made by judges of mternational human rights principles and their exposition by the courts, tribunals and other bodies established to give them content and effect. This reflects both the growing body of international human rights law and the instruments. both regional and imernational, which give effect to that law. It furthennore recognises the importance afthe content of those laws, An expression that seems to encapsulate the modern approach was given in February 1988 in Bangalore, India in the so-called Banga/ore Principles,

The Bangaiore PrincipJes5 state, in effect, that:

(1) International law, whether human rights nonns or otherwise, is not, as such, part of domestic law in most common law countries;

(2) Such law does not become parr of domestic law until Parliament so enacts or the judges, as another source of law-making, declare the norms thereby established to be part of domestic law;

2 Quoted in Chow Hung Ching v The King (1948) 77 CLR 449 at 477. 3 Note 2 above. at 477. 4 Koowarta v Bjelke-Petersen and Drs (1982) 153 CLR 168 at 224f, See

comment [1994] NZLJ 433.at 434. See Kirby, n 1 above. at 373f •

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Role a/International Standards in Aust1'alian Courrs 3

(3) The jUdge~ will not do .50 auto.matic~lIy. simply because the. nonn is Pa:tofintematlOnallaw or IS mentioned m a treaty, even one ratified by theirown count:ry;

(4) But if an issue of uncertainty arises, as by a lacuna in the common law,obscurity in its meaning or ambiguity in a relevant starute. a judge mayseek guidance in the general principles of international law, as acceptedby the community ofnations; and

(5) From this source material. the judge may ascertain and declare what therelevant rule of domestic law is. It is the action of the jUdge,incorporating the rule into domestic law, which makes it part ofdomestic law.

Some lawyers. and not a few judges. brought up in the tradition of the strictdivide between international and municipal law, were inclined at first toregard the Bangalore Principles as erroneous.6 They regarded with scepticismthe amount of assistance which could be derived from an international treaty,other international law or the pronouncements of international or regionalcouns, tribunals and committees.

High judicial pronouncements

In the seven years since Bangalore, however, something of a sea change hascome over the approach of couns in Australia, as well as in New Zealand andEngland.

The clearest indication of the change in Australia can be found in theremarks of Brennan J (with the concurrence of Mason CJ and McHugh J) inMaho v Queensland [No 2].7 In the course of explaining why adiscriminatory doctrine, such as that of terra nullius (which refused torecognise the rights and interests in land of the indigenous inhabitants of asettled colony such as Australia) could no longer be accepted as part of thelaw ofAustralia, Brennan J said:

The expectations of the international community accord in this respect withthe contemporary values of the Australian people. The opening up of theinternational remedies to individuals pursuant to Australia's accession to theOptional Pr%eollo the International Covenant on Civil and Political Rightsbrings to bear on the common law the powerful influence of the Covenant andthe international standards it imports. The common law does nOl necessarilyconfonn with international law, but international law is a legitimate and

See ego Samuels JA in lago v District Court of New South Wales and Ors(1988) 12 NSWLR 558 (CA) at 580f.(1992) 175 CLR I.

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Role a/International Standards in Austl"alian Courrs 3

(3) The judges will not do so automatically, simply because the nonn is part ofintemationallaw or is mentioned in a treaty, even one ratified by their

(4)

own country;

But if an issue of uncertainty arises, as by a lacuna in the common law, obscuriry in its meaning or ambiguity in a relevant starute. a judge may seek guidance in the general principles of international law, as accepted by the community of nations; and

(5) 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 Jaw.

Some lawyers. and not a few judges, brought up in the tradition of the strict divide between international and municipal law, were inclined at first to regard the Bangalore Principles as erroneous.6 They regarded with scepticism the amount of assistance which could be derived from an international treaty, other international law or the pronouncements of international or regional couns, tribunals and committees.

High judicial pronouncements

In the seven years since Bangaiore, however, something of a sea change has come over the approach of couns in Australia. as well as in New Zealand and England.

The clearest indication of the change in Australia can be found in the remarks of Brennan J (with the concurrence of Mason CJ and McHugh J) in Maho v Queensland [No 2].7 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 the law of Australia, Brennan J said:

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 Pr%ealto the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily confonn with international law. but international law is a legitimate and

See ego Samuels JA in Jago v District Court of New South Wales and Ors (1988) 12 NSWLR 558 (CA) at 580f. (1992) 175 CLR I.

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4 Treaty-Making and Australia

important influence on the development of the common law. especially wheninternational law declares the existence of universal human rights. 8

To similar effect were the remarks of the English Coun of Appeal inDerbyshire County Council v Times Newspapers Limited,9 a decision latersubstantially affrnned by the House of Lords. lO In a sense, it paved the wayfor the reasoning of Brennan J in Mabo and was referred to by him. In thecourse of his reasoning on a libel question. Balcombe LJ referred to article 10of the European Convention on Hwnan Rights to which the United Kingdomis a party. That article relates to freedom of expression. His Lordship

observed:Article 10 has not been incorporated into English domestic law. Neverthelessit mav be resorted to in order to help resolve some uncertainty or ambiguity inmuni~ipaJ law: per Lord Ackner in Reg v Secretary of State for the HomeDepartment: & parte Brind [1991J I AC 696. 761. Thus (I) Article 10 maybe used for the purpose of the resolution of an ambiguity onEngJish ... legislation... (3) Article 10 may be used when the common law... isuncertain. II

A similar question was presented to the New South Wales Coun ofAppeal in Ballina Shire Council v Ringland. 12 A majority (Gleeson CJ andKirby P; Mahoney JA dissenting) followed Derbyshire. In coming to ourrespective conclusions, both Mahoney JA 13 and 114 referred to the provisionsof article 19(2) of the International Covenant on Civil and Political Rights(ICCPR) which Australia has ratified. Following as it did Mabo, nobodyquestioned in Ringland the relevance of a consideration by the court ofapplicable international hwnan rights principles in assisting it to come to itsconclusions about the content aflocal common law.

