“If s. 51 [xxix] authorises the Australian parliament to make laws to give effect to every international agreement which the executive may elect to make, the Commonwealth would be able to obtain unrestricted legislative power. The distribution power made by the constitution could in some time totally eliminated; there would be no field power which the Commonwealth could not access, and the federal balance achieved by the constitution could entirely obliterated.
” However, it is to be noted that such legislation must be in tune with the treaty that must be proper and pursued to attain the objectives of the treaty. Further, the international obligations must be incurred bona fide and not as a colorable design to increase the power of the federal Parliament over provinces otherwise beyond its legislative competence.
Though , High Court of Australia has clearly demonstrated that Parliament has wide powers to implement treaties to which Australia is or inclines to become a party and however , Federal Parliament has not always been eager to employ its authority to the full extent as authorized by Constitution and because of its cooperative federalism , the Commonwealth government has commonly involved the legislative and executive organs of the state government in the practice of drafting and implementing international treaty commitments.
It is to be recalled in Mabo v. Queensland, it was held that though the Australian common law may not corroborate with international law and however, international law is a legitimate and significant influence on the development of the common law particularly when international law declares the existence of universal human rights. In Dietrich v. R, the accused was charged under federal law with the offence of smuggling heroin into Australia.
He was later convicted and his request for public legal assistance was declined. During the appeal to High Court, the accused argued that Australia has a treaty obligation under the ICCPR to offer legal assistance to the accused . However the particular section was not incorporated into Australian law by legislation. It was held that whenever the local law is silent, it is duty of Australian court to look into its obligations under international treaty. In Dietrich v.
R, there was a cautious approach that judiciary should not seize the powers of legislature by introducing directly provisions of international treaties which the legislature has failed to implement directly. As such, Courts have looked into unincorporated treaties outside the field of human rights. In Victoria v Commonwealth (Industrial Relations case), the soundness of some newly initiated provisions of the Industrial Relations Act 1988(Cth) were confronted as being unconstitutional.
The High Court accepted the arguments of the Commonwealth that those provisions in the Act were appropriately legislated and valid under the external affairs power in s 51 (xxix) of the Constitution. In Minister for Immigration and Ethnic Affairs v Teoh, it was held that endorsement of an international treaty by the executive can give rise to a ‘legitimate expectation’ that governmental agencies will act in harmony with the terms of the treaty even though those terms have not been translated into domestic legislation.
Further, Australia is yet to make laws expansively at either Commonwealth or state level to give effect to provisions of ICCPR, the procedure that can be accessed through the optional Protocol offer Australians to individually communicate directly with United Nations Human Rights Committee in respect to supposed violations of ICCPR. 9. CONCLUSION: This research essay focused on issues of conflict that Australia is having with the international law on its domestic front .
Many of the complexity arises from a federal Constitution that lacks to elucidate lucidly the role of the federal executive or the constitutional power of the federal parliament as relate to the country’s foreign affairs. However, as reconciling measure, recent federal government has involved state governments in implementing international treaties in Australia.
However, despite of this cooperative federalism, some legal and political issues pertaining to international treaties in Australia remain enervated. Though, the Australian federal government witnesses few formal obstacles to the drafting and implementation of its desired foreign policy , the political will is required to involve states in the foreign policy process when it involves state’s interest also and in such cases , it is potentially challenging.
The recent events like World Heritage listing of large wilderness provinces in the state of Tasmania and Queensland and over some provisions of Tasmania’s criminal code which reminds us that federalism and a spirited foreign policy go ill together holds more than a little degree of truth in the Australian federation.
Albinski, Henry S, Australian External Policy under Labor: Content, Process and the National Debate (1977) 5. Christine Forster,’Australia to Ratify Two Chemical treaties ‘(2003} 165 (31) Chemical Week 16.