Treaties are not automatically incorporated into Australian law. Ratification and Signature do not, of themselves, make treaties to operate domestically. But for the legislation, treaties cannot inflict duties either on individuals or create rights in domestic law. However, such treaties so entered may be utilized in the interpretation of statues. In Australia, execution of some treaties may not require either prior or new legislation and can be introduced through executive action.
Further, some treaties can be introduced either progressively or without fundamental changes of contemporary laws. In case , if there is contradiction between a treaty and Australian law , then Australian law can be amended to incorporate new features of treaty so as to make to fall in line with its international demands. Sometimes, treaty may have provisions which either an Australian State or Territory which may be unwilling to usher due amendments to its own law and in such cases, the Commonwealth may postulate in passing down its own legislation.
International treaties like giving effect to a commitment under the Montreal Protocol to ban the manufacture of and trade in, certain product which includes hazardous ozone depleting substances may be passed by parliament before seeking permission of Executive Council approval as it may avoid any lacuna in fulfillment of an international agreement.
For instance, the Australian federal government began the procedure of acknowledging two international treaties on management of chemicals namely the 2002 Stockholm Convention on Persistent Organic Pollutants and the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemical and Pesticides in International Trade. The Australian federal government conclusion follows wide-ranging consultations with territories and states, non-government organizations and industry and thereafter the convention have been referred to Australian parliament’s Standing Committee on Treaties.
In implementing the international treaties, Australian national government has witnessed some difficulties in the following two cases. The first case is pertaining to World Heritage listing of large wilderness provinces in the state of Tasmania and Queensland. The action of the Australian Federal government in listing of state land as World’s Heritage property in pursuant to the World Heritage Convention have created sharp disagreement between federal and state governments since as it had imposed restrictions on land usage that such conservation steps necessarily require.
The other conflict is between state of Tasmania and the Commonwealth over some provisions of Tasmania’s criminal code , which have positioned Australia in contravention of its duties under the International Covenant on Civil and Political Rights . [ICCPR]. In March, 1994, Human Rights Committee held that Australia was in contravention of the privacy provision of the ICCPR since Tasmanian law that bans sexual relations between consenting adult males in private. Tasmania’s continual refusal to annul the antisocial laws has created some complicatedness for the federal government in honouring Australia’s international treaty obligations.
In R v. Burges, exparte Henry, the High Court had to analyze whether the Air Navigation Act 1920, and regulations made thereunder, were a valid exercise of the external affairs power insofar as they intended to give effect to the Convention Relating to the Regulation of Aerial Navigation. Though, High Court had struck down the regulations since it failed to conform to the conditions of the convention, the Court was unanimous in concluding that Commonwealth’s power to implement the Convention by necessary legislation.
From 1982, Australian High Courts came across number of cases that dealt on the external affairs power which had a profound effect on the distribution of power within the Australian federation. These litigations came out of the circumstances that the federal executive had approved international treaties in subject matter that were normally considered as falling within state power namely environment and human rights .
No doubt, efforts pursued by federal Parliament to implement the treaties encountered a hostile response from various states, which considered the creeping expansion of federal legislation as discouraging the balance of power between central and state governments. However, High Court upheld the relevant federal legislation as a valid exercise of the external affairs authority in several key challenges to the power of the federal parliament to implement treaties in provinces of traditional state concerned. In Koowarta v.
Bjelke-Peterson, the Australian High Court held that the Racial Discrimination Act, 1975, implementing the International Convention on the Elimination of All Forms of Racial Discrimination is legally binding. In the following cases also, Richardson v. Forestry Commission, Commonwealth v. Tasmani and Queensland v. Commonwealth, the High Court upheld the validity of federal legislation implementing the World Heritage Convention. It is worthwhile to note the Australian federal government power to implement the international treaties in the words of Chief Justice Gibbs while delivering the judgment in Koowarta v. Bjelke-Peterson.