In New Zealand. the same trend has emerged. There, the position issomewhat different from that in Australia and England, by reason of theenactment of the New Zealand Bil! ofRights Act /990. 15

Note 7 above, at 42. See also Dietrich v The Queen (1992) 177 CLR 292 at 330.337. 361, 365. Compare, G Triggs. "Customary 100ernational Law andAustralian Law" in AJ Bradbrooke and.AJ Duggan (eds), The Emergence ofAustralian Law, Buaerworths, Sydney, 1989. PP 376, 381: BF Fitzgerald,"International Human Rights and the High Court of Australia" (1994) 1 JamesCook Universify Law Review 78.

9 [1992J QS 770 (CA).10 [1993J AC 534 (HL).II Note 9 above. at 812.12 (1994)33 NSWLR 680 (CA).lJ Note 12 above. at 721.14 Note 12 above. at 699.15 Compare. M Mulgan. "Implementing International Human Rights Norms in the

Domestic Context: The Role of a National Institution" (1993) 5 Canterbury

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4 Treaty-Making and Australia

important influence on the development of the common law, especially when international law declares the existence of universal human rights. 8

To similar effect were the remarks of the English Coun of Appeal in Derbyshire County Council v Times Newspapers Limited,9 a decision later substantially affmned by the House of Lords.!O In a sense, it paved the way for the reasoning of Brennan J in Mabo and was referred to by him. In the course of his reasoning on a libel question. Balcombe L1 referred to article 10 of the European Convention on Hwnan Rights to which the United Kingdom is a party. That article relates to freedom of expression. His Lordship

observed: Article 10 has not been incorporated into English domestic law. Nevertheless il may be resorted to in order to help resolve some uncertainty or ambiguity in municipal law: per Lord Ackner in Reg v Secretary of State for the Home Department: £. parte Brind [1991J I AC 696. 761. Thus (I) Article 10 may be used for the purpose of the resolution of an ambiguity on English ... legislation ... (3) Article 10 may be used when the common law ... is uncertain. 1 I

A similar question was presented to the New South Wales Coun of Appeal in Ballina Shire Council v Ringland. 12 A majority (Gleeson CJ and Kirby P; Mahoney JA dissenting) followed Derbyshire. In coming to our respective conclusions, both Mahoney JA 13 and 114 referred to the provisions of article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) which Australia has ratified. Following as it did Mabo, nobody questioned in Ringland the relevance of a consideration by the court of applicable international hwnan rights principles in assisting it to come to its conclusions about the content of local common law.

In New Zealand. the same trend has emerged. There, the position is somewhat different from that in Australia and England, by reason of the enactment of the New Zealand Bill of Rights Act 1990. 15

Note 7 above, at 42. See also Dietrich v The Queen (1992) 177 CLR 292 at 330. 337. 361, 365. Compare, G Triggs. "Customary IOiemational Law and Australian Law" in AJ Bradbrooke and.A1 Duggan (eds), The Emergence of Australian Law. Buaerworths, Sydney, 1989. pp 376, 381: BF Fitzgerald, "International Human Rights and the High Court of Australia" (1994) 1 James Cook University Law Review 78.

9 [1992) OB 770 (CA). iO [1993) AC 534 (HL). II Note 9 above. at 812. 12 (1994)33 NSWLR 680 (CA). 1J Note! 2 abovl!. at 721. 14 Note 12 above. at 699. 15 Compare. M Mulgan. "Implementing International Human Rights Norms in the

Domestic Context: The Role of a National Institution" (1993) 5 Canterbury

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Role o/International Standards in Australian Courts 5

Cases applying the Bangalore Principles

In an earlier essay,20 I collected a number of decisions of the High Court andof the New South Wales Court of Appeal in which reference had been madeto international human rights principles in the development of theunderstanding of Jocal law. As well as appearing in these two courts,21 such

In Minister a/Transport v Noort; Police v Curran,l6 the New ZealandCourt of Appeal concluded that in interpreting the Bill ofRights Act it was of"cardinal importance" to consider and to give effect to the Act's"antecedents". Cooke regarded the lCCPR as one of the Act's most important

"antecedents".The extent of a possible obligation on the part of New Zealand ministers

to have regard to international human rights nanns was considered by theCourt of Appeal in Tavita v Minister ofImmigration. 17 Delivering the interimjudgment of the New Zealand Court of Appeal, Cooke P stopped short ofdeciding that international obligations must be considered in the perfonnanceof the administrative decision·making process.! S His Honour described theposition in New Zealand: .

Since New Zealand's accession to the Optional Protocol the United NationsHuman Rights Committee is in a sense pat! of the counoy's judicial structure,in that individuals subject to New Zealand jurisdiction have direct rights ofrecourse to it. A failure to give practical effect to internatiOnal instrumentS towhich New Zealand is a party may attract criticism. Legitimate criticism couldextend to the New Zealand Courts. if they were to accept the argument that,because a domestic statute giving discretionary powers in general terms doesnot mention international human rights nOnTIS or obligations, the Executive isnecessarily free to ignore them. 19

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7'18

Law Review 235: J Craig, "The 'Bill of Rights' Debates in Australia and NewZealand-A Comparative Analysis" (1994) 8 Legal Studies 67. See also R vGoodwin [1993] 2 NZLR 153 (CA) at 168.[1992J J NZLR 260 (CA).(1994J 2 NZLR 257 (CA).Note 17 above, See B O'Callaghan, "Case Note: Tavita v Minister forImmigration" (\994) 7 Auckland University Law Review 762 at 764.Tavita, n 17 above, at 266.See Kirby. n 1 above,See ego Daemar v InduSlrial Commission of New South Wales (1988) 12NSWLR 45; 79 ALR 59\ (CA); S & M Molar Repairs Pty Limited v Calle:t Oil(Aust,.afia) Pry Limited and Anor (1988) 12 NSWLR 358 (CA); lago v DistrictCourt a/New Soulh Wales.(1988) 12 NSWLR 558 (CA) at 569: see now (1989)168 CLR 23, .

192021

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Role a/International Standards in Australian Courts 5

In Minister a/Transport v Noort; Police v Curran,l6 the New Zealand Court of Appeal concluded that in interpreting the Bill of Rights Act it was of "cardinal importance" to consider and to give effect to the Act's "antecedents". Cooke regarded the ICCPR as one of the Act's most important

"antecedents". The extent of a possible obligation on the part of New Zealand ministers

to have regard to international human rights nonns was considered by the Court of Appeal in Tavita v Minister of Immigration. 17 Delivering the interim judgment of the New Zealand Court of Appeal. Cooke P stopped short of deciding that international obligations must be considered in the perfonnance of the administrative decision·making process. ~ S His Honour described the position in New Zealand:

Since New Zealand's accession to the Optional Protocol the United Nations Human Rights Committee is in a sense pat! of the country's judicial structure, in that individuals subject to New Zealand jurisdiction have direct rights of recourse to it. A failure to give practical effect to international instrumentS to which New Zealand is a party may attract criticism. Legitimate criticism could extend to the New Zealand Courts. if they were to accept the argument that, because a domestic statute giving discretionary powers in general terms does not mention international human rights nOnTIS or obligations, the Executive is necessarily free to ignore them. 19

Cases applying the Bangalore Principles

In an earlier essay,20 I collected a number of decisions of the High Court and of the New South Wales Court of Appeal in which reference had been made to international human rights principles in the development of the understanding of local law. As well as appearing in these two courts,21 such

16 17 18

19 20 21

Law Review 235: J Craig, "The 'Bill of Rights' Debates in Australia and New Zealand-A Comparative Analysis" (1994) 8 Legal Sludies 67. See also R v Goodwin [1993]2 NZLR 153 (CA) at 168. Jl992J J NZLR 260 (CA). 11994J 2 NZLR 257 (CA). Note 17 above. See B O'Callaghan, "Case Note: Tavita v Minister for Immigration" (1994) 7 Auckland University Law Review 762 at 764. Tavita. n 17 above, at 266. See Kirby. n I above. See ego Daemar v InduSlrial Commission of New South Wales (1988) 12 NSWLR 45; 79 ALR 591 (CA); S & M Molor Repairs Pty Limited v Calle:t Oil (Australia) Pry Limited and Anor (1988) 12 NSWLR 358 (CA); Jago v District Court a/New Soulh Wales.(1988) 12 NSWLR 558 (CAl at 569: see now (1989) 168 CLR 23, .

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6 Treaty-Making and Australia

cases have come before the Federal Court.22 the Family Cowt2J and in theCourt of Criminal Appeal of New South Wales.24 In many of the decisions, afeature of the reasoning is the reference by the judges, not only to the text of arelevant international insmunent. but also to the development of thejurisprudence by courts, tribunals and committees. particularly by theEuropean Court of Human Rights.

Australia lacks an established framework for reference to jurisprudencedeveloped around human rights provisions expressed in international law.This has not however stopped the couns, in the manner suggested in theBangalore Principles. from utilising international law where a relevant gapappears in the common law or a starute falls to be construed which isambiguous or uncertain of meaning. Increasingly, judges of our tradition,faced with such a problem, are turning not simply to the analogous reasoningwhich they can derive from past judgments. written often in a different worldfor different social conditions. Now, increasingly, they are looking, whererelevant and applicable, to international human rights jurisprudence. In myview, this is both a natural and desirable development, and one that isparticularly apt in this time of globalisation.

Cautionary taies

Critics of the developments which I have outlined would list a number ofconsiderations which certainly need to be taken into account as the judgesventure upon this new source of law-making. A primary concern often stemsfrom the fact that treaties are typically negotiated by the executivegovernment, as the modem manifestation of the Crown, with little or noparliamentary participation. The executive, when making treaty decisions,thus mayor may not reflect the will of the people as expressed in Parliament.

Processes of ratification are often defective. For example, the FederalGovernment's accession to the First Optional Protocol to the ICCPR, beforethe instrument was even tabled in Parliament, has been described by one

22 See eg. Minister for Foreign Affairs v Magno (1992) 37 FCR 298 (FFC): 112ALR 529 at 534f: Teoh v Minister for Immigration and Ethnic Affairs (1994)121 ALR 436 (FFC) at 443 (Black J).

23 See ego Re Marion (1990) 14 Fam LR 427 at 449: contrast Re Jane (1988) 12Fam LR 662.

24 See eg, R v Greer (1992) 62 A Crim R 442 (NSWCCA); R v Astill (1992) 63 ACrim R 148 (NSWCCA); R v Sandford (1994) 33 NSWLR 172 (CCA) at 177f.185f. See also. Director of Public Prosecutions for the Commonwealth v Saxon(1992) 28 NSWLR 263 (CA); Cane/lis y Slattery (1993) 33 NSWLR 104 (CA)(reversed HC).

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6 Treaty-Making and Australia

cases have come before the Federal Court,22 the Family Court23 and in the Court of Criminal Appeal of New South Wales.24 In many of the decisions, a feature of the reasoning is the reference by the judges, not only to the text of a relevant international insmunent. but also to the development of the jurisprudence by courts, tribunals and committees. particularly by the European Court of Human Rights.

Australia lacks an established framework for reference to jurisprudence developed around human rights provisions expressed in international law. This has not however stopped the couns, in the manner suggested in the Bangalore Principles, from utilising international law where a relevant gap appears in the common law or a starute falls to be construed which is ambiguous or uncertain of meaning. Increasingly, judges of our tradition, faced with such a problem, are ruming not simply to the analogous reasoning which they can derive from past judgments. written often in a different world for different social conditions. Now, increasingly. they are looking. where relevant and applicable, to international human rights jurisprudence. In my view, this is both a natural and desirable development, and one that is particularly apt in this time of globaiisation.

Cautionary tales

Critics of the developments which I have outlined would list a number of considerations which certainly need to be taken into account as the judges venture upon this new source of law-making. A primary concern often stems from the fact that treaties are typically negotiated by the executive government, as the modem manifestation of the Crown, with little or no parliamentary participation. The executive, when making treaty decisions. thus mayor may not reflect the will of the people as expressed in Parliament.

Processes of ratification are often defective. For example, the Federal Government's accession to the First Optional Protocol to the ICCPR. before the instrument was even tabled in Par liament, has been desc6bed by one

22 See eg. Minister for Foreign Affairs v Magno (1992) 37 FCR 298 (FFC): 112 ALR 529 at 534f: Teoh v Minister for Immigration and Ethnic Affairs (1994) 121 ALR 436 (FFC) at 443 (Black J).

23 See ego Re Marion (1990) 14 Fam LR 427 at 449; contrast Re Jane (\988) 12 Fam LR 662.

24 See eg, R v Greer (1992) 62 A Crim R 442 (NSWCCA); R v Astill (1992) 63 A Crim R 148 (NSWCCA); R v Sandford (1994) 33 NSWLR 172 (CCA) at 177f. 185t: See also. Director of Public Prosecutions for the Commonwealth v Saxon (1992) 28 NSWLR 263 (CA); Canellis v Slattery (1993) 33 NSWLR 104 (CA) (reversed HC).

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Role ofInternational Standards in Australian Courts 7

observer as ·'extraordinary... without any public debate or even publicawareness of its existence. let alone its scope and significance".25

In federal countries. such as Australia. the ratification of intemationaltreaties and their use by courts may be a means to undermine the distributionof powers berween the federal and Slate legislatures in a way nevercontemplated by the drafters of the Constirution. 26 One reason advanced forusing kgislation to introduce an aspect of intemationallaw into domestic lawin a federation. and to refrain from introducing such principles by judicialdecision. is that this course will permit the constitutional validity of thestatutory introduction to be tested in the courtS.

Judicial inrroduction of hwnan rights norms may divert the communityfrom the more open, principled and democratic adoption of such norms inconstitutional or statutory amendments which then have the legitimacy ofpopular endorsement. It is upon this ground that some criticism has beenvoiced of the recent discovery by the High Court of fundamental rights to beimplied from the nature and purposes of the Constitution although notexpressed thereP Those who hold to this view urge that it would bepreferable to engage in a national debate and openly to embrace an enactedBill of Rights than to accept such a development from a wen-meaningjudiciary. introducing it "by stealth".

Some commentators have also expressed scepticism about theinternational courts. tribunals and committees which pronounce upon humanrights. 28 These commentators argue that the various arms of governmentshould be wary of making decisions that may deny their own legal and socialhistory. for the sake of international conformity.

To similar effect. critics have pointed to the generality of the expressionof the provisions contained in international hwnan rights instruments. Ofnecessity, the charters are expressed in language which lacks precision. Thismeans that those who use them may be tempted to read into the broadlanguage what they hope, expect or want 10 see. Whilst the judge of thecommon law tradition has an indisputably creative role, such creativity must

~5 A Twomey. Procedure and Practice of Implementing International Treaties,Parliamentary Research Background Paper No 27 (1995), P 9.

26 See ego MD Kirby. "Human Rights-The International Dimension~', address.Parliament House. Canberra. 17 February 1995 in Australian Parliament.Senate. Occasional Papers (forthcoming).

27 See eg. 0 Rose. "Judicial Reasonings and Responsibilities in ConstitutionalCases" (1994) 20 Monash University Law Review 195; A Fraser. "False Hopes:Implied Rights and Popular Sovereignty in the Australian Constitution" (1994)16 Sydney Law Review 213; L Zines, "A Judicially Created Bill of Rights?"(1994) 16 Sydney Law Review 166.

~g See ego R v JejJries [1994] 1NZLR 290 (CA) at 299.

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Role of International Standards in Australian Courts 7

bserver as ·'extraordinary ... without any public debate or even public ~wareness of its existence. let alone its scope and significance".25

In federal countries. such as Australia. the ratification of international treaties and their use by courts may be a means to undermine the distribution of powers berween the federal and Slate legislatures in a way never contemplated by the drafters of the Constirution.26 One reason advanced for using kgislation to introduce an aspect of intemationallaw into domestic law in a federation. and to refrain from introducing such principles by judicial decision. is that this course will permit the constitutional validity of the statutory introduction to be tested in the courtS.

Judicial introduction of hwnan rights norms may divert the community from the more open, principled and democratic adoption of such norms in constitutional or stJ.tutory amendments which then have the legitimacy of popular endorsement. It is upon this ground that some criticism has been voiced of the recent discovery by the High Court of fundamental rights to be implied from the nature and purposes of the Constitution although not expressed thereP Those who hold to this view urge that it would be preferable to engage in a national debate and openly to embrace an enacted Bill of Rights than to accept such a development from a well-meaning judiciary. introducing it "by stealth".

Some commentators have also expressed sceptiCism about the international courts. tribunals and committees which pronounce upon human rights.28 These commentators argue that the various arms of government should be wary of making decisions that may deny their own legal and social history, for the sake of international conformity.

To similar effect. critics have pointed to the generality of the expression of the provisions contained in international hwnan rights instruments. Of necessity, the charters are expressed in language which lacks precision. This means that those who use them may be tempted to read into the broad language what they hope, expect or want to see. Whilst the judge of the common law tradition has an indisputably creative role. such creativity must

~5 A Twomey. Procedure and Practice of Implementing International Treaties, Parliamentary Research Background Paper No 27 (1995), p 9.

26 See ego MD Kirby. "Human Rights-The International Dimension~', address. Parliament House. Canberra. 17 Februarv 1995 in Australian Parliament. Senate. Occasional Papers (forthcoming). .

27 See eg. 0 Rose. "Judicial Reasonings and Responsibilities in Constitutional Cases" (1994) 20 Monash University Law Review 195; A Fraser. "False Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution" (1994) 16 Sydney Law Review 213; L Zines. "A judicially Created Bill of Rights?" (1994) 16 Sydney Law Review 166.

~8 See ego R v JejJries [1994] 1 NZLR 290 (CA) at 299.

I I !

8 Treary-Making and A.ustralia

nevertheless proceed in a judicial way. It must not undermine the primacy ofdemocratic law-making by the organs of government, directly or indirectlyaccountable to the people.29

Finally, some critics caution against undue. premamre undennining of thesovereignty of a country by judicial fiat and the authority of every country'slaw-makers to develop human rights in their own way, at least when they aredemocratically elected and accountable. rt would be ironic if the advance ofinternational human rights principles were to undermine the variety of humanlegal systems and the democratic accountability which must itself berespected by the courts.

Support for the Bangalore Principles

Against the foregoing considerations, the suppoJ1ers of the BangalorePrinciples rely on a numberof~.

The Bangalore Principles do not threaten the sovereignty of national law­making institutions. They acknowledge that if those institutions have made,by constitutional, statutory or common law decision, a role which isunambiguous and binding, no international human rights principle canundermine or overrule the applicable domestic law. To introduce such aprinciple requires the opportunity of a gap in the common law or anambiguity of a local statute. Then, by direct legislation or indirectintroduction by the judicial branch of government, the principle can beimported into the law of the sovereign country. Far from being a negation ofsovereignty, this is an application of it.

The process which the Bangalore Principles endorse is, in a sense, asBrennan J described it in Mobo, an inevitable one. As countries likeAustralia, by subscription to the First Optional Protocol, submit themselves tothe external scrutiny and criticism of their laws by the United Nations HumanRights Committee, the result must be addressed. If a domestic law ismeasured and found wanting, a country is then obliged to bring its law intoconformity with the treaty. to withdraw from the treaty if it may, or to berevealed as nothing more than a practitioner of human rights "window­dressing".

Modem notions of democracy are more sophisticated than they formerlywere. They involve more than simply the reflection in law-making of the willof the majority, intermittently expressed upon a broad range of issues. It isnow increasingly accepted that the legitimacy of democratic governancedepends upon the respect by the majority for the fundamental rights of

29 See eg. Brennan J in Dietrich v The Queen (1992) 177 CLR 292 at 323.

'~'1 ':'1

~

8 Treary-Making and A.ustralia

nevertheless proceed in a judicial way. It must not undennine the primacy of democratic law-making by the organs of government, directly or indirectly accountable to the people.29

Finally, some critics caution against undue. premamre undennining of the sovereignty of a country by judicial fiat and the authority of every country's law-makers to develop human rights in their own way, at least when they are democratically elected and accountable. It would be ironic if the advance of international human rights principles were to undermine the variety of human legal systems and the democratic accountability which must itself be respected by the courts.

Support for the Bangalore Principles

Against the foregoing considerations. the supporters of the Bangalore Principles rely on a number of~.

The Bangalore Principles do not threaten the sovereignty of national law­making institutions. They acknowledge that if those institutions have made, by constitutional, statutory or common law decision, a rule which is unambiguous and binding, no international human rights principle can undermine or overrule the applicable domestic law. To introduce such a principle requires the opportunity of a gap in the common law or an ambiguity of a local statute. Then, by direct legislation or indirect introduction by the judicial branch of government, the principle can be imported into the law of the sovereign country. Far from being a negation of sovereignty, this is an application of it.

The process which the Bangalore Principles endorse is, in a sense, as Brennan J described it in Mabo, an inevitable one. As countries like Australia, by subscription to the First Optional Protocol, submit themselves to the external scrutiny and criticism of their laws by the United Nations Human Rights Committee. the result must be addressed. If a domestic law is measured and found wanting, a country is then obliged to bring its law into conformity with the treaty. to withdraw from the treaty if it may, or to be revealed as nothing more than a practitioner of human rights "window­dressing".

Modem notions of democracy are more sophisticated than they formerly were. They involve more than simply the reflection in law-making of the will of the majority, intermittently expressed upon a broad range of issues. It is now increasingly accepted that the legitimacy of democratic governance depends upon the respect by the majority for the fundamental rights of

29 See eg, Brennan J in Dietrich v The Queen (1992) 177 CLR 292 at 323.

Role olIn/ernational Standards in A.ustralian Courts 9

minorities.30 Therefore. in so far as courts give effect at least to fundamentalrights. they are assisting in the discharge of their governmental functions toadvance the complex notion of democracy as it is understood today.

The view has been expressed that a federal Parliament and government isa tnlStee in a federal country for the international standards of the worldcommunity and it is the responsibility of the federal polity to be the nation'svoice.31 The power of a federal Supreme Court to strike down excessive lawsand to measure all laws against the standards of the Constitution, ensure thatsuch laws meet the requirements of constitutionality. FederaJ constitutionsmust themselves adapt to the world in which the federation finds itself. This.indisputably, is a world of increasing interrelationships in matters ofeconomics and of human rights. Judges, no less than legislatures andgovernments, can afford to ignore this r~ality.

Giving effect to intemationallaw, where a country has formally ratified arelevant treaty. does no more than give substance to the act which theexecutive government has taken. The knowledge that the judicial use ofintemationallaw in this way is now becoming' more frequentJmay have the 1$:.beneticial consequence of discouraging ratification where there is no serious 'intention to accept for the nation the principles contained in the rreaty.

The international development of local law is already happening outsidethe judiciary. For example. international human 'rights principles are beingintroduced into domestic law by express legislation. 32 Sometimes thatlegislation follows detenninations of a relevant international body. This wasthe case in the recent Human Rights (Sexual Conduct) Act 1994 (Cth), whichfollowed the decision of the United Nations Human Rights Committee indetermining the communication by Nicholas Toonen concerning Tasmanianlaws on homosexual offences.33 Given that other branches of government aregiving effect to international human rights law, it is scarcely surprising that

JO

31

32JJ

See H Charlesworth, "Protecting Human Rights" (1994) 68 Law InstituteJournal 462 at 463; C Caleo, "!mplications of Australia's Accession to the FirstOptional Protocol to the Imemational Covenant on Civil and Political Rights(1993) 4 Public Law Review 175.See H Charlesworth. "The Australian Reluctance About Rights" in P Alston(ed). Towards an Auslralian Bill of Rights Human Rights and EqualOpportunity Commission and the Centre for International and Public Law.Canberra. 1994. p 53.See el!.. Privacy Act 1988 (Cth). ..---- [-#"If:Toonen v Australia. UN Doc. CCPR/CI50fDI48811992 (4 April 1994j.(Fordiscussion see A Funder, ''The Toonen Case" (1994) 5 Public Law Review 156;G Selvaner. "Gays in Private. The Problems with the Privacy Analysis inFurthering Human Rights" (1994) 16 Adelaide Law Review 331: W Morgan."Protecting Rights or Just Passing the Buck?" (1994) 1 AUSlralian Journal 01Human Rights 409.

I" .....~-

(/'i'pv 61AL7/"v()

Role o/International Standards in A.ustralian Courts 9

minorities.JO Therefore. in so far as courts give effect at least to fundamental rights. they are assisting in the discharge of their governmental functions to advance the complex notion of democracy as it is understood today.

The view has been expressed that a federal Parliament and government is a truStee in a federal country for the international standards of the world community and it is the responsibility of the federal polity to be the nation's voice. J 1 The power of a federal Supreme Court to strike down excessive laws and to measure all laws against the standards of the Constitution, ensure that such laws meet the requirements of constitutionality. F ederaJ constitutions must themselves adapt to the world in which the federation finds itself. This. indisputably, is a world of increasing interrelationships in matters of economics and of human rights. Judges, no less than legislatures and governments, can afford to ignore this r~ality.

Giving effect to international law, where a country has formally ratified a relevant treaty. does no more than give substance to the act which the executive government has taken. The knowledge that the judicial use of intemationallaw in this way is now becoming' more frequent,may have the -t$:. beneticial consequence of discouraging ratification where there is no serious ' intention to accept for the nation the principles contained in the rreaty.

The international development of local law is already happening outside the judiciary. For example. international human 'rights principles are being introduced into domestic law by express legislation.32 Sometimes that legislation follows detenninations of a relevant international body. This was the case in the recent Human Rights (Sexual Conduct) Act 1994 (Cth), which followed the decision of the United Nations Human Rights Committee in determining the communication by Nicholas Tooneo concerning Tasmanian laws on homosexual offences.3J Given that other branches of government are giving effect to international human rights law, it is scarcely surprising that

)0

JI

J2 ))

See H Charlesworth, "Protecting Human Rights" (1994) 68 Law Institute Journal 462 at 463; C Caleo. "implications of Australia's Accession to the First Optional Protocol to the Imcmational Covenant on Civil .and Political Rights (1993) 4 Public Law Review 175. See H Charlesworth, "The Australian Reluctance About Rights" in P Alston (cd). Towards an Australian 8m of Rights Human Rights and Equal Opportunity Commission and the Centre for International and Public Law. Canberra. 1994, p 53. See ego Privacy Act 1988 (Cth). ,.---- f""'f: Toonen v Australia. UN Doc. CCPRJCI50fDI488!1992 (4 April 1994).(For discussion see A Funder. ''The Toonen Case" (1994) 5 Public Law Review 156; G Selvaner. "Gays in Private. The Problems with the Privacy Analysis in Furthering Human Rights" (1994) 16 Adelaide Law Review 331: W Morgan. "Protecting Rights or Just Passing the Buck?" (1994) I Australian Journal 0/ Human Rights 409.

" . , .... ..:;

10 Treary-Making and Australia

the courts. as a branch ofgovernment, are also taking such law into account inappropriate cases and in permissible circwnstances.

The developments just described are hardly surprising or threatening. atleast they should not be so to judges and lawyers of our tradition. Theinternational human rights instruments were. for the most parr. drawn up byAnglo-American lawyers. In countries such as Australia. their concepts areoften already enshrined in constitutional. statutory or common la:w principles.It is the jurisprudence which is now collecting around these broad conceptsthat is often helpful in facing the kinds of problems which societies mustaddress wday, That is why it is appropriate and useful for the common lawnow to modify its earlier principle of strict separation of international anddomestic law. It is timely that a rapprochement between these systems of lawshould be developed. As we enter a new millennium where there will beincreasing international law of every kind. it is part of the genius of our legalsystem that our courts have found a way to take cognisance of internationalhuman rights jurisprudence in appropriate circumstances and by appropriateand familiar techniques of reasoning.

An amber light?

In a paper delivered before his retirement as Chief Justice of Australia. SirAnthony Mason referred to the idea behind the Bangalore Principles. SirAnthony stated that the High Court did not hold the view that any gap in thecommon law should be filled through the use of international conventions.34

Lest it should be thought that the High Court in Teoh has rejected theBangalore idea. it is important to reflect upon what the jUdges actually stated.

The judges' comments on the point are peripheral to the main subjectmatter of the case. It concerned a challenge to a fmding of a delegate of theMinister for Immigration and Ethnic Affairs. In the Full Federal COllIt. amajority held that Australia's ratification of the Convention on the Rights OfThe Child created a "legitimate expectation" for the purposes of the rules ofnatural justice in administrative law, Thus parents and children had alegitimate expectation that any action or decision by the Commonwealthwould be conducted. or made, in accordance with the principles of theconvention.35 The High Court upheld the Federal Court ruling and it was thisissue which led the High Court into a consideration of the relevance of the

34 A Mason, "Towards 2001-Minimalism. Monarchism or Metamorphism?", TheThird Lucinda Lecture. Monash University. II April J995 in MonashUnivtrsiry Law Rtvitw (forthcoming).

35 Teoh v Minister for Immigration. Local Government and Ethnic Affairs (1994)121 ALR 436 (FFC).

7 '~J . .J

., .:' ....-...,. ' ..'.';','

10 Treaty-Making and Australia

the courts. as a branch of government. are also taking such law into account in appropriate cases and in permissible circwnstances.

The developments just described are hardly surprising or threatening. at least they should not be so to judges and lawyers of our tradition. The international human rights instruments were, for the most part, drawn up by Anglo-American lawyers. In countries such as Australia. their concepts are often already enshrined in constitutional, starutory or common la:w principles. It is the jurisprudence which is now collecting around these broad concepts that is often helpful in facing the kinds of problems which societies must address wday. That is why it is appropriate and useful for the common law now to modify its earlier principle of strict separation of international and domestic Jaw. It is timely that a rapprochement between these systems of law should be developed. As we enter a new millennium where there will be increasing international law of every kind, it is part of the genius of our legal system that our courts have found a way to take cognisance of international human rights jurisprudence in appropriate circumstances and by appropriate and familiar techniques of reasoning.

An amber light?

In a paper delivered before his retirement as Chief Justice of Australia, Sir Anthony Mason referred to the idea behind the 8angalore Principles. Sir Anthony stated that the High Court did not hold the view that any gap in the common law should be filled through the use of international conventions.34

Lest it should be thought that the High Court in Teoh has rejected the Bangalore idea, it is important to reflect upon what the judges actually stated.

The judges' comments on the point are peripheral to the main subject matter of the case. It concerned a challenge to a fmding of a delegate of the Minister for Immigration and Ethnic Affairs. In the Full Federal Court. a majority held that Australia's ratification of the Convention on the Rights Of The Child created a "legitimate expectation" for the purposes of the rules of natural justice in administrative law. Thus parents and children had a legitimate expectation that any action or decision by the Commonwealth would be conducted, or made, in accordance with the principles of the convention.35 The High Court upheld the Federal Court ruling and it was this issue which led the High Court into a consideration of the relevance of the

34 A Mason, "Towards 2001-Minimalism. Monarchism or Metamorphism?", The Third Lucinda Lecture, Monash University. II April 1995 in Monash Univtrsiry Law Rtvitw (forthcoming).

35 Teoh v Minisler for Immigration. Local Government and Ethnic Affairs (1994) 121 ALR 436 (FFC).

. .. :. . ........ ' .. -.';'.'

Role ofInternational Standards in AuStralian Courts II

":cJnve:1tion to Australian law, giv~n ~at. as such, it had not been incorporatedinw Australian law by federalleglslauon.

In the course of their judgment dismissing the appeal, Mason CJ and

D.::mc J said this:W11.:r.: J st::uute or subordinate kgisJation is ambiguous. the courts shouldIJ,vllur thaI ccnstruclion which accords with Australia's obligations under a~r..:~[" O( intemmio:'l:ll ,;onventlon to which Australia is a par-yo at leasl in;ho:'~ ":,lses :n \.. hJch the :cg,isiation is enacted after. or in contemplation or:C;j{;-'.. ;1:,) 0r r::uiri..:alion 0( the relevant international ;nstrument. That is,~c..:~;,,~.: p;u-il:unenL prima facie. intends to give effect to Australia's,1bhgali,)ns tWeeT Inlernational law.

.. . If (he language of ,he legislation is susceptible of:l construction whichis .;onsisl.::nt with the terms of the international ins01.lm.::nt and the obligationswhich it imposes on Australia. then that construction should prevail. Soexpressed. the principle is no more than a c~on. of cons01.lcti~n.and does notimoort th.:: tcnns of the treaty or convention lOtO our mUOlclpal law as aso~rce of individual rights and obligations.

Apart from int1uencing the construction of a statute Or subordinatekl!.islation. an intem:uional convention may playa part in the development bylh~ courtS ufthe common law.,.But the courtS should act in this fashion withdue circumspection when the Parliament itself has not seen fit to incorporateIh..: provisions or a convention into our domestic law, Judicial development ofIhe common Jaw must not be seen as a back·door means of imponing anunincorporated convention into Australian law. 36

Mason CJ and Deane J pointed out that, in Teoh, they were not concerned

with the resolution of an ambiguity of a statute. Nor were they concerned with

the development of an existing principle of the common law. To that extent.

their remarks on the BangaJore idea were obiter dicta. They were essentially

cautious. But. as I read them. those remarks were entirely consistent with the

Bangalore Principles, although with a warning against excessive enthusiasm.

McHugh J. who dissented in the result. and rejected the idea that the tenns

of the convention gave rise to a legitimate expectation in the particular case,

nonetheless offered a similar analysis of the relevance of the convention to

Australian law:

Conventions entered into by the federal government do nOt form part ofAustralia's domestic law unless they have been incorporated by way ofstatute. They may. of course. affect the interpretation or development of thelaw ot' .-\ustr.lJia... ln that respect. conventions are in the same position as the

,.,. .,,. ! 't

A1imSIt:r for Immigral:on, and Ethnic Affairs \I Teoh (1995) 128 ALR 353 at362.

36

~

Role of International Standards in AuStralian Courts ! I

":cJnve:1tion to Australian law. given that, as such, it had not been incorporated

in(Q Allstralian law by federal legislation.

In the course of their judgment dismissing the appeal, Mason CJ and

D.::me J said this: W11.:r.: J starute or subordinate kgislation is ambiguous, the courts should IJ,Vllur that ccnstruction which accords with Australia's obligations under a ~r..:~[" 1)r intern;}!io:'!:!l .;onvent!on to which Australia is a par-y, at least in ;ho:'~ ":J.S':S :n \.,hlCh the :cg,isi;ltion )s enacted after, or in contemplation or: ':;j{;-' .. ;1:,) 0r r:uirication 0( the relevant international ;nsrl11mcnt. That is ,~.:~~;,,~.: p;u-i1:unenL primJ. facie. intends to give effect to Australia's ,1bhgJ.ti,)ns tmeer International law .

.. . If the ianguJ.ge of ,he legislation is susceptible of a construction which is consish:nt with the terms of the international instrument JIld the obligations which it imposes on Australia. then that construction should prevail. So express.:d, the principle is no more than a canon of construction and does not import the tenns of the treaty or convention into our municipal law as a so~rce ofindividuaJ rights <Uld Obligations.

Apart from int1uencing the construction of a statute Or subordinate kl!.is]ation, an inlem:ltional convention may playa part in the development by Ih~ COllrtS llfthe common law ... But the courtS should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate th.: provisions or a convention into our domestic law. Judicial development of [he common Jaw must not be seen as a back·door means of importing an unincorporated convention into Ausrralian law. 36

Mason CJ and Deane J pointed out that. in Teoh. they were not concerned with the resolution of an ambiguity of a statute. Nor were they concerned with the development of an existing principle of the common law. To that extent. their remarks on the Bangalore idea were obiter dicta. They were essentially cautious. But. as I read them. those remarks were entirely consistent with the Bangalore Principles, although with a warning against excessive enthusiasm.

McHugh J, who dissented in the result, and rejected the idea that the tenns of the convention gave rise to a legitimate expectation in the particular case, nonetheless offered a similar analysis of the relevance of the convention to Australian law:

36

Conventions entered into by the federal government do nOt form part of Australia's domestic law unless they have been incorporated by way of statute. They may, of course, affect the interpretation or development of the law at' Austr.llia ... ln that respect, conventions;u-e in the same position as the

~'v!i~ISt(!r for Immigral:on. and Ethnic Affairs \I Teoh (1995) 128 ALR 353 at ~6_.

12 Treaty-Making and Australia

rules of customary international law. International conventions may also playa part in the development of the common law.]7

For the last statement, his Honour referred to the crucial passage in thejudgment of Brennan J in Mabo (above) and to Dielricf138 as well as to twoopinions ofmy own in JagQJ9 and in Ringland.40

Therefore. far from rejecting the Bangalore idea, the decision in Teohendorses the basic concept. It cautions against a rude invention of thecommon law by judges, using unincorporated conventions as a "back-door"means of incroducing creaty law where Parliament has held back. With thatcaution I am in entire, respectful agreement. I believe that such caution isexpressed, in terms, in the Bangalore Principles themselves.

Conclusion

The influence of treaty law upon Australian law is growing. The powerfulinfluence of international standards will have an increasing impact on thedevelopment of the common law and statute law in Australia. The fullevolution of the technique described in the Bangalore Principles has not yetbeen achieved. But the idea is now amongst us. It is a powerful idea. It is oneappropriate to the times in which we live. It is one which promises a gradualharmonisation between internationally accepted principles and the mWlicipallaw ofa country such as Australia.

From a subject of esoteric interest to a few lawyers advising states andinternational agencies, international law is increasingly becoming ofrelevance to Australian law. If then we look to the United Nations and law·making for the 21 st century, we can scarcely overlook the way in which treatylaw, adopted under the United Nations, is coming to influence Australian law,directly and indirectly. It is the privilege of lawyers of this generation tocontribute to this inevitable and natural historical development. But first theymust realise that it is happening, and why.

]7 Note 36 above, at 384.38 Dietrich v The Queen (1992) 177 CLR at 321 at 360.]9 logo v District Court a/New South Wales (1988) 12 NSWLR 558 (CA) at 569.40 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 (CA) at 709f.

7~S

12 Treaty-Making and Australia

rules of customary international law. International conventions may also play a part in the development afthe common law.37

For the last statement, his Honour referred to the crucial passage in the -udgment of Brennan J in Mabo (above) and to Dielricf138 as well as to two J -,.'9d-R-ld40 opinions of my own 10 "ago- an ill mg an .

Therefore. far from rejecting the BangaJore idea, the decision in Teoh endorses the basic concept. It cautions against a rude invention of the common law by judges, using unincorporated conventions as a "back-door" means of incroducing treaty law where Parliament has held back. With that caution I am in entire, respectful agreement. I believe that such caution is expressed, in terms, in the BangaJore Principles themselves.

Conclusion

The influence of treaty law upon Australian law is growing. The powerful influence of international standards will have an increasing impact on the development of the common law and statute law in Australia. The full evolution of the technique described in the Bangalore Principles has not yet been achieved. But the idea is now amongst us. It is a powerful idea. It is one appropriate to the times in which we live. It is one which promises a gradual harmonisation between internationally accepted principles and the mWlicipai law ofa country such as Australia.

From a subject of esoteric interest to a few lawyers advising states and international agencies, international law is increasingly becoming of relevance to Australian law. If then we look to the United Nations and law· making for the 21 st century, we can scarcely overlook the way in which treaty law, adopted under the United Nations. is coming to influence Australian law, directly and indirectly. It is the privilege of lawyers of this generation to contribute to this inevitable and narural historical development. But first they must realise that it is happening, and why.

)7 Note 36 above, at 384. 38 Dietrich v The Queen (1992) 177 CLR at 321 at 360. )9 Jogo v District Court a/New South Wales (1988) 12 NSWLR 558 (CA) at 569. 40 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 {CAl at 709f.